Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Hulaschandra Jain vs The State Of Madhya Pradesh on 19 January, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

                                - : 1 :-
                                                           W.P. No.930/2022



      IN THE HIGH COURTOF MADHYA PRADESH
                   AT I N D O R E
                              BEFORE
             HON'BLE SHRI JUSTICE VIVEK RUSIA

                 ON THE 19th OF JANUARY, 2024

                  WRIT PETITION No. 930 of 2022

BETWEEN:-
HULASCHANDRA JAIN S/O BADALCHAND JAIN OCCUPATION:
BUSINESS 49A PANCHAVATI JANKINAGAR (MADHYA PRADESH)
                                                      .....PETITIONER
(SHRI ASHOK KUMAR SETHI, SENIOR ADVOCATE WITH SHRI POURUSH
RANKA, ADVOCATE FOR THE PETITIONER.)

AND
   THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1.
   VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
   SUB DIVISIONAL OFFICER (REVENUE) SUB DIVISION RAU,
2.
   (MADHYA PRADESH)
3. TEHSILDAR TEHSIL RAU, (MADHYA PRADESH)
   COLLECTOR THE STATE OF MADHYA PRADESH INDORE (MADHYA
4.
   PRADESH)
   DISTRICT REGISTRAR (REGISTRATION OF DOCUMENTS) MOTI
5.
   TABELA, INDORE (MADHYA PRADESH)
   SMT. MANISHA W/O SANJAY AWASTHI OCCUPATION: UNKNOWN 6/4,
6.
   KESARBAGH ROAD, OPPOSITE TO OLD RTO , (MADHYA PRADESH)
                                                    .....RESPONDENTS
(SHRI TARUN KUSHWAH, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENTS/STATE.)
(SHRI RISHIRAJ TRIVEDI, LEARNED COUNSEL FOR THE RESPONDENT
NO.6.)




      This petition coming on for hearing this day, the court passed the
following:
                                   - : 2 :-
                                                              W.P. No.930/2022



                               ORDER

1. The petitioner has filed the present petition being aggrieved by order dated 23.7.2021 and letter dated 26.7.2021 passed by the Sub Divisional Officer (SDO), Rau, District Indore.

2. According to the petitioner, he being a co-owner purchased the land bearing Survey Nos. 1464/2, 1464/3, 1464/4, 1464/5, 1464/6, 1464/7, 1464/8 and 1464/9 by registered sale-deed dated 10.8.2010 from the erstwhile owner viz. Sudarshan Bansal, Saket Housing Pvt. Ltd., Abhishek Bansal; and Siraj Khan. The aforesaid erstwhile owners purchased the aforesaid land in the year 1998 by registered sale-deed from Vishwa Bhihari Awasthi who happens to be father-in-law of respondent No.6. The names of all the subsequent purchasers were mutated in the revenue record.

3. Respondent No.2 registered the case suo motu on 23.3.2021 without issuing any notice to the petitioner and passed an order of injunction in respect of alienation of flats and premises constructed after due permission from Town & Country epartment. According to the petitioner, after purchase of the aforesaid land, permission from Town & Country Planning Department, Municipal Corporation, Real Estate Regulatory Authority (RERA), SDO were taken and thereafter, the land was developed. Therefore, the SDO without any authority and without any provision of law under the M.P. Land Revenue Code (MPLRC) has wrongly restrained the developers to sale the property. The petitioner immediately approached the SDO and filed an application for vacating stay on 27.3.2021 along with all the necessary documents. On 7.7.2021 the SDO heard the arguments and posted for orders on the said application. Instead of deciding the application for vacating stay, the SDO has passed the final order directing

- : 3 :-

the Tehsildar to submit the report about the status of the aforesaid land and also directed for registration of a suo motu case u/s. 115 of the MPLRC. After passing the aforesaid order, the SDO further directed the Sub Registrar, Registration for not registering any sale-deed in regard to the project of the petitioner. Hence, the present petition before this Court.

4. Shri A.K. Sethi, learned senior counsel appearing for the petitioner submits that after purchasing the land in question by way of registered sale-deed the petitioner applied for diversion of the land. The land was diverted and thereafter the lay-out was approved by the Town & Country Planning Department vide order dated 24.1.2013. Thereafter, the Municipal Corporation also granted the building permission on 23.4.2015. The permission under Rule 27 of the M.P. Bhoomi vikas Niyam, 2012 was also granted by the Municipal Corporation for construction of multi-storied building of six floors, basement and parking. The RERA has also approved the project in the name of "Lal Bagh Life". After completion of the construction in accordance with law, the SDO has wrongly passed the order u/s. 115 of the MPLRC and wrongly directed the Sub Registrar, Registration not to register any sale-deed. The provisions u/s. 115 of the MPLRC have wrongly been invoked by the SDO without taking approval from the Collector as required under Proviso to Section 115.

5. Respondents No. 1 to 4 have filed the reply by submitting that the land in question was registered in the name of "Mahadev Mandir. Later on, the name of private persons were recorded as Bhoomi Swami in the revenue record by virtue of order of Hon'ble the Governor dated 29.10.1971. Such entries in Khasra Khatauni appears to be false and without knowledge of the revenue authorities. The land stood in the name of Mahadev Mandir would be treated in the name of Deity which is

- : 4 :-

perpetual minor. Thereafter all the subsequent sales and partitions are contrary to the settled position of law. The State being the owner of the properties is always having authority to examine the title. It is submitted that in case of Satlujlal Vidyut Nigam V/s. Rajkumar Rajendra Singh (Decd.) through L.Rs. : (2019 14 SCC 449, the apex Court has held that the fraud vitiates everything and such order can be challenged in any Court or proceedings, even in the collateral proceedings. Therefore, all the entries, partitions based on the fraud vitiates and liable to be interfered with by the revenue authorities in order to protect the land.

6. Learned counsel for respondent No.5 submits that the SDO is having power to take suo motu action for correction of the unauthorized entries.

As on today, the final order has not been passed u/s. 115 of the MPLRC. The proceedings are still pending before the SDO in which the petitioner can participate and establish his right on the land. Appreciation and conclusion -

7. The main contention of the learned senior counsel appearing for the petitioner is that the petitioner filed an application for vacating stay before the SDO and instead of deciding the said application the SDO has wrongly passed the final order without giving any opportunity to argue the case on merit.

8. On the basis of the information that the land bearing Survey Nos.464/2, 1464/3, 1464/4, 1464/5, 1464/6, 1464/7, 1464/8 and 1464/9 has been registered in the name of Mahadev Mandir, but from time to time, name of Bhoomi Swami were changed and now, a multi-storied building is under construction. Therefore, suo motu case was registered on 23.3.2021 and notices were issued to the petitioner and other co-owners to explain as to how the title has been transferred in their name and till then the

- : 5 :-

construction be stopped. A common notice was issued to the petitioner for appearance on 27.3.2021. The petitioner appeared and sought time to file the reply. Vide order dated 31.3.2021, the Halka Patwari was directed to submit the report. On 1.7.2021 counsel appearing for Hulashchandra filed an application for vacating stay. Counsel for respondent No.4 submitted an objection. The arguments were heard and final order dated 23.7.2021 was passed for taking up the matter suo motu u/s. 115 of the MPLRC and the Tehsildar, Rau was directed to inquire about the entries in the Revenue Register since 1925 and submit the report within 15 days. The case which was registered was closed and a fresh case u/s. 115 of the MPLRC was registered.

Section 115 of the MPLRC is quoted below :

"115. Correction of wrong or incorrect entry in land record- (1)A Sub-Divisional Officer may, on his own motion or on application of an aggrieved person, after making such enquiry as he deems fit, correct any wrong or incorrect entry including an unauthorised entry in the land records prepared under section 114 other than Bhoo-Adhikar Pustika and record of rights, and such corrections shall be authenticated by him:

Provided that no action shall be initiated for correction of any entry pertaining to a period prior to five years without the sanction in writing of the Collector.

(2) No order shall be passed under subsection (1) without-

(a) getting a written report from the Tahsildar concerned; and (b) giving an opportunity of hearing to all parties interested:

Provided that where interest of Government is involved, the SubDivisional Officer shall submit the case to the Collector.

(3) On receipt of a case under sub-section (2), the Collector shall make such enquiry and pass such order as he deems fit."

As per sub-section (1) of Section 115, the SDO may, on his own motion or on application of an aggrieved person, after making such enquiry as he deems fit, correct any wrong or incorrect entry including an unauthorized entry in the land records. Therefore, as on today only a case u/s. 115 of the

- : 6 :-

MPLRC has been registered by the SDO on his own motion. No final order has been passed for correction of the entries in the revenue record and after enquiry, if the SDO comes to the conclusion that the entries are liable to be corrected, then as per Proviso he shall not initiate action for correction of the any entry pertaining to a period prior to five years without the sanction in writing of the Collector. Therefore, at this stage, sanction from the Collector is not required. Unless after the enquiry the SDO comes to the conclusion that the entries are liable to be corrected which are pertaining to a period prior to five years, the permission from the Collector is not required. As per sub-section (2) of Section 115, no order shall be passed under sub-section (1) without getting a written report from the Tehsildar concerned and without giving opportunity of hearing to all parties. Therefore, at this stage, the SDO is following the procedure prescribed under sub-section (2) as he has already directed the Tehsildar to submit the report and also served the notice to the petitioner and others for opportunity of hearing. Sub-section (3) of Section 115 further gives an opportunity of enquiry by the Collector. As per this sub-section, on receipt of a case under sub-section (2), the Collector shall make such enquiry and pass such order as he deems fit. Therefore, as on today, no adverse order has been passed, hence, no interference is called for by the High Court. The SDO has only initiated the proceedings u/s. 115 of the MPLRC in which the petitioner will get an opportunity of hearing after the report submitted by the Tehsildar. Therefore, no interference is called for.

9. The petition is accordingly dismissed.

( VIVEK RUSIA ) JUDGE Alok/-

Date: 2024.01.24 15:43:24 +05'30'