ORDER
1. This petition has been filed by the petitioner- Premnarayan Tahsildar under Article 226 of the Constitution of India against the order dated 25.7.2023 passed by respondent no.2 Commissioner (Revenue) Indore Division, Indore which is Annexure P-7;
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whereby a departmental inquiry has been sought to be initiated against the petitioner on account of the order dated 25.5.2016, passed by the petitioner in the capacity of Tahsildar.
2. In brief, the facts of the case are that at the relevant point of time in the year 2016, the petitioner was posted as Tahsildar, Dhar, and while exercising the powers vested by the M.P. Land Revenue Code, 1959 (hereinafter to be referred to as "Code of 1959"), has passed an order of mutation on 25.5.2016, and according to the respondents the aforesaid order has been passed by the petitioner without following the due procedure and thus, illegal. It is also alleged that while passing the aforesaid order, reliance has also been placed by the petitioner on an order passed by the Board of Revenue in Case No.3996/PBR/2014 dated 10.3.2016, but according to the respondents, the petitioner has misread the aforesaid order while passing the order dated 25.5.2016. According to the respondents, the aforesaid order was passed by the petitioner without calling any report from Patwari Halka and without taking any evidence.
3. The case of the petitioner is that against the order dated 25.5.2016 passed by the petitioner, an appeal was preferred by the Malwa Church Council Masihi Seva Mandal before the SDO, Dhar and vide order dated 9.2.2017, the SDO has set aside the order passed by the petitioner, and the name of Malwa Church council was directed to be mutated in the revenue records. Whereas, against the order passed by the SDO on 09.02.2017, the appellant
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Sudhir Das s/o. Ratnakar Peter Das, an appeal was preferred before the respondent no.2 Addl. Commissioner, in an appeal No.196/appeal/2016-2017, which was decided on 22.5.2017, on the basis of the compromise between the parties by setting aside the order passed by the SDO on 09.02.2017.
4. The case of the petitioner is that when the order passed by him on 25.5.2016 (Annexure P/10) has already been affirmed by the Commissioner himself while exercising its judicial power, it was not open for respondent no.2 himself to again open the case, and to hold that the petitioner has not acted in accordance with law.
5. Thus, it is submitted that the impugned show cause notice dated 1.7.2022, as also the order dated 25.7.2023 initiating the departmental inquiry being bad in law is liable to be quashed.
6. Counsel for the petitioner has also submitted that once an order is passed in the judicial capacity, it cannot be set aside or criticized by any higher authority in its administrative capacity. It is also submitted that the petitioner was performing his duties under section 31 of MPLRC, and thus, his act is not amenable to be reviewed on administrative side.
7. Counsel for the petitioner has also relied upon a decision rendered by the coordinate Bench of this Court in the case of
Mrs. Manorama Koshti Malkapurkar Wd/oo Shri Arun Rao Malkapurkar Vs. State of M.P. and others passed in W.P.No.1901/2017 Dated 7.5.2019 wherein it is held that the Tahsildar acting under the MPLRC, is a Court and is entitled to
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Protection under the provisions of the Judges (Protection) Act,
1985.
8. A reply to the petition has also been filed by the respondents traversing the averments made by the petitioner.
9. Counsel for the respondents has submitted that even though the Commissioner has affirmed the order passed by the Tahsildar, the order passed by the Commissioner was only on the basis of compromise entered into between the parties and thus, it cannot be said to be an order on merits.
10. Counsel for the respondents has also relied upon clause 26.8 of the policy, and it is submitted that it was incumbent upon the Tahsildar, the petitioner herein to take appropriate instructions from his higher authority before the proceeding further in the matter. It is also submitted that the writ petition itself is liable to be dismissed as it has been filed against the issuance of a show cause notice to the petitioner, and in support of their contention, reliance is also placed on the decision rendered by the Supreme Court in the case of Union of India Vs. Kunisetty Satnarayan reported as 2006 (6)12SCC28. It is also submitted that the petitioner has contravened clause 26.8 of the Gazette Notification dated 11.5.2018 of M.P. State Prosecution Management Guidelines of 2018, and thus the petitioner was duty bound to inform about the order of Revenue Board to the Collector, however, instead of informing the Collector about the said order, the petitioner has directly mutated the name of the concerned persons. Hence, it is
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submitted that the show cause notice has been rightly issued to the petitioner and the petition cannot be entertained at this stage. It is also submitted that the land in question which has been mutated by the petitioner is the subject matter of various FIRs, and the petitioner was also well aware of this fact, as also the guide lines issued by the State Government, hence, prior to the mutation of the land it was duty of the petitioner to bring the matter in the knowledge of superior revenue authorities but the deliberate nondisclosure of the matter by the petitioner to the Collector is clearly in violation of the guidelines issued vide Gazette Notification dated 11.5.2018. Thus it is stated that no case for interference is made out
11. Heard learned counsel for the parties.
12. From the record it is apparent that vide impugned order dated 25.7.2023 a departmental inquiry has been initiated against the petitioner after a show cause notice was issued to him on 1.7.2022. A reply to which was also filed by the petitioner on 28.7.2022, however, it has been held by the Commissioner, Indore that the reply is not satisfactory.
13. In the considered opinion of this Court, when a show cause notice is issued to the petitioner, and its reply was filed by him, it cannot be simply rejected by holding that it is not satisfactory, and it was required by the Commissioner to atleast reflect upon the merits of the case, to form a prima facie opinion against the petitioner. It is also found that in the show cause notice dated
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1.7.2022, it has been alleged against the petitioner that he has wrongly interpreted the order of the Board of Revenue despite there being no order passed by the Board of the Revenue to mutate the land in favour of the private person. It is alleged that the petitioner has passed the order on 25.5.2016, while being posted as Tahsildar at Dhar in Case No.114/A-6/2016-17,in which certain irregularities were found to have been committed by the petitioner.
14. Admittedly, the order dated 25.5.2016 was challenged before the SDO, and the order was set aside by the SDO vide its order dated 9.2.2017, and the aforesaid order was again challenged by the aggrieved party before the respondent no.2/ Commissioner(Revenue) Indore Division, and the order passed by the SDO was also set aside by the Addl. Commissioner vide order dated 22.5.2017, meaning thereby, the same authority, who has issued the impugned show cause notice to the petitioner, had already affirmed the order on the judicial side. It is also found that the respondents have also been rather lethargic in prosecuting the case as admittedly the reply filed by the petitioner to the Show cause notice was forwarded to respondent no.3 for its opinion, and the respondent no.3 Collector vide its order dated 19.8.2022, asked the SDO, Dhar to provide its opinion upon the matter, and the SDO has also opined that the departmental inquiry against the petitioner is not sustainable as he has acted in his judicial capacity. The letter dated 2.6.2023 of the SDO is also placed on record as Annexure P-
3. The aforesaid letter was forwarded by the respondent no.3 on
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14.7.2023, to the respondent no.2/Commissioner for his opinion but despite the request, the matter was kept pending for more than one year, hence, the petitioner's promotion chances were being hampered by this action, against which he filed W.P.No.7706/2023 (Premnarayan Vs. State of M.P. and another) which was disposed of by the coordinate Bench of this Court on 17.4.2023
by directing the respondent no.2 to take final decision on the notice within 45 days from the date of production of the certified copy of this order. However, the final order could only be passed only on 25.7.2023, of which a detailed representation was also submitted by the petitioner, and thereafter the show cause notice have been issued to the petitioner for initiation of departmental inquiry.
15. In the considered opinion of this Court, the aforesaid chronology clearly reveals that the respondents have not dealt with the matter in a professional manner, and despite the order passed by the petitioner on 25.5.2016, which had the approval of the respondent no.2/Commissioner vide his order dated 22.05.2017, though on the basis of a compromise between the private parties, in the considered opinion of this Court, there was no reason for the respondent to initiate departmental inquiry against the petitioner, in respect of an order which was passed by the petitioner in exercise of his quasi-judicial capacity of Tehsildar.
16. So far as the decision rendered by the coordinate Bench in the case of Mrs. Manorama Koshti Malkapurkar Wd/ Shri Arun Rao Malkapurkar Vs. State of M.P. and other passed in
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W.P.No.1901/2017 dated 17.5.2019 is concerned, relevant paras of the same reads as under:-
11. Section - 2 of the Judges (Protection) Act, 1985 defines about the word "Judge" which reads as under -
"2. Definition.-- In this Act "Judge"
means not only every person who is officially designated as a Judge, but also every person-- (a) who is empowered by law to give any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive,or judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in clause (a)
12. As per the said definition, any person who is empowered by law to give any legal proceeding a definitive judgment and any person who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in Clause (a) is a Judge.
13. In the present case, the petitioner is empowered to give judgment, therefore, she is a judge as per definition given under the Act of 1985.
14. Section 3 of the Act of 1985 gives additional protection to Judges. The said section reads as under :-
"3. Additional Protection to Judges.
(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no
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Court shall entertain or continue Any civil or criminal proceedings against any person who is or was a Judge for any act, thing or word committed, done or spoken by him, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function.
(2) Nothing in sub-section (1) shall debar or affect in any manner, the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal or departmental proceedings or otherwise) against any person who is or was a Judge."
15. As per this Section, some protection has been given to the Judge while discharging her duty as Judge. The definition of judgment which is given under Section 2 of the Act is much wider and it includes an order which determines the right of the parties, for the reasons given in it.
16. The petitioner, exercising her power under the M.P. Land Revenue Code, is a Judge and, therefore, she is entitled to protection under Section 3 (1) of the Act and no Court could entertain any civil or criminal proceedings against her for any act, thing or word committed, done or spoken by her, or in the course of acting or purporting to act in the discharge of her official or judicial duty or function.
17. The Division Bench of this Court in the case of
State of M.P Vs. Shriniwas Sharma & Anr. reported in 2005(2) M.P.L.J. 155 has held as under :-
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"As per the settled legal position the officers who are discharging the duties as a quasi judicial authorities are protected under the umbrella of acts done in good faith. When law protects a judicial or quasi judicial authority in relating to his bonafide act then the concerned officer who discharges the duties cannot be brought in the net of the departmental enquiry unless something additional has been brought into existence. A mere mistake committed while passing a quasi- judicial order does not partake the character or nature of misconduct. The Tribunal has analyzed the said aspect in a great detail we perceive no reason to differ with the same."
18. As per the said judgment, the officers, who are discharging the duties as a quasi-judicial authorities are protected under the umbrella of acts done in good faith." (emphasis supplied)
17. So far as Clause 26.8 of the M.P. State Prosecution Management Guidelines of 2018 dated 11.5.2018 is concerned, on which the respondents have banked upon the same reads as under:-
^^dysDVj@ftyk izkf/kdkjh ds iz'kkldh; fu;a=.k ds v/khu 'kkldh; Hkwfe@lEifRr;ks a ls lacaf/kr ekxyksa esa tgka U;k;ky; }kjk ljdkj ds nkos dks vLohdkj djrs gq, dksbZ vkns'k ;k fu.kZ; fn;k tk, ogka dysDVj@ftyk izkf/kdkjh 'kkldh; vf/koDrk ds ijke'kZ ls ,sls fu.kZ; ;k vkns'k ds fo:) vihy@iqujh{k.k izLrqr dju s dh vuqefr nsus esa l{ke gksxkA tgka dysDVj@ftyk izkf/kdkjh 'kkldh; vf/koDrk d s ijke'kZ mijkar ;g ikrk gS fd
vihy@iqujh{k.k izLrqr fd, tkus dh vko';drk ugh a gS rc og bl ckjs es a ,d foLr`r izfrosnu tks fd 'kkldh;
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vf/koDrk d s er ls lE;d :i ls lefFkZr gksxk foHkkx izeq[k dks mfpr fu.kZ; ysus gsrq izsf"kr djsxkA dysDVj@ftyk izkf/kdkjh lacaf/kr foHkkx izeq[k dks 'kkldh; Hkwfe lEifRr;ksa ds laca/k es a ikfjr foifjr fu.kZ;ksa@vkns'kksa ds laca/k esa Loa; }kjk vihy@iqujh{k.k@,l-,y-ih- izLrqr fd;s tkus laca/kh fy, x, fu.kZ;ksa ls lE;d :i ls lalwfpr j[ksxk^^
18. This court is of the considered opinion that the aforesaid clause is not relevant in the present case, as the land in question was not a government land, and even otherwise, if the Government was aggrieved of the order dated 25.05.2016, passed by the petitioner or the Addl.Commissioner dated 22.05.2017, it could have assailed the same in accordance with law, but no such challenge was ever made by them.
19. So far as the decision in the case of Kunisetty Satnarayan(supra) relied upon by the counsel for the respondent is concerned, the same are distinguishable and have no application in the facts and circumstances of the case.
20. In view of the same, the impugned order dated 25.07.2023 cannot be sustained in the eyes of law, and the same is hereby quashed.
21. Accordingly, the petition stands allowed and is disposed of.
(SUBODH ABHYANKAR)
JUDGE
das