State of Madhya Pradesh & Ors Vs.
Seth Balkishan Nathani & Ors  INSC 18 (30 January 1963)
30/01/1963 SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1967 AIR 394 1964 SCR (1) 793
Land Reform-Execution of perpetual patta and
entries in the subsequent Revenue Records--Recognition as Pattadar and
settlement of assessments by Deputy Commissioner Land Reforms-Nistar Officer
correcting records and reopening orders of the Deputy
Commissioner-Jurisdiction-The Madhya Pradeah Abolition of Proprietary Rights
(Estates, Mahals, Alienated Lands) Act, 1950 (Madhya Pradesh 1 of 1951), ss. 3
(2), 4 (2), 13 (1), 15 (1), 40-The Central Provinces Land Revenue Act, 1947 (C.
P. Act II of 1947) ss. 45 (1) (2) (4), 46, 47 (1) (2).
Respondent No. 1 in both the appeals was the
proprietor and lambardar of two Mouzas. He executed perpetual pattas in favour
of the other respondents. With regard to one of the Mouzas in the subsequent
annual papers the Mouza was recorded as occupancy Tenancy Holding of
respondents 2 and 4 to 6. Similar recordings were made with regard to t he
other Mouza in the names of respondents 2 to 6. Thereafter the Madhya Pradesh
Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950,
came into force and under s. 3 of the Act the estate of respondent I was
notified. The Deputy Commissioner Land Reforms acting under s. 40 of the Act
recognised respondent as the pattadar and settled the assessment payable by him
in respect of the first of the Mouzas. Subsequently the Nistar Officer started
proceedings for correction of old annual papers with a view to reopen the
earlier order made under s. 40.
Respondent No. 1 raised an objection that he
had no jurisdiction to do so which objection was rejected. The appeal filed by
the respondent before the Revenue Board was also rejected. With regard to the
other Mouza the Nistar Officer made an order that the transfers made by
respondent I was bogus and that the landlord was not cultivating the land. The
respondents then filed writ petitions in the High Court against the said two
orders of the Nistar Officer.
The High Court held that the Nistar Officer
had no power either under s. 15 (3) of the Act or under s. 47 (1) 794 of the
Central Provinces Land Revenue Act, 1917. The present appeals are by way of
It was contended before this Court that (1)
under s. 47 (1) of the Land Revenue Act the Nistar Officer bad 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 him under s. 40 thereof.
Held, that neither s. 13 nor s. 15 (3) has
any relevance in the context of an order made by the Deputy Commissioner under
s. 40 thereof.
Section 47 (1) of the Central Provinces Land
Revenue Act does not cover a case of correction of the entries on the ground of
Mangloo v. Board of Revenue, 1. L. R. 1954
Nag. 143, approved.
Nistar Officer has no jurisdiction to correct
the entries with a view to reopen the matter already closed under s. 40 of the
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 370 and 371 of 1960.
Appeals by special leave from the judgment
and order dated March 8, 1956, of the former High Court of " judicature at
Nagpur (now High Court of Madhya Pradesh at jabalpur) in Misc. Writ Petitions
Nos. 22 and 274 of 1955.
B. Sen and I. N. Shroff, for the appellants.
G. B. Pai, J. B. Dadachanji, Ravinder Narain
C. Mathur, for respondents Nos. 2 to 6.
1963. January 30. The judgment of the Court
was delivered by SUBBA RAO, J.-These two appeals by special leave are filed
against the common judgment of a 795 Full Bench of the High Court of judicature
at Nagpur in writ petitions Nos. 92 of 1955 and 274 of 1956 filed by
respondents 1, 3 to 6 herein in the said court.
The facts in Appeal No. 370 of 1960 may be
Respondent 1, Seth Balkishan Nathani, 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 Mouzz Sonpairi. In Tabdili
jamabandi 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 Right,, (Estates, Mahals, Alienated Lands) Act, 1956 (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 duly notified under s. 3 of
the Act. On March 25, 1952, the Deputy Commissioner, Laid 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. 28912 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 respondent for the correction of old annual
papers in MouzSonpairi. 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 Tabdil' jamabandi of the year 1946-47 and subsequent year,, Respondent
1, Seth Balkishan Nathani, raised a. objection that appellant 2 had no
jurisdiction to initiate the proceedings. Appellant 2 overruled the 796
objection and made the following order :
"On the next hearing, 5, witnesses may
be produced for proving cultivation. The names of the purchasers, to whom the
lands have been sold, be obtained from the Patwari, and a 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 he factum of cultivation as well as the validity of he saledeeds whereunder
respondent 1 created interests in the other respondents. Respondent I 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. hereupon, 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
To. 1 of Mouza Kachna in Tahsil and District kaipur. Respondent I was the
Proprietor and ambardar of the said Mouza. On February 19, 1948, the said Seth
Balkishan Nathani executed perpetual pattas in respect of the said lands in
favour of the same respondents as in the other appeal. In he 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 December 9, 1954:
" x x x x X x .lm15
2. There were found to be obvious mistakes in
Government documents-Khasra,Jamabandi and Tabdilat. Mistakes 797 discharged
(discovered) by me in Patwari papers have been corrected.
3. Ex-proprietors (1) Balkishan Nathani and
others and (2) Narayanrao made absolutely bogus transfers in favour of their
family members, namely, (i). (a) Kamlabai, (b) Pana Bai, (c) Yashoda bai, (d)
Chhote Bai of Nathani family.
(ii)Kamla Bai Chitnavis, wife of Narayanrao,
Patwari entered names without cultivation and
agricultural possession against Land Record Manual, Volume 1.
4. Mistakes found in patwari records have
been corrected by me after spot inspection. These papers be now filed." It
will be seen from the said order that the second appellant found that the
transfers made by respondent I 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 cultivating the lands as recorded in the earlier papers.
The respondents filed writ petition No. 274 of 1955 in the High Court to 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 a power-on the Nistar officer to review orders 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 798 the
two writ petitions quashing the proceedings started by the Nistar officer in
the case of Mouza Sonpairi and the order dated December 9, 1954, passed by him
in the case of Mouza Kachna and prohibiting him from taking further proceedings
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 : (1) Under s. 47 (1) 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 him 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 abatement was dismissed, and (2) the second respondent in the appeals
died on March 7, 1956 and the application filed on June 28, 1957, to set aside
the abatement and to bring his legal representatives on record was out of time.
On the merits, he sought to sustain the
judgment of the High Court for the reasons mentioned therein.
As we are inclined to agree with the view
expressed by the High Court on the two questions raised by the learned counsel
for the appellants, we do not propose to consider the preliminary objection
raised by the learned counsel for the respondents.
The two questions raised in this case are in
a way interrelated and the answer to them depends 799 upon the construction of
the relevant sections of the Act and theLand Revenue Act. It would be
convenient to read the relevant provisions.
The Madhya Pradesh Abolition of Proprietary
Rights, (Estates, Mahals, Alienated Lands) Act, 1950 (Act 1 of 1951).
Section 3. (2) After the issue of a
notification under subsection (1), no right shall be acquired in or over land
to which the said notification relates, 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 clearings for cultivation or for any other purpose shall be made in
such land except in accordance with such rules as may be made by the State
Government in this behalf.
Section 4. (2) Notwithstanding anything contained
in sub-section (1), the proprietor shall continue to retain the possession of
his homestead, home farm land, and in the Central Provinces also of land
brought under cultivation by him after the agricultural year 194849 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 fit 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.
800 Section 15. (1) Any person aggrieved by
the decision given or the record made under section 13 by the Compensation
Officer may appeal to the Deputy Commissioner...............
x x x x x x (3) The Compensation Officer, the
Deputy Commissioner or the Settlement Commissioner, may, either on his own
motion or on the application filed within the prescribed period by any party
interested, review an order passed by himself or his predecessors in office and
pass such order in reference thereto as he thinks fit.
x x x x x x Section 40. (as amended on
October 22, 1951).
(1) Any land not included in home-farm but
brought under cultivation by the proprietor after the agricultural year 1948-49
shall be held by him in the rights of an occupancy tenant.
(2) Any person becoming an occupancy tenant
under rule I shall be a tenant of the State.
(3) The Deputy Commissioner shall determine
the rent on the land and it shall be payable from the date of the 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 there under, an appeal shall lie as if such
decision or order has been passed 801 by such officer under the Central
Province Land Revenue Act, 1917, or the Berar Land Revenue Code, 1928, as the
case may be.
The Central Provinces Land Revenue Act, 1917.
Section 45. (1) A record-of-rights for each
mahal or estate shall be prepared or revised, as the case may be, by the
Settlement Officer at settlement and, for such mahals or estates as the
Provincial Government may direct, by a Revenue Officer empowered by the
Provincial Government in that behalf during the currency of a settlement..
(2) The record-of-rights of a mahal shall
consist 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) jamabandi or list of persons cultivating
or occupying land in the village x x x x x (4) The documents specified in
sub-section (2) shall be prepared in 'Such form and shall contain such
additional particulars as may be prescribed by rules made under section 227.
802 Section 46. On the application of any
person interested therein or of his own motion, the Deputy Commissioner may,
without prejudice to other provisions of this Act, modify any entry in the
record-of-rights on one or more of 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 accordance with such decree or order; or x x x x x x Section 47. (1)
The Deputy -Commissioner shall 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), clauses (b), (c) and (d), and the documents so prepared shall
be called the "'annual papers".
(2) The Deputy Commissioner shall cause to be
recorded in accordance with rules made under section 227, all' charges that
have taken lace 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 x The scheme of the Act so far as
it is relevant to the present enquiry may be summarized thus: On the 803 issue
of a notification by the State Government under s. 3 of the Act in respect of
an estate, all proprietary rights in such estate vest in the State. The
Compensation Officer, on a claim made by the proprietor, after making the
enquiry prescribed under the said Act, decides the amount of compensation 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 (see s.
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 proprietary 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, therefore, manifest that the
order made by the Deputy Commissioner in respect of lands in question
determining 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 that s. 1 5 (3) of the Act confers such a power. Under
s. 15.(3) of the Act, the 804 authority concerned can review an order made by
him under s.
13 of the Act. Section 13 of the Act deals
with 'an order made by the Compensation Officer deciding the amount of
compensation due to .the claimant and recording in a statement in the
prescribed form the details of the land which shall vest in the State. Neither
s. 13 nor 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.
47 (1) of the Land Revenue Act and as the game 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 available to the Deputy
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 there under. The question that a
Deputy Commissioner has to decide by necessary implication under s. 40 of the
Act is whether the proprietor has cultivated the land after the agricultural
year 1948-49 and before the vesting of the estate in the State. One of the most
important 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 cultivating
the lands in question after 1948-49. But it is said that under s. 47 (1), the
Deputy Commissioner can correct the said entry in the year 1952 and 1954 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 tenor of the
relevant provisions of the Land Revenue Act and the rules made there under.
Under ss. 45, 46 and 47 the 805 Provisions whereof we have extracted earlier,
the procedure prescribed is as follows : A record of rights shall consist of
Khewat, Khasra, jamabandi and other papers; and they arc prepared in the manner
prescribed by the rules made under s.
227. On the application of any person
interested therein or of his own motion, the Deputy Commissioner may modify.
any entry in the record-of-rights on specified grounds, namely, that all
persons interested in such entry wish to have it modified, that by a decree in
a civil,suit it has been declared 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 such' 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 jamabandi of an earlier year in
regard to the factum of cultivation by a particular person is not a ground for
modification under s. 46 of the Land Revenue Act. Section 47 empowers the
Deputy Commissioner to cause to be prepared annually or at such longer
intervals as may be prescribed, an amended set of the documents mentioned in
cls. (b), (c) and (d) of sub-s. (2) of s. 45 of the Land Revenue Act, and the
documents so prepared 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.I, 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
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. 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 806 the said documents up-to-date by recording the subsequent changes
based on supervening events. The scope of the annual papers is only to record
the existing facts on the basis of spot inspection at the beginning of a fasli
and to record changes occurring during the course of the year after the year is
closed. It is not the province of the annual papers to investigate 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 Nagpur High Court in Mangloo v. Board of Revenue
(1). The facts in that case were that on the death of one Gaindoo who was a
tenant of mouzu Matia, 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 Assistant Superintendent of Land Records; thereafter, the widow applied to
the Superintendent of Land Records for striking off the petitioner's name from
the annual papers and her application was allowed ; in appeal, the Additional
Deputy Commissioner declined to interfere on the ground that the initial order
of the Assistant 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 rejected; and it was contended before the
High Court that the 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 that context, 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, and observed thus :
"As we read section 47(1) of the Act and
the rules governing it, we are of opinion that these (1) I.L.R. 1954 Nag. 143,
807 provisions deal only with the preparation
of the annual papers and not with their correction if the entries are found to
be erroneous. They are only enabling provisions which import no restriction on
the power of the Revenue Officers to correct the mistakes or remove any
irregularities, committed in the preparation of the annual papers. Neither the
annual papers nor the corrected entries affect any questions of title or vested
interest, of any party. The power of the. Revenue Officers 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 anyone 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 interpretation of the
passage. The learned judges were dealing 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. 47(1) are made
clear by the discussion found earlier in the judgment at p. 145. After
adverting to the provisions of s. 47 and the rules made under the Act governing
the preparation of annual papers, learned judges observed :
"This would normally be done in the
beginning 808 of the agricultural year which, under s. 2(1) of the Act,
commences' on the first day of June. No changes in the entries are contemplated
during the course of the agricultural year and the changes taking place during
that period are 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 reference to the preparation of the
annual papers under s. 47(1 ) of the Act and we are not shown any other
provision of law which governs 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 47(1) of the
Central Provinces 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 conclusion arrived at by the High Court.
In the result, the appeals fail and are
dismissed with costs. One set of hearing fees.