ORDER
A.K. Gohil, J.
1. This order shall govern the disposal of the aforesaid two petitions as they are heard together with the consent of the parties.
2. In both the petitions, petitioners those who are cultivators of Village Balamet, District Guna have filed petitions under Articles 226 and 227 of the Constitution of India for issuing a writ of certiorari or any other writ, order or direction for restraining the State Government to exchange the land of charnoi with the respondent Nos. 2 to 4 and not to allow respondent Nos. 2 to 4 to use charnoi land for cultivation and for the quashment of order dated 2-7-2004 passed by Board of Revenue, M.P.
3. The brief facts of the case are that the State Government allotted the land bearing Survey Nos. 25/31,25/32 and 25/33 total area of 1.000 Hectares each to the respondent Nos. 2 to 4 and they were in possession. Subsequently respondent Nos. 2 to 4 filed an application for exchange of the aforesaid land with Survey No. 3 situated in the same Village Balamet having total area of 65.387 Hectares. Objections were invited on the said application and several objections were filed by the villagers including the petitioners that the land bearing Survey No. 3 is charnoi land and is being utilized by the villagers for common use and should not be allowed to be exchanged. This claim of the respondent was challenged that they are in possession of the land and cultivating thereon. After inquiry the Revenue Officers submitted report that the land Survey No. 3 is charnoi land and, therefore, the said land cannot be given in exchange to the respondent Nos. 2 to 4. The Collector vide order dated 26-11-2002 on the basis of the report of Patwari and Tehsildar rejected their application saying that the charnoi land cannot be allowed to be exchanged. Thereafter the respondents filed appeal before the Additional Commissioner Gwalior Division, Gwalior and vide order dated 3-5-2003 the Additional Commissioner Gwalior Division, Gwalior rejected the appeal and confirmed the order passed by the Collector holding therein that the use of charnoi land cannot be allowed to be changed for the individual persons and it will not be in the public interest as well as in the interest of the Government. Thereafter, the respondents filed a revision before the Board of Revenue and President Board of Revenue vide order dated 2-7-04 allowed the revision and declared the aforesaid land for agricultural purpose and granted permission to exchange with the patta land. This order is challenged by some of the villagers in W.P. No. 1671/04 and by some of the villagers in W.P. No. 1833/06 in Public Interest Litigation Petition. In reply the State Government has contended that the impugned order passed by the President Board of Revenue is totally illegal, contrary to the provisions of Section 237 of the M.P. Land Revenue Code and beyond the jurisdiction of the Board of Revenue. In reply the State has also supported the case of the petitioners and in the return has stated that the land bearing Survey No. 3 is a charnoi land and this contention of the respondent Nos. 2 to 4 is not correct that they were in possession of the land since long and cultivating the same as encroachers. The Collector has declined to pass the order in favour of the respondents and has directed that the encroachment over the aforesaid land be removed. The State has also stated that the Gram Panchayat has also passed a resolution that the land of Charnoi should remain as it is. Some of the villagers including some of the petitioners have filed a petition before the Board of Revenue for permitting them to join as party in revision but they were not allowed before the Board of Revenue and the application for intervention was rejected. The State has also raised an objection in this petition that the charnoi land cannot be exchanged without following due process of law as contemplated under Sections 234 and 237 of the M.P. Land Revenue Code and the Collector had no option but to follow the order passed by the Board of Revenue as the same is binding on the Collector. Respondent Nos. 2 to 4 have filed their return and have supported the order passed by the Board of Revenue.
4. We have heard the earned Counsel for the parties and perused the record and documents on record. It is an admitted position on record that the land bearing Survey No. 3 is a Government land recorded as charnoi land in the revenue record and the land use of the aforesaid land cannot be changed without following the due procedure as laid down in Sections 234 to 237 of the M.P. Land Revenue Code. The Collector rejected the application of the respondent Nos. 2 to 4 and the Additional Commissioner affirmed the aforesaid order in appeal. But the Board of Revenue in revision, without hearing the villagers set aside the orders passed by the Collector and Additional Commissioner simply on the basis of report of Tehsildar who had recommended for the change of land used and for exchange of land and placing reliance on the decision of the Board of Revenue in the case of Kammoda v. State of M.P., reported in RN 1983 (42), Board of Revenue has held that on the recommendation of Gram Panchayat land use can be changed but here in this case the factual position is quite different. Gram Panchayat has objected about the change of the land use and when the villagers have made objections, the Collector has found that Tehsildar in its report has not considered this aspect of the matter that how the value of both the lands is similar and how the land use of charnoi land can be allowed after the objection by the Gram Panchayat and villagers. Tehsildar has wrongly found that the respondent Nos. 2 to 4 are in possession as the encroachers over 4 Hectares of the land bearing Survey No. 3 but in the revenue record and khasra entries in the year Samvat 2055 no such possession of the encroachers have been mentioned in the revenue record and, therefore, Collector rejected the application of the change of the land use as well as for exchange and the Additional Commissioner has also recorded same finding that in the Government record neither any possession nor any crop of encroachers has been mentioned and it was found that on the Government land respondent Nos. 2 to 4 were not in possession and affirmed the finding of the Collector.
5. We have perused the order passed by the President Board of Revenue. Concurrent finding of fact was recorded by the Collector and affirmed by the Additional Commissioner, therefore, under the revisional jurisdiction it was not proper for the Board of Revenue to reverse the concurrent finding of fact as there was no illegality or perversity in the aforesaid findings recorded by two Courts below. Board of Revenue has also not examined any legal provision under which it was found that the findings recorded by both the Courts below were perverse. It is very strange that the Board of Revenue was impressed by the report of Tehsildar, without discussing the order passed by Collector and Additional Commissioner and the factual aspect which were considered by both the Courts below were not considered by the Board of Revenue. Thus, it appears that the Board of Revenue has committed illegality in exercising its limited jurisdiction of revision in setting aside the orders passed by the Collector and Additional Commissioner in the appeal and has wrongly declared charnoi land as land for agriculture and permitted the exchange of the land with the patta land of the respondents. Therefore, on the face of it, the order passed by the Board of Revenue is contrary to law as the jurisdiction of the Board of Revenue under Section 50 M.P.L.R. in Revision is very limited. Under Section 50 the Revisional Court can exercise jurisdiction regarding the legality or propriety of any order passed by or as to the regularity of the proceedings of any Revenue Officer subordinate to it. We found that the concurrent findings recorded by the Collector and Additional Commissioner are based on appreciation of evidence and there was no illegality therein. There was also no irregularity in the proceedings, therefore, there was no propriety to interfere in the orders passed by both the Courts below.
6. Under Chapter XVIII of the M.P. Land Revenue Code, Section 233 provides about the record of unoccupied land and Section 234 provides about the preparation of the ‘nistar patrak’ and once the ‘nistar patrak’ is prepared power has been given to the Collector under Section 237 who may set apart unoccupied land for the purposes mentioned in the Section and Sub-section (2) of Section 237 specifically provides that the set apart can only be specially for any purpose mentioned in Sub-section (1), and shall not otherwise be diverted without the sanction of the Collector and the purpose for which unoccupied land can be diverted has also been mentioned. Under Section 236 powers have been given to the Collector to make provisions for free grazing of the cattle used for agriculture and once the provision has been made and land is reserved for free grazing of cattle the land use cannot be changed easily and that too merely for the personal use of the individuals. In the order passed by Board of Revenue no reasons have been assigned that the order of Collector has been set aside. Collector is always free to accept or reject the report of Tehsildar and in the report of Tehsildar no cogent reasons have been assigned for the diversion of the land from charnoi to agriculture. If the Board of Revenue was not satisfied with the order passed by the Collector, the Board of Revenue was free to ask the Collector to re-examine the matter but is not directly empowered to declare the land as diverted from charnoi to agriculture purposes and to order for its exchange with the land of the respondents. We do not see any justification in the order passed by the President Board of Revenue and we hold that he same being perse illegal is liable to be set aside.
7. So far as the objection raised by the earned Counsel for the respondent that in a Public Interest Litigation such an order cannot be set aside and the petitioners are not having any locus to file the Public Interest Litigation Petition.
8. We have considered this aspect of the matter. The petitioners are the villagers, they are having interest in the aforesaid land as the land is charnoi land for the use of all the villagers. Resolution was also passed by the Gram Panchayat in favour of the villagers that land use should not be changed. Villagers had also field objections before the Collector and they had filed an application for intervention and also for joining them as parties before the Board of Revenue which was rejected. As the land is a charnoi land therefore, villagers are having locus to raise objections thereon. Thus, we find that looking to the nature of the land the villagers are the interested parties and they were entitled to file petition in public interest. Accordingly, we hold that in both the petitions the villagers of the Village Balamet District Guna have rightly raised the issue before this Court in Public Interest Litigation and the villagers can file such a Public Interest Litigation Petition. When any question of public importance regarding change of land use of charnoi land is involved in the petition, the villagers are duty bound to protect the charnoi land reserved for common use and the Court can entertain such a petition and pass order therein.
9. Consequently, we allow the aforesaid petitions, set aside the impugned order passed by the Board of Revenue in Revision No. 817-II/2003 on 2-7-04 and uphold the orders passed by the Collector Guna, dated 26-11-2002 and Additional Commissioner Gwalior Division, Gwalior on 3-5-03 and direct the aforesaid land bearing Survey No. 3 having total area of 65.387 Hectares be reserved as charnoi land for the use of the villagers under the provisions of M.P. Land Revenue Code and if any encroachment is there, Revenue Officers are directed to remove the same. Parties are directed to bear their own costs.