Wadi Kumar VERSUS The State of Chhattisgarh &Others

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 2963 of 2004 of 2015, Judgment Date: Apr 01, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
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SINGLE BENCH:HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL
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Writ Petition No.2963 of 2004
PETITIONER : Wadi Kumar
VERSUS
RESPONDENTS : The State of Chhattisgarh
&Others
PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION
OF INDIA
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Present :
Shri Awadh Tripathi, counsel for the petitioner.
Shri Suryakant Mishra, Panel Lawyer for State
/respondent No.1 & 4.
Shri Animesh Verma, counsel for respondent No.2.
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ORDER ON BOARD
(Passed on 01.04.2015)
1. Invoking supervisory jurisdiction of this court under Article 227
of the Constitution of India, the petitioner herein has filed this
petition questioning the legality, validity and correctness of
order dated 19.03.2004, whereby the Board of Revenue by its
impugned order has set aside the order passed by the
Additional Collector as well as Sub Divisional Officer (for short,
‘S.D.O.’) and remanded back the matter to the Collector to
register revision suo-motu and pass orders on merits.
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2. Facts in brief necessary for disposal of this petition are as
under:-
2.1 That the suit land originally belonged to Karmaha son of Shri
Shiv Lal Gond. Shri Parasram Kanwar purchased the said land
by registered sale deed dated 27.01.1967 and thereafter
Parasram with the permission of Collector under Section
165(6) of Chhattisgarh Land Revenue Code, 1959 (for short,
the Code) dated 15.12.1973 sold the subject land to petitioner
by registered sale deed dated 27.05.1974.
2.2 On the report of Patwari of concerned Halka, proceedings
under Section 170-B of the MP/CG Land Revenue Code, 1959
(for short, Code) was initiated for reversion of land to the
original owner. The S.D.O. (R), by its order dated 10.03.1997
held that land has validly been transferred to the petitioner and
as such the provisions of Section 170-B of Code is not
attracted. However, the S.D.O. directed the petitioner to return
the part of subject land i.e. Khasra No.314 area 0.065 Hectare
to the respondent No.2, holding the same to be owned by him.
2.3 Challenging the said part of order, the petitioner preferred an
appeal before the Additional Collector. The Additional
Collector, by order dated 15.01.1998 set aside the order of
S.D.O. relating to delivery of possession of part of subject land
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to respondent No.2 and allowed the appeal preferred by the
petitioner.
3. Questioning the order passed by the Additional Collector, the
respondent No.2 preferred a revision before the Board of
Revenue. The Board of Revenue, by order impugned, not only
set aside the order of Additional Collector, but also set aside
the order passed by the S.D.O. re-opening entire proceedings
for re-examination by the Collector.
4. Impugning the said order, instant petition has been filed by the
petitioner stating inter alia that the order passed by the S.D.O.
(R) holding provisions of Section 170-B of Code is not
attracted, has attained its finality as there was no challenge to
said finding by the land holders particular aboriginal tribes and
as such dispute only confines to return of Khasra No.314 area
0.065 Hectare of land to respondent No.2, and as such, the
revisional court has exceeded its jurisdiction in setting aside
the order passed by the S.D.O. as well as Additional Collector
and directing the Collector to exercise suo-motu revisional
jurisdiction under the Code.
5. Despite service of notice, no return has been filed by the
respondent No.2.
6. Respondents 1 to 4/State has filed its reply stating inter-alia
that order has been passed by the Board of Revenue in
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exercise of revisional jurisdiction vested in it by law as such no
stand has been taken by the State.
7. Shri Awadh Tripahti, learned counsel appearing for the
petitioner would submit that the Board of Revenue has
committed serious jurisdictional error in entertaining the
revision and setting aside the order passed by the S.D.O. in
directing the Collector to re-examine the order granting
permission to sale the land in suo-motu revisional jurisdiction
after 30 years of passing the order, granting permission to sale
the land and after having held that order of S.D.O. holding
provisions of Section 170-B of Code is not attracted and same
has attained its finality as till this date there is no challenge to
that order of S.D.O. and the respondent No.2 has only
challenged the part of order directing return of the subject land
i.e. Khasra No.314 area 0.065 Hectare, and as such, the order
impugned deserves to be set aside.
8. Shri Animesh Verma, learned counsel appearing for
respondent No.2 would submit that Board of Revenue has
simply remanded the matter and as such there is nothing to
indicate that jurisdictional error has been committed by the
Board of Revenue while passing the impugned order.
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9. I have heard the counsel appearing for the parties and perused
the order impugned including original record with utmost
circumspection.
10. Originally, the proceedings under Section 170-B of Code for
reversion of land was initiated on the report of Patwari.
Thereafter, the order was passed by the S.D.O. on 10.03.1997
holding that transfer of land by aboriginal Tribe in favour of
petitioner to be valid and provisions of Section 170-B of Code
is not at all attracted.
11. The fact remains that legality and validity of that order passed
by the S.D.O. holding that transaction to be valid and in
accordance with law has attained its finality as there is no
challenge till this date by the member of the aboriginal tribe by
whom the land was transferred to the petitioner and as such
there was no lis or occasion before the Board of Revenue to
decide legality or validity or otherwise of the said order of
S.D.O. The issue between the petitioner and members of
aboriginal tribe relating to validity of transaction could not have
been re-opened by the Board of Revenue while considering the
challenge regarding part of subject land bearing Khasra
No.314 area 0.065 Hectare, which has been held to be owned
by respondent No.2.
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12. The aforesaid determination leads me to the next question
whether Board of Revenue is justified in directing the Collector
to exercise suo-motu revisional jurisdiction under Section 50 of
the Code against the order dated 15.12.1973 granting
permission to transfer subject land to the aboriginal tribe under
Section 165(6) of the Code?
13. It is well settled law now, that the suo-motu revisional
jurisdiction must be exercised within the reasonable time, if no
period of limitation is prescribed for exercise of revisional
power in the statute governing such jurisdiction. What should
be the reasonable period should be judged with reference to
nature of the statute itself and rights and liabilities thereunder.
The Supreme Court in the matter of State of Punjab v.
Bhatinda District Co-operative Milk Producers Union
Limited 1 , held that reasonable period of limitation may be
borne out from the statutory scheme of the Act.
14. Section 50 of the Chhattisgarh Land Revenue Code provides
as under:-
“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,
1 A.I.R. 2007 SC (Supp) 473
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and may pass such order in reference thereto as it/he thinks
fit:
Provided that-
[(i) no application for revision shall be entertained-
(a) against an order appealable under this Code;
(b) against an order of the Settlement Commissioner
under Section 210;
(c) against an order passed in revision by the
Commissioner of the Settlement Commissioner in respect of
cases under S. 170-B, nor shall any such order be revised
by the Board on its own motion];
(ii) no such application shall be entertained unless
presented within sixty days to the Commissioner or
[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;
(iii) no order shall be varied or reversed in revision unless
notice has been served on the parties interested and
opportunity given to them of being heard.
(2) Notwithstanding anything contained in sub-section (1) –
(i) where proceedings in respect of any case have been
commenced by the Board under sub-section (1) no action
shall be taken by the Commissioner or the [Settlement
Commissioner or the Collector or the Settlement Officer] in
respect thereof;
[(ii) where proceedings in respect of any case have been
commenced by the Commissioner or the Settlement
Commissioner under sub-section (1), no action shall be
taken by the Collector or the Settlement Officer in respect
thereof;]
[(iii) where proceedings in respect of any such case have
been commenced by the Commissioner, Settlement
Commissioner, Collector or Settlement Officer under subsection
(1), the Board may either refrain from taking any
action under this Section in respect of such case until the
final disposal of such proceedings by the Commissioner or
the Settlement Commissioner or the Collector or the
Settlement Officer, as the case may be, or may withdraw
such proceedings and pass such order as it may deem fit;]
[(iv) where proceedings in respect of any such case have
been commenced by the Collector or the Settlement Officer
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under sub-section (1), the Commissioner or the Settlement
Commissioner may either refrain from taking any action
under this section in respect of such case until the final
disposal of such proceedings by the Collector or the
Settlement Officer, as the case may be, or may withdraw
such proceedings and pass such order as sit may deem fit;]
Explanation.- For the purpose of this section all Revenue
Officers shall be deemed to be subordinate to the Board.”
15. No period of limitation has been prescribed for taking suo-motu
action under Section 50 of the Code. The Chhattisgarh Land
Revenue Code, 1959 is a replica and contains paramateria
provisions as that of M.P. Land Revenue Code, 1959. The Full
Bench of Madhya Pradesh High Court in the matter of Ranveer
Singh v. State of Madhya Pradesh 2 , while considering the
question of reasonable period for exercise of suo-motu
revisional jurisdiction under Section 50 of the Code, answered
the question holding that the suo-motu revisional jurisdiction
must be exercised within 180 days from the date of knowledge
of illegality by observing as under:-
"38...............The suo motu powers can be exercised 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 public 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.
We have already mentioned hereinabove certain
instances which can be said to be the "irreparable loss."
2 A.I.R. 2011 M.P. 27
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16. Quite recently, in the matter of Collector v. D. Narsingh Rao 3
their Lordships of the Supreme Court have clearly held that
where no time limit is prescribed in the statute for the exercise
of suo-motu power, it cannot be exercised after long lapse of
time as it would be arbitrary and opposed to the concept of rule
of law by observing as under:-
“16. ......... By the impugned notice dated 31.12.2004
the suo motu revision power under Section 166-B
referred to above is sought to be exercised after five
decades and if it is allowed to do so it would lead to
anomalous position leading to uncertainty and
complications seriously affecting the rights of the
parties over immovable properties.
17. In the light of what is stated above we are of the
view that the Division Bench of the High Court was right
in affirming the view of the learned Single Judge of the
High Court that the suo motu revision undertaken after
a long lapse of time, even in the absence of any period
of limitation was arbitrary and opposed to the concept
of rule of law.”
In the later part of the judgement their Lordships held that
even in cases where the order sought to be revised are
fraudulent, the exercise of power must be within the
reasonable period of discovery of fraud and held as under in
paragraph 31 :-
“31. To sum up, delayed exercise of revisional
jurisdiction is frowned upon because if actions or
transactions were to remain forever open to challenge,
it will mean avoidable and endless uncertainty in human
affairs, which is not the policy of law. Because, even
when there is no period of limitation prescribed for
exercise of such powers, the intervening delay, may
have led to creation of third-party rights, that cannot be
3 (2015) 3 SCC 695
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trampled by a belated exercise of a discretionary power
especially when no cogent explanaltion for the delay is
in sight. Rule of law it is said must run closely with the
rule of life. Even in cases where the orders sought to
be revised are fraudulent, the exercise of power must
be within a reasonable period of the discovery of fraud.
Simply describing an act or transaction to be fraudulent
will not extend the time for its correction to infinity; for
otherwise the exercise of revisional power would itself
be tantamount to a fraud upon the statute that vests
such power in an authority.”
17. Judged by the principles of law laid down by the Supreme Court
in the aforesaid cases Bhatinda District Co-op. Milk P. Union
Ltd (supra), D. Narsingh Rao (supra) and applying the
principles of law so held in the facts of the present case it would
appear that Collector has granted permission to the aboriginal
tribe to sell his land to the non-tribe (petitioner) by order dated
15.12.1973. The transaction including the proceeding initiated
under Section 170-B has already attained finality as the order of
Sub-Divisional Officer holding the transaction to be valid and in
accordance with law has not been challenged by the said
aboriginal tribe and the Board of Revenue in the revision while
examining the legality and validity of return of land between the
petitioner and the respondent No.2 directed the Collector to
exercise suo-motu revisional jurisdiction as such the Board of
Revenue was not required to examine legality and validity of
order dated 15.12.1973 as there was no lis before him and even
otherwise the suo-motu revisional jurisdiction cannot be
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exercised after a period of 30 years as the said period cannot
be said to be reasonable time for exercise of suo-motu
revisional jurisdiction in light of decision rendered by High Court
of Madhya Pradesh in case of Ranveer Singh (supra) and in
light of the principles laid down by the Supreme Court in
D. Narsingh Rao (supra), the direction/order of the Board of
Revenue to the Collector to exercise to suo-motu revisional
jurisdiction is clearly arbitrary and opposed to the concept of
rule of law. The said part of the order impugned is without
jurisdiction and without authority of law.
18. In view of the foregoing discussion the petition is allowed and in
consequence, the impugned order dated 19.03.2004 passed by
Board of Revenue is hereby quashed. Since the Board of
Revenue has not considered the appeal filed by respondent
No.2 against the order passed by the Additional Collector on
merits, therefore, the matter is remanded back to the Board of
Revenue with a direction to hear and decide the appeal of
respondent No.2 on its own merits in accordance with law
preferably within a period of three months from date of receipt
of copy of this order. No order as to cost(s).
Judge
inder
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HEAD-NOTE
Suo-motu revisional jurisdiction under Section 50 of the MP/CG
Land Revenue Code,1959, has to be exercised by the revisional
authority within reasonable time.
e0iz0@N0x0 Hkw&jktLo lafgrk] 1959 dh /kkjk 50 ds v/khu Lo&izsj.kk
ls iqujh{k.k vf/kdkfjrk dk iz;ksx iqujh{k.kdrkZ izkf/kdkjh }kjk ;qfDr;qDr
le; ds Hkhrj gh fd;k tkuk pkfg,A
(Indrajeet Sahu)
P.S. to His Lordship