Madhya Pradesh High Court
Khush Lal Mehra vs The State Of Madhya Pradesh on 22 March, 2022
Author: Vishal Dhagat
Bench: Vishal Dhagat
W.P. No.7131/2019
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 22 OF MARCH, 2022
WRIT PETITION No. 7131 of 2019
Between:-
KHUSHI LAL MEHRA S/O RAM DAYAL, AGED ABOUT 58
YEARS, OCCUPATION: VILLAGE KOTWAR R/O VILLAGE
SINGPUR, TEHSIL BANKHEDI, DISTRICT HOSHANGABAD
(MADHYA PRADESH)
......PETITIONER
(BY SHRI SUBODH KATHAR, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.PRINCIPAL
SECRETARY VALLABH BHAWAN BHOPAL (MADHYA
PRADESH).
2. BOARD OF REVENUE THROUGH ITS MEMBER, BOARD OF
REVENUE, MOTI MAHAL, GWALIOR (MADHYA PRADESH).
3. COLLECTOR HOSHANGABAD HOSHANGABAD (MADHYA
PRADESH).
......RESPONDENTS
(BY SHRI VIVEK SHARMA, DEPUTY ADVOCATE GENERAL AND
SHRI V.S. CHOUDHARY, PANEL LAWYER).
..............................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
W.P. No.7131/2019 Petitioner has preferred this writ petition under Article 226 of the Constitution of India and made a prayer to quash order dated 05.12.2018, contained in Annexure P/1, passed by Board of Revenue, Gwalior (M.P.) and he be declared owner in possession of land bearing Khasra No. 7, area 9.13 acres and Khasra No. 21, area 0.16, total area 9.29 acres of land, situated at Village Singpur, District Hoshangabad (M.P.).
2. Counsel for petitioners submitted that ancestors of petitioner are in possession over aforesaid land since 1913-14. Land in question was given by sewamafi and therefore, petitioner is entitled to be declared bumiswami and impugned orders be quashed. It is submitted that documents filed before revenue authorities clearly show that petitioner is owner in possession of land in question but, findings of Revenue Courts is perverse and impugned order is illegal and arbitrary and deserves to be quashed.
3. Respondents had adopted reply, which has been filed in case in W.P. No. 19433/2017 (Tulsiram Chadar vs State of M.P. and others). It is averred in reply that Malguzars gave the lands to Kotwars for rendering services of different types. One type of service was village service and second was personal service of Malguzar. The land which was given by Malguzar for village service was to be recorded in revenue record as service land and land in question, which was given to grandfather of petitioner, was for village service and no rights of occupancy tenant W.P. No.7131/2019 accrued to petitioner. Counsel for the State relied on Madhya Pradesh Swamitwa Adhikaro (Malikana Hak) (Ilako, Mahalla, Dumala Bhumi) Ka Aant Karne Ka Adhiniyam, 1950. As per Section 45(2) of Adhiniyam, any person holding land as village service land shall be defined to be holding it from State and therefore, same will been governed to Section 42 to 48 of the Central Provinces Tenancy Act, 1920. It is submitted that any person holding land other than sir land from proprietor on favourable terms for service rendered by him shall from the date of vesting be declared to be occupancy tenant of the State and Deputy Commissioner shall fix the rent to be paid by him. Tenants who fall within category of Section 45(3) were to be declared as occupancy tenant. Petitioner and their forefathers were given land as they were doing village service and they were not occupancy tenant at the commencement of Code of 1959. Therefore, petitioner cannot be declared occupancy tenant and bhumiswami rights were not conferred upon him. Circular issued by State Government dated 03.03.2010 was issued in connosance with Section 45(3) of Adhiniyam of 1950. If petitioner satisfies the requirement of said provision then petitioner will get benefit of circular of State Government dated 03.03.2010. Since petitioner is not occupancy tenant, therefore, no declaration can be made in his favour. In view of same, prayer is made for dismissal of writ petition.
4. Heard the counsel for the petitioner as well as respondents.
W.P. No.7131/20195. Petitioner has filed an application before the Collector Hoshangabad for declaring bhumiswami rights of petitioner. Collector after considering report of Tehsildar found that ancestors of petitioner were given land as mafi kidmati. Name of ancestors of petitioner were recorded in revenue records as mafi khidmati since 1913-14.
6. Relevant provisions of M.P. Land Revenue Code and M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 for adjudication of dispute in these writ petitions, is quoted as under :
"A. Section 183 of M.P. Land Revenue Code, 1959 -
183. Service land. - (1) Any person holding land on the condition of rendering service as a Kotwar shall cease to be entitled to such land if he diverts such land to non-agricultural purposes. (2) Any right of a Kotwar in the service land shall not he transferred nor be transferable by way of sale, gift, mortgage, sub-
lease or otherwise except by a sub-lease for a period not exceeding one year.
(3) If a Kotwar dies, resigns or is lawfully dismissed, the service land shall pass to his successor-in-office. (4) The right of a Kotwar in such land shall not be attached or sold in execution of a decree nor shall a receiver be appointed to manage such land under section 51 of the Code of Civil Procedure, 1908 (No. 5 of 1908).
(5) If a Kotwar contravenes or attempt to contravene the provisions of sub-section (1) and (2), without prejudice to any action that may be taken against him under the provisions of this Code or any other law, such service land may be taken back from him by the order of the Tahsildar and the Kotwar or any other person who unauthorisedly continue to remain in possession of the land may be ejected under section 248.
(6) The service lands situated --
(a) in an urban area;
(b) in such area for which development plan has been approved; or
(c) in such area beyond the outer limit of urban area, as notified by the State Government, W.P. No.7131/2019 shall cease to be service land from the date as notified by State Government and the Tahsildar shall cause necessary changes in the land records.
B. Section 185 of M.P. Land Revenue Code, 1959 -
185. Occupancy tenants. - (1) Every person who at the coming into force of this Code holds-
(i) in the Mahakoshal region -
(a) any land, which before the coming into force of the Chhattisgarh Land Revenue Code, 1954 (II of 1955), was malik-makbuza and of which such person had been recorded as an absolute occupancy tenant; or
(b) any land as an occupancy tenant as defined in the Chhattisgarh Land Revenue Code, 1954 (II of 1955); or
(c) any land as an ordinary tenant as defined in the Chhattisgarh Land Revenue Code, 1954 (II of 1955); or
(ii) in the Madhya Bharat region -
(a) any Inam land as a tenant, or as a sub-tenant or as an ordinary tenant; or Explanation. - The expression "Inam Land" shall have the same meaning as assigned to it in the Madhya Bharat Muafi and Inam Tenants and Sub-Tenants Protection Act, 1954 (32 of 1954).
(b) any land as ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari Sub-Lessees Protection Act, 1955 (29 of 1955); or
(c) any Jagir land as defined in the Madhya Bharat Abolition of Jagirs Act, 1951 (28 of 1951), as a sub- tenant or as a tenant of a sub-tenant; or
(d) any land of a proprietor as defined in the Madhya Bharat Zamindari Abolition Act, 1951 (13 of 1951), as a sub-tenant or as a tenant of a sub-tenant;
(iii) in the Vindhya Pradesh Region any land as a sub-tenant of a pachpan paintalis tenant, pattedar tenant, grove holder or holder of a tank as defined in the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1955); or
(iv) in the Bhopal region-
(a) any land as a sub-tenant as defined in the Bhopal State Sub-tenants Protection Act, 1952 (VII of 1953); or
(b) any land as a shikmi from an occupant as defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932); or
(v) in the Sironj region-
W.P. No.7131/2019(a) any land as a sub-tenant of a khatedar tenant or grove holder as defined in the Rajasthan Tenancy Act, 1955 (3 of 1955); or
(b) any land as a sub-tenant or tenant of Khudkasht as defined in the Rajasthan Tenancy Act, 1955 (3 of 1955); shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code.
(2) Where any land referred to in item (c) or (d) of clause (ii) of sub-section (1) is at the time of coming into force of this Code, in actual possession of a tenant of a sub-tenant, then such tenant and not the sub-tenant shall be deemed to be the occupancy tenant of such land.
(3) Nothing in sub-section (1) shall apply to a person who at the coming into force of this Code, holds the land from a bhumiswami who belongs to any one or more of the classes mentioned in sub-section (2) of Section 168. (4) Nothing in this section shall affect the rights of a sub- tenant of tenant of a sub-tenant belonging to any of the categories specified in items (c) and (d) of clause (ii) of sub- section (1) to acquire the rights of a pakka tenant in accordance with the provisions of the Madhya Bharat Abolition of Jagirs Act, 1951 (28 of 1951), or of the Madhya Bharat Zamindari Abolition Act, 1951 (13 of 1951), as the case may be.
C. Section 190 of M.P. Land Revenue Code, 1959 -
190. Conferral of bhumiswami rights on occupancy tenants. - (1) Where a bhumiswami whose land is held by an occupancy tenant belonging to any of the categories specified in sub-section (1) of Section 185 except in items (a) and (b) of clause (i) thereof fails to make an application under sub- section (1) of Section 189 within the period laid down therein, the rights of a bhumiswami shall accrue to the occupancy tenant in respect of the land held by him from such bhumiswami with effect from the commencement of the agricultural year next following the expiry of the aforesaid period.
(2) Where an application is made by a bhumiswami in accordance with the provision of sub-section (1) of Section 189, the rights of a bhumiswami shall accrue to the occupancy tenant in respect of the land remaining with him after resumption if any allowed to the bhumiswami with effect W.P. No.7131/2019 from the commencement of the agricultural year next following the date on which the application is finally disposed of.
(2-A) Where the land of a bhumiswami is held by an occupancy tenant other than an occupancy tenant referred to in sub-section (1), the rights of a bhumiswami shall accrue to the occupancy tenant in respect of such land-
(a) in the case of occupancy tenants of the categories specified in items (a) and (b) of clause (i) of sub-section (1) of Section 185, with effect from the commencement of the agricultural year next following the commencement of the Principal Act;
(b) in any other case, with effect from the commencement of the agricultural year next, following the date on which the rights of an occupancy tenant accrue to such tenant.
(3) Where the rights of a bhumiswami accrue to an occupancy tenant under sub-section (1), sub-section (2) or sub-section (2- A) such occupancy tenant shall be liable to pay to his bhumiswami compensation equal to fifteen times the land revenue payable in respect of the land in five equal annual instalments, each instalment, being payable on the date on which the rent payable under Section 188 for the corresponding year falls due, and if default is made in payment, it shall be recoverable as an arrear of land revenue :
Provided that if from any cause the land revenue is suspended or remitted in whole or in part in any area in any year, the annual instalment of compensation payable by an occupancy tenant holding land in such area in respect of that year shall be suspended and shall become payable one year after the last of the remaining instalments.
(4) Any occupancy tenant may at his option pay the entire amount of compensation in a lump sum and where an occupancy tenant exercise this option, he shall be entitled to a rebate at the rate of ten per cent.
(5) The amount of compensation, whether paid in lump sum or in annual instalments, shall be deposited in such manner and form as may be prescribed by the occupancy tenant with the Tahsildar, for payment to the bhumiswami (6) Where the rights of a bhumiswami in any land accrue to an occupancy tenant under this section, he shall be liable to pay the land revenue payable by the bhumiswami in respect of such land with effect from the date of accrual of such rights."W.P. No.7131/2019
D. Section 41 of M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 -
41. Except in such areas as the State Government may, by notification, exclude from the operation of this section, every absolute occupancy tenant who, at any time before the date of vesting or within six months therefrom, or such further period as the State Government may from time to time notify pays to the State Government an amount equal to three times the annual rent for the time being payable by him for his holding and every occupancy tenant who likewise pays to the State Government an amount equal to four times such rent, shall, on and from the date of vesting or the date of such payment, whichever is later, be declared in the prescribed manner to be a malik-makbuza of the land comprised in his holding.
E. Section 45 of M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 -
45. (1) Subject to the provisions of section 41, any person who immediately before the date of vesting was in possession of any holding as an absolute occupancy tenant or an occupancy tenant shall, on and from the date of vesting, be deemed to be a tenant of the State and shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to immediately before the date of vesting.
(2) Any person holding land as village service land shall be deemed to be holding it from the State and shall be governed by the provisions contained in sections 42 to 48 of the Central Provinces Tenancy Act, 1920.
(3) Any person holding land other than sir land from the proprietor on favourable terms for service rendered by him shall from the date of vesting be declared to be an occupancy tenant of the State and the Deputy Commissioner shall fix the rent to be paid by him.
(4) The rent payable to the State by such a tenant shall for the purpose of its recovery be rent within the meaning of clause (a) of section 225 of the Central Provinces Land Revenue Act, 1917."
7. Considering aforesaid Sections and earlier judgments passed by this Court, position of law which emerges in the case is that tenants who were holding the land other than sir lands from proprietors by virtue of W.P. No.7131/2019 personal service rendered by tenant to him were declared to be occupancy tenant by the State and the Deputy Commissioner was directed to fix the rent of such lands. Occupancy tenants were conferred bumiswami rights. Occupancy tenants described in Section 185 were conferred with bhumiswami rights under Section 190 of M.P. Land Revenue Code, 1959, if no application is filed by bhumiswamies for resumption of their land within one year of coming into force of M.P. Land Revenue Code or if application is filed than bhumiswami rights shall accrue in respect of remaining land with occupancy tenant if resumption is allowed to bhumiswami. In view of aforesaid law, Collector in each case has to examine whether Kotwars were holding land under Section 45(2) or 45(3) of Act of 1950. If they hold land under section 45(3) than bhumiswami rights are conferred upon them in accordance with Section 190 of M.P. Land Revenue Code cannot be taken away by State by changing land records. Case of petitioner is to be tested on basis of said facts and laws.
8. Petitioner had made averment that Board of Revenue had passed order without taking into consideration document/report of Superintendent Land Records, Hoshangabad, in which it has been held that petitioner's ancestors were granted land for personal service.
Ignoring said document, Board of Revenue and other Revenue Authorities has held that there can be no declaration of bhumiswami W.P. No.7131/2019 rights in favour of petitioner as he was holding land under Section 45(2) and not under Section 45(3).
9. There is concurrent findings of fact that ancestors of petitioner were not given land for personal service by the proprietor but was given land for doing social service to all the villagers and his case falls within Section 45(2) and not under Section 45(3). This Court in writ petition will not interfere on the finding of fact.
10. Report of Tehsildar dated 15.02.2016 and said report by Collector, Hoshangabad in its orders dated 26.07.2016 and thereafter, by Board of Revenue in impugned order dated 05.12.2018. Both the Courts had given finding that land in question does not fall within ambit of Section 45(3) of M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950. Petitioner had filed additional document before this Court with I.A. No.4351 of 2019. Said document is issued after passing of order by Collector. Said document was also not filed before Board of Revenue. Board of Revenue as well as Collector has considered report of Tehsildar dated 15.02.2016 and on basis of which, findings has been given. Report dated 15.02.2016 given by Tehsildar is not filed before this Court so that same can be examined to see if there is any illegality or arbitrariness in order of Collector or Board of Revenue.
Petitioner has filed an application for taking documents on record. A document/certificate issued by Superintendent Land Records, Hoshangabad is filed alongwith application. Authenticity of said W.P. No.7131/2019 document is not tested by revenue Courts as said document was not filed before it. In view of same, reliance on said document could not be placed and I.A. No. 4351/2019 is dismissed.
11. In aforesaid circumstances, writ petition filed by the petitioner is dismissed.
(VISHAL DHAGAT) JUDGE vkt Digitally signed by VINOD KUMAR TIWARI VINOD KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=502f56362111056e3584ca82279e5efd816766cb7c5a1f4 TIWARI 90a5ca63b1116883f, pseudonym=064375E039EECAAF492B2C2C606076E420E163D2, serialNumber=121D0E9F65C983AD56493378702622477111B501 6F24D35FA8A76C2CA46685EE, cn=VINOD KUMAR TIWARI Date: 2022.03.25 12:12:23 +05'30'