Every FILE Has LIFE: Madhya Pradesh High Court Says Tahsildar Can't Decide Question Of Will In Mutation Proceeding, Criticizes "Undue Haste"

‘Every FILE has a LIFE,’ the Madhya Pradesh High Court reminded a Tahsildar who proceeded to decide the question of Will in a mutation proceeding, in undue haste and without authority of law.

A bench comprising Justice Anand Pathak reiterated that revenue authorities like the Tahsildar cannot put justice to travesty whilst chasing a higher number of disposals. They cannot delve into complex issues of mutation of property on the basis of will, such as questioning the authenticity or genuineness of wills.

This was a case where the petitioners, who were family members of the deceased owner of a property, had preferred the petition against the orders passed by the revenue authorities from time to time.

Briefly, the first respondent had filed an application for a change of status in regard to the properties located in Sironj. He filed an application under sections 109 and 110 of the Madhya Pradesh Land Revenue Code, 1959, before Naib Tahsildar, Sironj, district Vidisha on the basis of an alleged Will claiming the property to be bequeathed in his name by the deceased owner. According to the contents of the will, the first respondent and the deceased owner were acquaintances, and the deceased owned the property in Sironj. He was also the original inhabitant of Jhalawad (Rajasthan). Because of the services he rendered to the deceased, Will was executed in favour of the first respondent by the deceased and therefore mutation application was preferred.

Revenue Inspector submitted a report stating that since the deceased owner resided in Jhalawad and his legal representatives did as well, proper steps should be taken for intimation to legal heirs but ignoring the Revenue Inspector's report, Naib Tahsildar went ahead and issued the impugned order.

After some time, the petitioners learned of this development and filed an appeal with the Sub-Divisional Officer in Sironj. However, the appeal was dismissed due to delay, and as a result, the petitioners' application under Section 5 of the Limitation Act was dismissed.

Thereafter, the petitioners filed a revision with the Collector of the district of Vidisha in accordance with Section 50 of the Code. But, the Additional Collector of Vidisha dismissed the revision and upheld the decision made by the Sub-Divisional Officer of Sironj.

Submissions

The counsel appearing for the petitioners, Mr. Sameer Kumar Shrivastava, submitted that the petitioners were the wife and their children of the deceased, and to demonstrate their relationship with the deceased, necessary Aadhar cards and other documents were attached with the petition. Since they were living at Jhalawad, he submitted, therefore they did not know about the developments carried out at Sironj whereby the first respondent fabricated a Will in his favour and tried to receive the disputed property through the said false and fabricated Will.

He further submitted that for mutation, he moved an application before the Naib Tahsildar, Sironj, without impleading the present petitioners as party-respondents, and surprisingly enough the Naib Tahsildar, Sironj, entertained the said application and did not even care to call the report from Jhalawad where deceased breathed his last and where petitioners reside. It was also submitted that the question of mutation on the basis of Will cannot be entertained by the Tahsildar or any revenue authority, as it is the domain of the Civil Court.

The prayers were opposed by the counsel appearing for the State and some respondents, Mr. Siraj Qureshi who also prayed for dismissal of the petition.

Counsel for the first respondent, Mr. Anil Sharma also prayed for dismissal of the petition and vehemently opposed the prayers. He supported the impugned order and was of the opinion that no illegality was caused by the Commissioner.

Judgments referred to / Relied upon by the Bench and their analysis:

• The cases of Ramgopal Kanhaiyalal and Division Bench in Hariprasad Bairagi, clarified that legal position of the maintainability of mutation proceedings on the basis of a Will. It was noted in Ramgopal Kanhaiyalal, “Determination of the question of title is the province of the Civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the Civil Court cannot be assumed or implied. The scheme of the Code consistently preserves the jurisdiction of the Civil Court to decide questions of title and that jurisdiction is not excluded."
• In Hariprasad Bairagi, Murari & another as well as in the case of Smt. Nandita Singh it was discussed in detail about the scope of revenue courts in mutation proceedings on the basis of Will.

In the case of Hariprasad Bairagi, the Division Bench of this Court even considered the scope of Rules 24 and 32 of Rules regarding Record of Rights (under M.P. Land Revenue Code) published in M.P. Rajpatra, and concluded that the Tahsildar on his own accord cannot record evidence and decide the title arising out of Will. It is the domain of civil courts only and understandably so because civil courts have all necessary tools of adjudication like proper pleadings, summoning of witnesses, recording of evidence, marshaling and appreciation of evidence and other ancillary mechanisms along with trained judicial minds.

Judgment

Relying on the above judgments, Justice Pathak, in his order, initially noted, “Therefore, Naib Tahsildar does not have any authority to decide the question of Will in a mutation proceeding. Therefore, on this count alone, the impugned order dated 18.12.2019 deserves to be set aside.”

“On close scrutiny, it appears that the manner in which Naib Tahsildar proceeded appears to be a case of undue haste and malafide.”

It was noted by Justice Pathak that it was the duty of the Sub-Divisional Officer and the Collector/Additional Collector to look into such illegality and arbitrariness meted out by the Naib Tahsildar in conducting the proceedings. He further noted that casualness of Revenue Authorities deserve caution and they are expected to be more cautious in future in such types of proceedings. In light of the actions of the Naib Tahsildar who had issued this order, he remarked it appeared that preliminary enquiry against his conduct deserves to be held so that element of malafide and carelessness, if any, can be ruled out.

Justice Pathak stated, "Sub-Divisional Officer, Sironj ignored the cardinal legal principle that the Procedures are handmaid to Justice and are not the Master of it. The Supreme Court in the case of Sangram Singh Vs. Election Tribunal Kotah and another, AIR 1955 SC 425 has given guidance in following words :-

"16. Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.

17. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

He further stated, "Thus, authorities must remind themselves that Law should lead to Justice. In the present case, the S.D.O., Sironj ought to have considered the sufficiency of cause while considering the application for condonation of delay filed by the petitioners alongwith their appeal but he failed to do so. Similarly, Additional Collector did not consider the case holistically and passed the impugned order in a slipshod manner."

Making an extremely strong and jurisprudentially solid point, Justice Pathak noted, "All authorities must remind themselves that "Every "FILE" with same alphabets, contains a "L I F E". (See : In Re State of Madhya Pradesh Vs. Pankaj Mishra, 2021 SCC OnLine MP 5480). In other words, all authorities discharging public duties or performing judicial/quasi- judicial functions must be sensitive to the cause of Justice as Supreme Virtue and must harbour the thought that every "FILE" carries a "LIFE", therefore they must be sensitive to Heal a Life rather than counting numbers of disposals only."

Setting aside the orders of the Naib Tahsildar, the Sub-Divisional Officer, and the Additional Collector, Justice Pathak held that the "mutation proceedings held in favour of respondent no.1 also pale into oblivion and is hereby set aside. In fact, it is the duty of revenue authorities to ensure the possession of actual claimants over the land in question. However parties are at liberty to undertake consequential proceedings if advised so."

The court raised expectation from the Chief Secretary, Government of Madhya Pradesh, about the prevailing conditions in respect of mutation proceedings undertaken by revenue authorities on the strength of a Will which, at times, is disputed and even fabricated, and directed the revenue authorities to desist from entering into the arena, which is otherwise earmarked for Civil Courts.

He further directed the Chief Secretary of the State to issue an appropriate circular/guideline in this regard based upon the different judgments passed by Hon'ble the Supreme Court, Full Bench and Division Bench of this Court from time to time so that clarity may prevail in the minds of revenue authorities.

While allowing the Petition, Justice Pathak stated, "This way, mischief, if any, may be avoided in future. It is expected that the Chief Secretary shall instill good sense to his subordinate revenue authorities."

Case Title: Geeta Paliwal & Ors Vs. Sitaram & Ors. Writ Petition No. 2578 of 2022

Citation: 2023 LiveLaw (MP) 39

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