Madhya Pradesh High Court
Smt.Fatima Bi vs The State Of Madhya Pradesh Judgement ... on 30 July, 2013
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
1
W.P. 2828/2006
HIGH COURT OF MADHYA PRADESH JABALPUR
SINGLE BENCH:
Hon'ble Shri Justice A.K. Shrivastava
Writ Petition No.2828 of 2006
PETITIONERS: 1. Smt. Fatima Bi (Since dead through
Lrs.)
1. Khudayar Khan, son of Shaharyar
Khan
2. Shahdulla Khan son of Dilwaj
Khan
3. Kifayatulla Khan, son of Dil waj
Khan, (Died on 18.02.2009)
(i) Smt. Badrun Nisha, widow of
Kifayatulla Khan.
(ii) Himayatulla Khan,
son of Kifayatulla Khan.
Both residents of Sohagpur, Ward
No.1, Tehsil Sohagpur District
Shahdol (MP)
4. Afjal Khan son of Asgar Khan,
5. Mohd. Islam Khan, S/o Asgar
Khan
6. Deedar Khan son of Shri Asgar
Khan
7. Ajhar Khan son of Asgar Khan,
8. Akhtar Khan son of Asgar Khan,
9. Akmal Khan son of Asgar Khan
10. Ajmal Khan son of Asgar Khan
11. Mohd. Sarjan Khan son of Asgar
Khan
All residents of Sohagpur, Ward
No.1,Tehsil Sohagpur District
Shahdol (M.P.)
2
W.P. 2828/2006
2. Maqsood Alam Siddiqui, s/oShri
Mansoor Alam Siddiqui,
resident of Village Sohagpur,
Tehsil Sohagpur, District Shahdol
(M.P.).
Versus
RESPONDENTS: 1. The State of M.P. through Principal
Secretary, Department of Revenue
Government of Madhya Pradesh,
Vallabh Bhawan, Bhopal,M.P.
2. Collector, Shahdol Collectorate
Shahdol, M.P.
3. Land Acquisition
Officer, Collectorate Shahdol ,M.P.
4. Ramesh Mishra, Deputy Collector
and Former Land Acquisition
Officer, Shahdol
---------------------------------------------------------------------------------------
Petitioners by - Shri R.P. Agrawal, Senior
Advocate with Shri Anuj Agrawal,
Advocate.
Respondents/State by - Smt. Sheetal Dubey, Govt.
Advocate
ORDER
( 30/07/2013) The order passed in this petition shall also govern the disposal of connected W.P. No. 8765/2007 (Smt. Fatima Bi (dead) through LRs Vs. State of M.P.and others) since both the petitions have been heard analogously.
2. By this petition under Articles 226 & 227 of the Constitution of India, the petitioner is seeking following reliefs:-
"(i) The entire record pertaining to the cancellation of 'patta' and culminating in passing of the impugned order be called for.3 W.P. 2828/2006
(ii) The impugned order contained in Annexure P/5 be quashed.
(iii) The petitioner be awarded compensatory costs.
(iv) Any other relief deemed fit be also granted.
(v) Costs of the petition. "
3. Brief facts as per the case of the petitioner are that a patta dated 26.8.1948 (Annexure P/2) was granted in favour of one Mohd. Haneef whose widow is deceased petitioner in regard to agricultural land bearing Khasra Nos. 1677, 1699 and 1733, total area 7.10 acres and eventually he started cultivating upon the land which was allotted to him on the basis of patta although according to the return of the Government, this patta is a forged document. The stand which has been taken by the State Government in the return in connected W.P. No. 8765/2007 para 4 is that when the patta was alleged to have been executed the land in question was recorded as forest land in the revenue record and in case of exchange, transfer of otherwise procedure laid down under the Rewa Raj Darbar was in force prior to enactment of M.P. Land Revenue Code, 1959 (for short, the Code). Further it has been averred in same para of the return that the land which has been leased out bearing Khasra Nos. 1677/6, 1699 and 1713 was the forest land as defined under Section 29 of the Rewa Forest Act and for allotment, exchange and otherwise, there was a provision in the Rewa Raj Darbar order, 4 W.P. 2828/2006 defined under Section 41 and under Section 43 (Ga) and further the stand of State Government in the return is that patta can only be granted to a Kashtkar. According to the State, at the relevant point of time the husband of the deceased petitioner was not a Kashtkar at Sohagpur and he was only serving as a Patwari. Since husband of the deceased petitioner was working as Patwari at the relevant point of time, he misused his power and in collusion with Revenue Inspector and SLR prepared a patta and occupied forest land without any authority. However, it be noted that in order to substantiate the said stand in the return that the land was a forest land, no document has been filed in that regard. That apart, as argued by Smt. Sheetal Dubey, learned Govt. Advocate the husband of the deceased petitioner was serving on the post of Patwari, therefore, no patta could be granted in his favour. But, where is the said bar, neither there is averment in the return nor any law has been shown to me by learned Government Advocate. Indeed, there was no bar that a person serving on the post of Patwari cannot be a Kashtkar No law in this regard has been shown to me. The land was forest no material has been placed on record.
4. Coming back to the case of petitioner, somewhere in the year 1962 upon some part of the agricultural land admeasuring 4 acres which was given to the petitioner's husband on patta, the State of M.P. and its functionaries constructed a 5 W.P. 2828/2006 hostel building for the students of Mining Polytechnic Institute for their residential purpose. Eventually, the deceased petitioner's husband filed Civil Suit No. 54-A/1973 in the Court of Civil Judge, class I, Umariya Camp, Shahdol (Mohd. Haneef Vs. State of M.P.) for declaration of Bhumiswami right and for restoration of possession. This suit was decreed on 22.12.1973 by holding that plaintiff (husband of deceased petitioner) is the Bhumiswami of Khasra No. 1699, area 1.25 acres and Khasra No. 1677, area 2.75 acres while deciding issue no.1. A decree was passed directing the State of M.P. to pay compensation in accordance to law and in case the compensation is not paid, the plaintiff (husband of deceased petitioner) shall be entitled to execute the decree of possession.
5. It appears that the State of M.P. did not file any appeal against the judgment and decree passed by learned trial Court, but, the plaintiff-Mohd. Haneef filed First Appeal No. 4- A/1974 before learned Additional District Judge, Shahdol against that part of the decree by which the State was directed to pay compensation. However, learned First Appellate Court on 22.1.1979 dismissed the appeal of the plaintiff (husband of deceased petitioner) vide Annexure P/4 and affirmed the judgment and decree passed by learned trial Court to pay compensation and in the alternative if compensation is not paid the plaintiff (husband of the petitioner) may obtain the possession 6 W.P. 2828/2006 of the land in question by executing the decree. No further appeal was filed by any of the parties.
6. Thereafter instead of paying the compensation by obeying the decree, the State of M.P. took a decision to acquire the land. Eventually the land was acquired according to Land Acquisition Act, 1894 (for short, the Act of 1894) and an award was passed by the Land Acquisition Officer on 28.3.1987 (Annexure P/5). While passing the award it was directed that deceased petitioner's husband Mohd. Haneef is entitled for compensation @ Rs. 2/- per sq. ft. along with interest. Said Mohd. Haneef then submitted an application to refer the matter to the Civil Court and eventually the matter was referred to the Civil Court and Civil Court enhanced the compensation from Rs. 2/- per sq. ft. to Rs. 4.46/- per sq. ft. The said order of the Civil Court is dated 3.5.1991 (Annexure P/6).
7. It is the further case of deceased petitioner that against the decree enhancing the compensation passed by the Civil Court, the State of M.P. filed first appeal under Section 54 of the Act of 1894 before this Court which was registered as F.A. No. 148/1991 and the same was partly allowed on 21.7.2006 by holding that petitioner's husband is entitled for compensation @ Rs. 3/- per sq. ft. along with interest. It is submitted by learned counsel for the parties that the judgment passed by this Court in first appeal was not assailed in the Supreme Court. It is an 7 W.P. 2828/2006 undisputed fact that somewhere in the year 1988, a sum of Rs. 6,01,389/- was also paid to the deceased petitioner's husband towards compensation in pursuance to the award passed by the Land Acquisition Officer. As per the decision of this Court, a sum of Rs. 20,28,694/- is the total amount of compensation which the deceased petitioner's husband was entitled to receive and after deducting the aforesaid amount of Rs. 6,01,389/- the balance amount has yet not been paid to the deceased petitioner's husband or after his death to the deceased petitioner or any other heirs of Mohd. Haneef who have been brought on record as petitioners after the death of petitioner no.1.
8. According to the petitioner lateron a U-turn was taken by the State of M.P. and its functionaries just like an ordinary litigant so as to save their skin from the clutches of the award of compensation under the Act of 1894 as a result of which a show cause notice dated 24.6.05 was issued by the Collector, Shahdol to the deceased petitioner when deceased petitioner's husband died after having fought from 1973 to 24.6.2005 i.e. more than 32 years. Instead of paying the balance amount of compensation, a show cause notice was issued by the Collector, Shahdol to the deceased petitioner that why the land which was allotted to her husband Mohd. Haneef through patta should not be cancelled because it is a forged document. The ground of the show cause notice is that the land which was allotted on patta was forest land 8 W.P. 2828/2006 and it was so recorded in the revenue record. But, as I have already held hereinabove no such record has been filed either in this petition or in connected W.P. No. 8765/2007 in order to demonstrate that the land was a forest land. The petitioner submitted her reply vide Annexure P/12 and P/13 dated 29.11.2005 and 5.1.2006. The petitioner submitted various applications to supply copies of the documents on the basis of which the show cause notice has been issued but till today copies of those documents have not been supplied to the petitioner. Ultimately when the deceased petitioner found herself to be helpless and was satisfied that it is impossible to dismantle a huge mountain by pelting the stone, she took the shelter of this Court by filing a petition under Articles 226 and 227 of the Constitution of India.
9. The contention of Shri R.P. Agrawal, learned senior counsel for petitioners is that the action of the Collector in issuing show cause notice to take the matter in suo motu revision by exercising power conferred to it under Section 50 of the Code to set aside the alleged patta granted to the petitioner's husband is nothing but to avoid the liability of the State to pay compensation passed under the Land Acquisition Act which ultimately has attained finality when the first appeal of the State was partly allowed on 21.7.2006. Learned counsel submits that the patta which was granted to the petitioner's husband in the year 1948 9 W.P. 2828/2006 was ultimately cancelled on 5.1.2006 (annexure P/22) after lapse of 58 years which is not permissible under the law and the power of suo motu revision had wrongly been exercised. In support of his contention learned counsel has placed heavy reliance on the Full Bench decision of this Court Ranveer Singh Vs. State of M.P. 2010(4) M.P.L.J. 178 and several other decisions of this Court, they are Ajay Singh Vs. State of M.P. W.P. No. 14954/2005, Narendra Pratap Singh Vs. State of M.P. W.P. No. 14953/2005, Ram Bharosi Sharma Vs. State of M.P. 2002(3) MPLJ 189, Mohammad Kavi Vs. Fatmabai Ibrahim 1998(1) MPWN 26, Dhanuklal Dhruv Vs. State of M.P. M.P. No. 1442/90, Sitaram Vs. State of M.P. M.P. No. 1441/90. Learned senior counsel has also placed reliance upon the decision of Supreme Court State of Gujrat Vs. Patel Raghav Natha AIR 1969 SC 1297. Further, it has been contended by him that after the point in dispute holding that the deceased petitioner's husband was the Bhumiswami of the land in question was put to rest not once but twice despite it, as a welfare State the State of M.P. like an ordinary litigant in order to get rid of from the clutches of the decree of the Civil Court, firstly they initiated proceedings under the Land Acquisition Act and ultimately when they were required to pay the amount of compensation to the deceased petitioner's husband who ultimately died before obtaining it, the Collector, Shahdol issued a show cause notice to 10 W.P. 2828/2006 the deceased petitioner that why patta allotted to her husband may not be cancelled. Thus by their own conduct the State of M.P. is now estopped from raising such a dispute.
10. On the other hand, Smt. Sheetal Dubey, learned Govt. Advocate has submitted that petitioner's husband who at the relevant point of time was serving on the post of Patwari, by misusing his power and position anyhow prepared a forged patta in his favour of the land which was a forest land and, therefore, this petition deserves to be dismissed.
11. Having heard learned counsel for the parties, I am of the view that this petition as well as connected Writ Petition No. 8765/2007 deserves to be allowed.
12. So far as the objection of learned Govt. Advocate that the alleged patta could not be issued in favour of petitioner's husband because the land in question was a forest land, it is not at all substantiated by placing any material. No revenue record in this regard has been filed. That apart, when a hostel building was constructed upon the land given to the petitioner's husband on patta, he filed a civil suit which was registered as Civil Suit No. 4-A/1973. The judgment of the said suit is dated 22.12.1973 (Annexure P/3).
13. On bare perusal of issue no.1, this Court finds that the issue which was framed was whether the petitioner's husband was the Bhumiswami of the land in question?. The said issue was 11 W.P. 2828/2006 answered in favour of the deceased petitioner's husband (plaintiff) holding that he was the Bhumiswami of the disputed land. While deciding issue no.2 it was also held that the hostel building has been illegally constructed by the State of M.P. upon the plaintiff's Bhumiswami land. In that suit no such plea was ever raised by the State of M.P. that patta alleged to have been executed in favour of petitioner's husband is a forged document. Not only this when the suit was decreed to the extent that payment of damages or in the alternative if the damages are not paid the right was given to the plaintiff to execute the decree, the State of M.P. was totally satisfied by the said decree and for this simple reason it did not file any appeal. Although an appeal was filed by the plaintiff (deceased petitioner's husband) against that part of the decree by which it was directed to pay compensation. On bare perusal of the judgment of the First Appellate Court dated 22.1.1979 (annexure P/4), this Court finds that although cross-objections were filed by the defendant-State of M.P. who was figured as respondent in that appeal but no argument was addressed on behalf of the State of M.P., despite it the learned First Appellate Court dealt the cross-objections and ultimately found that the decree passed by the trial Court was rightly passed and eventually dismissed the appeal of plaintiff as well as the cross-objections of the State (see para 7 onwards of the judgment of the First Appellate Court). This civil litigation came to 12 W.P. 2828/2006 an end since no further appeal was filed by either of the parties. Hence this point attained finality that plaintiff Mohd. Haneef was the Bhumiswami of the land in question.
14. Instead of paying compensation, in order to save their skin from the clutches of the decree of the Civil Court and to avoid the same, the State of M.P. took a decision to acquire the land. According to me, since the State of M.P. was of the view that petitioner's husband was the Bhumiswami, therefore, they took the decision to acquire the land under the provisions of Land Acquisition Act and ultimately the award was passed by Land Acquisition Officer which was assailed by the deceased petitioner's husband before the Civil Court for enhancement and ultimately the land acquisition proceedings also came to an end when the first appeal which was filed by the State of M.P. before this Court and it was decided in favour of the State by holding that deceased petitioner's husband is entitled for the compensation @ Rs. 3/- per sq. ft. with interest. Hence, the State of M.P. was required to pay a sum of Rs. 20,28,694/-. After deducting the amount of compensation Rs. 6,01,389/- which was already paid, the balance amount was required to be paid to the petitioner's husband but this was also not done. Thus, now the State of M.P. and its functionaries are estopped from raising the dispute that petitioner's husband late Mohd. Haneef was not the Bhumiswami of the land in question. The said objection cannot be 13 W.P. 2828/2006 accepted for the reasons which I have already stated hereinabove.
15. That apart, once it has been held by the Civil Court that deceased petitioner's husband was the Bhumiswami of the land in question and that decree had attained finality, by sitting over the judgment and decree of the Civil Court which was also affirmed by the Appellate Court, the Collector, Shahdol as a second appellate authority had issued the show cause notice to the deceased petitioner which is not at all permissible even under Section 50 of the Code. According to me, after having fought for 32 years, Mohd. Haneef ultimately died without reaping the fruits of decree of the Civil Court or to reap fully the award of compensation passed in his favour under the Land Acquisition Act and his heirs are now again unnecessarily struggling for their right which has already been decided in favour of Mohd. Haneef.
16. According to me, exercise of suo motu revisional power after 32 years cannot be exercised and in this regard I may profitably place reliance upon the Full Bench decision of this Court Ranveer Singh (supra) and several other decisions relied in that Full Bench decision and also on several other decisions which have been relied by learned senior counsel for the petitioner.
17. I have already held hereinabove that major part of life of petitioner's husband had been spent in fighting the case with 14 W.P. 2828/2006 the State of M.P. but ultimately he was not able to reap the fruits on account of his death. Not only this, as a welfare State instead of making payment of balance amount of compensation under the Land Acquisition Act, frivolous show cause notice was issued to the petitioner by the Collector, Shahdol, hence according to me the petitioners are entitled for the exemplary cost of Rs. 15,000/- (Rupees fifteen thousand only).
18. Ab judicatio this petition succeeds and is hereby allowed with costs. The respondents are hereby directed to pay balance amount of compensation awarded under the Land Acquisition Act in favour of Mohd. Haneef to the petitioners being his heirs. Let the compensation be paid on or before 30.09.2013 failing which it shall carry simple interest @ 6% p.a. Let a copy of this order be kept in the record of connected W.P. No. 8765/2007 (Smt. Fatima Bi (dead) through LRs Vs. State of M.P. and others).
Regarding connected W.P. No. 8765/2007 (Smt. Fatima Bi (dead) through LRs Vs. State of M.P. and Others).
19. This petition has been filed by the petitioner against the show cause notice dated 31.05.2007 issued by the Collector annexure P/26 seeking explanation as to why the name of the Government should not be recorded in the revenue record in place of petitioner's husband.
15W.P. 2828/2006
20. For the reasons stated in the order passed today in connected Writ Petition No. 2828/2006 (Fatima Bi Vs. State of M.P. and Others) this petition also succeeds and is hereby allowed. The impugned notice dated 31.5.2007 (annexure P/26) and the order dated 05.01.2006 (Annexure P/22) passed by Collector, Shahdol in Case No. 10/revision/04-05 (State of M.P. Vs. Smt. Fatima Bi and another) directing to delete the name of deceased Mohd. Haneef and thereafter the name of deceased petitioner no.1 and petitioner no.2 in the revenue record and further directing to endorse the name of State of M.P. in the revenue record stands quashed.
(A.K. Shrivastava) Judge rao 16 W.P. 2828/2006