Madhya Pradesh High Court
Lampu Sahu vs The State Of Madhya Pradesh on 22 July, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1 W.P. No.2621/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 22nd OF JULY, 2024
WRIT PETITION No. 2621 of 2024
LAMPU SAHU
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Siddharth Gulatee - Advocate for the petitioner.
Shri G.P. Singh - Government Advocate for respondents/State.
Shri Anoop Kumar Saxena - Advocate for respondent No.7.
ORDER
This petition under Article 226 of Constitution of India has been filed seeking following relief(s):-
(a) To issue a writ in the nature of certiorari and quash and set-aside the impugned orders dated 12.07.2019 (Annexure P-13), 28.09.2019 (Annexure P-14) and 01.01.2024 (Annexure P-15) passed by the respondent No.5, 4 & 2 respectively.
(b) This Hon'ble Court be further pleased to pass such other order(s) as it may deem fit under the circumstances under the case.
2. It is submitted by counsel for petitioner that petitioner moved an application for allotment of khasra No.237/1 area 1.40 acres of land by making an application on 03/08/1996. According to petitioner, khasra No.237/1 has been renumbered as 237/6. The said land was recorded as a waste/barren land. The public proclamation was issued but no 2 W.P. No.2621/2024 objections were received. The opinion of Patwari and Gram Panchayat was obtained and the statements of witnesses were recorded. It was found that petitioner is already in possession of 0.600 hectares of land and accordingly, it was held by Naib Tehsildar that additional land i.e. 1.420 hectares can be settled in favour of petitioner. It was also found that petitioner is in possession of khasra No.237/1 prior to 1994 and settlement of the same will not cause any obstruction in Nistar rights of the villagers and accordingly, by order dated 03/10/1996 recorded in revenue case No.524/A-19(4)/1995-96, Naib Tehsildar, Khargapur, District Tikamgarh settled khasra No.237/1 area 1.40 hectares in favour of petitioner and Rin Pustika was also prepared. Thereafter, petitioner applied for mutation of his name. By order dated 10/08/2006, mutation of name of petitioner in respect of khasra No.237/1 area 1.410 hectares was allowed.
3. Respondent No.7 was allotted 1.690 hectares of land out of khasra No.237/2 on the ground that she belongs to Scheduled Caste. Petitioner and one other person Mankha challenged the said grant by filing Appeal before SDO Tikamgarh which was registered as case No.16/Appeal/2000-01.
4. By order dated 04/01/2002, SDO rejected the application/ complaint of the petitioner and Mankha and affirmed the grant of patta in favour of respondent No.7.
5. Being aggrieved by the aforesaid order, co-complainant Mankha preferred a Revision before Commissioner, Sagar Division Sagar, which was registered as case No.65/A-19/2003-04.
6. It is the case of petitioner that he never joined as Revisionist, however Commissioner by a general order dated 10/07/2007 not only 3 W.P. No.2621/2024 cancelled the Patta granted in favour of respondent No.7 but also cancelled the allotment of land to the petitioner and directed that the said land be recorded in the name of State Government.
7. It is fairly conceded by counsel for petitioner that order dated 10/07/2007 passed by Additional Commissioner, Sagar Division, Sagar in case No.65/A-19/2003-04 was never challenged by petitioner but Hiriya Bai/ respondent No.7 challenged the said order by filing W.P. No.2277/2009 and Co-ordinate Bench of this Court by order dated 10/03/2015 allowed the revision and remanded the matter back to the Additional Commissioner, Sagar Division Sagar to decide the Revision afresh after affording opportunity of hearing to the petitioner as well as respondents No.1, 6 &7.
8. It is submitted that since petitioner was respondent No.7 in W.P. No.2277/2009, therefore by necessary implication, it can be said that the order dated 10/07/2007 which was passed by Additional Commissioner, Sagar Division Sagar against the petitioner also stood quashed. Thereafter, matter was heard afresh and the said Revision was disposed of by Additional Commissioner Sagar Division Sagar by order dated 06/09/2017. The Revision filed by Mankha was dismissed on the ground that he does not have any locus standi to challenge the allotment of khasra No.237/2 and he also does not belong to scheduled caste and the order of original allotment in favour of respondent No.7 was affirmed.
9. Being aggrieved by said order, petitioner as well as Mankha filed W.P. No.14518/2017 which is pending adjudication. It is not out of place to mention here that said petition is also listed for analogous hearing.
10. Thereafter, respondent No.7 preferred an application for 4 W.P. No.2621/2024 implementation of order dated 06/09/2017 and case No.B-121/2017-18 was registered and by order dated 09/10/2017 respondent No.5 was directed that necessary compliance be done in the revenue records.
11. Thereafter it appears that respondent No.7 preferred second application before respondent No.5 seeking compliance and implementation of order dated 06/09/2017 and on the said application, revenue case No.319/2019-20 was registered and a direction was issued to issue notices to the parties. However, it is alleged that no notice of any sort was issued to the petitioner and straight away on 12/07/2019 final order was passed by respondent No.5 directing for deleting the name of petitioner from khasra No.237/6 and substituting the same by State Government. It is submitted by counsel for petitioner that respondent No.6 had acted in a most malicious manner. He was transferred just 2 or 3 days after passing of order dated 12/07/2019.
12. Being aggrieved by said order, petitioner preferred an Appeal before SDO which too has been dismissed by order dated 28/09/2019. The Second Appeal filed before Commissioner, Sagar Division, Sagar has also been dismissed by order dated 01/01/2024.
13. Challenging the orders passed by Revenue Courts, it is submitted by counsel for petitioner that petitioner was denied the opportunity of personal hearing. Furthermore, W.P. No.14518/2017 was pending, therefore impugned order should not have been passed. It is further submitted that since the land was recorded as waste/barren land, therefore said land was allotted to the petitioner vide order dated 03/10/1996 passed by Naib Tehsildar, Khargapur, District Tikamgarh.
14. Per contra, petition is vehemently opposed by counsel for the State as well as counsel for respondent No.7. It is submitted that the 5 W.P. No.2621/2024 land in dispute was recorded as Government Pathar land and unauthorizedly the same was converted into a waste/barren land. The same could not have been done. The land which was reserved for Nistar purposes cannot be allotted to anybody else.
15. Heard learned counsel for the parties.
16. Counsel for petitioner was directed to explain that under what circumstances the land which was recorded as Nistar land could have been converted into a barren land and if that is done, then by which Authority.
17. Section 237 of M.P.L.R. Code as it was in force in the year 1984 reads as under:-
"237. Collector to set apart land for exercise of Nistar rights- (1) Subject to the rules made under this Code, the Collector may set apart unoccupied land for the following purposes, namely:-
(a) for timber or fuel reserve,
(b) for pasture, grass, bir or fodder reserve,
(c) for burial ground and cremation ground,
(d) for gaothan,
(e) for encamping ground,
(f) for threshing floor,
(g) for bazaar,
(h) for skinning ground,
(i) for manure pits,
(j) for public purposes such as schools, playgrounds, parks, roads, lanes, drains and the like, and
(k) for any other purposes which may be prescribed for the exercise of rights of Nistar. (2) Lands set apart specially for any purpose mentioned in sub-section(1), shall not otherwise be diverted without the sanction of the Collector."
18. Rules have been framed for preparation and modification of 6 W.P. No.2621/2024 Nistar Patrak. The power under Section 237 of M.P.L.R. Code lies with the Collector only. Only the Collector can set apart any land reserved for pasture, grass, bir or fodder reserve. Khasra No.236/1 and 237/1 situated at village Kadrrai were Gochar land which is evident from the khasra panchashala filed as Annexure R-2/3 in additional reply filed in connected W.P. No.14518/2017. However, said land was allotted to petitioner by order dated 03/10/1996 by treating khasra No.237/1 as a barren land.
19. Now the only question for consideration is as to whether khasra No.237/1 was a barren land or it was a pasture or grazing land.
20. A copy of the khasra of year 1984 has been placed on record as Annexure-R-J-1. From this document it is clear that although in column No.18, it is mentioned that in case No. (illegible) a part of khasra No.237/1 has been declared as waste/barren land but name of the Authority and date of order has not been mentioned. Even the petitioner has not filed the copy of order by which the grazing land was declared as waste/barren land. However, it is really surprising that in the same khasra number, it was mentioned that crops have been sown by some other person. If the land was under cultivation, then how it can be mentioned as barren land. Furthermore, in the light of provision of Section 237 of M.P.L.R. Code, it is clear that the land could have been converted into barren land by order of Collector only.
21. It is well established principle of law that any entry in the revenue record will not decide the fate of the case unless and until it has been made in execution of any order passed by a competent authority. In the Khasra of the year 1984-85 to 1988-89, which has been filed by the petitioner as Annexure R/J-1, except mentioning the case number 7 W.P. No.2621/2024 nothing else has been mentioned. Even the name of the authority who has passed the order and the date of order has not been mentioned. Thus, in absence of the order passed by the Collector, the Patwari could not have carried out any correction in the revenue records, but the same was done in the year 1984.
22. Under these circumstances, it is held that the revenue entry which is to the effect that "Khasra No.237/1 which is recorded as grazing land is being converted into a barren land", is incorrect and has been done without any authority of law. A wrong revenue entry made without any order of the competent authority has no existence in the eye of law and thus, the Gochar land (grazing land) could not have been converted into a barren land by making an unauthorized entry in the Khasra Panchshala of the year 1984-85.
23. Since Khasra No.237/1 was a Gochar land and the entry in the Khasra Panchshala of the year 1984-85 was made without referring to the order passed by the Collector and further even the petitioner has not filed a copy of the order passed by the Collector, by which the grazing land was declared as a barren land, therefore, this Court is of the considered opinion that the allotment of Khasra No.237/1 in favour of the petitioner/ Lampu Sahu was contrary to record and the authorities below did not commit any mistake by directing to delete the name of Lampu Sahu from Khasra No.237/1 and by directing to re-record the same as a Government land.
24. Accordingly, the orders dated 12/7/2019 passed by Tahsildar, Khargapur, District Tikamgarh in Case No.319/B-121/2019-20, order dated 28/9/2019 passed by SDO, Baldevgarh, District Tikamgarh in Case No.65/Appeal/2019-20 and order dated 1/1/2024 passed by the 8 W.P. No.2621/2024 Commissioner, Sagar Division, Sagar in Case No.188/Appeal/2021-22 are hereby affirmed. The Authorities are directed to immediately carry out the correction in the revenue records. If the petitioner is found to be in possession of Khasra No.237/1, which might have been renumbered, then the proceedings be initiated for his eviction.
25. Petition fails and is hereby dismissed.
26. Interim order dated 17/2/2024 is hereby vacated.
(G.S. AHLUWALIA) JUDGE S.M. Digitally signed by SHUBHANKAR MISHRA Date: 2024.07.31 15:50:39 +05'30'