State of Madhya Pradesh & Ors. v. Seth Balkishan Nathani & Ors.

B. Sen and J. N. Shroff, for the appellants. G. B. Pai, .J. B. Dadi1chanji, Ravinder Narain and 0. C. Mathur, for respondents Nos. 2 to 6.

1963. January 30. The Judgment of the Court was delivered by n .. , S UllBA. RAo. ].-These two appeals by special S•bbo J,

leave are filed against the common judgment of a Full Bench of the High Court of Judicature at 1963 Nagpur .in writ petitions Nos. :!2 of 1955 and 274 of 1955 filed by respondents 1, 3 to 6 herein in the 1aid Sta11 of Mad/i} Pralhsh court. . v. Sith Balkishan .Nat/umi The facts in Appeal No. 370 of 1960 may be stated first. Respondent 1, Seth Balkishan Nathani, Subba Raa, 11• was the proprietor and lambardar of Mouza Sonpairi in Tahsil and District Raipur. On January 14, 1947, he executed perpetual pattas in favour of his wife, Vashodabai, since deceased, and respondents 4, 5 and 6 in respect of khudkasht and grass lands of Mouza Sonpairi. In TabdiliJamabandi of the year 1946-47 · the said lands were recorded as the · Occupancy Tenancy Holdings of the said respondents 4 to 6 and respondent 2, Govindlal Nathani, the legal representative of Vashodabai. The same entry was found in the Jamabandis of the ·subsequent years.

The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (1 of 1951), hereinafter called the Act, came into force on January 22, 1951. Thereafter, in due course the estate· of the said proprietor was du! y notified under&· 3 of the Act. On March 25; 1952, the Deputy Commissioner, Land Reforms, acting under s. 40 of the Act, recognized the said Balkishan Nathani as the pattadar and settled the assessment payable by him in respect of Khasra Nos. 289/2 and 366/7 of Mouza Sonpairi. No appeal was preferred against that order. Thereafter, appellant 2, the Nistar Officer cum Additional Deputy Commissioner, Raipur, started proceedings against the respondents for the correction of old annual papers in Mouza Sonp:iiri, with a view to reopen the earlier order made under s. 40 of the Act, as the earlier order was passed on the basis of the entries found in Tabdili Jamabandi of the year 1946-47 and subsequent years.

Respondent 1, Seth Balkishan Nathani, raised an objection that appellant 2 had no jurisdiction to initiate the proceedings. Appellant 2 overruled the

/Hi3 objection and made the following order :

SUll •I M.a!t1o

Pr°"111 •• "On the next hearing, 5 witnesses may be S11AB~ prvduced for proving cultivation. The names

N•IMM of the purchasers, to whom the lands have been sold, be obtained from the Patwari, and a SdHllM, J. notice be served on them that they should file their statements as well as should bring the sale·deeds along with them. Hearing fixed for date 4-8-1954. The non-applicants may file other evidence, which they wish to file." It will be seen from the said order that the second appellant purported to make an inquiry in regard to the factum of cultivation as well as the validity of the sale-deeds whcreunder respondent l created interests in the other respondents. Respondent l preferred an appeal from that order to the Board of Revenue, Madhya Pradesh, but the same was dismissed on the ground that it was premature. Thereupon, the respondents filed the writ petition No. 22 of 1955 in the High Court of Madhya Pradesh.

Civil Appeal No. 371 of 1960 relates to patti No. l of Mouza Kachna in Tahsil and District Raipur. Respondent l was the Proprietor and Lambardar of the said Mouza. On February 19, 1948, the said Seth Balk.ishan Nathani executed perpetual pattas in respect of the said lands in favour of the same respondents as in the other appeal. In the annual papers the said lands were recorded as the 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 order on Decembt:r 9, 1954:

" x ll ll ][ x 2. There were foupd to be obvious mistakes in Government documents-Khaara, Jamabandi and TabdilGI. MiatakCI

discharged (discovered) by me in Patwari 1963 papers have been corrected.

Stal• of Madhya Prad,,h 3. Ex-proprietors (1) Balkishan Nathani and v.

others and (2) Narayanrao made absolutely Sith Balkishan .Nathani bogus transfers in favour of their family members, namely, Sllbbo Rao, J (i). (a) Kam)abai, (b) Pana Bai, (c) Yashoda bai, (d) Chhote Bai of Nathani family.

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

Patwari entered names without cultivation and agricultural pos~essicin against Land Record Manual, Volume 1.

¶4Mistakes found in patwari records have

been corrected by me after spot inspection.

These papers be now filed." · It "ill be sei-n from the said order that the second appellant found that the transfers made by respon-dent 1 in favour"of the other respondents were bogus and that he also corrected the entries in the annual papers to the effect that the landlord was not cuJti;

vating the lands as recorded in the earlier papers.

The respondents filed writ petition No. 274 of 1955 in the High Cqurt to quash the said .order. A Full Bench of the High Court held that neither s. 15 (3) of the Act nor s. 4 7 (I) of the Central Provinces Land Revenue Act, 1917 (C. P. Act No. II of 1917), here-inafter called the Land Revenue Act, conferred a power on the Nistar Officer to review ordt>n already made in respect of the factum of cultivation or the occupancy rights _ recognized under the relevant provisions of the said Acts. In the result, it allowed 1933 the two writ petitions quashing the proceedings S"'11 of M•d/IJ• started by the Nistar Officer in the case of Mouza

Pradesh Sonpairi and the order dated December 9, 1954,

v. passed by him in the case of Mouza Kachna and S.IJa Bollishon

.Na1/umi prohibiting him from taking further proceedings Subba Roo, J. which may affect the occupancy tenancy rights of

the petitioners in the lands in dispute. Hence the two appeals.

Mr. Sen, learned counsel for the appellants, raised before us the following two points: (I) Under s. 4 7 ( l) of the Land Revenue Act, the Nistar Officer has jurisdiction to correct entries made for. earlier years in a subsequent year on the ground of mistake ; and (2) the said officer has also jurisdiction to review under s. 15 (3) of the Act the order made by hiw under s. 40 thereof.

Mr. Pai, learned counsel for the respondents, argued at the outset that the appeals have abated for two reasons, namely, (1) the second petitioner died after the arguments were heard by the High Court and before the judgment was delivered and the petition filed by the appellants to set aside abate-ment was dismissed, and (2) the second respondent in the appeals died on March 7, 1956 and the applicaAin filed on June 28, 1957, to set aside the abatement and to bring his legal representatives on record was out of rime. On the merits. he sought to sustain the jud~ment of the High Court for the reasons mentioned therein.

As we are inclined to agree with the view expres.~ed by the High Court on the two questions raised by the learned couruel for the appellants, we do not propose to consider the preliminary objection raised by the learned counsel for the respondenu. The two qurstions raised in this case ue in a way iuter.related and the answer to them dependi upon the construction of the relevant sections of the 19/iJ Act and the Land Revenue Act. It would be conve-Stat1 of Ma<ihJ• nient to read the relevant provisions. Prad1sh •• Se1h Balkislum Ndthani The Madhya Pradesh Abolition of Pro-prietary Rights, (Estates, Mahals, Alie- -- Subba R@, J. 11ated Lands) Act, 1950 (Act 1 of 1951).

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 notification relatts, except by succession or under a grant or contract in writing made or entered into by or on behalf of the State : and no fresh clea-rings for cultivation or for any other purpose shall be made in such land except in ;:iccor-dance with such rules as may be made by the State Government in this behalf. - Section 4. (2) Notwithstanding anything con-tained in sub-section (I), the proprietor shall continue to retain the possession of his home-stead, homefarm land, and in the Central Provinces also of land brought under cultiva-tion by him aft~r the agricultural year 1948-49 but before the date of vesting.

Section 13. (1) On receipt of the statement of claim, or if no such claim is received within the prescribed period, the Compensation Officer shall, after making such enquiry as he thinks tit and giving an opportunity to the claimant to be heard, decide the amount of compensation due to the claimant and record in a statement in the prescribed form, the details of the land - which shall vest in the State Government after its acquisition in lieu of the payment of such compensation and such other details as may be prescribed. -· .... ~ ' 1963 Section 15. (I) Any peison:~·aggneved by the

State cf Madlf.y'J decision given ·or the record· made under

Prad•sh section. 13 by the. Compensation Officer may

v. appeal to the Deputy Commissioner .•.•..••...•.•. Seth Balkirhon ; Jtlu.thani Suhl• Ra1J, J. x .X x x. x x (3) The Compensation Officer, the Deputy Commissioner or the Settlement Commis- .L_ sioner, may, either on his own motion or .on the application filed within the pres-cribed period by any · party inter!!•ted, review an · order passed by him~clf or his predecessors · in . office and pass such order in reference thereto as he thinks fit.

x x x -. x .X . X Sectibn · 40. (as ainenaei on 'October 22, 1951). {I) ·Any hind not included in home-farm · - but brought under cultivation by the proprietor · after · the ., agricultural year IIJ48-49 shall be held by him in . the rights of.an occupancy t_enant. j ·-'

(2) Any person becoming an-occupancy tenant under rule I shall be a tenant of the State. ·-, · (3) The Deputy . ·Commissioner . · shali · I determine' the rent On. the land and it : ; shall be payable from the date of the I .vesting of the proprietary rights, 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 rules made· thereunder, ·an . appeal shall lie as if such decision or order has •been passed S.C,R. SUPREME COURT REPOllTS sen

by such officer under the Central Province 196J Land Revenue Act, 1917, or the Berar Land Slol• of Modlf1a Revenue Code, 1928, as the case may be. · ''"""' v. Sfl,\ Bllli<UAllll The Central Provinces Land Reve11ue Act, 19.17. J(alllanl

(1) A record-of-rights for each s.6H RM, J, Section 45.

mahal or estate shall be prepared or revised, as the case may be, by the Settlement Officer at settlement and, for such mahals or <;states as the Provincial Government may direct, by a Revenue Officer empowered by the Provincial Government in that behalf during the currency of a settlement.

(l!) The record-of-rights of a mahal shall consi11t of the following documents :-

(a) Khewat or statement . of persons

possessing proprietary rights in the mahal, including inferior proprietors or lessees or 'mortgagees in possession, specifying the nature and extent of the interest of each ;

(b) Khasra or field-book, in which 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) J amabandi or list of persons culti-

vating or occupying land in the village ;

x x x x x ( 4) The documents specified in sub.sec-tion (2) shall be prepared in such form and shall contain such additional particu Jars as may be prescribed by rules made under 11ection 227.

'IHI 46. On the application or any pcnon ~eCti01l Sllllt •/ M'41f1• mterested therein or of his own motion, the

l'todtU. •• Deputy Commissioner may, without prejudice &-I.I &l.IUAa to other provisions of this Act, modify any

Nol,_. entry in the record-of-rights on one or more of ... a..1. the following grounds :- (a) that all persons interested in such entry wish to have it modified; or (b) that by a decree in a civil suit it has been declared to be erroneous; or (c) that, being founded on a decree or order of a Civil Court or on the order of a Revenue Officer, it is not in accordanr.e with such decree or order; or x x x x x 8ecti01l 47. (I) 1 The Deputy Commissioner ahall cause to be prepared, in accordance with rules made under section 227, for each Mahal annually or at such longer intervals as may be prescribed, an amended set of the documents mentioned in section 45, sub-section (2), clausea (b), (c) and (d), and the documents so prepared shall be called the "annual µapen". (2) The Deputy Commissioner shall cause to be recorded, in accordance with rules made under si:ction 221; all charges that have taken place in respect of. and all transactions that have affected, any of the proprietary rights and interests in any land.

x x x x x x The scheme of the Act so far as it is relevant to the present enqµiry may be summariied thus : On the issue of a notification by the State Government under s. 3 of the Act in respect of an estate, all pro-Stat• of Madhy, prietary rights in such estate vest in the State. The Pradesh Compensation Officer, on a claim made by the pro-v. Seth Balkifhan prietor, after making the enquiry prescribed under Naihant the said Act, decides the amount of compensation Subba Rao, J. due to him and the details of the land that vests in the State. But the Act saves some interests in the proprietor from its total operation : one of such is lands in the Central Provinces brought under cultivation by the proprietor after the agricultural year 1948-49, but before the date of the vesting:

(sees. 4 (2) of the Act).

Under s. 40 (1) of the Act, such a land shall be held by him in the rights of an occupancy tenant;

under sub-s. (2) thereof he becomes a tenant of the State; and under sub-s. (3) the Deputy Commissioner shall determine the rent on the land and it shall be payable from the date of the vesting of the proprie-tary rights. Section 84 confers ·a right of appeal on an aggrieved party against the order of the Deputy Commissioner to the prescribed authority. There is no provision in the Act which authorizes the Deputy Commissioner to review an order made by him under the said sub-section and, therefore, an order made by him, subject to appeal, becomes final. It is, there-fore, manifest that the order made by the Deputy Commissioner in respect of lands in question deter-mining the rent on the basis that the . proprietor was an occupancy tenant had become final. If so, the Nistar Officer, i. e., the second appellant, had no jurisdiction to initiate proceedings for reopening the order made in respect of Mouza Sonpairi or in making the order reviewing the earlier order made by him in respect of Mouza Kachna, for the said orders had become final and there is no provision under the Act for reviewing them. , But the learned counsel for the appellants contends thats. 15 (3) of the-Act confers such a power. Under s. 15 (3) of the Act, the /Y6J a~thority concerned can review an order made by SIOu of .. M..U.,. him under s. 13 of the Act. Section 13 of the Act

P.-adnh deals with. ~n or<l::r made by the Compensation s.u. s.u;,,,.,, Officer ~ec1dmg the amount of compensation due to

:Na "=i the and recording in a statement in the c~a1mant prescnbed form the details of the land which shall vest in the State. Neither s. 13 nar s. 15 (3) has any relevance in the context of an order made by the Deputy Commissioner under s. 40 of the Act.

This conclusion would be sufficient to dispose of the appeals. But, as an argument was made on the construction of s. 4 7 (I) of the Land Revenue Act and as the ~ame was considered by the High Court, we shall also deal with it.

The argument based upon the said provision is relevant more to the nature of the evidence avail· able to the Drputy Commissioner to come to a decision under s. 40 of the Act than to the validity or the finality of the order made by him thereunder. The question that a Deputv Commissioner has to decide by necessary implication under s. 40 of the Act is whether the proprietor has cultivated the land after the al!"l"icultural year 11148.49 and before the vesting of the estate in the State. One of the most in·,,orta.nt pieces of evidence that will be available to him is the annual papers prepared under s. 47 of the Land Revenue Act. It is not disputed that in the annual papers prepared earlier it was shown that the proprietor was cultivatin~ the lands in question after Hl48-49. But it is said that under s. 47 (I), the Deputy Cnmmissioner can correct the said entry in the year 1952 and 19.54 as he purports to do, so as to make the entry to the effect that between 1949 and the date 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 ten.or of the relevant provisions nf the' Land Revenue Act and the rules made thereunder. Under ss. 45, 46 and 47 the proyisions whereof we have extracted earlier, 1168 the procedure prescribed is · as follom : A Stat1 of Ma/Y• record-of-rights shall consist of Khewat, Khasra, Pr.Us~ J amabandi 11nd other papers; and they are pre-v. l1tA Ball.ult,.. pared in the manner prescribed by the rule1·made Nt111tatri under s. 227. On the application of any penon S11U• ltM, interested therein or of his own motion, ·the Deputy Commissioner may modify any entry in the rcwrd·of-rights on specified grounds, namely, that all persons interested in su(,,h entry wish to.have it modified, that by a decree in a civil suit it has been dee Jared to be erroneous, that, being founded on a decree or order of a civil court or on the order of a Revenue Officer, it is not in accordance with 1uch decree or order, and that being so founded, such decree or order has subsequently been varied on appeal, revision or review. It will be seen that a mistake in a Khasra or J amabandi of an earlier year in regard to the factum of cultivation by a particular person is not a ground for modification under 1. · 46 of the Land Revenue Act. Section 47 empowers the Deputy Commissioner to caµse to be prepared annu-ally or at such longer intervals as may be prescribed, an amended set of the documents mentioned in els. (b), (c) and (d) of sub-s. (2) of s. 45 of the Land Revenue Act, and the documents so pre-pared shall be called the "annual papers". The rules made under s. 227 of the Land Revenue Act are found in Ch. III of the Central Provinces Land Records Manual, Vol. l, pp. 13-16. The rules relevant to the preparation of Khasra and Jamabandi direct the Patwari to record such changes annually as he finds to have taken place after local enquiry and actual inspection. It is, therefore clear that a record-of-rights consists of Khewat, Khasra, Jami'.bandi etc.

and till it is revised again it will hold the field. The entries therein can be modified only for the grounds ·mentioned in s. 46 of the Land Revenue Act. The Provisions of s. 47, if contrasted with those of s. 46, make it clear that the said section intends to bring 1963 the said documents up·to.date by recording the St4J1 of Modh:fo subsequent changes ·based on supervening events.

p,Olf1.•A •• The scope of the annual papers is only to record the S11A Baikuh!zn existing facts on the basis of spot inspe_ction at the

.Nathani beginning of a fasli and to record changes occurring

during the coune of the year after the year is closed. It is not the province of the annual papers to investi-gate and decide on the correctness of otherwise of the entries made in the earlier annual papers as on the date they were made.

The said section came under judicial scrutiny of a Division Bench of the I\agpur High Court in .Mangloo v. JJuard of Revenue('). The facts in that case were that on the death of one Gaindoo who was a tenant of mouza :Vlatia, on an application made by his nephew and his widow, their names were entered in the annual papers as joint tenants of the land by the A~sistant Superintendent of Land Records; there-after, the widow applied to the Superintendent of Land Records for striking off the petitioner's name from the annual papers ?.nd her application was allowed ; in appeal, the Additional Deputy Com-missioner declined t'J interfere on the ground that the initial order of the A~istant Superintendent of Land Records was passed by him in his executive capacity and as such the Superintendent of Land Records was competent to modify it in his own executive capacity; the second appeal preferred to the Board of Revenue was summarily ~ejected; and it was con-tended befor<' the High Court that the decision of the Board of Revenue contravened the provisions of s. 47(1), read withs. 33(2)(c) of the Central Provinces Land Revenue Act, 1917. In that context, the learned judges of the High Court considered the scope ofs. 47(1) of the Land Revenue Act and the rules made under s. 2~7 of the said Act, and observed thus:

"As we read section 47(1) of the Act and the rules governing it, we are of opinion that thesr (1) J.L.R. 195l Nag. 143, 1%.

proviliona deal only with the preparation of 1961 the annual papers and not with their correction if the entries are found to be erroneous. They Stot1 of MadAy• Pradesh .. arc only enabling provisions which import no restriction on the power of the Revenue Officers Selh BalkisMh .Nathatti to correct the mistakes or remove any irregu-larities, committed in the preparation of the anuu'lll papers. Neither the annual papers nor the corrected entries affect any questiom of title or vested interest of any party. The power of the Revenue Officeci in this regard is analogous to the untrammelled right of a person to correct his private documents, which cannot be questioned in a Court of law by any one whose right or interest is not affected thereby."

The learned counsel contends that the said passage comprises conflicting ideas inconsistent with each other-the first part of it denying a right to correct the entries and the second part permitting such corrections. We cannot accept this interpreta-tion of the passage. The learned Judges were deal-ing with two aspects of the question: one is the scope of the preparation of the annual papers and the other is whether correction of mistakes therein give a cause of action 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 only with the preparation of the annual papers and not with their corrections if the entries are found to be erroneous and the other with the right of a party affected by the correction of the mistakes therein.

The observations made in regard to the scope of s. 4 7( l) are made clear by the discussion found earlier in the judgment at p. 145. After adverting to the provisions of s. 4 7 and the rules made under the Act governing the preparation of annual papers, learned Judges observed:

"This would normally be done in the beginning 1963 of the agricultural year which, under s. 2(1) St.11 ef Ma4/rya of the Act, commences on the first day of June.

Pr..Us/a No changes in the entries are contemplated

v. during the course of the agricultural year and Stlli BaJkishati

J{aJ/wti the changes taking place during that period are Sob.fl., I. obviously to be recorded after the year is closed. The action taken by the Superintendent of Land Records and ratified by the Additional Deputy Commissioner has, therefore, no refer-ence to the preparation of the annual papers under s. 4 7( I) of the Act and we are not shown any other provision of law which govems it." The Division Bench held that there was no provision for correcting the wrong entries made in the annual papers, for their scope is very limited. This view was followed by the Full Bench of the High Court in their Judgment which is now under appeal. The Full Bench confirmed the view of the Division Bench in, the following words :

" ............... Section 4 7 (1) of the Central Pro-vinces Land Revenue Act contemplates entering only such changes in the annual papers as 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 of mistake."

We entirely agree with this view. It follows that the Nistar Officer has no jurisdiction to correct the said entries with a view to reopen the matter already closed under s. 40 of the Act. We, therefore, agree with the conclu!ion arrived at by the High Court. In the result, the appeals fail and are dismissed with costs. One set of hearing fees.

Appwla dismiased.