Madhya Pradesh High Court
Smt Saroj Chand vs Smt. Premawati on 11 May, 2020
Author: Rajeev Kumar Shrivastava
Bench: Sheel Nagu, Rajeev Kumar Shrivastava
-( 1 )- WA No. 345/2020
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Writ Appeal No. 345/2020
Smt. Saroj Chand
Versus
Smt. Premwati and Another
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Shri Prashant Sharma, Advocate for the appellant.
Shri Anand V. Bharadwaj, Govt. Advocate for the respondent
No.2/State.
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JUDGMENT
(11.05.2020) Per Rajeev Kumar Shrivastava,J.:
This writ appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya Ko Appeal Adhiniyam, 2005, has been filed against the order dated 30.11.2019 passed in Writ Petition No. 24811/2019, whereby the writ petition filed by the appellant/petitioner has been dismissed.
2. Brief facts of the case are that the appellant had challenged the orders dated 1.10.2018 and 13.12.2014 (Annexures P/1 & P/2) passed by Commissioner, Gwalior Division, Gwalior and Collector, Gwalior, respectively. The proceedings were initiated suo motu by the Collector. In those proceedings it was observed by the Collector that he was not having power to sell the property and, therefore, extended -( 2 )- WA No. 345/2020 permission in favour of the respondent No.1 to sell out the property. The order of Collector was challenged before the Commissioner, Gwalior Division. The Commissioner (Additional Commissioner) while passing the order made following observations:-
(i) The land was granted to Khoobiram, husband of Smt. Premwati (respondent No.1) vide order dated 18.10.1978.
(ii) Land was sold by Khoobiram to Totaram and Patiram.
(iii) Because the land was of Patta and sold without permission, therefore, mutation was cancelled on 9.4.2002 and the matter was remanded back to Naib Tahsildar.
(iv) During pendency of those proceedings, Totaram sold the property to the petitioner- Smt. Saroj Chand.
(v) Mutation of present appellant was made over the property.
3. It was further pleaded that as parallel proceeding in pursuance to the order dated 9.4.2002 was pending and name of Premwati was mutated in pursuance to those proceedings. Since the property was sold by Totaram and his name was mutated, therefore his mutation order was cancelled by Sub-Divisional Officer on 19.1.2007. Hence, on the basis of wrong mutation no Bhumiswami rights were created.
4. It was further pleaded that as per provision of Section 175 (7-b) of MP Land Revenue Code, no permission was sought from the Collector and no right was accrued to Totaram for sale of said land and the mandatory provision was not followed and no ownership/Bhumiswami rights were shifted to the purchaser, despite by passing the order under challenge, learned Writ Court has committed error. Hence, -( 3 )- WA No. 345/2020 prayed to allow the writ appeal.
5. Learned Writ Court has passed the impugned order in following manner:-
"2. The necessary facts for disposal of the present petition in short are that the respondent No.1 filed an application before the Collector, Gwalior for grant of permission to sell Survey No.318/2 area 0.836 hectare situated in village Dongarpur and, accordingly, the Tahsildar, Gwalior was directed to conduct an enquiry. After the enquiry it was found by the Tahsildar that as per the statement made by respondent No.1, the disputed land i.e. Survey No.318/2 situated in village Dongarpur was allotted to the husband of the respondent No.1 about 40 years back and after the death of husband of respondent No.1 namely Khubiram, the names of his legal representatives i.e. Premwati widow of Khubiram (respondent No.1), Rajendra, Ramdulare, Rakesh, Ramprakash and Baijnath sons of Khubiram were mutated in the revenue record and they are still in the possession of the same. It was further prayed that because of poor condition, the respondent No.1 and her sons are inclined to alienate the property, so that they can look after their family and bear the educational and marriage expenses of the legal representatives of Khubiram. It was also pointed out by the Patwari that survey No.318/2 area 0.836 hectare situated in village Dongarpur is recorded in the name of respondent No.1 and her sons Rajendra, Ramdulare, Rakesh, Ramprakash and Baijnath and has been mentioned as "nontransferable". Earlier Khubiram had alienated the property to Totaram who in his turn alienated the same to the petitioner and the mutation of the name of the petitioner was rejected by the Tahsildar by order dated 15.12.2013 in compliance of order dated 4.2.2009 passed in Case No.16/08-09/A-6. However, it was also pointed out that at present the petitioner is in cultivating possession of the said land. On 6.11.2012, the respondent No.1 had made an application to the Collector, Gwalior in Jan Sunwai that after the death of her husband, some unscrupulous person had fraudulently got -( 4 )- WA No. 345/2020 the name of Totaram and Hariram sons of Shankarlal recorded in the revenue records and, accordingly, the said mutation order was challenged and the order of mutation was set aside by order dated 9.4.2002, however, still the name of respondent No.1 has not been recorded so far. It appears that the land in question was given to the husband of respondent No.1 by Patta dated 18.10.1978. As per the report dated 1.5.2013 given by the Tahsildar, Tahsildar had sought permission to review the order as the land was sold without the permission of the Collector and, accordingly, the permission to review was granted by the SDO, Gwalior by order dated 8.5.2013 and the notices were issued to the petitioner. The petitioner appeared before the authority on 30.11.2013 and prayed for time to file reply. However, on 6.12.2013, the petitioner did not appear, as a result of which, she was proceeded ex parte and ultimately the Tahsildar by order dated 16.12.2013 passed in Case No.02/13-14/A-6 came to a conclusion that since the sale deed was executed in violation of the provisions of Section 165 (7-b) of M.P. Land Revenue Code, therefore, the order dated 4.2.2009 passed in Case No.16/08-09/A-6 was set aside and it was also mentioned that at present the name of respondent No.1 and her sons are recorded in the revenue records. After considering the report submitted by the parties, the application filed by the respondent No.1 and her sons for sale of the land was granted by the Collector, Gwalior by order dated 13.12.2014 with certain conditions mentioned in the said order. Being aggrieved by order dated 13.12.2014 passed by the Collector, Gwalior, the petitioner filed an appeal which has been partly allowed and it has been directed that now the respondent No.1 is also not entitled to take possession on the land in question, therefore, the order of the Collector is set aside and the Tahsildar is directed to pass a final order in accordance with law. For arriving a conclusion, the Commissioner, Gwalior Division, Gwalior has come to a finding that the mutation made in favour of respondent No.1 has also been set aside by order dated 15.6.2018 passed by the SDO, Gwalior.-( 5 )- WA No. 345/2020
3. Challenging the order passed by the Commissioner, Gwalior Division, Gwalior, it is submitted by the counsel for the petitioner that the provisions of Section 165(7-b) of M.P. Land Revenue Code does not have a retrospective operation and, therefore, the original lease holder Khubiram was not required to take permission from the Collector before alienating the property to Totaram and, accordingly, the petitioner is the lawful owner of the property in dispute.
4. Heard the learned counsel for the petitioner.
5. The undusputed facts are that in the year 1978 the Patta of Government land was granted to Khubiram and Section 165(7-b) of M.P. Land Revenue Code was inserted on 24.10.1980. Thereafter, on 3.12.1980, the land was sold by Khubiram to Totaram and on 9.9.2002 the land was sold by Totaram to the petitioner. The details and the mutation proceedings have already been mentioned above. Undisputedly, Khubiram had alienated the property to Totaram on 3.12.1980 i.e. after insertion of Section 165(7-b) of M.P. Land Revenue Code. It is submitted by the counsel for the petitioner that since the Patta was granted to Khubiram in the year 1998, therefore, the provisions of Section 165(7-b) of M.P. Land Revenue Code would not apply to the Patta which was granted to Khubiram, although Khubiram might have sold the property after coming to force of Section 165(7-b) of M.P. Land Revenue Code, but still he was not required to take prior permission from the Collector.
6. The submissions made by the counsel for the petitioner appears to be misconceived.
7. Government lease deed granted to Khubiram is not on record. Lease is defined in Section 105 of Transfer of Property Act which reads as under:-
"105. Lease defined.- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on -( 6 )- WA No. 345/2020 specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.-- The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent".
8. Thus, the lease is the transfer of a right to enjoy such property made for a certain time but it does not include transfer of title. The lease is granted by the State to landless persons so that they can earn their livelihood by cultivating the land. Thus, any sale of land granted on lease by the State Government shall be subject to the provisions of Section 165 (7-b) of M.P. Land Revenue Code. As the petitioners have not placed the copy of the lease deed on record, therefore, it is not known that what was the period of lease, and on what terms and conditions, the lease was granted to Khubiram. However, one thing is clear that the law which was prevalent on the date of execution of sale deed by the lessee would apply. In the present case, the lessee is alleged to have sold the land to Totaram on 3.12.1980 i.e., after the insertion of Section 165(7-b) of M.P. Land Revenue Code. Thus, the sale of Government land held under lease was not permissible without the consent of the Collector. Thus, the sale of land by Khubiram to Totaram on 3.12.1980 was void and therefore, no rights stood transferred to Totaram as a result of which, sale of land by Totaram in favour of the petitioner would not transfer any title to the petitioner.
9. The Division Bench of this Court in the case of Savina Park Resorts and Tours Pvt. Ltd. vs. State of M.P. & Ors. reported in (2012) 2 MPLJ 363 has held as under:-
"13. Section 165(7-b) of the M.P. Land Revenue Code contains a provision in regard to taking permission from the Collector before transfer of the land, which was granted by the State Government on lease. The Hon'ble Supreme Court in the case of Keshabo and another vs. State of M.P. and others, -( 7 )- WA No. 345/2020 reported in (1996) 7 SCC 765, which has been quoted by the learned Single Judge in the order impugned, has clearly held that non-compliance of the aforesaid section makes the transaction void. The same proposition has been held by the Division Bench of this Court in the case of Budhuwa Chamar vs. Board of Revenue, M.P. and others, reported in 2002(1) MPLJ, Note 2".
10. Accordingly, this petition fails and is hereby dismissed."
6. It is apparent from the record that lease deed granted to Khubiram is not on record. Lease is defined in Section 105 of Transfer of Property Act ,which reads as under:-
"105. Lease defined.- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.
-- The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent".
7. It is clear that the lease is the transfer of a right to enjoy such property made for a certain time only but it does not include transfer of ownership right. Lease is granted to the landless persons by the State so that they may earn their livelihood by cultivating the land. That means, the ultimate object of grant of lease is to facilitate a person to earn livelihood by cultivating the land. If the lease property is sold out or transferred in any manner by the lessee, that is against the provision of Section 165(7-b) of the MP Land Revenue Code. This modes operandi of the lessee frustrates the object and intent of Section 165 (7-b) of MP Land -( 8 )- WA No. 345/2020 Revenue Code.
8. Since it is submitted by learned counsel for the appellant that the lease property was sold out, therefore by virtue of the aforesaid alleged act done by the lessee, the right of lessee would automatically cease and hence, in the light of the judgment passed by Division Bench of this Court in the case of Savina Park Resorts and Tours Pvt. Ltd. vs. State of M.P. & Ors., reported in 2012 (2) MPLJ 363, learned Writ Court has rightly dismissed the writ petition of the appellant and has not committed any error in passing the impugned order.
9. Resultantly, the writ appeal is hereby dismissed being devoid of merits.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
(yog) Judge Judge
YOGESH VERMA
2020.05.12
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00' 09:55:47 +05'30'