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Jugal Kishore Vs. Tahsildar and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 141 of 1966
Judge
Reported inAIR1967MP206
ActsVindhya Pradesh Gram Panchayat Ordinance, 1949 - Sections 85
AppellantJugal Kishore
RespondentTahsildar and anr.
Appellant AdvocateR.K. Tankha, Adv.
Respondent AdvocateK.K. Dubey, Govt. Adv. for No. 1 and ;Rameshwar Prasad Verma, Adv. for No. 2
DispositionPetition allowed
Excerpt:
- - here, the order of allotment in favour of the petitioner was passed by the nvaya panchayat on 10th january 1955. the tehsildar had clearly no power whatsoever to set aside this order, ten years after its making, in the exercise suo motu of his powers under section 85 of the ordinance......panchayat, nagod, made an order for the allotment of a piece of land lying in the area of the gram panchayat, nagod, to the petitioner on his paying a certain nazarana. the petitioner paid the nazarana and secured the land. thereafter, according to him, when he commenced the construction of a house on the plot, the patwari reported to the assistant collector satna, that the applicant had encroached upon the land. on this report, the assistant collector directed the tehsildar to initiate proceedings for cancellation of the order of allotment. this order of the assistant collector was, however, ultimately set aside by the board of revenue on 15th july 1959.2. in 1964 on the report of the gram panchayat, nagod, complaining against the allotment of the land to the petitioner, the.....
Judgment:

Dixit, C.J.

1. The circumstances in which this application under Articles 226 and 227 of the Constitution has been filed are that on 10th January 1955 the Nyaya Panchayat, Nagod, made an order for the allotment of a piece of land lying in the area of the Gram Panchayat, Nagod, to the petitioner on his paying a certain Nazarana. The petitioner paid the Nazarana and secured the land. Thereafter, according to him, when he commenced the construction of a house on the plot, the Patwari reported to the Assistant Collector Satna, that the applicant had encroached upon the land. On this report, the Assistant Collector directed the Tehsildar to initiate proceedings for cancellation of the order of allotment. This order of the Assistant Collector was, however, ultimately set aside by the Board of Revenue on 15th July 1959.

2. In 1964 on the report of the Gram Panchayat, Nagod, complaining against the allotment of the land to the petitioner, the Tehsildar started proceedings against him under Section 248 of the Madhya Pradesh Land Revenue Code. 1959. These proceedings were, however, dropped by the Tehsildar on 4th September 1965 holding that the petitioner had not trespassed on the land in question. The Gram Panchayat then filed a revision petition on 13th October 1965 before the Tehsildar under Section 85 of the Vindhya Pradesh Gram Panchayat Ordinance, 1949, for setting aside the order of allotment by the Nyaya Panchayat on 10th January 1955. The Tehsildar, however, rejected the application of the Gram Panchavat taking the view that it was barred by time. But he formed the opinion that the allotment made by the Nyaya Panchayat in favour of the petitioner was illegal and that it should be set aside by the exercise suo motu of his powers under Section 85 of the Ordinance. Accordingly on 5th February 1966 he set aside the order of the Nyaya Panchayat with regard to the allotment of the land to the petitioner. The petitioner now seeks a writ of certiorari for quashing the aforesaid order of the Tehsildar.

3. The main contention advanced before us by Shri Tankha, learned counsel for the petitioner, was that the Tehsildar had no power whatsoever to set aside, even in the suo motu exercise of his revisional powers, the order passed by the Nyaya Panchayat on 10th January 1955; and that an order under Section 85 revising or quashing any decree or order passed by the Nyaya Panchayat could be made only within sixty days from the date of the decree or order.

4. In our opinion, this contention must be accepted. Section 85(1) of the Ordinance is as follows:

'85. (1) If there has been a miscarriage of justice or if there is an apprehension of miscarriage of justice in any case, suit or proceeding the District Magistrate or Sub-Divisional Magistrate in respect of any case and the Munsiff in respect of any suit and the Revenue Officer not below the rank to be prescribed in respect of any proceedings and Revenue Code or Act or Law in force within the jurisdiction of the Gram Panchayat may, on the application of any party or on his own motion, at any time in a pending case, suit or proceeding, as the case may be and within sixty days from the decree or order, call for the record of the case, suit or proceeding, as the case may be, from the Nyaya Panchayat and may for reasons to be recorded in writing-

(a) cancel the jurisdiction of the Nvaya Panchayat with regard to any suit, case or proceeding; or

(b) quash any decree or order passed by the Nvaya Panchayat at any stage'.

It is plain from the provision contained in the second part of Section 85(1), namely, 'may, on the application of any party or on his own motion, at any time in a pending case, suit or proceeding, as the case may be, and within sixty days from the decree or order, call for the record of the case, suit or proceeding, as the case may be, from the Nayaya Panchayat' and may cancel the jurisdiction of the Nvaya Panchayat or quash any decree or order of the Nyaya Panchayat at any stage, that the revisional powers tinder Section 85(1) can be exercised by the revising authority, whether on the application of any party or on its own motion, only within sixty days from the decree or order of the Nyaya Panchayat sought to be revised.

The expression 'and within sixty days from the decree or order' has a reference to the exercise of the revisional powers, whether on the application of any party or suo motu, by the revising authority. This is plain enough from the language of Section 85(1), The use of the words 'in a pending case, suit or proceeding' in Section 85(1) may suggest that the revisional powers under Section 85(1) can be exercised only so long as the case, suit or proceeding to pending before the Nyaya Panchayat Leaving aside the question whether the revisional powers under Section 85 can be exercised in regard to a case, suit or proceeding finally disposed of by the Nyaya Panchayat, and assuming that they can be, it is clear that the revising authority can do so, whether on the application of any party or on its own motion, and quash any decree or order passed by the Nyaya Panchayat only within sixty days from the date of the decree or order. Here, the order of allotment in favour of the petitioner was passed by the Nvaya Panchayat on 10th January 1955. The Tehsildar had clearly no power whatsoever to set aside this order, ten years after its making, in the exercise suo motu of his powers under Section 85 of the Ordinance.

5. Shri Dubey learned Government Advocate appearing for the respondent Tehsildar, urged that the Nyaya Panchayat had no jurisdiction at an to make any order of allotment in respect of the plot in question, and that the land was one which had vested in the Gram Panchayat and could not be transferred by the Gram Panchayat 'except on the resolution of a Panchayat and with the sanction of the chief Commissioner', as provided 'by Rule 139 of the Gram Panchayat Rules, made under the Vindhya Pradesh Gram Panchayat Ordinance. It was said that the order dated the 10th January 1955 of the Nyaya Panchayat was a complete nullity and could, therefore, be set aside at any time.

6. The short answer to the argument put forward by the learned Government Advocate is that if the order of allotment made by the Nyaya Panchayat is a nullity, then the Gram Panchayat or the authority claiming the land is entitled to institute civil proceedings for recovery of possession of the land from the petitioner alleging that he is a trespasser Even if the order of the Nyaya Panchayat be a nulliy as contended by the learned Government Advocate, still the Tehsildar had no jurisdiction to declare it to be null and void or to set it aside in the suo motu exercise of his powers under Section 85 of the Ordinance after the expiry of sixty days from the date of the order, namely, 10th January 1955. The Tehsildar's order dated the 5th February 1966 cannot, therefore, be sustained and must be quashed.

7. In this view of the matter, it is not necessary to state or deal with the other contentions advanced on behalf of the petitioner.

8. For these reasons, this petition is allowed, and the order dated the 5th February1966 of the Tehsildar, Nagod, setting aside theorder dated the 10th January 1955 of the NyayaPanchayat allotting the land in question tothe petitioner, is quashed. In the circumstancesof the case, we leave the parties to bear theirown costs. The outstanding amount of the security deposit shall be refunded to the petitioner.


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