--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 5583 / 2009 RATANLAL S/O SHREE VARDISHANKAR Vs. UDAY SINGH S/O RATAN SINGH & ANOTHER * * * * * O R D E R ( 16/8/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 21/4/09, passed by the Board of Revenue in review, arising out of order dt. 4/4/07 passed by the Board of Revenue in the case of Ratanlal Vs. State of M.P. and one another dt. 4/4/07. The contention of the petitioner is that he is recorded as Bhumiswami and is in exclusive cultivating possession of the agricultural land bearing Survey No. 156 admeasuring 0.214 hectares situated at village Arandiya Tehsil & Distt. Indore. Petitioner has further stated that an application was submitted by him for mutation of his name and the mutation was done in favour of the petitioner in revenue case No. 9- A-6 1985/1986 by the Tehsildar. Petitioner has further stated --- 2 --- that the aforesaid order was passed on 13/12/85. However, the Collector, Indore in exercise of suo motu powers passed an order on 14/9/99 that too without service of notice to the petitioner setting aside the order of mutation dt. 13/12/85. Petitioner has further stated that the aforesaid order was passed after a lapse of 14 years and a review was immediately preferred before the Collector and the Collector has dismissed the review petition preferred by the petitioner vide order dt. 22/6/05. Petitioner has further stated that a revision petition was preferred before the Commissioner in view of the provisions of the MP Land Revenue Code and the order passed by the Collector dt. 14/6/99 and 22/6/05 were challenged. The revision was dismissed by the Commissioner on 16/6/06 and thereafter a revision was preferred before the Board of Revenue as provided under the MP Land Revenue Code. Petitioner has further stated that after hearing the parties at length the Board of Revenue by a detailed and exhaustive order has allowed the revision petition on 4/4/07, meaning thereby, the order passed by the Tehsildar in respect of mutation dt. 13/12/85 was reviewed. --- 3 --- Petitioner has further stated that the presiding officer who was posted at the relevant point of time namely Mr. D. Singhai, was transferred out from the Board of Revenue and thereafter a review petition was preferred by respondent No.2 and the order passed by the Board of Revenue dt. 4/4/07 has been reviewed by passing the impugned order dt. 23/10/07. Learned Sr. counsel arguing the matter on behalf of the petitioner has argued before this court that the exercise of reviewing the order dt. 4/4/07 is bad in law as there was no error apparent on the face of the record before the reviewing authority warranting review. He has argued before this court that in fact the reviewing authority has acted as an appellate authority while exercising the powers of review and therefore the order is bad in law as under the guise of review, the reviewing authority cannot exercise jurisdiction vested with the appellate authority. Learned Sr. counsel for the petitioner has also argued before this court that respondent No.2 has already preferred a civil suit in the year 2008 claiming title over the property in question. He has drawn attention of this court towards the --- 4 --- plaint which is on record as (Annexure P/11) and his contention is that in the civil suit which is pending before the civil court, it has been pleaded by respondent No.2 that an order has been passed by the Board of Revenue against the plaintiff on 4/4/07 and the plaintiff has sought a declaration in respect of the title of the property in the civil suit. Learned Sr. counsel has vehemently argued before this court that once the dispute in respect of the property is decided, the revenue authorities are bound to respect the decree passed by the trial court and therefore the respondent No.2 cannot be permitted to agitate the matter before two forums. Learned counsel appearing for the respondent No.1 has argued before this court that the Board of Revenue has rightly reviewed order dt. 4/4/07 by passing an order on 23/10/07 and now the matter has to be heard afresh by the Board of Revenue and all grounds raised by the petitioner can be looked into by the Board of Revenue. It has also been argued that as there was an error apparent on the face of the record, the Board of Revenue has rightly allowed the review --- 5 --- by passing the order dt. 23/10/07. It has also been argued that the civil proceedings are independent of the proceedings in respect of mutation and mutation in respect of a holding takes place as per the provisions of MP Land Revenue Code and therefore merely because a Civil suit is pending the revenue courts are not debarred under the MP Land Revenue Code to pass an order in respect of mutation. Learned counsel for the respondent No.2 has prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that an order of mutation was passed on an application submitted by the petitioner on 13/12/85. It is also an admitted fact that after expiry of about 14 years the Collector, Indore has passed an order on 14/6/99 in exercise of suo motu powers of revision and the order passed by the Tehsildar dt. 13/12/85 was set aside. The petitioner has preferred a review petition against the order of the Collector dt. 14/9/99 and the same was also dismissed on 22/6/05. The petitioner has thereafter preferred --- 6 --- a revision before the Commissioner and the same has also resulted in dismissal on 16/10/06 and thereafter a revision petition was preferred before the Board of Revenue and the Board of Revenue after taking into account all the grounds raised by the petitioner and after hearing the present respondent No.2 also has passed a detailed and exhaustive order on 4/4/07. It is also noteworthy to mention that after the transfer of the presiding officer who has passed the order dt. 14/4/07 a review petition was preferred by respondent No.1 and the review has been allowed on 23/10/07. The basic question involved in the present case is whether there was an error apparent on the face of the record warranting review or not. This Court has carefully gone through the order dt. 21/4/09 and the same reads as under : mHk;i{k }kjk izLrqr rdkZs ij fopkj fd;k x;kA vkosnd ds fo}ku vfHkHkk"kd }kjk eq[; :i ls rdZ izLrqr fd;k x;k fd bl U;k;ky;ds le{k fuxjkuh esa lhfer fcUnq fopkj.kh; Fkk fd dysDVj }kjk iqufoZyksdu esa ikfjr vkns'k mfpr Fkk vFkok ughaA ;fn bl U;k;ky; }kjk dysDVj }kjk iqufoZyksdu esa ikfjr vkns'k esa voS/kkfudrk;sa ikbZ xbZ Fkh] rks dysDVj dks iquZfopkj gsrq izdj.k izR;kofrZr djuk FkkA ;g Hkh dgk x;k fd bl --- 7 --- U;k;ky; }kjk ikfjr vkns'k izkd`frd U;k; ds fojjhr gSA izR;qRrj esa vukosnd dzekad ,d ds fo}ku vfHkHkk"kd }kjk eq[; :i ls rdZ izLrqr fd;k x;k gS fd iquZfoyksdu esa dsoy bl fcUnq ij fopkj fd;k tkuk gS fd bl U;k;ky; }kjk vkns'k ikfjr djus esa D;k voS/kkfudrk dh xbZA ;g Hkh dgk x;k fd dysDVj }kjk 15 o"kZ ckn Loizsj.kk ls fuxjkuh dh dk;Zokgh dh xbZ gS] ftlds laca/k esa foLrkj ls foospuk dj vkns'k ikfjr fd;k x;k gSA rdZ esa ;g Hkh dgk x;k fd vkosnd }kjk ;g ugha crk;k x;k gS] mlds }kjk dkSu&dkSu ls fcUnq mBk;s x;s Fks] ftu ij fopkj ugha fd;k x;k gSA var esa rdZ izLrqr fd;k x;k gS fd iquZfoyksdu esa vihy vFkok fuxjkuh rjg fopkj ugha fd;k tk ldrk gSA 'kklu ds fo}ku vfHkHkk"kd }kjk rdZ izLrqr fd;k x;k gS fd iquZfoyksdu esa vihy vFkok fuxjkuh rjg fopkj ugha fd;k tk ldrk gSA 'kklu ds fo}ku vfHkHkk"kd }kjk rdZ izLrqr fd;k x;k fd fuxjkuh esa v/khuLFk U;k;ky;ksa ds leLr vkns'kksa ij fopkj fd;k tk ldrk gSA 2@ mHk;i{k }kjk izLrqr rdksZa ds lUnHkZ esa vfHkys[k dk voyksdu fd;k x;kA vij vk;qDr ds izdj.k dks ns[kus ls Li"V gS fd vij vk;qDr ds le{k vkosnd us dysDVj }kjk iquZfoyksdu izdj.k dzaekd 1@2002&03 esa fnukad 22-6-2005 dks ikfjr vkns'k ds fo:) fuxjkuh izLrqr dh xbZ gSA vij vk;qDr }kjk Hkh fnukad 16-10-2006 dks ikfjr vkns'k esa dsoy dysDVj ds iquZfoyksdu vkns'k ds laca/k esa gh foospuk dh xbZ gSA bl U;k;ky; ds vkns'k dks ns[kus ls Li"V gS fd bl U;k;ky; ds le{k Hkh --- 8 --- vukosnd dzekad ,d }kjk dysDVj ds iquZfoyksdu vkns'k ds laca/k esa gh rdZ izLrqr fd;s x;s gSaA ,slh fLFkfr esa bl U;k;ky; }kjk dysDVj ds Loizsj.kk ls fuxjkuh izdj.k dzekad 130@Lo- fux-@98&99 dks fopkj {ks= esa ysdj vkns'k ikfjr djus esa vfHkys[k ls ifjyf{kr =qVh dh xbZ gSA vr% ;g iqufoZyksdu Lohdkj fd;k tkdj bl U;k;ky; }kjk ikfjr vkns'k fnukad 04-04-2007 fujLr fd;k tkrk gSA QyLo:i fuxjkuh esa lquokbZ gsrq frfFk fu;r dh tk;sA The Board of Revenue while accepting the review petition has observed that before the Addl. Commissioner grounds were raised to challenge the order dt. 16/10/06 only and arguments were advanced only in respect of order dt. 16/10/06 and therefore the earlier order dt. 22/6/05 could not have been taken into account while passing an order as has been done by the Board of Revenue on 4/4/07. This Court has carefully gone through the memo of revision preferred before the Commissioner and the same reveals that both the orders ie., 22/6/05 and 16/10/86 were challenged before the Commissioner. Not only this both the orders were subjected to judicial scrutiny before the Board of Revenue while filing a revision by the petitioner and therefore it appears that the --- 9 --- Board of Revenue while reviewing the matter has acted as an appellate authority. This court in the case of Ratanlal Vs. Bardi Bai and others reported in (AIR 2003 MP 248) (FB) and in paragraph 13 it is held as under : 13. The various decisions cited by the learned counsel for applicant only lay down that even when a case is disposed of in motion hearing, the Court is required to record in brief its ground for doing so. However, non- supply of grounds cannot be characterised as "error apparent". It could be a ground for the applicant to assail the order in appeal, but not to invoke review jurisdiction of this Court. Recourse to Order 41(47), R. 1 of CPC by the applicant is wholly misconceived and his application deserves dismissal with costs. Keeping in view the judgment delivered by the Full Bench of this Court the reviewing authority could not have reviewed the order in the peculiar facts and circumstances of the case and the petitioner should have challenged the order before the appropriate forum on merits. In the present case, though this court is not deciding the validity of the order passed by the Collector at present, but the fact remains that the Full Bench of this Court in the --- 10 --- case of Ranveer Singh Vs. State of M.P. reported in [ 2010 (4) MPLJ 178 ], in the matter of suo motu revision has held the limitation to be 180 days, meaning thereby for exercising suo motu revisional powers an authority has to exercise its discretion within 180 days. The Full Bench in the aforesaid case in paragraphs 35 to 38 has held as under : 35. It is the trite law that if no period of limitation has been prescribed, the statutory authority must exercise its jurisdiction within a reasonable period. What should be the reasonable period should be judged from this angle also that what is the nature of the statute itself, rights and liabilities thereunder and other relevant factors. The Supreme Court in Bhatinda District Cooperative Milk Producers Union Ltd. (supra) in para 19 has held that the reasonable period of limitation may be borne out from the statutory scheme of the Act. The Supreme Court while considering the various provisions of Punjab General Sales Tax Act, 1948 in para 19 has held that looking to the scheme of the said Act the maximum period of limitation provided in sub-section (6) of Section 11 of the Act is five years and, therefore, in those circumstances the Supreme Court has held that as per the scheme of the Act, the reasonable period should be three years. Since in the present case, as we have noticed --- 11 --- hereinabove, different type of periods of limitation which are prescribed for exercising particular right and liability under different chapters, looking to the aim, object and the purpose of enacting the provisions of suo motu powers 180 days of the period of limitation would be the reasonable period and, according to us, for this another reason also the same period should be the reasonable period to exercise suo motu powers by the revisional authority from the date of coming into the knowledge of illegality, impropriety and irregularity of the proceeding having been done by the authority subordinate to it. 36. Ex consequenti we hereby hold that in order to exercise suo motu power of revision envisaged under Section 50 of the Code and looking to the scheme of Chapter V, it should be exercised by the revisional authority within 180 days from the date of the knowledge of the illegality or impropriety of any order passed or as to the irregularity of the proceedings of any revenue officer subordinate to it and it will not be justifiable to stretch it for any length of period even for protection of the Government land or public interest. 37. We shall now come to the second part of the question which has been referred to us that what is the “irreparable loss”. Needless to say, dispossession itself amounts to irreparable loss although the possession should have basis of some right accrued in a person by some statute or the law or may be on account --- 12 --- of some order passed by an officer or authority under the statute. The term “irreparable loss” cannot be defined since it varies case to case. It may consist of so many factors which are required to be kept in mind. No exhaustive list can be given that what should be the irreparable loss, but some illustrations of irreparable loss we may quote hereinafter :- “(i) the possession of the immovable property in question for a considerable long period under some right or by virtue of some order passed by an authority or officer under a statute; (ii) the person having possession of only that particular land in question which has been given to him by an order of the authority under a statute; (iii) if the duties have not been performed by the authorities within reasonable time resulting into causing of the injuries to the effected party if he is dispossessed; (iv) accrual of right of the third party in the immovable property due to passage of considerable long time; (v) change of hands by subsequent bonafide transfers; (vi) an order under which a person is possessing the immovable property, has attained finality under a particular statute; (vii) putting hard labour by the person to whom possession of the immovable property has been given by his sweat to develop the land, boundaries, digging the well etc. in the field; and (viii) the immovable property has passed to the heirs of original person to --- 13 --- whom land was given in possession by inheritance or survivalship.” 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 drawn. We have already mentioned hereinabove certain instances which can be said to be the “irreparable loss.” In the present case, the suo motu powers has been exercised by the Collector after a lapse of 14 years. Not only this, as the pleadings establishes that a civil suit is pending between the parties and respondent No.2 has sought a declaration of title in his favour and there is already an injunction in his favour as stated at bar and therefore this Court is of the considered opinion that the matter in respect of title has to be decided in the Civil Suit No. 2-A/2008 --- 14 --- which is pending before the 9th Civil Judge, Class II, Indore. Resultantly, this Court is of the considered opinion that as there was no error apparent on the face of the record warranting review, therefore, the order dt. 21/4/09 passed by the Board of Revenue deserves to be set aside and is accordingly set aside. It is further made clear that the petitioner shall be at liberty to challenge the order passed by the Board of Revenue dt. 4/4/07 in accordance with law before the appropriate Forum on merits. It is further clarified that any observations made by this court or by the Board of Revenue will not come in the way of the Civil Judge, who is seized of the matter, while deciding the civil suit and the civil suit shall certainly be decided on the basis of evidence adduced during the trial of the suit. This petition accordingly stands allowed. No order as to costs. (S. C. SHARMA) J U D G E KR