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State of Madhya Pradesh and ors. Vs. Seth Balkishan Nathani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1967SC394; 1963MhLJ609(SC); [1964]1SCR793
ActsMadhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 - Sections 3(2), 4(2), 13(1), 15(1) and 40; The Central Provinces Land Revenue Act, 1947 - Sections 13, 15(3), 40, 45(1), 45(2), 45(4), 46, 47(1) and 47(2)
AppellantState of Madhya Pradesh and ors.
RespondentSeth Balkishan Nathani and ors.
Cases ReferredMangloo v. Board of Revenue I.L.R.
Excerpt:
.....sections 13, 15 (3), 40, 45 (1), 45 (2), 45 (4), 46, 47 (1) and 47 (2) of the central provinces land revenue act, 1947 - respondent was proprietor of mouza - he executed perpetual pattas in favour of his wife - commissioner recognized respondent as pattadar settled assessment payable by him in respect of mouza after abolition of proprietary rights act came into force - appeal preferred against that order - additional commissioner (appellant) started proceedings against respondents for correction of old annual papers of mouza - appellant purported to make inquiry in regard to factum of cultivation as well as validity of sale deeds - respondent filed petition to quash order of appellant - high court quashed proceedings started by appellant - apex court observed that appellant had no..........bench of the high court held that neither s.15(3) of the act nor s. 47(1) of the central provinces land revenue act, 1917(c.p. act no. ii of 1917), hereinafter called the land revenue act, conferred apower on the nistar officer to review orders already made in respect of thefactum of cultivation or the occupancy rights recognized under the relevantprovisions of the said acts. in the result, it allowed the two writ petitionsquashing the proceedings started by the nistar officer in the case of mouzasonpairi and the order dated december 9, 1954, passed by him in the case ofmouza kachna and prohibiting him from taking further proceedings which mayaffect the occupancy tenancy rights of the petitioners in the lands in dispute.hence the two appeals. 6. mr. sen, learned counsel for the.....
Judgment:

Subba Rao, J.

1. These two appeals by special leave are filed against the common judgmentof a Full Bench of the High Court of Judicature at Nagpur in writ petitionsNos. 22 of 1955 and 274 of 1955 filed by respondents 1, 3 to 6 herein in thesaid court.

2. The facts in Appeal No. 370 of 1960 may be stated first. Respondent 1,Seth Balkishan Nathani, was the proprietor and lambardar of Mouza Sonpairi inTahsil and District Raipur. On January 14, 1947, he executed perpetual pattasin favour of his wife, Vashodabai, since deceased, and respondents 4, 5 and 6in respect of khudkasht and grass lands of Mouza Sonpairi. In Tabdili Jamabandiof the year 1946-47 the said lands were recorded as the Occupancy TenancyHoldings of the said respondents 4 to 6 and respondent 2, Govindlal Nathani,the legal representative of Vashodabai. The same entry was found in theJamabandis of the subsequent years. The Madhya Pradesh Abolition of ProprietaryRights (Estates, Mahals, Alienated Lands) Act, 1950 (1 of 1951), hereinaftercalled the Act, came into force on January 22, 1951. Thereafter, in due coursethe estate of the said proprietor was duly notified under s. 3 of the Act. OnMarch 25, 1952, the Deputy Commissioner, Land Reforms, acting under s. 40 ofthe Act, recognized the said Balkishan Nathani as the pattadar and settled theassessment payable by him in respect of Khasra Nos. 289/2 and 366/7 of MouzaSonpairi. No appeal was preferred against that order. Thereafter, appellant 2,the Nistar Officer cum Additional Deputy Commissioner, Raipur, startedproceedings against the respondents for the correction of old annual papers inMouza Sonpairi, with a view to reopen the earlier order made under s. 40 of theAct, as the earlier order was passed on the basis of the entries found inTabdili Jamabandi of the year 1946-47 and subsequent years. Respondent 1, SethBalkishan Nathani, raised an objection that appellant 2 had no jurisdiction toinitiate the proceedings. Appellant 2 overruled the objection and made thefollowing order :

'On the next hearing, 5 witnesses may be producedfor proving cultivation. The names of the purchasers, to whom the lands havebeen sold, be obtained from the Patwari, and a notice be served on them thatthey should file their statements as well as should bring the sale-deeds alongwith them. Hearing fixed for date 4-8-1954. The non-applicants may file otherevidence, which they wish to file.'

3. It will be seen from the said order that the second appellant purportedto make an inquiry in regard to the factum of cultivation as well as thevalidity of the sale-deeds whereunder respondent 1 created interest in theother respondents. Respondent 1 preferred an appeal from that order to theBoard of Revenue, Madhya Pradesh, but the same was dismissed on the ground thatit was premature. Thereupon, the respondents filed the writ petition No. 22 of1955 in the High Court of Madhya Pradesh.

4. Civil Appeal No. 371 of 1960 relates to patti No. 1 of Mouza Kachna inTahsil and District Raipur. Respondent 1 was the Proprietor and Lambardar ofthe said Mouza. On February 19, 1948, the said Seth Balkishan Nathani executedperpetual pattas in respect of the said lands in favour of the same respondentsas in the other appeal. In the annual papers the said lands were recorded asthe Occupancy Tenancy Holdings of respondents 2 to 6. On December 8, 1954,appellant 2 made an inspection of the said lands and made the following orderon December 9, 1954 :

'X X X X X X

2. There were found to be obviousmistakes in Government documents - Khasra, Jamabandi and Tabdilat. Mistakesdischarged (discovered) by me in Patwari papers have been corrected.

3. Ex-proprietors (1) BalkishanNathani and others and (2) Narayanrao made absolutely bogus transfers in favourof their family members, namely,

(i). (a) Kamlabai, (b) Pana Bai,(c) Yashoda bai (d) Chhote Bai of Nathani family.

(ii) Kamla Bai Chitnavis, wife ofNarayanrao, ex-proprietor.

Patwari entered names withoutcultivation and agricultural possession against Land Record Manual, Volume 1.

4. Mistakes found in patwarirecords have been corrected by me after spot inspection. These papers be nowfiled.'

5. It will be seen from the said order that the second appellant found thatthe transfers made by respondent 1 in favour of the other respondents werebogus and that he also corrected the entries in the annual papers to the effectthat the landlord was not cultivating the lands as recorded in the earlierpapers. The respondents filed writ petition No. 274 of 1955 in the High Courtto quash the said order. A Full Bench of the High Court held that neither s.15(3) of the Act nor s. 47(1) of the Central Provinces Land Revenue Act, 1917(C.P. Act No. II of 1917), hereinafter called the Land Revenue Act, conferred apower on the Nistar Officer to review orders already made in respect of thefactum of cultivation or the occupancy rights recognized under the relevantprovisions of the said Acts. In the result, it allowed the two writ petitionsquashing the proceedings started by the Nistar Officer in the case of MouzaSonpairi and the order dated December 9, 1954, passed by him in the case ofMouza Kachna and prohibiting him from taking further proceedings which mayaffect the occupancy tenancy rights of the petitioners in the lands in dispute.Hence the two appeals.

6. Mr. Sen, learned counsel for the appellants, raised before us thefollowing two points : (1) Under s. 47(1) of the Land Revenue Act, the NistarOfficer has jurisdiction to correct entries made for earlier years in asubsequent year on the ground of mistake; and (2) the said officer has alsojurisdiction to review under s. 15(3) of the Act the order made by him under s.40 thereof.

7. Mr. Pai, learned counsel for the respondents, argued at the outset thatthe appeals have abated for two reasons, namely, (1) the second petitioner diedafter the arguments were heard by the High Court and before the judgment wasdelivered and the petition filed by the appellants to set aside abatement wasdismissed, and (2) the second respondent in the appeals died on March 7, 1956and the application filed on June 28, 1957, to set aside the abatement and tobring his legal representatives on record was out of time. On the merits, hesought to sustain the judgment of the High Court for the reasons mentionedtherein.

8. As we are inclined to agree with the view expressed by the High Court onthe two questions raised by the learned counsel for the appellants, we do notpropose to consider the preliminary objection raised by the learned counsel forthe respondents.

9. The two questions raised in this case are in a way inter-related and theanswer to them depends upon the construction of the relevant sections of theAct and the land Revenue Act. It would be convenient to read the relevantprovisions.

10. The Madhya Pradesh Abolition of Proprietary Rights, (Estate, Mahals,Alienated Lands) Act, 1950 (Act 1 of 1951).

11. Section 3. (2) After the issue of a notification under sub-section (1),no right shall be acquired in or over land to which the said notificationrelates, except by succession or under a grant or contract in writing made orentered into by or on behalf of the State : and no fresh clearings forcultivation or for any other purpose shall be made in such land except inaccordance with such rules as may be made by the State Government in thisbehalf.

12. Section 4. (2) Notwithstanding anything contained in sub-section (1),the proprietor shall continue to retain the possession of his home-stead,homefarm land, and in the Central Provinces also of land brought undercultivation by him after the agricultural year 1948-49 but before the date ofvesting.

13. Section 13. (1) On receipt of the statement of claim, or if no suchclaim is received within the prescribed period, the Compensation Officer shall,after making such enquiry as he thinks fit and giving an opportunity to theclaimant to be heard, decide the amount of compensation due to the claimant andrecord in a statement in the prescribed form, the details of the land whichshall vest in the State Government after its acquisition in lieu of the paymentof such compensation and such other details as may be prescribed.

14. Section 15. (1) Any person aggrieved by the decision given or the recordmade under section 13 by the Compensation Officer may appeal to the DeputyCommissioner..................

X X X X X X X X

(3) The Compensation Officer, the Deputy Commissioner or the SettlementCommissioner, may, either on his own motion or on the application filed withinthe prescribed period by any party interested, review an order passed byhimself or his predecessors in office and pass such order in reference theretoas he thinks fit.

X X X X X X X X

15. Section 40. (as amended on October 22, 1951).

(1) Any land not included in home-farm but brought under cultivation by theproprietor after the agricultural year 1948-49 shall be held by him in therights of an occupancy tenant.

(2) Any person becoming an occupancy tenant under rule 1 shall be a tenantof the State.

(3) The Deputy Commissioner shall determine the rent on the land and itshall be payable from the date of the vesting of the proprietary rights.

16. Section 84. Except where the provision of this Act provide otherwise,from every decision or order of a Revenue Officer under this Act or the rulesmade thereunder, an appeal shall lie as if such decision or order has beenpassed by such officer under the Central Province Land Revenue Act, 1917, orthe Berar Land Revenue Code, 1928, as the case may be.

17. tral Provinces land Revenue Act, 1917.

18. Section 45. (1) A record-of-rights for each mahal or estate shall beprepared or revised, as the case may be, by the Settlement Officer atsettlement and, for such mahals or estates as the Provincial Government maydirect, by a Revenue Officer empowered by the Provincial Government in thatbehalf during the currency of a settlement.

(2) The record-of-rights of a mahal shall consist of the following documents:-

(a) Khewat or statement ofpersons possessing proprietary rights in the mahal, including inferior proprietorsor lessees or mortgagees in possession, specifying the nature and extent of theinterest of each;

(b) Khasra or field-book, inwhich shall be entered the names of all persons cultivating or occupying land,the right in which it is held, and the rent, if any payable;

(c) Jamabandi or list of personscultivating or occupying land in the village;

X X X X X X

(4) The documents specified in sub-section (2) shall be prepared in suchform and shall contain such additional particulars as may be prescribed byrules made under section 227.

19. Section 46. On the application of any person interested therein or ofhis own motion, the Deputy Commissioner may, without prejudice to otherprovisions of this Act, modify any entry in the record-or-rights on one or moreof the following grounds :-

(a) that all persons interestedin such entry wish to have it modified; or

(b) that by a decree in a civilsuit it has been declared to be erroneous; or

(c) that, being founded on adecree or order of a Civil Court or on the order of a Revenue Officer, it isnot in accordance with such decree or order; or

X X X X X X

20. Section 47. (1) The Deputy Commissioner shall cause to be prepared, inaccordance with rules made under section 227, for each Mahal annually or atsuch longer intervals as may be prescribed, an amended set of the documentsmentioned in section 45, sub-section (2), clauses (b), (c) and (d), and thedocuments so prepared shall be called the 'annual papers'.

21. (2) The Deputy Commissioner shall cause to be recorded, in accordancewith rules made under section 227, all charges that have taken place in respectof, and all transactions that have affected, any of the proprietary rights andinterests in any land.

X X X X X X X

22. The scheme of the Act so far as it is relevant to the present enquirymay be summarized thus : On the issue of a notification by the State Governmentunder s. 3 of the Act in respect of an estate, all proprietary rights in suchestate vest in the State. The Compensation Officer, on a claim made by theproprietor, after making the enquiry prescribed under the said Act, decides theamount of compensation due to him and the details of the land that vests in theState. But the Act saves some interests in the proprietor from its totaloperation : one of such is lands in the Central Provinces brought undercultivation by the proprietor after the agricultural year 1948-49, but beforethe date of the vesting : (sec s. 4(2) of the Act).

23. Under s. 40(1) of the Act, such a land shall be held by him in therights of an occupancy tenant; under sub-s. (2) thereof he becomes a tenant ofthe State; and under sub-s. (3) the Deputy Commissioner shall determine therent on the land and it shall be payable from the date of the vesting of theproprietary rights. Section 84 confers a right of appeal on an aggrieved partyagainst the order of the Deputy Commissioner to the prescribed authority. Thereis no provision in the Act which authorizes the Deputy Commissioner to reviewan order made by him under the said sub-section and, therefore, an order madeby him, subject to appeal, becomes final. It is, therefore, manifest that theorder made by the Deputy Commissioner in respect of lands in questiondetermining the rent on the basis that the proprietor was an occupancy tenanthad become final. If so, the Nistar Officer, i.e., the second appellant, had nojurisdiction to initiate proceedings for reopening the order made in respect ofMouza Sonpairi or in making the order reviewing the earlier order made by himin respect of Mouza Kachna, for the said orders had become final and there isno provision under the Act for reviewing them. But the learned counsel for theappellants contends that s. 15(3) of the Act confers such a power. Under s.15(3) of the Act, the authority concerned can review an order made by him unders. 13 of the Act. Section 13 of the Act deals with an order made by theCompensation Officer deciding the amount of compensation due to the claimantand recording in a statement in the prescribed form the details of the landwhich shall vest in the State. Neither s. 13 nor s. 15(3) has any relevance inthe context of an order made by the Deputy Commissioner under s. 40 of the Act.

24. This conclusion would be sufficient to dispose of the appeals. But, asan argument was made on the construction of s. 47(1) of the Land Revenue Actand as the same was considered by the High Court, we shall also deal with it.

25. The argument based upon the said provision is relevant more to thenature of the evidence available to the Deputy Commissioner to come to adecision under s. 40 of the Act than to the validity or the finality of theorder made by him thereunder. The question that a Deputy Commissioner has todecide by necessary implication under s. 40 of the Act is whether theproprietor has cultivated the land after the agricultural year 1948-49 andbefore the vesting of the estate in the State. One of the most important piecesof evidence that will be available to him is the annual papers prepared unders. 47 of the Land Revenue Act. It is not disputed that in the annual papersprepared earlier it was shown that the proprietor was cultivating the lands inquestion after 1948-49. But it is said that under s. 47(1), the DeputyCommissioner can correct the said entry in the year 1952 and 1954 as hepurports to do, so as to make the entry to the effect that between 1949 and thedate of the investigation the proprietor was not in cultivation of the land.This argument, if we may say so, is contrary to the scope and tenor of therelevant provisions of the Land Revenue Act and the rules made thereunder.Under Sections 45, 46 and 47 the provisions whereof we have extracted earlier, theprocedure prescribed is as follows : A record-of-rights shall consist ofKhewat, Khasra, Jamabandi and other papers; and they are prepared in the mannerprescribed by the rules made under s. 227. On the application of any personinterested therein or of his own motion, the Deputy Commissioner may modify anyentry in the record-of-rights on specified grounds, namely, that all personsinterested in such entry wish to have it modified, that by a decree in a civilsuit it has been declared to be erroneous, that, being founded on a decree ororder of a civil court or on the order of a Revenue Officer, it is not inaccordance with such decree or order, and that being so founded, such decree ororder has subsequently been varied on appeal, revision or review. It will beseen that a mistake in a Khasra or Jamabandi of an earlier year in regard tothe factum of cultivation by a particular person is not a ground formodification under s. 46 of the Land Revenue Act. Section 47 empowers theDeputy Commissioner to cause to be prepared annually or at such longerintervals as may be prescribed, an amended set of the documents mentioned incls. (b), (c) and (d) of sub-s. (2) of s. 45 of the Land Revenue Act, and thedocuments so prepared shall be called the 'annual papers'. The rulesmade under s. 227 of the Land Revenue Act are found in Ch. III of the CentralProvinces Land Records Manual, Vol. 1, pp. 13-16. The rules relevant to thepreparation of Khasra and Jamabandi direct the Patwari to record such changesannually as he finds to have taken place after local enquiry and actualinspection. It is, therefore clear that a record-of-rights consists of Khewat,Khasra, Jamabandi etc. and till it is revised again it will hold the field. Theentries therein can be modified only for the grounds mentioned in s. 46 of theLand Revenue Act. The Provisions of s. 47, if contrasted with those of s. 46,make it clear that the said section intends to bring the said documents up-to-dateby recording the subsequent changes based on supervening events. The scope ofthe annual papers is only to record the existing facts on the basis of spotinspection at the beginning of a fasli and to record changes occurring duringthe course of the year after the year is closed. It is not the province of theannual papers to investigate and decide on the correctness of otherwise of theentries made in the earlier annual papers as on the date they were made.

26. The said section came under judicial scrutiny of a Division Bench of theNagpur High Court in Mangloo v. Board of Revenue I.L.R. 1954 Nag. 143.The facts in that case were that on the death of one Gaindoo who was a tenantof mouza Matia, on an application made by his nephew and his widow, their nameswere entered in the annual papers as joint tenants of the land by the AssistantSuperintendent of Land Records; thereafter, the widow applied to theSuperintendent of Land Records for striking off the petitioner's name from theannual papers and her application was allowed; in appeal, the Additional DeputyCommissioner declined to interfere on the ground that the initial order of theAssistant Superintendent of Land Records was passed by him in his executivecapacity and as such the Superintendent of Land Records was competent to modifyit in his own executive capacity; the second appeal preferred to the Board ofRevenue was summarily rejected; and it was contended before the High Court thatthe decision of the Board of Revenue contravened the provisions of s. 47(1),read with s. 33(2)(c) of the Central Provinces Land Revenue Act, 1917. In thatcontext, the learned judges of the High Court considered the scope of s. 47(1)of the Land Revenue Act and the rules made under s. 227 of the said Act, andobserved thus :

'As we read section 47(1) of the Act and the rulesgoverning it, we are of opinion that these provisions deal only with thepreparation of the annual papers and not with their correction if the entriesare found to be erroneous. They are only enabling provisions which import norestriction on the power of the Revenue Officers to correct the mistakes orremove any irregularities, committed in the preparation of the annual papers.Neither the annual papers nor the corrected entries affect any questions oftitle or vested interest of any party. The power of the Revenue Officers inthis regard is analogous to the untrammelled right of a person to correct hisprivate documents, which cannot be questioned in a Court of law by any one whoseright or interest is not affected thereby.'

27. The learned counsel contends that the said passage comprises conflictingideas inconsistent with each other - the first part of it denying a right tocorrect the entries and the second part permitting such corrections. We cannotaccept this interpretation of the passage. The learned Judges were dealing withtwo aspects of the question : one is the scope of the preparation of the annualpapers and the other is whether correction of mistakes therein give a cause ofaction to the person aggrieved. The first they answered by stating that s.47(1) of the Land Revenue Act and the rules made under the said Act deal onlywith the preparation of the annual papers and not with their corrections if theentries are found to be erroneous and the other with the right of a partyaffected by the correction of the mistakes therein. The observations made inregard to the scope of s. 47(1) are made clear by the discussion found earlierin the judgment at p. 145. After adverting to the provisions of s. 47 and therules made under the Act governing the preparation of annual papers, learnedJudges observed :

'This would normally be done in the beginning ofthe agricultural year which, under s. 2(1) of the Act, commences on the firstday of June. No changes in the entries are contemplated during the course ofthe agricultural year and the changes taking place during that period areobviously to be recorded after the year is closed. The action taken by theSuperintendent of Land Records and ratified by the Additional DeputyCommissioner has, therefore, no reference to the preparation of the annualpapers under s. 47(1) of the Act and we are not shown any other provision oflaw which governs it.'

28. The Division Bench held that there was no provision for correcting thewrong entries made in the annual papers, for their scope is very limited. Thisview was followed by the Full Bench of the High Court in their Judgment whichis now under appeal. The Full Bench confirmed the view of the Division Bench inthe following words :

'.......... Section 47(1) of the Central ProvincesLand Revenue Act contemplates entering only such changes in the annual papersas take place during the course of the agricultural year. That section,therefore, does not cover a case of correction of the entries on the ground ofmistake.'

29. We entirely agree with this view. It follows that the Nistar Officer hasno jurisdiction to correct the said entries with a view to reopen the matteralready closed under s. 40 of the Act. We, therefore, agree with the conclusionarrived at by the High Court.

30. In the result, the appeals fail and are dismissed with costs. One set ofhearing fees.

31. Appeals dismissed.


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