Madhya Pradesh High Court
Brijesh Gautam vs The State Of Madhya Pradesh on 13 April, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.1638/2016
Brijesh Gautam
Vs.
State of M.P. and others
Ku. C.V. Rao, learned counsel for the petitioner.
Smt.J. Pandit, learned Govt. Advocate for respondents.
ORDER
(13/04/2017) The petitioner has filed the present writ petition praying for direction to respondent No.4 to record the name of petitioner in the khasra entry.
2. One late Smt. Dasoda Bai had purchased the agriculture land situated at Village Basaha, Settlement No.34, Patwari Halka No.49, Tahsil and District Jabalpur bearing Khasra No.2/2 and 3/2 (new No.61) area 1.148 hectare i.e. 2.87 acre from Imarti Bai vide registered sale deed dated 11/06/1992. During her lifetime, late Dasoda Bai executed a Will in favour of the petitioner on 24/09/2009 and after death of Dasoda Bai i.e. on 18/02/2012, the petitioner became the owner. On 31/06/2015 petitioner executed a Sikminama in favour of one Pushpendra Thakur for carrying out agriculture work in the 2 said land. The person to whom the land was given in Sikmi has obtained electricity connection from M.P.E.B., copy of electric bills are also annexed with writ petition. In the month of March, 1981 a proceeding under Urban Ceiling Act has been initiated against Dasoda Bai and a notice was issued to her on 26/03/1981 thereby she was directed to submit a Vivrani before the competent authority. After submitting Vivrani, the report was called from the Revenue Inspector by the competent authority. Revenue Inspector submitted his report on 26/10/1981 and given the details of the property.
3. On 23/02/1984 Revenue Inspector submitted Sankshiptika and in the same it was mentioned that Dasoda Bai is entitled to retain two units of land and the land having an area of 10405.19 sq.m. was shown to be excess land. Thereafter a draft statement was prepared. Dasoda Bai submitted her objection on the said draft statement. After receiving the said objection, competent authority called RI report regarding objections. RI submitted his report on 25/05/1984 and submitted that the master plan has not published in the gazette and, therefore, the land can be exempted from ceiling, but, as per Section 20 of the Ceiling 3 Act, late Dasoda Bai has not submitted, therefore, she is not entitled for any relief. The petitioner further submits that in spite of the report submitted by RI, the objection of the petitioner was not considered and an order was passed on 31/05/1989 in the ceiling case and the land having an area 10415.30 sq.m. was declared as surplus. Thereafter final Vivrani was prepared and on 26/04/1993 a notice was issued under sub-section (5) of Section 10 of Ceiling Act for possession, the possession was not given by Dasoda Bai to the competent authority and a forged possession letter was prepared by the competent authority on 15/09/1993 in which it was stated that the possession has already been taken by the revenue authorities.
4. Learned counsel for the petitioner argued that the entire ceiling proceedings initiated against the petitioner are illegal and arbitrary. She submitted that the possession of the said land has never been taken by the revenue authority in accordance with procedure given under the Ceiling Act. She further submitted that Dasoda Bai never received any notice under Section 10(5) of the Ceiling Act. From bare perusal of the possession letter, it will be clear that there is a column for 4 signature of the person giving possession to the competent authority but in that particular area, there is no signature of Dasoda Bai. Thus, a Panchnama which was prepared by the revenue authority is behind back of Dasoda Bai. She further submitted that after preparation of the forged possession letter, compensation case regarding aforesaid land was prepared and the compensation was fixed as Rs.1042/-. She further argued that as per sub-section (5) of Section 10 of the Ceiling Act, after passing of the order, the competent authority is required to issue notice to the person against whom ceiling case was prepared for delivery of possession, but, if the person refuses or fails to comply with the order passed under Sub-section (5) of Section 10 of the Act, then the competent authority is empowered to issue a notice under sub-section (6) of Section 10 of the Ceiling Act and to take possession forcefully. She also argued that in the present case, late Dasoda Bai did not deliver the possession to the competent authority as per the provisions contained in sub- section (6) of Section 10 of the Ceiling Act nor the competent authority took possession of the aforesaid land as per the provisions contained in Section 10(5) of the Ceiling Act. 5 Therefore, as per the provisions of Section 3 of the Repealed Act, 1999, the aforesaid land should have been released and restored in favour of late Dasoda Bai, but, as the competent authority has not yet passed any order for restoration of the said land in favour of late Dasoda Bai or in favour of the petitioner, the petitioner, therefore, filed the present writ petition. She relied upon the judgment passed by this Court in the cases of Thamman Chand Koshta Vs. State of M.P., reported in 2015 (2) MPRD 420, Smt. Gayatri Devi and others Vs. The State of M.P. & another passed in W.P. No.11515/2013 on 17/08/2016 and also the judgment passed by this Court in the case of Sunil Vs. State of M.P. & others, reported in 2015(2) MPLJ 441.
5. The respondents have filed their reply and in the reply the respondents have stated that the proceeding under the Ceiling Act had been been initiated against late Dasoda Bai and she had duly participated in the proceeding. Notice under Section 6 of the Ceiling Act was duly received by Dasoda Bai. The competent authority had passed an order on 31/05/1989 declaring the land as surplus and the said order passed by the competent authority was never challenged by 6 Dasoda Bai before any competent court. After decision of the competent authority, a notice was issued to Dasoda Bai on 31/07/1993 which was duly received by her and thereafter possession was taken on 15/09/1993. The respondents further denied that Kabjanama is a forged document. Learned counsel for the respondents relied upon the judgments of this Court in the cases of Ramsahay Vs. The State of M.P. passed on 16th November, 2016 in W.P. No.17167/2016 and Puranlal Sen Vs. The State of M.P.and another decided on 1st March, 2006 in W.P. No.13575/2005.
6. The petitioner has filed rejoinder denying the allegations made in the reply. The petitioner has denied the thumb impression on the said Kabjanama. The petitioner submitted that from the order sheet which is filed as Annexure-R/1, in number of places there is thumb impression of Dasoda Bai which are totally different from the thumb impression of Annexure-R/5 and there is much difference in the thumb impression of Annexure-R/1 and R/5 which shows was forged by the revenue court just to take ex-parte possession of the property of Dasoda Bai. It was further submitted that physical possession of the land was never 7 taken by the respondents which would be clear from the certificate issued by the Kotwar on 05/102016. Temporary electricity connection has also issued in favour of the petitioner from 18/10/2016 to 15/02/2017. Tahsildar, Panagar has also given its report to the SDM regarding the above land of the petitioner. On the basis of all documents, learned counsel for the petitioner submitted that the petitioner is still in possession of the said property.
7. I have heard learned counsel for the parties and perused the record of the case.
8. The petitioner has filed the present writ petition praying for direction to respondent No.4 to restore the claim of late Dasoda Bai/petitioner in Khasra No.2/3 and 3 (new No.61) area 1.328 hectare situated at Village Basaha, Settlement No.49, Tahsil and District Jabalpur in the revenue record, as per the provision contained in Section 3 of the Repealed Act, 1999. Disputed land originally belonged to late Smt. Dasoda Bai Kewat and during her lifetime, she executed a Will in favour of the petitioner. After her death, the petitioner became owner of the land in question. During life time of Dasoda Bai a ceiling case was initiated against 8 her. Thereafter possession was taken and the compensation was prepared as per Sub-section (6) of Section 10 of the Urban Ceiling Act. From perusal of the copies of the proceedings which are on record, it reveals that late Dasoda Bai has participated in the proceedings. Notice which was issued to Dasoda Bai was duly received by her. She filed her objection also and after considering the objection, the land was declared surplus by the competent authority on 31/05/1989. Dasoda Bai never challenged the order issued by the competent authority dated 31/05/1989 declaring her land as surplus and, therefore, the order which is issued by the competent authority has attained finality.
9. After the order passed by the competent authority, a notice under Section 10(5) of the Ceiling Act was issued to Dasoda Bai on 31/07/1997 which was duly received by her. There is an endorsement on the back page of the said notice to the effect that the said notice was duly received by her. The contention of learned counsel for the petitioner is that the thumb impression which was put on the said notice is not of Dasoda Bai as there is a difference in the thumb impression which is put in Annexure-R/1 and R/5. The above said 9 contention of learned counsel for the petitioner cannot be accepted as the same is a disputed question which cannot be decided in the said writ petition. Once there is an acknowledgment of receiving of the said notice, it will be presumed that notice had been duly served on Dasoda Bai. In spite of receivingthe notice under sub-section (5) of Section 10 of the Ceiling Act, Dasoda Bai failed to deliver the possession and, therefore, proceedings under Section 10(6) of the Act has been taken by the revenue authority by taking possession of the said land.
10. From the report of Tahsildar which is filed by the petitioner along with rejoinder, it is clear that Dasoda Bai was owner of the land having an area of 1.328 hectare. Out of these land, part of land having an area of 10405.19 sq.m has been declared as Government land and rest of the land was been recorded on the name of Dasoda Bai. Thus, part of the land which is recorded in the name of State is the land of which possession has been taken by the State Government under Ceiling Act. So far as the judgment relied upon by learned counsel for the petitioner are concerned, the same are not applicable in the present case as in those cases no notice 10 under Sub-section (5) of Section 10 of the Ceiling Act was issued to the noticee and ex-parte possession was taken by the respondents, but, in the present case from perusal of the record, it reveals that a notice under Section 10(5) of the Act was issued to Dasoda Bai which was duly received by her and as she failed to deliver the possession, the possession was taken under Section 10(6) of the Ceiling Act and these the fact have already been stated by the revenue authority while issuing notice under sub-section (5) of Section 10 of the Ceiling Act.
11. This Court in the case of Puranlal Sen (supra) in para- 9 and 10 has held as under :
"9. It is settled law by series of judgments of this Court that one of the accepted mods of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired 11 land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land.
10. In Larsen and Toubro Ltd. Vs. State of Gujrat and ors mode of taking of possession of land was also considered. It was held that recording of memorandum or Panchnama in presence of witnesses signed by them was enough. The possession of the Company was recorded in revenue papers. It was held that possession was handed over to the Company Panchnama was supported by the revenue entries, it was not opened to the High Court to convert itself into a revenue code and to hold that in spite of Panchnama and revenue record, actual physical possession of the acquired land had not been handed over to the acquiring body that is the company. The Apex Court has held thus :
"13. It was not disputed that in the revenue records it was L& T Ltd who was shown in possession 12 of the land. Affidavits of the Panchas filed in the High Court which contained statements contrary to what was recorded in Panchnama and against the revenue entries quite meaningless and in our opinion, the High Court unnecessarily put undue reliance on the same. The High Court could not convert itself into a revenue Court and hold that in spite of the Panchanama and the revenue records actual physical possession of the acquired land had not been handed over to the acquiring body. The High Court, in our opinion, has not correctly analysed the two judgments of this Court in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab and Balwant Narayan Bhagde Vs. M.D.Bhagwat to come to the conclusion that actual physical possession of the land was not taken over by the State."13
12. Thus, in view of aforesaid discussion and as the possession has already been taken by the revenue authority before coming into force the Repealed Act, this Court does not find any reason to interfere into the matter.
13. Accordingly, the writ petition is dismissed without any order as to cost.
(Ms. Vandana Kasrekar) JUDGE ts