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The Revenue Recovery Act, 1890
The Indian Penal Code
Section 50 in The Indian Penal Code
Section 109 in The Indian Penal Code
Section 110 in The Indian Penal Code
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Madhya Pradesh High Court
Aslam Gani Patrawala vs Jasbeer Singh on 23 April, 2012
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 6296 of 2010
Aslam Gani Patrawala
- V/s -
Jasbeer Singh and others
Present : Hon'ble Shri Justice Rajendra Menon.
-----------------------------------------------------------------------------
--------- Shri R.N. Singh, Senior Advocate, with Shri
Hitendra Singh, counsel for the petitioner.
Shri Brian D'Silva, Senior Advocate, with Shri
Abhijeet Awasthy, counsel the respondents 1 to 4.
Shri S.M. Lal, Government Advocate, for
Respondents 5 to 10.
-------------------------------------------------------------------------------------- Whether
approved for reporting: Yes / No.
ORDER
23/04/2012
Challenging the order-dated 30.4.2010 - Annexure P/6 passed by the Board of Revenue, Gwalior
(MP) reversing the concurrent findings recorded by the Collector and the Additional Commissioner
in the matter of mutation of the land in question, petitioner has filed this writ petition.
2- Dispute in this writ petition pertains to certain land bearing Khasra Nos. 66 and 71 situated in
Patwari Halka No.29, Village Sultanpur, District Raisen, MP. The land in question belonged to one
Shri Usmangani Patrawala, who was staying in Bombay and as per the death certificate - Annexure
P/1, Shri Usmangani Patrawala had died on 4.2.1990. Petitioner Aslam Gani Patrawala is the son of
Late Shri Usmangani Patrawala and this writ petition is filed through the Attorney Holder of the
petitioner, one Shri Mohammed Aamir Khan. 2
3- It is seen from the records that after death of Shri Usmangani Patrawala on 4.2.1990,
respondents claimed that the land in question has been gifted to them by Shri Usmangani
Patrawala through a Hibanama and on the basis of the same, it is seen that in the year 1993, the
Naib Tehsildar and the Patwari of the Village Sultanpur entered the name of respondents 1 to 4 as
Bhumiswami and owners of the land in the land record. The entry continued for about 13 years
when after 13 years various complaints were received before the Collector and the Officers of the
Economic Offences Wing, particularly by one Shri Munna Khan to the effect that Patwari and the
Revenue Officers have committed various manipulation in the record, therefore, a request was
made to all concerned including the Chief Minister to conduct an inquiry into the matter. Available
at page 104 of the paper book, are the copies of the complaint and the memo issued by the Collector
directing the Sub Divisional officer, Gauharganj (hereinafter referred to as 'SDO') to conduct an
inquiry into the matter and submit a report. Accordingly, SDO, Gauharganj conducted an inquiry
and submitted a report on 8.7.2005 pointing out various irregularities committed by the revenue
officers with regard to manipulation of the revenue records, particularly in Village Sultanpur.
4- With regard to land bearing Khasra Nos. 66 and 71, it was pointed out that on the basis of the so-
called Hibanama, the name of the original owner Late Shri Usmangani Patrawala has been deleted
and instead the name of respondents 1 to 4 have been entered into the revenue records on
8.12.1993 by the then Naib Tehsildar and the Patwari. In the report, it was indicated that after
going through the original records with regard to mutation it is found that there is no application
available for mutation with regard to item No.56; the entry has been made merely on the basis of a
Hibanama, but neither a copy of the Hibanama nor the application for mutation nor records
pertaining to any proceedings conducted for transfer of the land is available. It was indicated in the
report that as per Muslim Law whenever a land is transferred on the basis of a gift i.e... Hibanama,
proof of the gift has to 3
be established by leading evidence. In the present case, it was pointed out that the entries are
made without there being any proof or evidence led with regard to the gift in question. Accordingly,
in a detailed report dated 8.7.2005, SDO, Gauharganj communicated to the Collector that there are
large scale irregularities in the mutation done, for a particular area, the statutory provision of
Sections 109 and 110 have not been followed and even revenue for the State by way of stamp duty
in the matter of transfer is denied. Accordingly, recommendation was made by the SDO that it is a
fit case where the powers of suo motu revision under section 50 of the MP Land Revenue Code
should be exercised. The said report was placed before the Collector and alongwith the said report
certain findings recorded by the Economic Offences Wing also pointing out large scale irregularities
was placed before the Collector. Accordingly, vide note-sheet dated 27.7.2005 - Annexure P/15,
the Collector directed for registration of a proceeding for exercising suo motu powers under section
50 not only for affecting mutation by breach of the statutory provision of sections 109 and 110 of
the MP Land Revenue Code, but also with regard to evasion of stamp duty on the alleged transfer.
After registering the case on 22.7.2005, notices were issued to all concerned, inquiry was conducted
and finally, it was found by the Collector after due inquiry that the mutation was ordered in an
illegal manner, contrary to the statutory provision. The same is illegal and, therefore, vide order-
dated 28.5.2007 - Annexure P/2, the Collector cancelled the mutation ordered on 8.12.1993 and
directed for restoration of the entry as it was prior to 1993. Aggrieved by this order passed by the
Collector on 28.5.2007, respondents preferred an appeal before the Additional Commissioner,
Bhopal and the Additional Commissioner vide order-dated 30.9.2009 - Annexure P/3 having
rejected the same and upheld the order of the Collector, revision was therefore, filed before the
Board of Revenue by respondents 1 to 4, and the revision having been allowed vide order-dated
30.4.2010, petitioner has filed this writ petition challenging the order passed by the Board of
Revenue. 4
5- Shri R.N. Singh, learned Senior Advocate appearing for the petitioner, took me through the
findings recorded by the Collector, Additional Commissioner and the Board of Revenue; the
requirement of the provisions of Section 109 read with section 110 of the MP Land Revenue Code;
the death certificate of Shri Usmangani Patrawala; and, the entire material available on record and
argued that in the revenue records upto the year 2003-2004, name of Shri Usmangani Patrawala
was entered and, therefore, the petitioner had no occasion to have any doubt. It was only when
notices were issued from the office of Collector with regard to the proceeding initiated that the
petitioner was made aware of the irregularities committed. Accordingly, it is stated that the
petitioner in the absence of any notice with regard to the mutation conducted on 8.12.1993, had no
knowledge about the irregularities committed and the Collector and the Additional Commissioner
on inquiry having found the entire mutation done to be illegal, contrary to law, based on fraudulent
documents, which is not proved in accordance with law, have interfered into the matter. The
concurrent finding recorded by the Collector and the Additional Commissioner is interfered with by
the Board of Revenue mainly on the ground that the power of suo motu revision exercised after 13
years is unsustainable, the petitioner Shri Aslam Gani Patrawala having not taken any steps for
mutation of the land in his name after death of his father on 4.2.1990, cannot now claim any benefit
and in an illegal and perverse manner without appreciating the totality of the facts and
circumstances and the legal questions, has interfered into the matter.
6- Referring to the Hibanama, available on record, and an agreement to sale produced by the
respondents in the proceeding as contained in Annexure P/10 Shri R.N. Singh, learned Senior
Advocate, emphasized that apart from the fact that the Hibanama was not proved in accordance to
law and the requirement of the principle laid down by the Supreme Court in the case of Hafiza Biwi
Vs. Shaikh Farid, (2011) 5 SCC 654, the Board of Revenue has interfered into the matter without
taking note of the fact that even the agreement for sale has been filed 5
fraudulently and all these factors were taken note of by the Collector and the Additional
Commissioner for suspecting the transaction with regard to transfer of the property by Shri
Usmangani Patrawala to the respondents. It is emphasized by learned Senior Advocate that once it
is found that a mutation has been affected illegally without following the statutory provisions, the
exercise of suo motu power by the Collector was proper and the Board of Revenue committed
serious error in interfering into the matter. Taking me through the report of the SDO dated
8.7.2005; the inquiry conducted by the Economic Offences Wing; and, the various irregularities
highlighted in these orders and the statement of the Patwari, recorded in the proceedings, which
goes to show that the proceedings were held in total violation of the statutory provision, Shri R.N.
Singh, learned Senior Advocate, emphasized that a reasonable and concurrent finding recorded by
the Collector and the Additional Commissioner has been interfered with in an illegal and arbitrary
manner. Emphasizing that the Board of Revenue has unnecessarily interfered into the matter
without appreciating the legal question involved and the facts in its right perspective, learned
Senior Advocate prays for interference in the matter and in support of his contentions invites my
attention to the following judgments: (i) State of Gujrat Vs. Patil Raghav Natha, (1969) 2 SCC 187 -
to say that the power of revision must be exercised in a reasonable time and length of the
reasonable time must be determined with the facts of the case and the nature of the order which is
being revised.
(ii) Smt. Usha Devi and Others Vs. State of MP (FB), AIR 1990 MP 268 - to contend that what
should be the
reasonable time for exercise of the power of suo motu revision, as held in P. Raghav (supra), must
be determined with reference to the facts and circumstances of the case and the nature of the order
which is being revised. (iii) Mulayam Singh Vs. Budhwa Chamar, 2002 (2) MPHT 140 (DB) - in
support of his submission that what should be 6
the reasonable time would depend upon the fact of each particular case. In the present case as soon
as the fact was brought into his notice, the Additional Collector has rightly exercised the jurisdiction
u/s 50 of the Code, to set aside the mutation based on a transaction contrary to the provision of the
Section 165 (7-B) of the Code. In the circumstances, it cannot be said that the jurisdiction was
exercised beyond reasonable time.
(iv) Murari Lal and others Vs. State of MP, 1994 MPLJ 378 - to emphasize that it is a cardinal
principle of law of limitation that prescribed period (if any) of limitation starts running from the
date of acquiring the knowledge of relevant facts giving rise to the cause of action. (v) Ram Bharosi
Sharma Vs. State of MP, 2002 (3) MPLJ 189 - to say that in view of the well settled legal position
with regard to limitation/time limit within which the power of review u/s 50 of the MP Land
Revenue Code has to be exercised.
(vi) Jeevan Lal Vs. State of MP, 2008(2) MPLJ 4 - to submit that as large scale violation of
statutory provision is found, principle laid down in the case of Ram Bharosi Sharma (supra) will not
apply in the facts and circumstances of the present case. Case where large scale irregularities are
committed and as such exercise of power of revision even though beyond the period of limitation is
permissible. (vii) Sarvan Kumar Vs. State of MP, 2007(1) MPLJ 60 - in support of his submission
that time limit for exercise of suo motu revision should depend upon facts of each case. Fixing of
such limit will frustrate the very purpose of giving the powers of suo motu revision and encourage
the arbitrary and whimsical order with corrupt motive.
(viii) Ranveer Singh Vs. State of MP, 2010 (4) MPLJ 178 - to show that law laid down by a Full
Bench with regard to 7
exercise of suo motu powers of revision where it is envisaged that under section 50 of the MP Land
Revenue Code, power should be exercised by the Revisional Authority within 180 days from the
date of knowledge of the illegality or impropriety of any order.
(ix) A.V. Papayya Sastri Vs. Government of AP, (2007) 4 SCC 221 - to say that it is settled
proposition of law that a judgment obtained by playing fraud on the Court/Tribunal or authority is
a nullity and nonest in the eyes of law. It can be challenged in any Court, at any time, in Appeal,
Revision and Writ of even in Co-lateral proceedings. (x) State of Punjab Vs. Bhatinda District
Cooperative Milk Producers Union Limited, (2007) 11 SCC 363 - to show as to what shall be the
reasonable period of exercising jurisdiction would depend upon the nature of the statute, rights and
liabilities there under and other relevant factors. (xi) Savina Park Resort & Tours Private Limited
Vs. State of MP, 2012 (1) MPLJ 562 - to say that in the light of the Full Bench Judgment, it is clear
that a reasonable period is construed as 180 days from the date of knowledge of illegality,
impropriety and irregularity. Thus, for applying the ratio of this judgment, the pivotal question is as
to what is the starting point/day.
(xii) Hafiza Biwi (supra) - to contend that the position is well settled, what has been stated and
restated time and again, that the three essentials of a gift under Mohammedan Law are (1)
declaration of the gift by the donor; (2) acceptance of the gift by the donee; and, (3) delivery of
possession. 7- Finally, contending that the Collector was apprised of the irregularity committed only
on 8.7.2005, when the SDO, Gauharganj submitted the report and immediately within 180 days
cognizance was taken by the Collector by registering the proceedings on 27.7.2005, Shri R.N. Singh
- learned Senior Advocate, submits that the law laid down 8
by the Full Bench in the case of Ranveer Singh (supra) is fully applicable and, therefore, the Board
of Revenue has committed an error in interfering into the matter mainly on the ground of delay. 8-
Shri Brian D'Silva, learned Senior Advocate, assisted by Shri Abhijeet Awasthy, learned counsel
appearing for respondents 1 to 4, refuted the aforesaid and emphasized that under section 50 of the
MP Land Revenue Code, the power of suo motu revision cannot be exercised by the Collector for
interfering into the mutation done in the revenue records pertaining to private land and a private
dispute between persons when no government interest is involved. It is emphasized that if the
petitioner was aggrieved by the order passed on 8.12.1993, then in accordance to the provision to
section 50 of the Code, petitioner should have filed an appeal and as a remedy of appeal was
available to the petitioner, exercise of suo motu powers of revision is unsustainable. It was
thereafter argued that in the present case the proceedings were initiated to find out evasion of
stamp duty in the transaction and instead of adjudicating the dispute with regard to evasion of
stamp duty, the misuse of suo motu powers for annulling the mutation done is unsustainable. It was
argued at length by learned counsel for the respondents that the suo motu powers of revision is
exercised by the Collector based on the report and evidence collected behind their back, without
grant of opportunity to them to rebut the same, without giving them any proper opportunity of
defence and, therefore, the entire action is unsustainable. It is stated that in the original notice
issued and in the order passed by the Collector there is no finding of fraud and as the proceedings
initiated for evasion of stamp duty has been converted into a proceedings akin to an appeal against
the order of mutation, the authorities have acted in excess of their jurisdiction. Certain objections
were also raised with regard to the right of the attorney holder to file the petitioner on behalf of the
present petitioner, particularly by contending that the petitioner having not objected from 1990
upto 2005 and even before the Collector when the proceedings were held, it is stated that the
petition is liable to be dismissed.
9
9- Finally, it was argued by learned Senior Counsel for the respondents that the Hibanama and the
documents available on record do prove that Late Usmangani Patrawala had gifted the property to
respondents 1 to 4, who have got the land mutated and have been in possession of the land since
then, the Collector and the Additional Commissioner have interfered into the matter in an illegal
manner, which is rightly interfered with by the Board of Revenue. Accordingly, emphasizing that in
the facts and circumstances of the case, the interference prayed for is not sustainable, learned
Senior Advocate prays for dismissal of the writ petition.
10- Shri S.M. Lal, learned Government Advocate appearing for the State, referring to the return
filed by the State points out that as the mutation in question ordered on 8.12.1993 is in total
violation and disregard to the statutory provision as contained in section 109 read with section 110
of the Code, the interference made in the matter is proper and no case was made out for
interference by the Board of Revenue and in upsetting the concurrent findings recorded by the
Collector and the Additional Commissioner, the Board of Revenue has committed an error.
11- I have heard learned counsel for the parties at length and perused the records.
12- As far as the factual aspect of the matter is concerned, there is no dispute. On the basis of
certain complaints and report received, the Collector and the authorities of the Economic Offences
Wing directed for a detailed inquiry, in which the irregularities as has been highlighted by the
Collector in his order-dated 28.5.2007 have come to light. The irregularities found are that the
transfer/mutation is made without following the procedure contemplated under sections 109 and
110 of the Code. No advertisement was issued, no notice was displayed, no objections were called
for and even in the record the application for mutation was not available. It was further found that
even though the mutation was ordered on the basis of a Hibanama, even a copy of the Hibanama in
its original or otherwise was not available. It was also 10
found that the proceedings were held against Shri Usmangani Patrawala in the year 1993 whereas
Shri Usmangani Patrawala had already died on 4.2.1990. It was also found that in his statement
given, Patwari Gangaram admitted the illegality committed and pointed out that he was compelled
to make the entry because the then Naib Tehsildar, one Shri Mishra, compelled him to do the same.
It was also found in the inquiry that for the transaction done both the Patwari and the Naib
Tehsildar have been granted undue benefit by the private respondents. The question now would be
as to whether the aforesaid finding recorded in the inquiry and the action taken by the Collector for
undoing the illegality by exercising the powers of suo motu revision under section 50 of the Code
should be interfered with by this Court by upholding the order passed by the Board of Revenue.
That being so, it may be appropriate to take note of the order passed by the Board of Revenue, the
reasons and factors which weighed with the Board of Revenue for interfering in the matter.
13- In paragraph 3 of the order passed on 30.4.2010, after evaluating the circumstances and the
pleadings of the parties, the Collector has held that the following four points were canvassed before
him:
(i) Whether the Collector was right in exercising the powers of suo motu revision in the matter of a
private land after a period of 13 years?
(ii) Whether the Collector after having initiated proceedings for evasion of stamp duty was right in
passing the impugned order?
(iii) When the mutation done on the basis of Hibanama could be challenged by way of an appeal,
whether
exercise of powers of suo motu revision was proper? (iv) Whether a Hibanama executed as per the
Muslim Law could be undone in the manner as done by the
Collector without getting a decree from a Court of competent jurisdiction, for cancellation of the
11
Hibanama and challenge to it in accordance with
law.
Even though it was held that the aforesaid four points emerge from the argument and the order of
the Collector, but while formulating the questions and issues before him. In paragraph 5, two issues
were framed by the Commissioner vide paragraph 5.1 and 5.2 and the same in Hindi reads as
under:
"5-1 D;k ukekraj.k iath esa ikfjr vkns'k vf/kdkfjrk jfgr gksdj vd`r ,oa 'kwU;or gS \
5-2 D;k dysDVj }kjk Loeso fuxjkuh esa ikfjr vkns'k mfpr gS \"
14- Considering the totality of the facts and circumstances and the question involved in the writ
petition as canvassed by the parties, it is seen that for considering tenability of the order passed by
the Board of Revenue, the first question to be considered is as to what is the law governing the
period of limitation for exercising the suo motu powers of revision by the competent authority
under section 50 of the Code and a related question on the basis of the objection raised by the
respondents is as to whether in cases involving transfer of private land, such a power can be
exercised?
15- Section 50 of the Code, contemplates a provision for revision and according to the said provision
the Board of Revenue or the Commissioner/Settlement Commissioner or the Collector or the
Settlement Officer at any time on his own motion or on an application made by the party for the
purpose of satisfying itself or himself with regard to the legality or propriety or any order passed by
or as to regularity or a proceeding of a Revenue Officer subordinate to it or him is entitled to
examine the record and dispose of the matter by passing such orders as it deems fit. This power of
revision is available to the Collector and the power can be exercised at any point of time on the
Collector being satisfied with regard to the legality or propriety of the order passed by any revenue
officer subordinate to him. Admittedly, the Naib Tehsildar, who had passed the order of mutation
on 8.12.1993 is a 12
revenue officer subordinate to the Collector and, therefore, the Collector is entitled to exercise the
power of revision. As the section in question does not prescribe any time limit instead it speaks
about the power to be exercised at any time, the question would be as to what is the reasonable
time for exercising this power of suo motu revision. 16- In the case of Patil Raghav Natha (supra)
relied upon by Shri R.N. Singh, learned Senior Advocate, in paragraphs 11 and 12, the Supreme
Court has laid down the principle that the power for revision must be exercised within a reasonable
period of time and the reasonableness of the time is to be determined with regard to the facts and
circumstances of each case and the nature of the order which is to be passed. A Full Bench of this
Court in the case of Usha Devi (supra) while considering the question of exercise of power of
revision under section 42 of the MP Ceiling on Agricultural Holdings Act, has also laid down similar
principle after following the law laid down in the case of Patil Raghav Natha (supra). Thereafter, in
most of the cases relied upon by Shri R.N. Singh in this regard and as is detailed hereinabove, the
same principle is reiterated.
17- Finally, the question is now settled by a Full Bench of this Court in the case of Ranveer Singh
(supra). The Full Bench in paragraph 38 has laid down the following principle: "38. Ab judicatio for
the reasons stated hereinabove, we hereby answer the question referred to us as under:- 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 13
drawn. We have already mentioned hereinabove certain instances which can be said to be the
'irreparable loss'. (emphasis supplied)"
18- This judgment rendered by the Full Bench is followed in the case of Savina Park Resorts and
Tours Private Limited (supra) relied upon by Shri R.N. Singh, learned Senior Advocate. Therefore,
now it can safely be construed that the power of suo motu revision available to a competent
authority under section 50 of the code can be exercised within a period of 180 days from the date
on which the knowledge of illegality, impropriety or irregularity with regard to the proceeding
committed by the Revenue Officer subordinate to him comes to the knowledge of the revisional
authority.
19- Admittedly, in the present case if the aforesaid principle is applied, it would be seen that the
mutation was ordered on 8.12.1993 and the power of Revision was exercised by the Collector by
registering proceedings on 27.7.2005 as is evident from Annexure P/15. From the facts that have
come on record it is clear that when a complaint was filed by Munna Khan to various authorities,
the Collector directed the SDO, Gauharganj to conduct an inquiry. Similarly, the authorities of the
Economic Offences Wing also conducted an inquiry and it was for the first time on 8.7.2005 when
the report was submitted by the SDO, Gauharganj that the illegality, impropriety or irregularity
committed by the Revenue Officers in the matter of mutation came to the notice of the Collector.
The Collector received the report on 8.7.2005 and within 180 days thereof he took cognizance,
registered the proceedings on 27.7.2005 and initiated the process which culminated in passing of
the order on 28.5.2007 - Annexure P/2. Accordingly, the crucial dates for determining the question
of limitation would be 8.7.2005, when the illegality came to the notice of the revisional authority;
and, 27.7.2005, when the Collector took cognizance of the illegality and initiated the proceedings. It
is, therefore, a case where within the period of 180 days of acquiring knowledge about the illegality
the revisional authority initiated the proceedings. Accordingly, in the light of the principle laid 14
down in the cases as referred to hereinabove, particularly by the Full Bench in the case of Ranveer
Singh (supra), the Collector has not committed any error in registering the proceedings and
exercising the power of suo motu revision and the Board of Revenue in holding that the powers of
suo motu revision has been exercised after an inordinate delay of 13 years and in interfering with
the matter on such ground has committed a grave illegality. In holding that the powers of suo motu
revision could not be exercised after a period of 13 years, the Board of Revenue has committed
grave error and the findings and the law laid down by Board of Revenue in this regard being
contrary to the principle laid down by the Full Bench in the case of Ranveer Singh (supra), cannot
be upheld. To that effect, the order passed by the Board of Revenue is unsustainable.
20- Having held so, the first objection of Shri Brian D'Silva, with regard to the jurisdiction of the
Collector in exercising the powers of suo motu revision when a right to appeal is available to the
petitioner has to be taken note of. Substantive proviso of Section 50 of the Code, as indicated
hereinabove, does give the Collector right to exercise the powers of suo motu revision if he is
satisfied that an irregularity or illegality has been committed by a Revenue Officer subordinate to
him in a revenue proceedings held. However, the proviso to this substantive provision contemplates
that no application for revision shall be entertained against an order appealable under this Code.
This proviso means that if an order is appealable then against an order against which an appeal lies
no application or revision under section 50 is maintainable. Sub-clause (i) of the proviso does not
mean that in all cases where an appeal is provided the powers of suo motu revision cannot be
exercised. The proviso means that if an appeal is provided against an act, an application for revision
under section 50 cannot be failed by the aggrieved person. The aggrieved person has to take
recourse to the remedy of appeal under section 44. However, the proviso does not relate to exercise
of suo motu powers of revision by the revisional authority, infact it refers to the right available to an
aggrieved 15
person to file an application for revision and not the right of the revisional authority to exercise suo
motu powers. Accordingly, on the ground that against the order impugned as an appeal is
maintainable, the power of suo motu revision cannot be exercised, the petition cannot be dismissed.
This contention of Shri Brian D'Silva, learned Senior Advocate, is misconceived and is not in
accordance to the provisions of the section i.e.... Section 50.
21- As far as the contention with regard to the petitioner having not taken recourse to the remedy
available of filing an appeal and challenging the order-dated 8.12.1993 and the finding recorded by
the Board of Revenue that the petitioner Shri Aslam Gani Patrawala did not take any action for
getting the land mutated in his name after death of his father is concerned, this is also a perverse
finding. From the pleadings and material available on record and the Khasra entries filed as
Annexure P/6, it is clear that even in the Khasra entry in the year 2003- 2004 in Column No.(3),
owner of the land is shown as Shri Usman Gani Patrawala and it is the case of the petitioner that
they were all along under the impression that the land is entered in the name of his father and it
was only when he received information from the office of Collector with regard to the proceedings
initiated that he came to know about the illegal mutation. That being so, merely because the
petitioner did not take any action or steps for challenging the order-dated 8.12.1993, the petition
cannot be dismissed. The petitioner has given reasonable justification for the silence and inaction on
his part and there is much force in his contention that he was not aware of the proceedings
conducted by respondents 1 to 4, with the help of the revenue authorities in getting the land
mutated in their name. In the absence of the petitioner having adequate knowledge about the
illegality committed, it is not expected of him to challenge or take action, records indicate that he
has been effectively taking steps to adjudicate the matter before all the authorities concerned once
he acquired knowledge of the illegality. Accordingly, the grounds in this regard canvassed by Shri
Brian D'Silva, learned Senior Advocate, cannot be accepted.
16
22- It was thereafter argued by Shri Brian D'Silva that the proceedings were initiated for the
purpose of assessing stamp duty and in the said proceedings there was no necessity for going into
the question of mutation. This contention of the learned Senior Advocate is wholly misconceived.
Apart from the fact that in the notice issued for initiating suo motu powers of revision, there is a
mention about the illegality committed in conducting the mutation under section 109 read with
section 110 of the Code, in the order passed by the Collector on 27.7.2005 taking cognizance of the
matter after he received the report from SDO, Gauharganj and while issuing notice to all concerned,
it is recorded by the Collector that after going through the report dated 8.7.2005, it is prima facie
established that in mutating the land in the name of Shri Narendra Singh, Shri Nanak Singh, Shri
Balwant Singh and Shri Jasbeer Singh, apart from depriving revenue by way of stamp duty to the
State, the mutation has been done in total disregard to and in violation to the provisions of sections
109 read with 110 of the Code and, therefore, it is a fit case where the powers of suo motu revision
should be exercised. It is, therefore, clear that the proceedings were registered by the Collector not
only for violation of stamp duty, but also on the ground of breach of the statutory provision of
sections 109 and 110 of the Code, in conducting the mutation proceedings. Accordingly, on this
count also the respondents cannot seek any benefit. 23- Finally Shri Brian D'Silva, learned Senior
Advocate, tried to argue that the entire action is taken without granting proper opportunity to the
respondents; the statement of Patwari Gangaram was recorded behind their back; and, as the
proceedings were held behind the back of the respondents, it is stated that the entire order and
action is unsustainable. This argument of the learned Senior Advocate appearing for the
respondents cannot be accepted. From the proceedings and order- sheets with regard to the matter
as is evident from Annexure P/15, it is seen that on 27.7.2005, after directing for registration of the
proceedings under section 50, notices were issued to the Tehsildar, the concerned Patwari and after
they appeared alongwith the record, on scrutiny of the 17
record notices were issued not only to respondents 1 to 4 but also the original owner Shri Usman
Gani Patrawala; and, when these notices were issued all the respondents appeared through their
counsel one Shri Sharma and the proceedings held before the Collector on 27.7.2006, 8.2.2007,
12.3.2007 and even thereafter indicates that throughout the proceedings respondents were
represented by their counsel one Shri Sharma. Initially Shri Sharma raised a preliminary objection
with regard to maintainability of the proceedings i.e... on the ground that the proceedings are only
for evasion of stamp duty. The Collector held that the preliminary objection shall be decided
alongwith the matter on merits and thereafter the respondents were directed to file their objections
and lead evidence in their defence. It is seen from the record that inspite of repeated opportunities
being granted neither any evidence was led nor any prayer made for examining any witness. Even
statement of one Patwari was recorded when the respondents were present on 27.7.2005 and at
that point of time no prayer was made for summoning the earlier Patwari or cross-examining him.
It is a case where the respondents were aware of the proceedings being held and inspite of
opportunities being granted they did not raise any objection with regard to grant of opportunity nor
sought for any such opportunity. That being so, it cannot be said that proper opportunity was not
granted to the respondents for defending themselves.
24- That apart, the moot question involved in this writ petition is as to whether mutation in
question ordered on the basis of Hibanama on 8.12.1993 is in accordance to the requirement of law.
Before this Court and even before the proceedings held in the Board of Revenue so also before the
Collector and the Additional Commissioner, it was never the case of the respondents that the
mutation ordered is in accordance to the requirement of law. A detailed procedure is laid down in
section 109 and section 110 of the Code for conducting mutation. The mutation has to be conducted
after following the procedure laid down. In the present case, none of the procedures were followed.
From the report submitted by SDO, Gauharganj, it is clear that even the application for mutation
18
and the original copy of the Hibanama is not available on record, no objections were called for and
on the date when the original owner Shri Usman Gani Patrawala had died, proceedings were held
against a dead person without notice to him and the mutation ordered. Respondents are unable to
demonstrate before this Court as to how and in what manner the mutation was ordered on
8.12.1993 is legal and proper; what is the procedure that was followed; when was the
advertisement made and objections invited; how the objections were considered; how and in what
manner the Hibanama was proved; and, what is the procedure followed for ordering the mutation.
In the absence of enough material being available to show that the mutation ordered on 8.12.1993
was after following the due procedure as contemplated under law, this Court does not find any error
in the order passed by the Collector and affirmed by the Additional Commissioner holding the
mutation to be illegal, the same being in total disregard to the statutory provisions. Before this
Court also respondents are unable to demonstrate as to how they say the mutation to be proper.
Accordingly, it is a case where in total disregard to the prescribed statutory norms and procedure,
mutation is ordered by the revenue authorities and on being informed about the irregularity
committed, the revisional authorities have exercised the power available to them under law and
have taken action. In doing so, they have not committed any error and the Board of Revenue
without appreciating all these factors, without considering the legal question in its right perspective,
has interfered in the matter in a totally uncalled for manner, which cannot be upheld by this Court.
25- It is also surprising to note that respondents claim their right to the property on the basis of a
Hibanama. When a property is gifted under the Muslim Law, transfer of property by gift is
permissible by even an oral gift without anything being in writing. But, a gift has to be proved by
establishing three essential factors: (i) declaration of gift by the donor; (ii) acceptance of the gift by
the donee; and, (iii) delivery of possession. In the present case, there is no evidence to show the
execution of the Hibanama, by following the aforesaid three procedural 19
aspects of the matter. This could be done only if the Hibanama is proved in accordance with law
i.e.... the declaration and intention of the donor, acceptance of the donee, and delivery of possession
proved in accordance with law. No evidence having been led to prove the Hibanama and the
procedure followed for gifting and even the original Hibanama being not available on record, the
entire transaction seems to be doubtful and, therefore, in interfering with the matter the Collector
and the Additional Commissioner have not committed any error. That apart, the respondents'
conduct in introducing a sale-deed when the proceedings were pending casts a serious cloud over
their entire conduct. If the respondents were raising their claim on the basis of a Hibanama, it is not
known as to why an agreement for sale was brought on record. The agreement for sale - Annexure
P/10 is dated 12.4.1979 and if there was already an agreement of sale, it is not known as to why a
Hibanama is executed on 28.4.1980. All these aspects have been considered by the Additional
Commissioner and a decision taken. These reasonable finding recorded by the two revenue
authorities has been unnecessarily interfered with by the Board of Revenue and in doing so, I am of
the considered view that the Board of Revenue has committed grave irregularity.
26- When the law contemplates that a particular thing has to be done in a particular manner and
when a procedure for doing that particular thing is laid down in a mandatory statutory form - for
example section 109 and section 110 of the MP Land Revenue Code in the present case, the
mutation in question should have been done in accordance to the said provision and if the mutation
is done in total disregard to the statutory and mandatory provision, this Court cannot close its eyes
and perpetuate an illegality. That being so, the Collector and the Additional Commissioner have not
committed any illegality in setting aside an illegal procedure followed for mutation and the Board of
Revenue while interfering with these reasonable orders has dealt with the matter in a casual way
without appreciating the legal and factual aspects in its right perspective.
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27- Accordingly, it is a fit case where the order passed by the Board of Revenue, which is found to
be wholly perverse, illegal, contrary to law and is, therefore, illegal, should be set aside/quashed.
28- In view of the above, this petition is allowed. Impugned order-dated 30.4.2010 - Annexure P/6
passed by the Board of Revenue is quashed and the orders passed by the Collector and the
Additional Commissioner are restored.
29- Petition stands allowed and disposed of. No order as to costs.
( RAJENDRA MENON )
JUDGE
Aks/-