Vishwantah Garodia vs The State of Madhya Pradesh, Department of Revenue

K.K. Trivedi, J.—In terms of direction already issued by this Court on earlier occasion, though no return has been filed, but it is fairly contended by learned Govt. Advocate that the matter can be heard finally. The controversy involved in the present writ petition against the order passed by the Additional Commissioner, Jabalpur Division Jabalpur on 19.11.2012, is that when the order dated 9.2.2010 passed by the Collector Katni in exercise of power u/s 51 of the M.P. Land Revenue Code 1959 (hereinafter referred to as the Code of brevity) was sought to be challenged, the Additional Commissioner completely failed to appreciate the proviso prescribed under the said Section and though it was found that the sanction from the Board of Revenue was not obtained by the subsequent officer, but the review of the original order dated 13.10.2008 was ordered by the impugned order dated 9.2.2010. It is contended that the Collector Katni was not competent to pass the order dated 9.2.2010 without the sanction of the Board of Revenue and as such, the order impugned is bad in law.

In fact, an order was passed by the Collector Katni on 13.10.2008 allowing transfer of the land of the petitioner. This order was sought to be reviewed by the very same authority and the very same person and certain reports from the Tahsildar were called. However, before any order could be passed, the incumbent holding the post of Collector Katni was transferred and another person was posted in his place. The another person exercised the power of review u/s 51 of the Code and passed the impugned order dated 9.2.2010. This order was called in question before the Additional Commissioner in appeal, but the said appeal has been dismissed on 19.11.2012, therefore, this writ petition is required to be filed.

It is contended by learned counsel for the petitioner that the Additional Commissioner as also the Collector Katni completely failed to see that proviso prescribed u/s 51 of the Code specifically contemplates the condition that the Commissioner, Settlement Commissioner, Collector or Settlement Officer will exercise the power of review of any order which he has not himself passed only after obtaining the sanction of the Board. Since the subsequent officer posted in place of the person, who has passed the order dated 13.10.2008 has not obtained the sanction from the Board, the power u/s 51 of the Code could not be exercised. This aspect is completely lost sight off by the learned Additional Commissioner and as such, the orders impugned are bad in law.

Learned Govt. Advocate appearing for the respondents contends that since the finding is recorded by the Additional Commissioner that the proceedings were initiated by the Collector, who himself has passed the order on 13.10.2008, it was not necessary for the successor of the said person to obtain the sanction from the Board of Revenue. Thus, it is contended that if such a provisions is read and interpreted in this manner, the order impugned cannot be said to be bad in law.

After hearing learned counsel for the parties at length and perusing the provisions of the Section 51 of the Code, this Court is of the opinion that the Collector who was exercising the power of review by passing the order dated 9.2.2010 was not authorised to pass the order on his own without the sanction of the Board of Revenue, inasmuch, as the original person who has passed the order under review was already transferred and the proceedings initiated by him were not finally culminated. As a result, if the power of review was to be exercised by any successor to the original authority, the sanction from the Board of Revenue was necessary. For the purposes of the aforesaid, it would be appropriate to refer the first proviso of the said Section 51 of the Code, which reads thus:-

Review of orders.-(1) The Board and every Revenue Officer may, either on its/his own motion or on the application of any party interested review any order passed by itself/himself or by any of its/his predecessors in office and pass such order in reference thereto as it/he thinks fit:

Provided that -

if the [Commissioner,] Settlement Commissioner, Collector or Settlement Officer thinks it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Board, and if an officer subordinate to a Collector or Settlement Officer proposes to review any order, whether passed by himself or by any predecessor, he shall first obtain the sanction in writing of the authority to whom he is immediately subordinate;

This particular aspect is also considered by this Court in the case of Rajendra Kumar Agrawal and another Vs. State of M.P. and others, and it has been held that the power of review can be exercised only if the sanction is granted by the Board of Revenue as prescribed under the Code.

Consequently, the writ petition is allowed. The orders dated 9.2.2010 and the order dated 19.11.2012 Annx. P/1 and P/3 are hereby quashed. The matter is remitted back to the Collector Katni, with a direction to obtain the sanction from the Board of Revenue as prescribed u/s 51 of the Code and then to exercise the power of review, if necessary. The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.