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Rajendra Bharati and ors. Vs. M.P. Dube and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 84 of 1968
Judge
Reported inAIR1971MP231; 1971MPLJ509
ActsMadhya Pradesh Land Revenue Code, 1959 - Sections 12, 50, 205 and 210; Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 144
AppellantRajendra Bharati and ors.
RespondentM.P. Dube and ors.
Appellant AdvocateR.K. Pandey and ;Y.S. Dharmadhikari, Advs.
Respondent AdvocateK.P. Munshi, Govt. Adv. and ;H.S. Ruprah, Adv. for Respondent No. 5
DispositionPetition dismissed
Excerpt:
- - this is more so be-cause in a proceeding for restitution the court has the power to take equitable consideration also into account which position of law is now well settled and it is not necessary to refer to the line of decisions in which that principle has been established......commissioner (4) the collector and (5) the settlement officer. although the collector is a revenue officer subordinate to the commissioner also, by specifying that a revision would lie to the settlement commissioner, the revisional jurisdiction under section 210 is exclusively vested in the settlement commissioner from an order of the collector confirming the scheme. however there is nothing in section 210 which abrogates or curtails the collector's power of revision under section 50 in respect of an order passed by any revenue officer subordinate to him. section 50 of the code is in these words:--'50. revision--(1) the board of 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.....
Judgment:

Shiv Dayal, J.

1. This is a petition under Articles 226 and 227 of the Constitution challenging the validity of an order passed by the Collector, Seoni, on August 24, 1967 directing that Padmeshwar Bharati be put in possession of certain lands, which were the subject-matter of consolidation proceedings under Chapter XVI of the M.P. Land Revenue Code, 1959, (hereinafter called the Code), relating to village Gudma in district Seoni.

2. Certain lands belonging to Smt. Alokabai, widow of Bhuwaneshwar Bharati, were involved in the consolidation proceedings. Bhuwaneshwar Bharati had died in the year 1937. Smt. Alokabai died in 1960. Ramkrishna Bharati had instituted a suit (Civil Suit No. 77-A of 1937) challenging the alleged adoption of Jaikrishna Bharati by Smt. Alokabai. That suit was decreed in favour of the plaintiff and it was held that Jaikrishna was not adopted by Smt. Alokabai.

3. However, after the death of Smt. Alokabai, Padmeshwar Bharati claimed that he had been adopted by her. A Civil Suit (No. 30A of 1963) was instituted by Padmeshwar Bharati. It was decreed in his favour on April 25, 1966. In pursuance of the decree, Padmeshwar Bharati was put in possession of the property on July 6, 1966.

4. In the meanwhile, on an application dated February 8, 1965, made by certain Bhumiswamis, consolidation proceedings started. A provisional scheme was framed on November 10, 1965. The scheme was confirmed by the Additional Collector, evidently acting as Collector. According to this scheme, the lands belonging to Smt. Alokabai formed a holding which in the scheme stood in the names of the sons of Ramkrishna Bharati (petitioners before us).

5. As already said, it was on July 6, 1966, that Padmeshwar Bharati was put in possession in execution of the decree of the Civil Court which had been passed in his favour in Civil Suit No. 30-A of 1963 against the petitioners herein. He then made an application to the Collector on January 17, 1966, alleging that he and his adoptive mother, Smt. Alokabai, were jointly recorded Bhumiswami tenure holders of khasra Nos. 11, 12, 38/2, 198, 205, 218/1, 220, 223/1, 293, 297 and 305/1, total area 90.04 acres. Smt. Alokabai also held in her capacity as Sarbarakar of deity Shankarji Maharaj Khasra Nos. 37, 41,42/1 & 213, total area 69.93 acres of village Gudma and further Smt. Alokabai held khasra Nos. 36 and 214, total area 24.07 acres of village Gudma, which she surrendered in favour of the landlord Malguzar, butin Civil Suit No. 30-A of 1963 it was held that these lands devolved on the next heirs and the surrender by Smt. Alokabai was not binding on them. In that Civil Suit a decree for possession was passed in favour of Padmeshwar Bharati and in execution of that decree he was also put in possession of the lands which belonged to him and Smt. Alokabai jointly and also the lands which Smt. Alokabai held in the capacity of a Sarbarakar. He further averred that he had also made an application, before the Consolidation Officer when the suit was pending. However, his title to the lands had been declared by the Civil Court and he had also been put in possession. He was, therefore, entitled to get his name mutated on these khasra numbers. He further prayed that the order of the Consolidation Officer be set aside and mutation of his name be directed.

6. It appears that the above application dated January 17, 1966, made by Padmeshwar Bharati remained pending. On June 30, 1967, possession was given to the present petitioners by the Consolidation Officer in pursuance of the scheme which had been confirmed on November 10, 1965, and in pursuance of the warrant dated June 22, 1967, issued by the Consolidation Officer.

7. Padmeshwar Bharati then made another application on July 7, 1967, to the Collector for revision against the order dated June 30, 1967, and for restoration of possession.

8. The Collector, by his order dated August 24, 1967, held that the Consolidation Officer was bound to take notice of subsequent events and since a decree had been passed by the Civil Court in favour of Padmeshwar Bharati (on April 25, 1966) and further possession had been given to him in execution of that decree (on July 6, 1966) after the scheme had been confirmed (on November 10, 1965), such possession could not be disturbed in consolidation proceedings. He, therefore, set aside the order of the Consolidation Officer so far as it related to delivery of possession from Padmeshwar Bharati to the petitioners and further directed that Padmeshwar Bharati be put back in possession.

9. Aggrieved by the Collector's order dated August 24, 1967, the petitioners filed a revision before the Commissioner. The Additional Commissioner, Jabalpur, dismissed that revision. The petitioners then filed a further revision before the Board of Revenue from the order of the Additional Commissioner. The Board also dismissed that revision. Aggrieved by that order of the Boardof Revenue, the petitioners filed this writ petition.

10. The decision of the Board of Revenue was made on January 31, 1968, and this writ petition was filed on February 22, 1968. Before we deal with the contentions raised before us by the petitioners, some more facts have to be stated. From the judgment and decree passed by the Civil Court on April 25, 1966, in Civil Suit No. 30-A of 1963 instituted by Padmeshwar Bharati, the petitioners filed an application in review on certain grounds which are not necessary to be stated here. Eventually on January 18, 1969, review was allowed and the decree was set aside and the suit was reopened for a fresh trial. Padmeshwar Bharati filed an appeal which was dismissed by the District Court on September 3, 1969. Aggrieved by the appellate Judgment, Padmeshwar Bharati filed a revision in this Court (Civil Revision No. 635 of 1969) which was dismissed on May 1, 1970. Thus the decree on the basis of which the Collector allowed, the revision filed by Padmeshwar Bharati on January 17. 1967, disappeared.

11. The first contention raised before us by the petitioners is that the Collector's order dated August 24, 1967, is ultra vires the M. P. Land Revenue Code, 1959. It is argued that the provisional jurisdiction is vested exclusively hi the settlement Commissioner under Section 210 of the Code. No power of revision is conferred on the Collector under Chapter XVI of the Code, which deals with proceedings for consolidation of holdings. In our opinion, this contention is misconceived. The scheme of Chapter XVI is that Section 206 provides for initiation of proceedings; Section 207 enacts the circumstances in which an application for consolidation is rejected and Section 208 provides for admission of application; Section 209 provides for preparation of scheme for consolidation of holdings; Sub-section (4) of that section enacts that when the scheme of consolidation is complete, it shall be submitted for confirmation to the Collector by the Consolidation Officer; and under Sub-section (5) of that section the Consolidation Officer is empowered to allow the Bhumiswamis affected by such scheme to enter into possession, if they agree to enter into possession of the holdings allotted to them under the scheme. Section 210 then provides for confirmation of the scheme. It reads thus:--

210. Confirmation of scheme.-- The Collector may either confirm the scheme with or without modification or refuse to confirm it after considering the objections, if any, to the scheme ofconsolidation and the recommendation of the Consolidation Officer. The decision of the Collector subject to any order that may be passed in revision by the Settlement Commissioner under Section 50, shall be final.'

It is abundantly clear from the language of Section 210 that it is the Collector who has jurisdiction to confirm the scheme prepared under Section 209. The decision of the Collector is final subject to an order that may be passed in revision by the Settlement Commissioner under Section 50 of the Code. This section, therefore, not only invests the Collector with the power to confirm the scheme but further confers finality on the Collector's decision. But this finality is subject to the Collector's order being revised by the Settlement Commissioner and the powers of revision are conferred by reference to Section 50 of the Code. This section merely specifies the revisional authority and this is obviously because under Section 50, the revisional authorities are: (1) Board of Revenue, (2) Commissioner, (3) Settlement Commissioner (4) the Collector and (5) the Settlement Officer. Although the Collector is a revenue officer subordinate to the Commissioner also, by specifying that a revision would lie to the Settlement Commissioner, the revisional jurisdiction under Section 210 is exclusively vested in the Settlement Commissioner from an order of the Collector confirming the scheme. However there is nothing in Section 210 which abrogates or curtails the Collector's power of revision under Section 50 in respect of an order passed by any revenue officer subordinate to him. Section 50 of the Code is in these words:--

'50. Revision--(1) The Board of 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 the 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- x x xx x x

Therefore, it must be held that the Collector had jurisdiction to set aside the order of the Consolidation Officer in exercise of his powers of revision under Section 50 of the Code.

12. Shri Pandey, learned counsel for the petitioners contended that theConsolidation Officer is not a revenue officer so as to be amenable to the revisional jurisdiction of the Collector under Section 50. This contention must be rejected in view of the clear definition contained in Section 205 (ii) of the Code which reads thus :--

' 'Consolidation Officer' means a Revenue Officer not below the rank of a Tahsildar, appointed by the State Government for the district or districts to exercise the powers, and to perform the duties of a Consolidation Officer under this Code.'

It is only a revenue officer who can be appointed by the Government to exercise powers and to perform the duties of a Consolidation Officer under the Code. Therefore, a revenue officer, when he exercises the powers or performs the duties of a consolidation officer is very much a revenue officer and he is undoubtedly subordinate to the Collector, if he is a Tahsildar or any other officer subordinate to the Collector as specified in Sections 11 and 12 of the Code. Section 11 contains a list of revenue officers. Section 12 enacts as follows:--

'12. Control over Revenue Officers.-

(1) All Revenue Officers shall be subordinate to the State Government.

(2) All Revenue Officers in a Division shall be subordinate to the Commissioner.

(3) Unless the State Government otherwise directs all Revenue Officers in a district shall be subordinate to the Collector.'

Thus the Consolidation Officer was subordinate to the Collector by virtue of Sub-section (3) of Section 12. The Collector had, therefore, revisional jurisdiction under Section 50 of the Code in respect of the orders of the Consolidation Officer. Accordingly, the first contention is rejected.

13. The next contention advanced for the petitioner is that the impugned order of the Collector and also the revisional orders passed by the Additional Commissioner and the Board of Revenue must be quashed by taking notice of the subsequent event that the decree dated April 25, 1966, on the basis of which the Collector had made the impugned order dated August 24, 1967, was subsequently set aside. The Collector's order was passed on August 24, 1967. The Additional Commissioner dismissed the revision on November 7,1967 and the Board of Revenue dismissed the revision on January 31, 1968. This petition was filed on February 22,1968. Thus all this happened much be-fore the reversal of the decree in re-view by order dated January 18, 1969. The contention for the petitioners is that in view of this subsequent event, the orders of the Collector, the Additional Commissioner and the Board of Revenue should be quashed because the very basis of those orders subsequently disappeared. It cannot be doubted that this Court can take notice of a subsequent event and refuse to set aside an order even though it may be found to be invalid or nullify an order which may be quite valid in view of the subsequent event, provided substantial justice so requires.

14. It is true that the decree of the Civil Court in favour of Padmeshwar Bharati, which had been passed on April 25, 1966, was set aside on review and prima facie it can be said that the petitioners were entitled to restitution because possession had been taken from them and delivered to Padmeshwar Bharati on July 6, 1966, in execution of that decree. But it must be remembered that when a decree of a Civil Court is reversed or varied, restitution can be ordered only by a Civil Court and not by a revenue officer in a revenue proceeding. This is more so be-cause in a proceeding for restitution the Court has the power to take equitable consideration also into account which position of law is now well settled and it is not necessary to refer to the line of decisions in which that principle has been established.

15. After the reversal of the decree on review, it was open to the petitioners to move the Civil Court for restitution, even if review had been allowed and the decree had been set aside before the Consolidation Officer delivered possession to the petitioner The Consolidation Officer could not arrogate to himself the power of restitution which vested in the Civil Court exclusively. It seems to us undoubted that the Consolidation Officer merely made over possession to the petitioner in view of the consolidation scheme which had been confirmed on November 10, 1965.

16. The operative part of the Collector's impugned order dated August 24, 1967, is in these terms:--

'Since the applicant (Padmeshwar Bharati) was entitled to the possession, therefore, he was also entitled to remain in possession. The order of possession is therefore modified to this extent. The revision succeeds and the applicant be put in possession.'

The whole discussion contained in the Collector's order shows that in his view the applicant (Padmeshwar) was entitled to possession inasmuch as a decree for possession had been passed in hisfavour. Further, the applicant was also entitled to continue to remain in possession in spite of the consolidation scheme because in the view of the Collector the decree of the Civil Court was binding on the authorities, dealing with consolidation proceeding on the question of title. He, therefore, set aside the order of the Consolidation Officer which was passed in pursuance of the consolidation scheme and by which order, possession was taken over from Padmeshwar Bharati and delivered to the sons of Ramkrishna Bharati, the petitioners. The Collector further directed that the wrong done by the Consolidation Officer be redressed by putting back Padmeshwar Bharati in possession. In other words, after setting aside the Consolidation Officer's order, he further directed restitution.

17. In view of the principles we have recapitulated above, namely that when a decree of the Civil Court is reversed or varied, it is the Civil Court alone which can grant restitution, it must be said that the Collector's order was not only according to law but it rendered substantial justice to the parties.

18. The result of the above discussion is that since substantial justice has not suffered by the Collector's impugned order and it has rather been advanced, we will not quash his order in view of the subsequent event that the Civil Court's decree dated April 25, 1966, was itself set aside on review on January 18, 1969. If we accede to the petitioners' request and set aside the Collector's order dated August 24, 1967, the result will be that possession will remain with the petitioners, which possession was taken from Padmeshwar (respondent No. 5), and that will tantamount to recognising a power with the Consolidation Officer to grant restitution consequent upon the reversal of the Civil Court's decree. We shall, therefore, restrict our judgment to the question initially raised in the writ petition, i. e., whether the order of the Collector dated August 24, 1967, was without jurisdiction.

19. It is hardly necessary for us to say that it is open to the parties to take such steps in the Civil Court as they may feel advised now or after the disposal of Padmeshwar Bharati's suit which is still pending.

20. The conclusions we have reached may be summed up thus:--

(1) The Collector had revisional jurisdiction under Section 50 of the M.P. Land Revenue Code, 1959, to set aside an order of the Consolidation Officer under Chapter XVI of the M.P. Land Revenue Code, 1959.

(2) The order of the Consolidation Officer was rightly set aside by the Collector because by that order the possession of a person which had been given to him by the Civil Court, in pursuance of a decree of the Civil Court was disturbed.

(3) When the decree of the Civil Court was set aside on review, it was open to the petitioners to apply to the Civil Court for restitution. The jurisdiction to effect restitution consequent upon the setting aside of a Civil Court's decree, vests exclusively in the Civil Court.

(4) Although the basis of the impugned order passed by the Collector was the decree of the Civil Court which was subsequently set aside by the Civil Court and the suit was reopened, yet this Court will not set aside the Collector's order because to do so will tantamount to maintain the order of the Consolidation Officer and, in effect, there will be restitution without an order of the competent Civil Court. On the contrary, if we refuse to interfere, it will be open to the parties to agitate their respective claims for restitution of possession in the Civil Court.

21. The petition is dismissed. Having regard to the facts and circumstances of the case, we direct that the parties shall bear their own costs. The outstanding amount of security deposit shall be refunded to the petitioners.


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