| SooperKanoon Citation | sooperkanoon.com/1119909 |
| Court | Madhya Pradesh High Court |
| Decided On | Jan-03-2014 |
| Appellant | Kripa Tori |
| Respondent | The State of Madhya Pradesh Judgement Given By: Hon'ble Shri Justice U.C. Maheshwari |
1 HIGH COURT OF MADHYA PRADESH JUDICATOR AT JABALPUR WRIT PETITION No.8098/2011. Kripa Tori and others. Versus State of Madhya Pradesh & Ors. For Petitioners : Shri B. M. Dwivedi Advocate. For Respondent No.1 to 3: Smt. Sheetal Dubey, Govt. Advocate. For Respondent No.4&5 : Shri Kamlesh Lakhera Advocate. For Respondent No.6. : Shri Shanshank Verma, Advocate.
ORDER( Passed on 03.01.2014) Per U. C. Maheshwari J.
1. The petitioners have filed this petition under Article 226/227 of Constitution of India being aggrieved by the order dated 15.3.2011 (Ann. P.5) passed by the respondent No.3/ Board of Revenue Gwalior in suo motu review case No.618/PBR/2010 registered under Section 51 of M. P. Land Revenue Code (In short “the Code”.) to review the earlier order dated 16.4.2007 (Ann. P.2) passed in appeal No.412/PBR/2006, whereby allowing such suo-motu review the aforesaid earlier order dated 16.4.2007 (Ann.P.2), affirming the order dated 17.11.2005 passed by the Additional Commissioner in Appeal No.39/Appeal/2004-05 affirming the order dated 9.8.2004 (Ann. P.1) passed by the Collector in suo motu initiated Revenue Revision No.4-A/6/95-96 declaring the concerned document of title of the petitioners to be illegal and ab-initiated void and setting aside the mutation order dated 22.7.1995 passed by the Nazul Officer/ S. D. O. directing the mutation of the petitioners and respondent No.4 to 6 on the respective part of the land in the revenue record has been recalled and set aside and pursuant to it by deciding the said appeal afresh the aforesaid order of Additional Commissioner and Collector setting aside the aforesaid mutation order of Nazul Officer dated 22.7.1995 have been affirmed and by declaring the aforesaid land to be the Government land the Revenue Authorities have been directed to amend and modify the revenue record accordingly. 2 2. The petitioners have filed this petition contending that the land of Nazul Sheet No.20 Plot No.14/2, area measuring 3,15,265 sq. ft (7.42 acres), situated in Pachmarhi initially belonged to Mr. Hanary John Hands, who on his turn sold the same to Cosmo & Antio Justiniano Rodriguez in the year 1945. Thereafter the same was purchased by Mr. Denish Tori from Victor Rodriguez through registered sale deed dated 7.11.1977.
3. Besides this, the other land situated at Pachmarhi bearing Sheet No.23, Plot No.1/2 (although this is not the subject matter of this petition), was initially belonged to W. Liversay, who on his turn sold the same to his highness Maharaja Sir Brijnath Singh vide registered sale deed dated 11.11.1949. Thereafter, in the year 1970 Denish Tori had purchased such property from her highness Rajmata (Junior) Tejkumar and her son Rajkumar Narayan Singh through sale deed dated 7.10.1970.
4. The land purchased by Mr. Denish Tori was mutated in his name in the revenue record by virtue of order dated 6.7.1978 passed by the Nazul Officer/ SDO Sohagpur. Thereafter, Mr. Denish Tori on his turn sold some part out of his land purchased through aforesaid sale deed dated 7.10.1970 to the Governor of the Madhya Pradesh through director of M. P. Tourism Corporation, Bhopal by registered sale deed 18.3.1977. At the time of mutation of such part of land in the name of M. P. Tourism Corporation the Revenue authorities had not raised any objection regarding such transfer and the sale deed.
5. Aforesaid described land of sheet No.20 Plot No.14/2 on the strength of sale deed dated 7.11.1977 was mutated in the revenue record in the name of Denish Tori, on that occasion the revenue authorities had not taken any objection. After demise of Denish Tori on 7.3.1994 on the strength of his Will executed by him on 6.5.1989 his son Kripa Tori, petitioner No.1 and daughter Smt. Bina D'souza respondent No.6 had filed their respective applications under Section 109 and 110 of the Code for mutation. On consideration vide order dated 22.7.1995 the same were allowed by the Nazul Officer/ S. D. O., according to which the land measuring 67002 sq. ft. was recorded in the name of Kripa Tori while the land measuring 67002 sq. ft was recorded in the name of Smt. Bina 3 D'souza, the respondent No.6. The aforesaid disputed land of sheet No.20, Plot No.14/2 measuring 3,15,265 sq ft was remained with Kripa Tori, petitioner No.1.
6. On the basis of the sale performed by the above mentioned land owners of the land in question after obtaining the requisite permission of the State of Madhya Pradesh dated 1.5.1991 the name of the petitioner No.2, 3 and respondent No.4 & 5 were mutated on the respective part of such land purchased by them in the revenue record vide orders dated 22.7.1995 passed by the Nazul Officer/SDO Sohagpur in Revenue Case No.2-A/06, 3-A/06, 4-A/06, 5-A/06 and 6-A/06 of the year 1992-93. Subsequent to aforesaid order of mutation in the revenue record the Collector Hoshangabad has initiated a suo motu revision bearing No.4-A/6/1995-96, without mentioning any sufficient reasons only by stating that such mutation order were passed in violation of the terms and conditions of the lease deed and issued the show cause notice dated 24.1.2004 to revise the aforesaid mutation orders dated 22.7.1995 and thereafter on consideration by allowing such suo motu revision set aside the aforesaid mutation orders dated 22.7.1995. Being dissatisfied with such order the petitioners and respondent No.4 and 6 had filed the appeal before the Commissioner Hoshangabad. On consideration such appeal was dismissed vide order dated 17.11.2005, against dismissal of such appeal the petitioners and respondent No.4 to 6 had approached the respondent No.3, Board of Revenue through appeal No.412/PBR/06. After hearing the parties on consideration such appeal was allowed vide order dated 16.4.2007 (Ann. P.2) and by setting aside aforesaid order of Commissioner as well as of Collector the mutation order dated 22.7.1995 passed by the Revenue Officer/ S.D. O. mutating the names of the petitioners and respondent No.4 to 6 was restored.
7. Subsequent to passing the aforesaid order after more than three years the petitioners had received a show cause notice dated 5.5.2010 (Ann. P.3) from the office of the secretary of Board of Revenue, Gwalior asking them why the aforesaid order dated 16.4.2007 passed by the Board of Revenue in appeal No.412-PBR/2006, setting aside the order dated 4 17.11.2005 passed by the Commissioner Hoshangabad in Case No.39/Appeal/2004-05, be not recalled and cancelled by exercising the suo motu power of Section 51 of the Code. In such show cause notice the reasons for review of the order dated 16.4.2007 was assigned that respondent No.3/ Board of Revenue on earlier occasion while passing the order did not take cognizance of facts and legal aspects and did not appreciate the terms of the lease granted with respect of the disputed land in favour of the predecessor in title of the petitioners, which was further renewed on 16.4.1955 and the land in question i. e. plot No.14/2 being the land of Revenue Department of the government the lease holder had no authority to dispose of the same without prior permission of the competent authority, therefore, the sale deed dated 7.11.1977 executed in favour of late Shri Denish Tori with respect of the land in question had not conferred any legal right and title over the property to such Denish Tori and in such premises the subsequent sale made in favour of the petitioner No.2 & 3 and respondent No.4 & 5 with respect of different parts did not confer the title to such petitioners and respondent No.4 and 5. On earlier occasion such aspects were not taken into consideration thereby Board of Revenue had committed error on the face of the record in setting aside the order of the Collector and Commissioner.
8. According to the petition the above mentioned reasons could not be a ground to review the order passed by the Board of Revenue on earlier occasion. Hence, aforesaid show cause notice issued by the Board of Revenue being without jurisdiction and contrary to the provisions of Section 51 of the Code was not sustainable. In such premises by justifying the order dated 16.4.2007 the petitioners had raised the following questions before the Board of Revenue in their reply to quash the show cause notice and the initiated suo motu review petition: Whether in the present circumstances the power provided under Section 51 of the Code can be exercised by the Board of Revenue or not ?. a. Whether the reasons shows in the show cause notice for exercising the power of review of the order dated 16.4.2007 can be a ground of 5 review enumerated under the provision of Order 47 Rule 1 of the Code ?. b. Whether order dated 16.4.2007 could be reviewed by the Board of Revenue after passing such a long time and beyond the period of limitation prescribed under the Provision of Section 51(1)(iii) of the Code ?. Whether authority exercised the power of suo motu review within the limitation as determined by Full Bench of this Court in the matter of Ranveer Singh and others Vs. State of M.P. and others reported in 2010 (5) MPHT137?. c. Whether power of review can be exercised without giving any opportunity to be heard to the interested party before reviewing the previous order ?.
9. In further averments it is stated that in the order dated 16.4.2007, the Board of Revenue had observed that provision of Section 165 (7) (b) was not violated by the Victor Rodriguez when he sold the property to Dennis Tori because of such provision were neither enacted nor came into force the same has come into force w.e.f. 24.10.1980 and the alleged sale in favour of Denish Tori was carried out on 7.11.1977. So, in such premises to sale out the land vide sale deed dated 7.11.1977 the permission from the State authority was neither necessary nor was obtained. In such earlier order the Board of revenue had also observed that sale made in the year 1990 by Mr. Dennis Tori in favour of the petitioner No.2 & 3 and respondent No.4 & 5 were carried out after obtaining the requisite permission from the State Government. In such premises there was no infirmity in the original order dated 16.4.2007 (Ann. P.2) and the same was passed on sound and cogent legal foundation, and in such premises prima- facie no grounds were available before the Board of Revenue to review such earlier order. Said show cause notice was also challenged on the ground that the Board of Revenue has not issued the same stating that why the earlier order should not be reviewed under the provision of Section 51 of the Code but the notice was issued stating that why the order dated 16.4.2007(Ann. P.2) should not be cancelled. So, in such premises the 6 procedure prescribed to initiate suo motu review was not adopted and in such premises it is apparent that such show cause notice was given with intention to cancel the mutation order and ultimately vide impugned order (Ann.P.5) such earlier order dated 16.4.2007 (Ann. P.2) was set aside and the order of the Commissioner dated 17.11.2005 and Collector dated 9.5.2004 was affirmed. The Board of Revenue also declared the land in question is Government land and issued direction to the Commissioner and Collector, Hoshangabad for correction of entries in the revenue record immediately.
10. So far the question relating to the period of limitation to initiate or entertain suo motu review petition raised by the petitioner has been answered by the Board of Revenue stating that no limitation is prescribed for such review because the alleged dispute is not between the private parties. However, such observation is not only misconceived but also contrary to the decision of the Full Bench of this court in the matter of Ranveer Singh (Supra). The Board of Revenue has not answered the question regarding sustainability of the sale deed executed by the Denish Tori in favour of the M. P. Tourism Corporation in the name of Governor, such sale deed was not only recognized by the revenue authorities to carry out the mutation of such corporation over the land but subsequently also at any point of time such mutation and transaction was not questioned by the authorities. While such land was also situated in Pachmarhi and thereby discriminatory process was adopted by the authorities in passing the impugned order in suo motu review petition and contrary to the interest of the petitioners the earlier order was cancelled. The Board of Revenue has also passed the order taking into consideration the provision of Section 181 and 182 of the Code while such provisions was not applicable to the case of the petitioners because the predecessor of the petitioners the original lease holder accrued the right in pursuant to lease deed executed in the year 1923, as stated in Annexure P.7 the revenue lease deed and such dead does not contain any restriction against transfer of the disputed land and therefore in such circumstance the land in dispute could not/ would not be governed with the provisions of Section 181 and 182 of the Code. It was also stated 7 that the sale deed was executed in favour of the petitioner No.2 and 3, after obtaining prior permission of the authority vide dated 1.5.1991 (Ann. P.6) in compliance of the provisions of Section 165 (7) (b) of the Code, as such provisions came in to force in the year 1980. Besides this it was also stated that aforesaid lease (Ann. P.7) was again renewed by the authorities vide renewal lease deed dated 28.4.1990 (Ann. P.8) up to the period of 31.3.2017.
11. It is further stated that concerning clause 16 Part-IV of chapter 1 of Revenue Book Circular enacted in respect of the land situated in Pachmarhi, is not applicable to the lease already executed. The land in dispute for which the lease had already executed shall be governed solely by the lease deed executed in favour of Victor Rodriguez, the predecessor of the petitioners. Such lease deed was renewed in the year 1955 up to the 1987, but said lease deed does not contain any clause for obtaining prior permission from the competent authority to sell the property. On such premises there was no restriction to sale the land by Victor Rodriguez to the Denish Tori through registered sale deed in the year 1977. So the grounds raised by the Board of Revenue that the earlier order was passed without taking into consideration the terms of the lease is absolutely misconceived and has no legal foundation. Copy of the then concerning Clause of RBC along with the terms is also annexed as Ann. P.9. With these averments the prayer for quashment of the impugned order dated 15.3.2011 (Ann. P.5) is made.
12. In return of the respondent No.1/ State of Madhya Pradesh by justifying the impugned order all the aforesaid objections raised by the petitioner have been denied. In addition to it, it is stated that mere perusal of Section 51 of the Code it is clear that the period of limitation to entertain the review application is prescribed for private affected person while in the case at hand the dispute is between Government and private person and the State Government is claiming the land on the ground that originally the same was belonging to it, therefore the objection of the limitation to initiate suo muto review petition at belated stage is not tenable. In fact for 8 exercising the power of suo motu review with respect of the impugned land no limitation is prescribed in clause (iii) of Section 51 of the Code.
13. So far the aforesaid cited case in the matter of Ranveer Singh (Supra) is concerned, it is stated that in view of the provision of Section 51 of the Code the cited case being based on Section 50 of the Code is distinguishable on facts therefore, the same is neither applicable nor helping to the petitioner.
14. So far the objection of the petitioners that lease deed of the aforesaid land executed in the year 1923 does not contain any restriction against the lessee transferring the land and therefore alleged transfer could not be held to be illegal is concerned, it is stated that such contention has no force of law because every person holding a land by virtue of lease granted by the State Government would be governed with the provision of Section 181 and his rights and liabilities are also defined under the provisions of Section 182 of the Code because the every grant of the State Government would be treated to be a grant under the Government Grants Act 1895. Thus, the petitioner contentions that the provisions of Section 181 and 182 the code are not applicable, is misconceived. The Board of Revenue in paragragh 7.5 of the impugned order categorically dealt with this issue and has observed that every government lessee holding the land of Government and as per the Revenue Book Circular the land situated in Pachmarhi cannot be sold out without permission of the government. It is also observed by the board of Revenue, although there is no restriction in the transfer of land in the lease deed but the condition No.6 containing vesting of land in the State makes it clear that the land can only be transferred with the permission of the State Government. In absence of such sanction it can be considered to be a violation of terms and condition of lease and accordingly such lease deserves to be terminated. In fact original lease holder C. A. J.
Rodriguez without obtaining any permission sold the land in favour of Denish Tori who later on executed sale- deeds in favour of different persons. The original sale in favour of Denish Tori was itself illegal, therefore, the Board of Revenue has rightly observed that 9 subsequent sales are also illegal as the seller Denish Tori did not acquire any right or title by virtue of sale made without obtaining permission of the State Government. Denish tori purchased the property in the year 1977 and the provision of RBC were in force. The Clause 16 (1) of Chapter-IV of RBC very categorically provides the restriction over the sale of land situated over Pachmarhi, therefore, the said sale made in favour of Denish Tori was void and subsequent sales thereon are automatically held to be illegal.
15. So far the contention of the petitioners that the grounds for review of earlier order as per requirement of the provision of Order 47 Rule 1 of CPC were not available to the Board of Revenue is concerned, it is stated that in view of para 7.8 of the impugned order the Board of Revenue has categorically stated that on earlier occasion the orders of the Collector and Commissioner were set aside only on the ground that the provision of Section 165 (7) (b) of the Code being implemented only on 24.10.1980 was not applicable to the present case but said notion of the Board of Revenue was absolutely misconstrued as the reasons assigned by the Board of Revenue in its impugned order in para 8.2. to 8.6 have not been looked in to and totally ignored, therefore, order dated 16.4.2007 was fit to be recalled by exercising the power of review, on such grounds available under Order 47 Rule 1 of CPC.
16. It is further stated that in compliance of the impugned order of Board of Revenue the State authorities have already corrected the revenue record before granting the order of status-quo by this court. With these averments the prayer for dismissal of the petition is made.
17. Shri B. M. Dwivedi, learned counsel for the petitioners after taking me through the averments of the petition and the documents placed on record argued that in the available circumstances the earlier order dated 16.4.2007 (Ann. P.2) passed by the Board of Revenue being passed on proper appreciation of available factual matrix and of existing legal position was in inconformity with law, the same could not have been interfered under the suo motu review petition by the Board of Revenue. In any case 10 after more than three years from the date of passing the order (Ann. P.2) the suu motu review could not be initiated against such order. He also said that in the aforesaid earlier order (under review) no apparent error on the face of the record was occurred for which the review was required. Inspite that by initiating the review petition vide impugned order (Ann. P.5) the aforesaid earlier order (Ann. P.2) was set aside and the order of Commissioner and Collector were affirmed under the wrong premises, the same is not sustainable and by placing his reliance on the decision of the Full Bench of this court in the matter of Ranveer Singh (Supra) has prayed to set aside the impugned order and restore the earlier order of the Board of Revenue affirming the order of mutation passed by the Nazul Officer/ S. D. O. by allowing this petition.
18. On the other hand responding the aforesaid arguments Smt. Sheetal Dubey learned G. A. by justifying the impugned order said that same being passed on proper appreciation of available factual matrix and considering the provision of clause 16 of Chapter IV-1 of RBC and Section 181 and 182 of the Code and other related legal provisions along with the terms and conditions of the impugned lease deed, which were not considered in passing the earlier order dated 16.4.2007 (Ann. P.2), does not require any interference at this stage. The Board of Revenue had authority to initiate suo motu review petition on availability of sufficient grounds according to her the apparent error on the face of the record was occurred in the aforesaid earlier order (Ann. P.2) of Board of Revenue that is why the suo motu review petition was initiated and allowed and prayed for dismissal of this petition.
19. Having heard the counsel keeping in view the arguments advanced by the parties, I have carefully gone through the papers placed on record.
20. Before examining the matter on merits, I would like to consider first the question relating to the period of limitation to initiate suuo motu review petition by the Board of Revenue as raised by the petitioners' counsel. Under Section 51 of the Code for initiating suo-motu-review of 11 any order no fix period of limitation has been prescribed but according to such provision if any application to review the earlier order is filed by the party then the period of limitation ninety days is provided. Apart this under the law to file the application of review under Order 47 Rule 1 of CPC also the limitation of thirty days is prescribed. In the case at hand the review application was not filed by any of the private parties or on behalf of the State Government but the same was initiated suo motu by the Board of Revenue itself. It is settled proposition of law if the limitation to register any proceedings either suo motu or on own motion of the authorities have not been prescribed under the law even then the concerning Court/ Tribunal/ Authority did not have ample or extra ordinary power to initiate such suo motu proceeding after passing years together from the date of passing such earlier order under review.
21. Such question was considered and answered by the Apex Court in the matter of State Of Punjab & Ors vs Bhatinda District Coop. Milk Producers Union Ltd. reported in (2007) 11 SCC363 in which it was held as under :
“18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.”. 22. Such question was again answered by the Apex Court in the matter of Santosh Kumar Shivgonda Patil and ors. Vs. Balasaheb Tukaram Shevale and others, reported in (2009) 9 SCC352in which it was held as under :
“11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must determined by the facts of the case and the nature of the order which is being revised.”
. 12 23. Taking into consideration the provisions of Section 51 of the Code relating to review by the Apex Court in the matter of M. P. Housing Board Vs. Shiv Shankar Mandil and others reported in 2009 Revenue Nirnaya Page 1, it was held as under:
14. The subsequent stance for reviewing the diversion order is slightly intriguing. The Collector wanted to review his own order under Section 51 of the Code and for that purpose, needed the sanction of the Board of Revenue under sub-Section 1(1) of Section 51 of the Code. Section 51 runs as under:- 51. Review of orders:- (1) The Board and every Revenue Officer may, either on its/his own motion or on the application of any party interested, review any order passed by itself/himself or by any of its/his predecessors in office and pass such order in reference thereto as it/he thinks fit: provided that- (i) if the Commissioner, Settlement Commissioner, Collector of Settlement Officer thinks it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Board, and if an Officer subordinate to a Collector or Settlement Officer proposes to review any order, whether passed by himself or by any predecessor, he shall first obtain the sanction in writing of the authority to whom he is immediately subordinates.". It will be clear from the language that it is a review power and such review power would have to be exercised within a reasonable time. We agree with the Learned Single Judge that in this case, it took more than three years for the State Government to move to the Board of Revenue for reviewing the orders. The Learned Counsel appearing on behalf of appellants tried to suggest that at that time, there was status quo order pending, passed by the High Court on the first Writ petition filed by the respondents herein. We have examined the record carefully and we find nothing in the record suggesting that the State Government could not have exercised the power under Section 51 of the Code. In AIR1969SC1297State of Gujarat Vs. Raghav, this Court held that the review power should be used in reasonable time. We accept the finding of the Learned Single Judge as confirmed by the Division Bench of the High Court that the power of review has to be exercised within a reasonable time and that in this case, three years of time, without any explanation, could not be viewed as a reasonable time in view of the fact that the petitioner had obtained possession, paid premium, spent money for obtaining the Registered Sale Deed and have also made the initial expenditure for preparing the land 13 for raising structures. The said Government could not have allowed the petitioner to do all these things and then chosen to review its own powers.
24. On arising the occasion such question in the light of the Section 50 of the Code the relating to the revision was referred to the Full Bench of this Court in the matter of Ranveer Singh and others Vs. State of M.P. and others reported in 2010 (5) MPHT137in the following manner : “Whether in the case wherein an individual is not put to suffer any irreparable loss, exercise of suo motu powers after any length of period is justifiable in law, more so, for protection of Govt. land or public interest ?.”. 25. In the cited case the Full Bench of this Court has answered the aforesaid question as under:
11. We do not have any scintilla of doubt that the Revisional Authority mentioned in Section 50 of the Code may exercise suo motu power of revision at any time in order to satisfy itself about the legality or propriety of any order passed by any Revenue Officer subordinate to it or as to the regularity of the proceedings of any such officer and while exercising such powers the Revisional Authority may pass such order as it thinks fit. True, the Legislature has not fixed any upper limit of the period when this power should be exercise and section is total silent in this regard, although period of limitation has been fixed by the Legislature when a revision application is filed by a party concerned. According to clause (ii) of sub-section (1) of Section 50 of the Code, an aggrieved party can file revision application within sixty days before the Commissioner or/ the Settlement Commissioner or the Collector or Settlement Officer or within Ninety days to the board of Revenue excluding the requisites time for obtaining copy of the order against which revision is filed. But merely because the Legislature has not fixed an upper limit for exercising suo moltu powers by the Revisional Authority, according to us, it will not confer unfettered right 14 to the Revisional Authority to exercise this power at any moment of time according to his whims because it would amount to give a sword having no scabbard. Indeed, after having an order in favour of a litigant he must be permitted to leave in peace with an understanding that since the order passed in his favour has not been challenged for a considerable long period, now it cannot be challenged. His right, whatever he enjoys, may be on account of some illegal order in his favour should attain some finality so that his faith in the judicial system may not be ruined that although an order is in my favour, but it can be set aside at any moment of time even after passing the several years.
33. Coming to the point in question “what should be the reasonable period.”
. We have at a glance demonstrate different type of periods of limitation in order to achieve the aim and object of a particular chapter. Hence, according to us, in respect to Section 50 of the Code which comes under Chapter V of the Code what should be the reasonable period for exercising suo motu powers, one should be guided with the aims and object of the provisions prevailing in those chapters. Hence, the prescribed periods of limitation of thirty years, ten year, five years, three years, two years or even one year prescribed in different chapters and the provisions enacted in that chapter cannot be made applicable for the purpose of achieving the aim and object of this Chapter V in which Section 50 has been enacted which speaks about the exercise of suo motu powers of revision also. The chapter V of the Code contains Sections 44 to 56 and the maximum period of limitation in this chapter is ninety days. Hence, according to us, the maximum period which has been envisaged in any of the provision of any other chapter of the Code cannot be made applicable for the purpose of this chapter because that particular period of limitation has been 15 enacted by the Legislature to achieve the aim and object of that particular chapter and its provisions only. The maximum period of limitation of ninety days has been enacted for filing the revision, but since this restriction is not for exercising suo motu powers and to serve the purpose, the aim and object for which this provision has been enacted, according to us, within a period of one eighty days the Revisional Authority should exercise suo motu powers from the date of coming into the knowledge to it that any particular illegality, impropriety or irregularity of the proceeding has been exercised by any officer subordinate to it.
35. It is the trite law that in no period of limitation has been prescribed, the Statutory Authority must exercise its jurisdiction within a reasonable period. What should be the reasonable period should be judged from this angle also that what is the nature of the statute itself, rights and liabilities thereunder and other relevant factors. The Supre Court in Bhatina District Cooperative Milk Producers Union Ltd (Supra) in Para 19 has held that the reasonable period of limitation may be borne out from the statutory scheme of the Act. The Supreme Court while considering the various provisions of Punjab General Sales Tax Act, 1948 in Para 19 has held that looking to the scheme of the said Act the maximum period of limitation provided in sub-Section (6) of Section 11 of the Act is five years and, therefore, in those circumstances the Supreme Court has held that as per the scheme of the Court, the reasonable period should be three years. Since in the presence case as we have noticed hereinabove, different type of periods of limitation which are prescribed for exercising particular right and liability under different chapters, looking to the aim object and the purpose of enacting the provisions of suo motu powers 180 days of the period of limitation would be the reasonable period to 16 exercise suo motu powers by the Revisional Authority from the date of coming into the knowledge of illegality, impropriety and irregularity of the proceeding having been done by the authority subordinate to it.
“38. Ab judicatio for the reasons stated hereinabove we hereby answer the question referred to us as under : “The suo motu powers can be exercise by the Revisional Authority envisaged under Section 50 of the Code within a period of 180 days from the date of the knowledge of illegality, impropriety and irregularity of the proceedings committed by any Revenue Officer subordinate to it even if the immovable property is Government land or having some publc interest. What should be the irreparable loss, it should be considered on the facts and circumstances of each case as no definite yardstick in that regard can be drawn.”. 52. (13). In view of the aforesaid discussion, I concur with Brother Shrivastava, J., that what should be an irreparable loss is to be considered in the facts and circumstances of each case because no definite yardstick in that regard can be applied. I further concur with him in the manner that in such cases a period of 180 days from the date of detection of illegality, impropriety and/ or irregularity of the order/ proceedings committed by Revenue Authority subordinate to Revisional Authority would be a reasonable period for exercise of suo motu powers despite involvement of Government land or public interest. I may further hasten to add that this would be upper-ceiling of limitation for exercise of such powers and the person suffering an irreparable loss would be within his rights to show that such power ought to have been exercised in lesser period in view of the attending facts and circumstances of the case, causing irreparable loss prior to such exercise.”. 26. The aforesaid cited case was decided by the Full Bench of this court taking into consideration the provision of suo motu revision enumerated under Section 50 of the Code, the language of procedure to initiate suo motu revision under Section 50 of the Code till some extend is identical to the procedure provided to initiate suo motu review under Section 51 of the Code. The concerning provisions are read as under :
17. Section 50. Revision (1). The Board or the Commissioner or the (Settlement Commissioner or the Collector or the Settlement Officer) may at any time on its/his motion or on the application made by any party for the purpose of satisfying itself/ himself as to legality or propriety of any order passed by or as to the regularity of the proceedings of any Revenue Officer subordinate to it/ him call for, and examine the record of any case pending before or disposed of by such officer, and may pass such order in reference thereto as it/ he thinks fit: Provided that- (i) ....... ............. (a) .................... (b) .................... (ii) no such application shall be entertained unless presented within sixty days to the Commissioner or the (Settlement Commissioner or the Collector or the Settlement Officer), as the case may be, or within ninety days to the board of Revenue from the date of the order and in computing the period aforesaid, time requisite for obtaining a copy of the said order shall be excluded. Section 51. Review of orders -(1) The Board and every Revenue Officer may either on its/ his own motion or on the application of any party interested review any order passed by itself/ himself or by any of its/ his predecessors in office and pass such order in reference thereto as it/ he thinks fit; Provided that - (i) ....... ............. (i-a) .................... (ii) .................... (iii) no order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings, and no application for the review of such order shall be entertained unless it is made within ninety days from the passing of the order.
27. In view of aforesaid, it is held that the impugned suo motu revision petition registered by the Board of Revenue being initiated after more than three years from the order dated 16.4.2007 (Ann. P.2), was not sustainable and only on this ground the impugned order dated 15.3.2011 (Ann. P.5) deserves to be set aside.
28. Apart the aforesaid even on examining the case on merits, then It is apparent from the record that the land in dispute was initially given by the 18 then State authorities on lease of 30 years for building purpose to one Mr. Hanary John Hands, vide lease deed dated 27.4.1923, as stated in Annexure P.7 and since then under such lease the possession of the same was remained with Mr. Hanary John Hands, and on his term he had transferred/sold the same to Cosmo & Antio Justiniano Rodriguez in the year 1945 and said earlier lease was renewed vide the renewal deed dated 16.4.1955 (Ann. P.7), in favour of said Rodriguez on the terms and conditions enumerated in the same, accordingly till this date of renewal the land was remained in possession of such Rodriguez. Thereafter, said C. A. J.
Rodriguez on his term had sold such land with possession to Denish Tori the father of the petitioner No.1 vide registered sale deed dated 7.11.1977. Mere perusal of clause 6 of aforesaid lease deed dated 16.4.1955 (Ann. P.7), it is apparent that lessee was given the right to carry out further assignment or any part of such land. So, it is apparent that by virtue of such term the aforesaid Mr. Hanary John Hands had a right to transfer/ sale the property to other person. In such premises Mr Hanary as well as said Rodriguez had not violated the terms of such lease deed. It is also undisputed fact that at the time of aforesaid sale deed dated 7.11.1977 the provisions of Section 165 (7) (b) of the Code were neither enacted nor inserted in the Code and in such premises the same were not in force, so even if it is assumed that it was a land given by the State then the permission to transfer the same under the aforesaid provision was not necessary as held by the Board of Revenue also. I would like to mention here that such provision was enacted, inserted in the Code and enforced on 24.10.1980 with prospective effect and not with retrospective effect.
29. Before proceeding further to examine the matter in the light of clause 16 of Chapter -IV part 1 of RBC, I would like to reproduce such provision for ready reference. The same is read as under:
16. ipe<+h fLFkfr Hkwfe dh fcdzh & ipe<+h dh dksbZ Hkh utwy Hkwfe jkT; 'kklu ds vkns'kksa ds fcuk iV~Vs ij ugha nh tkosxh vkSj u vU; izdkj ls csph tkosxh]. vkSj 19 ,sls lHkh izLrko eatwjh ds fy, jkT; 'kklu dks iwjs C;kSjs lfgr Hksts tkus pkfg, A30 In this regard the petitioners have stated that prior to aforesaid clause in the year 1947 the then erstwhile State of C. P. and Barar issued and introduced a circular (Ann. P.9) with respect of the land of Pachmarhi. In such circular the para-materia provision like clause 16 of Chapter -IV part 1 of RBC along with some other terms had been stated. Copy of the same with the signature of the counsel of the petitioner has been annexed with the petition as Ann. P.9. The relevant part of such circular is reproduced herein for ready reference,the same is read as under: “Any Nazul Land in Pachmarhi shall not be given on lease without the orders of the State Government, nor shall the same be sold in any other manner. All such proposal should be sent for sanction to the State Government with full particulars”. “In the above Circular, the land referred to is NAZUL LAND, i. e. land still in possession of the State Government and not yet covenanted to any person in any manner. This is in accordance with the provisions of the Revenue Manual and is peculiar to Pachmarhi. In the whole of Madhya Pradesh, any Nazul land can be covenanted by the Collector of the District concerned, but Nazul land in Pachmarhi can be covenanted only by sanction of the State Government. The above circular is not applicable to leases already executed between the State Government and other parties, i. e. the lessees. In this case the disposal of such leased and covenanted land shall be governed solely by the respective lease deed and covenants.”. 31. In view of aforesaid the then erstwhile provision of the lease, if the case at hand is examined then it is apparent that the impugned lease of land was initially granted by the then erstwhile State of C. P. and Barar to Mr. Hanary John Hands on 27.4.1923 and subsequent to that near about in the year 1947 the aforesaid circular was introduced in C. P. Barar Manual and came into force and meanwhile the land was transferred as per terms of 20 lease by the then lessee to aforesaid C.A.J.
Rodriguez in the year 1945 and subsequently on reorganization of the State in the year1956 the aforesaid Clause 16 was kept in the RBC. True it is that in view of Clause 16 Chapter IV Part-I of the RBC the nazul land of the Pachmarhi could neither be given on lease nor sold in any other manner without order of the State Government and all the proposal in this regard with all particulars should be sent to the State Government but in the case at hand in the available circumstances the Court has to consider the aforesaid Clause 16 Chapter IV Part -I along with the other terms and the provision of aforesaid circular (Ann. P.9) introduced and effected in the year 1947, the same was published in C. P. and Barar mannual.
32. Mere perusal of aforesaid clause 16 along with aforesaid earlier circular (Ann. P.9), as per manual came in to force in 1947, it is apparent that such earlier part of circular is applicable to such Nazul land which is still in possession of the State Government and not yet covenanted to any person in any manner regarding such land the scheme is provided, on which the State Government has placed its scheme but in para three of aforesaid circular (Ann. P.9) as quoted above, it is categorically stated that above circular is not applicable to leases already executed between the State Government and other parties, i. e. the lessees. In such premises in the available factual matrix, if the case at hand is examined then it is apparent that initially the lease of the impugned land was granted in favour of Mr. Hanary John Hands the predecessor in title of petitioners and respondent No.4 to 6. from 27.4.1923, for thirty years, as stated in Annexure P.7, prior to coming into force the circular (Ann.P.9), and subsequently the same was renewed only in the name of C. A. J.
Rodriguez successor/ assignee of the aforesaid predecessor on the same terms and conditions by executing the renewal lease deed dated 27.4.1955 (Ann. P.7). It is apparent from the record that in the light of aforesaid circular (Ann. P.9) such renewal/ transaction without taking any objection was recognized by the State of Madhya Pradesh. In such premises it is apparent that the aforesaid lease of disputed land was renewed in the name of C. A. J.
Rodriguez on 27.4.1977 (Ann. P.7) and possession of the land was remained with such lessee and 21 not with the State Government then in view of averments of third para of the circular (Ann.P.9), no sanction of the State Government was required to sale the impugned property by the then lessee C. A. J.
Rodriguez to Denish Tori through sale deed dated 7.11.1977. So, in such premises such transaction of the sale dated 7.11.1977, could not be said to be contrary to the terms of the lease or to be ab-initio void by the Board of Revenue. In such premises it could not have been assumed by the Board of Revenue that such sale transaction of dated 7.11.1977 had taken place contrary to any terms of the lease deed or existing provision of RBC or the code. So, I am of the considered view that the Board of Revenue has committed grave error in initiating suo motu review of it's earlier order (Ann. P.2) on the ground that the transaction of sale of 1977 between C. A. J.
Rodriguez and Denish Tori was contrary to the terms of lease deed or any provision of the RBC.
33. In view of aforesaid discussion, there was no apparent error on the face of the record. So, firstly on this count the impugned show cause notice (Ann. P.3) given by the Board of Revenue to review the earlier order was neither proper nor was in accordance with law, as such the same was issued contrary to the aforesaid provision and in such premises review carried out by the Board of Revenue and its entire proceeding including the impugned order is not sustainable and deserves to be quashed.
34. Apart the aforesaid, it is settled proposition that if any authority wants to review its earlier order suo motu then such authority is bound to supply the reasons and grounds, on which such review is necessary to the affected parties and show cause notice should be issued in such a fashion asking why the earlier order on such grounds should not be reviewed and not in a fashion that why earlier order should not be cancelled. Subsequent to such notice on appearance of such parties and filing the reply/ objection of such show cause notice, the authority has to hear the matter first on the grounds supplied in the notice for review and if such authority is satisfied that there is apparent error on the face of the record or other grounds as per requirements of Section 51 of the Code and of order 47 Rule 1 of of the 22 Civil Procedure are existing for such review then after setting aside the earlier order under review the party should be extended the opportunity of hearing on merits again and thereafter should pass the fresh order on merits of the matter. Accordingly, it requires two different proceedings. It is apparent from the impugned order that no such procedure has been followed by the Board of Revenue, on the contrary mere perusal of show cause notice (Ann. P.3), it is apparent that such show cause notice was issued intimating the petitioner why such earlier order (Ann. P.2) should not be cancelled. So, on this technical ground alone, the impugned order (Ann. P.5) being not passed in accordance with the settled procedure is not sustainable.
35. So far the arguments of the State counsel that while passing the earlier order under review (Ann. P.2) the provision of Section 181 and 182 of the Code were not taken into consideration by the Board of Revenue with proper approach, so on such ground also the review of earlier order was necessary and in such premises the Board of Revenue has not committed any error in passing the impugned order is concerned, such argument is not helping to the State because of on earlier occasion the impugned proceeding was neither initiated under such provision of the code nor the impugned notice was issued on the basis of the proceedings of such provisions. Besides this it is \undisputed fact on record that the aforesaid lease of land under dispute was initially granted in the year 1923 for building purpose and according to the terms of the lease the same was granted for permanent structure initially for thirty years subsequently the same was renewed taking into consideration the earlier lease, in the year 1955 and the same was again renewed on 28.4.1990 in favour of Denish Tori for the period 1.4.1987 to 31.3.2017 (Ann. P.8). In such premise, the alleged lease is still in existence in favour of the petitioners and respondent No.4 to 6, the successor in title of said original lessee. It is not the case of the State Government that the land had been used by the petitioners or their above mentioned predecessor in title contrary to the terms of the lease deed as the same was granted for building purpose. In such premises, the aforesaid transaction of sale being carried out with the terms and conditions of lease deed (Ann. P.7 and P.8) in 23 favour of the petitioners and their predecessor in title Denish Tori is in accordance with the spirit of the provision of Clause 16 of the RBC read with the terms stated by the then erstwhile State of C. P. and Barar before 1947 in the above mentioned circular (Ann. P.9), the provision of Section 181 and 182 of the Code could neither be invoked nor applicable to the present case and in such premises the earlier order (Ann. P.2) could not be reviewed. In fact such grounds were not available to the Board of Revenue to review such earlier order. As such the same could not have been treated to be apparent error on the face of the record to review the earlier order (Ann. P.2). Therefore, it is held that the Board of Revenue has committed grave error in setting aside the earlier order (Ann. P.2) by allowing the suo motu review and passing the impugned order (Ann. P.5), afresh contrary to the merits of the case. My aforesaid approach till some extent is based on a decision of the Apex court in the matter of M.P. Housing Board Vs. Shiv Shanker Mandil and others reported in 2009 Revenue Nirnaya Page 1, in which it was held as under :
15. That apart, even if the earlier order dt. 27.7.1991 was reviewed, it could not be set at naught the Lease Deed which was validly created. It could not have cancelled the lease only for the reasons stated in Section 182(2) of the Code, which reasons were obviously absent in the case. . . . . . . . . .
36. In view of aforesaid discussion and the findings, I would like to examine the matter with respect of the subsequent transactions carried out by Denish Tori and/ or his successor petitioner No.1 in favour of the petitioner No.2 and 3 and respondent No.4 and 5. As per averments of the petition, which have not been disputed with specific particular by the State that the property in dispute was sold by the then predecessor in title vide registered sale deed dated 7.11.1977, to Denish Tori and since then such land was remained in possession of him and on the strength of such transaction his name was also mutated in revenue record. Subsequently he executed the Will in his life time on 16.5.1989 and according to it's terms bequeathed his property to his son petitioner No.1 and daughter respondent 24 No.6, so also sold the different part of such property to the petitioner No.2 & 3 and respondent No.4 & 5 respectively by registered sale deeds. It is undisputed position on record that such transactions of sale had carried out after obtaining due permission from the authorities as per requirement of the Section 165 (7) (b) of the Code because subsequent to transaction in favour of Denish Tori in the year 1977, in the year 1980 such provision of Section 165 (7) (b) was enacted in the Code and came in to force. Therefore, after execution of the sale deed in favour of the petitioner No.2 and 3 and respondent No.4 and 5, they acquisitioned the lease title respectively on the respective part of land and thereafter on the strength of such validly executed sale deed the petitioners and respondent No.4 and 5 respectively filed their application for mutation and on the strength of the aforesaid Will of testator Denish Tori after his death on 7.3.1994 his son petitioner No.1 and respondent No.6 filed their application for mutation and on consideration the Nazul Officer/ SDO inconformity of provision of the Code by allowing the same vide order dated 22.7.1995 in different cases mutated their names on the concerning part of the land in revenue record. Accordingly, mutation order was rightly passed.
37. So, subsequent to passing the aforesaid orders dated 22.2.1995 there was no occasions with the Collector to initiate suo motu revision to revise such orders of mutation, therefore, the order dated 9.8.2004 (Ann.P.1), passed by the Collector in suo motu initiated revision canceling said mutation order being contrary to available factual matrix and the existing legal position is not sustainable under the law. As such the aforesaid sale deed executed in favour of Denish tori in the year 1977 could neither be held nor be declared to be ab-initio void by the Collector. In such premises, it is held that Collector had committed grave error in setting asdie the aforesaid mutation order dated 22.2.1995 under the wrong premises. On filing the appeal before the Commissioner by the petitioners and respondent No.4 to 6 to challenge the aforesaid order of the Collector on consideration the same was also dismissed by the Commissioner vide dated 17.11.2005 without taking into consideration the aforesaid factual and legal position, so such order of the Commissioner was also not sustainable 25 and thereafter on filing the appeal against such order of Commissioner by the petitioners and respondent No.4 to 6 before the Board of Revenue, initially taking into consideration the correct legal position vide order under review dated 16.4.2007 (Ann. P.2) such appeal was rightly allowed and by setting aside the aforesaid order of the Commissioner as well as of the Collector passed in suo motu revision the mutation order passed by the Revenue Officer / SDO was rightly restored. But after passing such correct order in the lack of any sufficient ground or in the lack of any apparent error on the face of the record in such order under review (Ann. P.2), the Board of Revenue had initiated the review petition, contrary to the provisions of Section 51 of the Code r/w Order 47 Rule 1 of C. P.C.
38. In the aforesaid premises the initiation of suo motu review petition of earlier order (Ann. P.2) by the Board of Revenue was neither sustainable nor entertainable, therefore, on such ground as well as in view of aforesaid discussion on merits the impugned order 15.3.2011. (Ann.P.5) is not sustainable. Hence, by allowing this petition the impugned order dated 15.3.2011, (Ann. P.5) is hereby set aside and by restoring the aforesaid earlier order of the Board of Revenue dated 16.4.2007 (Ann.P.2), the orders of mutation passed by the Nazul Officer/ S. D. O. vide dated 22.7.1995 in all connected revenue cases are hereby restored with direction to the concerning revenue authorities to correct the revenue record accordingly in accordance with such mutation orders of Nazul Officer/ S. D. O dated 22.7.1995.
39. Petition is allowed, as indicated above. However, in the available circumstance there shall be no order as to costs. (U. C. Maheshwari) Judge k