Madhya Pradesh High Court
State Of M.P. vs Adhunik Grih Nirman Sahakari Samiti ... on 4 March, 2024
Author: Sunita Yadav
Bench: Sunita Yadav, Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT APPEAL No. 275 of 2013
BETWEEN:-
1. STATE OF M.P. THROUGH PRINCIPLE
SECRETARY, DEPARTMENT OF REVENUE,
MANTRALAYA, VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. THE COLLECTOR, GWALIOR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ANKUR MODY- AAG)
AND
ADHUNIK GRIH NIRMAN SAHAKARI SAMITI
MARYADIT,GWALIOR TH: PRESIDENT SHRI
SANTOSH SHARMA R/O GANDHI ROAD
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VINOD BHARDWAJ, SR. ADVOCATE WITH SHRI ANAND
BHARDWAJ- ADVOCATE)
------------------------------------------------------------------------------
Reserved on 06/02/2024
Delivered on 04/03/2024
--------------------------------------------------------------------------------
This petition coming on for hearing this day, Hon'ble Justice
Sunita Yadav passed the following:
ORDER
1. The present writ appeal under Section 2 (i) of M.P. Uchcha 2 Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 02.11.2012 passed in W.P. No.8414/2011, whereby while allowing the writ petition the order passed by the Collector dated 11.11.2011 in suo-moto revision in case no.97/10-11 was quashed.
2. The order passed by the learned Single Judge is assailed raising a question as to under which provision of law, the lease holders who were granted the lease in 1972 had obtained the absolute transferable rights to transfer the lease land free from embargo of permission from Collector and further whether they had such rights in 1976 or 1978, when they were granted the Bhumiswami rights.
3. Learned counsel for the appellant/State, Shri Ankur Modi, learned AAG had vehemently submitted that as per the provisions of Section 158 (3) of MPLRC the cut of date for conferred of Bhumiswami rights in respect of land under lease by its deaming provision is suggested and finally indicative of the Bhumiswami rights effected from 28.10.1992 in respect of the land being held under lease prior to 28.10.1992 and as per Section 158 (3), the 3 lease holder of pre-amendment period i.e. prior to 28.10.1992, when the amendment Act of 1992 came into force by which Section 158 (3) of the MPLRC had been amended, for the first time conferred Bhumiswami status in statutory manner in respect of the lease land from 28.10.1992 which implies and pre-supposes that prior to 28.10.1992, the lease holders were merely lessees and remained as such.
4. It was further submitted that the fact of status of lease holders of pre-amendment period retaining their status as lessee up to 28.10.1992 and, therefrom, the conferral Bhumiswami right is strengthened from the statement of object of Amendment Act, 1992 which makes the intention of the legislature clear as to when the Bhumiswami rights would be conferred on the old lease.
5. Learned AAG referred to the object behind the amendment act which reads as under: Statements of Objects and Reasons given in Section 159 of MPLRC, 1959 list of persons included under the term Bhumiswami has been given, but such list does not cover the names of the persons who have been allotted land by the State Government. Consequently such persons are always deemed 4 to be lessee. In order to remove the discrepancy it was proposed to grant Bhumiswami rights to such persons who have been allotted land by the State Government, Collector or the Allotment Officer subject to condition that such person would not be entitled to transfer such lands within a period of ten years from the date of lease or allotment".
6. It was further submitted that from the aforesaid statements of objects it could be inferred that legislature has always treated the old lease-holders to be lessees and to be outside the purview of term Bhumiswami, thus, it is apparent from the statement of object that legislature had never thought of the old leases to have been inflected with the status of Bhumiswami in statutory manner with transferable rights and it was for the first time that Section 158 (3) of MPLRC by the Amendment Act of 1992 had included the old lessees in the list of Bhumiswami under Section 158 (3) of the Act and hence by such inclusion the status of Bhumiswami with transferable right for the first time was conferred upon the lease-holders, but that too was subjected to complete ban on right of transfer within 10 years and, thereafter, it was made subject to 5 permission of Collector.
7. It was further submitted that on the question of conferment of Bhumiswami rights the writ court held in para no.20, 21 and 22 by referring the case of AIR 1976 MP 160 that Bhumiswami had right to transfer the land, but the said judgment did not touch the merits of the dispute herein as it did not pertain to conferral of Bhumiswami rights upon the lease-holders nor had dealt with and decided as to how and when the lease-holder acquires the Bhumiswami rights.
8. It was further submitted that in the judgment cited by the learned Single Judge, Full Bench had discussed the ambit and extent of jurisdiction of Civil Court in reference to the remedy available to the plaintiff under Section 250, 257 (10) of the Code and had finally held that it was open to Bhumiswami either to take recourse to Section 250 or 257 (10) of the Code while the Single Judge has failed to discuss the applicability of the said case in the facts of the present case, therefore, there is an apparent error of law made by the writ court which needs to be corrected.
9. It was further submitted that from the above discussion it is 6 apparent that prior to 1992 the lease-holder could not have been conferred Bhumiswami rights, therefore, provisions under Section 165 (7-b) would very well be applicable and the transfers made by lease-holders in contravention of the provision under Section 165 (7-b) was void ab initio and, therefore, the Collector was right in passing the impugned order dated 11.11.2011.
10. It was further submitted that the learned Single Judge had committed an error of law in assuming the grant of Bhumiswami rights to have been conferred upon the present respondents in proper manner as the said assumption was in ignorance of terms and conditions of the temporary lease as well as instructions for allotment of land for agricultural purposes. The term temporary lease as well as the instructions referred to the manner subject to which Bhumiswami rights should stand to accrue that is the mode of obtaining the right under Section 158 of the Code. It was also submitted that it is noticeable from the instructions for the purpose of issuance of Patta in Form "Å" that only upon completion of five years of grant of Patta, which is the criteria of fulfillment of condition for conferral of the Bhumiswami rights, 7 such rights could be given and no lease holders could be granted Bhumiswami rights in Form "Å" prior to that, but Tehsildar had granted Bhumiswami rights to Vijay Singh, Mukhtiyar Singh and Sahib Singh (lease holders) even before completion of fixed term of five year without orders from the State Government, which is clear violation of the prescribed conditions. Further Clause 14 of the instructions referring to the grant of Bhumiswami rights prescribes the situation and manner in which Form "Å" has to be issued, therefore, in such circumstances, in absence of proper issuance of Form "Å", the lease holders were merely lessee even in terms of Form "Å" hence no lease-holders had acquired rights of Bhumiswami, consequently prior to 1992, the lease holders being outside the list of Bhumiswami's, required permission from the Collector for the sale of the land, but learned Single Judge had not considered the aforesaid aspect, therefore, the impugned order is bad in law.
11. It was further argued that in cases of lease, the propriety/ownership rights rests with the State, therefore, so long as the propriety rights continued with the State, lease-holder has 8 to act in appropriate manner, not being prejudicial to the interests of State, therefore, in such circumstances the act of transfer, being prejudicial to the propriety interest of the State, it was obligatory for the lease-holder to obtain permission of its transfer, from the Collector.
12. It was further submitted that the learned writ Court has overlooked the fact that the sale of the land in question were effected after coming into force of the provisions of Section 165 (7-b) of the MPLRC and, therefore, the permission from the Collector was necessary even if it is assumed that the Bhumiswami rights have been granted to the original lease-holder, which was though not feasible in terms of Amendment Act of 1992 prior to 1980.
13. With regard to exercise of the suo-moto powers by the Collector, it was argued that, the Collector had gone into the validity of the transactions by scanning the title of the lease- holder's keeping in view the provisions of law as contained under Section 158 (3) and 165 (7-b) of Code when the transfer of the land had been made and as the very transactions were void on 9 account of its being fraudulent by reason of the lease-holder having no transferable rights on the date on which the transfers have been made because the lease holders did not acquire any title prior to 1992, when the lessee was, for the first time, included in the list of Bhumiswami under Section 158 (3) of Code by Amendment and while the provisions under Section 165 (7-b) of the MPLRC was effectively in prevalence, the bar of limitation cannot be said to be applicable, therefore, prior permission from Collector to transfer was inevitably for the purpose of transfer. Since the aforesaid aspect has not been considered by the learned Single Judge, therefore, the order passed by it is per se illegal, perverse and therefore, deserves to be set aside.
14. Learned counsel for the State had placed reliance in the matter of Smt. Malti Sharma vs. State of MP and Ors passed in W.P. No.7805/2015 dated 29.11.2018 by ld. Single Judge which was later on affirmed by the Division Bench of this Court in W.A. No.379/2019 dated 01.12.2021 and also had placed reliance in the matter of Badshah Barela (deleted) through LRs and another vs. State of MP and Ors passed in W.P. No.5788/2017 dated 10 05.08.2021 passed by learned Single Judge, wherein learned Single Judge had taken a view that Section 165 (7-b) of MPLRC is applicable to all transactions which takes place after its insertion irrespective of the fact whether Government lease was granted or even Bhumiswami rights were conferred on Government lessee, prior to it.
15. Learned counsel for the appellant/State had further placed reliance in the mater of Safia Bee vs. Mohd. Vajahath Hussain @ Fasi reported in 2011 (2) SCC 94, wherein the hon'ble Apex Court has taken a view that if a Bench does not agree with a view taken by the Coordinate Bench of equal strength in the earlier matter, the judicial discipline and practice required them to refer the issue to a large Bench and the learned Judges were not right in overruling the statement of the law by a Coordinate Bench of the equal strength as it is an accepted rule or principle that the statement of law by a Bench is considered binding on a Bench of same or lesser number of judges and in case of doubt or disagreement about the decision of the earlier Bench, the well accepted and desirable practice is that the later Bench would refer 11 the case to a large Bench.
16. Extending the aforesaid contention reliance was placed by the learned AAG in the matter of Mary Pushpam vs. Telvi Curusumary and Ors passed in Civil Appeal No.9941/2016 on 03.01.2024, wherein the rules emerging from judicial discipline were discussed and it was held that the decision of the Coordinate Bench of same High Court if brought to the notice of the Bench, it is to be respected and is binding subject to right of Bench of such co-equal quorum to take a different view and refer the question to a larger Bench as it is the only course of action open to a Bench of co-equal strength, when faced with the previous decision taken by the Bench with same strength.
17. Per contra, learned counsels for the respondents/petitioners, Shri Prashant Sharma and Shri Anand Bhardwaj, with their usual vehemence has controverted the statements made by the counsel for the appellant/State and it is submitted that no illegality or perversity has been committed by the learned Single Judge in passing the impugned order, setting aside the order passed by Collector while exercising suo-moto 12 revision powers in case no.97/10-11 dated 11.11.2011, wherein on extraneous grounds the Collector has held that since no permission has been taken by the respondent/petitioners as per Section 165 (7-b) of the MPLRC, therefore, the sale effected by the original Patta holders were per se illegal.
18. It was further submitted that predecessor in title of the respondent/petitioners were given the lands in dispute on Patta in the proceedings no.296/61-62/A-19 on 28.08.1972. Thereafter, the predecessors in title of the present petitioners were granted the Bhumiswami rights in the year, 1976 and 1978 respectively over the said lands. The proceedings under the suo-moto revisional jurisdiction were initiated on the basis of a letter dated 06.04.2011 of Additional Tehsildar, Morar, wherein it was informed to the Collector that in proceedings for mutation before it in case no.82/10-11/B-121, wherein challenge was made to the mutation of predecessor in title of the petitioner dated 08.03.2010, was set aside and the possession earlier thereto was directed to be restored, The said exercise of the suo-moto revisional powers by the Collector under Section 50 of MPLRC was hit by the legal 13 position as has been laid down by the Full Bench of this Court in the matter of Ranveer Singh vs. State of MP reported in 2010 (4) MPLJ 178. In the aforesaid judgment the Full Bench has in categorical terms laid down that suo-moto revisional powers can be exercised by the revisional authority within a period of 180 days from the date of knowledge of illegality, impropriety and irregularities of the proceedings committed by any officer subordinate to it, even if the immovable property is Government land or having some public interest and as the order of the Collector no where reflects as to when the knowledge of the alleged illegality or impropriety or irregularity committed by the then Tehsildar/Nayab Tehsildar had occurred, the order of the Collector was very much beyond the period of limitation ie after a lapse of more than 40 years, thus, on this count the dismissal of the order of the Collector by learned Single Judge cannot be said to be perverse.
19. It was further argued that the predecessor in titles of the respondent/petitioner were granted lease vide order dated 28.08.1972 and, thereafter, Mukhtiyar Singh was granted 14 Bhumiswami rights vide order dated 01.07.1976, Vijay Singh vide order dated 01.07.1976 and Sahib Singh vide order dated 18.03.1978 and as it is settled law that the Bhumiswami has title though he is not the Swami of the Bhumi which he holds, in the sense of absolute ownership, because as declared in Section 257 of the Revenue Code, ownership of the land vests in the State Government, yet he is a Bhumiswami and he is not a mere lessee, his rights are higher and superior and are akin to those proprietor in the sense that they are transferable and heritable and he cannot be deprived of his possession except by due process of law and under statutory provisions and his rights cannot be curtailed except by legislation.
20. On the aforesaid premise it was contended that since the Bhumiswami rights were already conferred upon the predecessor in title of the present respondent/petitioners the permission as required under Section 165 (7-b) of the MPLRC from the Collector was not at all required. Apart from the aforesaid, it was also contended that the very sub-section (7-b) of Section 165 of MPLRC, which was inserted vide M.P. Act no.15 of 1980 which 15 prescribes that a Government lessee, who subsequently becomes Bhumiswami of such land shall not transfer such land without permission of a Revenue Officer not below the rank of Collector, but since the very right of Bhumiswami had been accrued to the predecessor in title of the respondent/petitioners prior to the year,1980, the provisions of said sub-section could not be said to be applicable.
21. It was also contended that proviso to Sub-section 3 of Section 158 of MPLRC which prescribes that no person shall transfer land within a period of 10 years from the date of lease or allotment, is also not applicable as the same was inserted w.e.f. 28.10.1992 by MP Amendment Act No.17 of 1992 and much prior to said amendment, the rights of Bhumiswami had accrued in favour of predecessor in title of respondent/petitioners.
22. Learned counsel taking this Court through the provisions of Revenue book circular (Khand 4 Kramank 3 Kandika 1) wherein certain guidelines are provided, wherein "Avantan Adhikari" has been defined in Clause (Jha) which includes Tehsildar/Additional Tehsildar and also Nayab Tehsildar who have been accorded the 16 powers of Tehsildar under the MPLRC. Further making reference of Kandika 10 which provides for grant of Bhumiswami rights it was submitted that such landless persons would be granted Patta by the allotment officer as are mentioned in Kandika 3 in Form A and with regard to the Cooperative Societies Patta could be issued to the societies falling under Kandika 3 (Kha) in Form 'm'.
23. It was further submitted that in the aforesaid Kandika 10, it is specifically mentioned that in the aforesaid matters the land would be allotted on the basis of Bhumiswami rights. That apart, from bare perusal of the Patta granted in favour of the predecessor in title of the respondent/petitioners dated 28.08.1972 it would be reflected that it was given on certain conditions for a period of five years and condition no.14 of the said Patta provided that after completion of the period of five years if the allottment officer is satisfied that the Patta holder had developed 75% of the land and is carrying out the agricultural activities thereupon, then he shall grant the Patta holder all the Bhumiswami rights and further if the allotment officer finds that the development as mentioned above is completed prior to period of five years then also Patta could be 17 granted, which goes to show that the period of five years was not the outer limit for grant of Bhumiswami rights and the Avantan Adhikari/allotment officer after being satisfied could adopt and in fact had adopted the procedure for grant of Bhumiswami rights to the predecessor in title of the respondent/petitioners after issuance of notices to the general public and had called for the objections and only, thereafter, the Bhumiswami rights were granted which had not been considered by the learned Collector and only on the basis of that since prior to completion of five years, the rights of Bhumiswami were accorded to the predecessor in title of the respondent/petitioners, the said rights were not legal, which the learned Single Judge had rightly set aside and the order on this count also does not suffers from any illegality.
24. With regard to the applicability of Section 158 (3) and 165 (7-b) of the MPLRC counsel for the respondent/petitioners while placing reliance in the matter of Hitendra Vishnu Thakur and Ors vs. State of Maharashtra and Ors reported in AIR 1994 Supreme Court 2623 submitted a statute which affects substantive rights is presumed to be prospective in operation 18 unless made retrospective, either expressly or by necessary indentment, where a statute which merely affects procedure, unless such a construction is textually impossible is presumed to be retrospective in its application, should not be given an extended meaning and should not be strictly confined to its clearly defined limits and a procedural statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations or impose new duties in respect of transactions already accomplished. The said judgment further stipulates that a statute which not only changes the procedure, but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided either expressly or by necessary implication.
25. Counsel has further placed reliance in the matter of Swaraj Abhiyan-(II, III and IV) vs. Union of India and Ors reported in AIR 2016 SC 2953 for the preposition that Court cannot reasonably look into Constitution or the law something that is not there. On the strength of the aforesaid it was argued that the present writ appeal is devoid of any substance and deserves to be 19 dismissed.
26. Heard the counsels for the parties and perused the record.
27. Before adverting to the merits of the appeal, this Court deems it expedient to deal with the factual matrix of the matter. Undisputedly, three person, namely, Mukhtiyar Singh, Sahib Singh and Vijay Singh were granted Pattas vide order dated 28.08.1972. The chart of the land allotted on Patta has been mentioned in para 3 of the impugned order. Mukhtiyar Singh was granted Bhumiswami rights of the land vide order dated 01.07.1976, similarly Vijay Singh was also granted the Bhumiswami rights on the same date and Sahib Singh was granted Bhumiswami rights vide order dated 06.07.1978. Thereafter, the said persons sold portions of the land to different persons and from them the land passed on to the present respondents/petitioners. The details of the names of the persons/entities in occupation whose names were mutated in the revenue records has been mentioned in para 6 of the impugned order.
28. Clause 14 of the Patta which is relevant for adjudicating the 20 present controversy is reproduced herein below:
14& ;fn ikap o"kZ dh vof/k lekIr gksus ij vykWVesaV vf/kdkjh dks ;g lek/kku gks tk; fd fuca/kuksa vkSj 'krksZ dk ikyu fd;k x;k gS vkSj de ls de 75 izfr'kr Hkwfe ij [ksrh dh xbZ gS rks og e/;izns'k Hkw&jktLo lafgr 1955 esa nh xbZ ifjHkk"kk ds vuqlkj mls Hkwfe Lokeh vf/kdkj ns nsxk vkSj QkeZ v esa ,d iV~Vk nsxkA ;fn Hkwfe dk iw.kZ fodkl ikap o"kZ ls igys gh dj fy;k tk;s vkSj ml ij [ksrh dh tkus yxs rks jkT; 'kklu ds vkns'kks ds v/khu Hkh Hkwfe Lokeh vf/kdkj fn;s tk ldsaxsA;fn Hkwfe Lokeh vf/kdkj ikWposa o"kZ lekIr gksus rd ugh fn;k x;k rks iV~Vk lekIr gks tk;sxk fdUrq dysDVj dk lek/kku gks tkus ij og mi;qDr ekeyksa esa iV~Vs dh vof/k c<+k ldsxkA
29. As per the said condition if the lease holder cultivates/develops the land up to 75%, then after completion of five years, which was the period for which the Patta was granted, he could be granted Bhumiswami rights. The aforesaid, clause further stipulates that if the aforesaid development is completed prior to five years, then also he would be entitled for grant of Bhumiswami rights. Thus, from the aforesaid fact, it is clear that there was no bar under the conditions appended to the Patta dated 28.08.1972 of approval of Bhumiswami rights to the Patta holder 21 prior to completion of five years.
30. The basic ground which has been taken by the Collector in canceling the allotment to the predecessor in title of the respondent/petitioners is that the conditions as appended to the Patta were not adhered to as prior to the period of five years the Bhumiswami rights were extended to the predecessor in title of the respondent/petitioners and as it has been observed by this Court as well as by the learned writ court that Clause- 14 of the Patta dated 28.08.1972 itself provides for a condition that in case development as provided in the aforesaid clause of more than 75% of the land is fulfilled by the Patta holder, the Bhumiswami rights can be given to him even prior to completion of the five years period. Thus, the very base of the order passed by the Collector appears to be faulty.
31. It is also noteworthy that as per the definition of Avantan Adhikari/allotment officer as provided under Kandika 1 of Khand 4 of Kramank 3 of Revenue Book Circular Clause (Jha) Tehsildar/Additional Tehsildar and Nayab Tehsildar who had been accorded the powers of Tehsildar under the land revenue code 22 could be termed as the allotment officer/Avantan Adhikari to grant the Bhumiswami rights as provide under Kandika 10 in Form A.
32. So far as the contention of the learned counsel for the State that the conditions of Form "Å" which was the Patta conditions had not been adhered to and, therefore, the rights of Bhumiswami accorded to the predecessor in title of the respondent/petitioners was per se illegal is concerned, firstly, as per Kandika-10 of Khand 4 Kramank 3, the Cooperative Societies mentioned in Kandika 3 (Kha) are to be granted Patta in Form "Å" and so far as the predecessor in title of the respondents/petitioners are concerned, since they being the individuals were to be allotted Patta in Form 'A' and secondly, if it is assumed that at that time patta was granted to individuals in Form "Å" as it has already been observed above that condition no.14 of the said Patta provides for allotment of the Bhumiswami rights to the Patta holder even prior to expiration of the five years period, therefore, the arguments as advanced are not sustainable.
33. So far as contentions raised by the counsel for the appellant that as per the provisions contained under Section 165 (7-b) prior 23 to transfer of a land which is held by a person from a State Government or a person holding land in Bhumiswami rights under sub-Section 3 of Section 158 of Code of whom the right to occupy the land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes Bhumiswami of such land shall not transfer such land without the permission of the Revenue Officer not below the rank of Collector and as the land in question has been transferred by the predecessor in title of the respondent/petitioner without permission of the Collector, therefore, the said sale are per se illegal and bad is concerned, the provisions of Section 165 (7-b) are required to be analyzed for its proper appreciation. Section 165 (7-b) of the Code for reference is reproduced herein below:
165 [(7-b) Notwithstanding anything contained in sub-section (1), 4[a person who holds land from the State Government or a person who holds land in bhumiswami rights under sub-section (3) of Section 158] or whom right to occupy land is granted by the State'Government or the Collector as a Government lessee and who subsequently 24 becomes bhumiswami of such land, shall not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing.]
34. Section 165 (7-b) start with a non-obstante clause that not- withstanding anything contained in sub-Section 1 of Section 165 it lays down that subject to other provisions of Sub-Section 3 of Section 158 and provisions of Section 168, a Bhumiswami may transfer interest in his land, and it does not take away the substantial right of the Bhumiswami to enjoy the land, but it merely imposes a restriction on sale of such land except with the permission of Collector for certain category of persons who are:
who holds land from the State Government or holds land in Bhumiswami rights under sub-Section 3 of Section 158 or whom right to occupy the Government land is granted by the State Government or the Collector as a Government lessee and such persons who had subsequently acquired the Bhumiswami rights of such land. So far as the categories of persons who hold land from the State Government or a person who holds land in Bhumiswami 25 rights under sub-section 3 of Section 158 are concerned, the said words were inserted in sub-Section (7-b) of Section 165 w.e.f 28.10.1992. Rest of the sub-Section (7-b) prior to its amendment in the year, 1992 was inserted by M.P. Act No.15 of 1980. Thus, prior to the insertion of sub-Section (7-b) into Section 165 there was no such restriction and the rights of Bhumiswami had already been accrued to the predecessor in title of the respondent/petitioners. Now, the question would accrue is as to whether the insertion of sub-Section 7-b in Section 165 of MPLRC could be said to have retrospective effect and would also cover the cases in which substantial rights of Bhumiswami have already been accrued to the parties.
35. The Hon'ble Apex Court in the matter of H.V. Thakur and Ors vs. State of Maharashtra (supra) had discussed the ambit and scope of amendment act and its retrospective operation and from the discussion made therein the legal position which is culled out is as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary 26 intendment, whereas a Statute which merely affects procedure, unless such a construction is texturally impossible, is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature.
(iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law.
(iv) A procedural Statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished.
(v) A Statute which not only changes the procedure but also creates a new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.
36. From the aforesaid legal position it could safely be said that since the very insertion of sub-Section (7-b) of Section 165 of MPLRC affects substantive rights of the parties, then it could be said that it would have prospective operation and further the 27 application of the said section had not in express mode had given the retrospective effect, therefore, since it is not a mere procedural amendment which could attach its effect retrospectively. The Hon'ble Apex Court has even went to the extent that even a procedural statute should not be generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished, thus, rights accrued to a party with the advent of sub-Section (7-b) of Section 165 of Code cannot be said to be curtailed and, thus, according to this Court, the applicability of the provisions of the said sub-Section would not be applicable to the present case.
37. Further Section 158 (3) which confers Bhumiswami rights on certain category of persons was inserted w.e.f. 28.10.1992 which speaks of the persons who are holding land in bhumiswami rights by virtue of a lease granted to him by the State Government or the Collector or the Allotment Officer on or before the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such commencement, 28 and (ii) to whom land is allotted in bhumiswami right by the State Government or the Collector or the Allotment Officer after the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such allotment in respect of such land, but herein case the predecessor in title of the present respondent/petitioners have already acquired Bhumiswami rights in the year, 1976-78 respectively, therefore, the provisions of such Section is also not applicable.
38. Regarding the prospective or retrospective effect of a Code or its amendment the learned Single Judge in paragraphs 25, 26, and 27 of impugned judgment had also discussed the said aspect while placing reliance in the matters of Zile Singh vs. State of Haryana and Ors reported in 2004 (8) SCC 1, K.S. Paripoornan vs. State of Kerala and Ors reported in AIR 1995 SC 1012 and on the book Principles of Statutory Interpretation, 12th Edn. 2010 authored by Justice G.P. Singh and on its basis had concluded in para 28 that there is no mention in Section 165 (7-b) of the Code of 1959 that it would act retrospectively.
39. Thus, it is clear from the provisions of the Section that it 29 takes away the vested rights acquired by Bhumiswamia and it creates a new obligation or imposes a new duty in regard to taking prior permission from the Collector in the event of sale of land, hence, the section could not be presumed to be retrospective in operation. The Bhumiswami rights, which were granted to the original lease holders, namely, Mukhtyar Singh, Vijay Singh, Sahib Singh were prior to 1980 and could not be taken away by the provisions of the aforesaid Code. A Bhumiswami had vested rights to sell the land and their rights are unfettered and unaffected by introduction of Section 165 (7-b) of the Code of 1959. The same position is with Section 158 (3) of MPLRC because it was introduced by way of amendment dated 28.10.1992 which according to this Court is reasonable and plausible introduction of the enunciations of the Hon'ble Apex Court as well as the principles of statutory interpretation.
40. It would be profitable to quote para 25, 26 and 27 of the Judgment passed by learned Single Judge, wherein the aforesaid aspect has been considered:
25. Hon'ble Supreme Court in the case of Zile Singh vs. 30 State of Haryana reported in 2004 (8) SCC 1 has held as under in regard to applicability of the code as prospective or retrospective:
"13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis' __ a new law ought to regulate what is to follow, not the past. (See : Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole."
26. The Constitution Bench of the Hon'ble Supreme 31 Court in the case of K.S. Paripoorman vs. State of Kerala reported in AIR 1995 SC 1012 has held as under:
"44. A statute dealing with substantive rights differs from a stature which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the Legislature. A stature is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither in validated by reason of their failure to comply with formal requirements subsequently imposed, not open to attack under powers of avoidance subsequently 32 conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor reliéve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. [See Halsbury's Laws of England, 4th Edn., Vol.44, paras 921, 922, 925 and 926].
45. These principles are equally applicable to amendatory statutes. According to Crawford:
"Amendatory statues are subject to the general principles relative to retroactive operation. Like original statutes, they will not be given retroactive construction, unless the language clearly makes such construction necessary. In other words, the amendment will usually take effect only from the date of its enactment and will have no application to prior transaction in the absence of an expressed intent or an intent clearly implied to the contrary, Indeed there is a 33 presumption that an amendment shall operate prospectively. [See Crowford's Statutory Construction pp. 622,[23].
46. The dictum of Lord Denman, C.J. in The Queen v. St. Mary, Whitechapel (1848 (12) QB
120) (supra) that a stature which is in its direct operation prospective cannot properly be called a retrospective stature because a part of the requisites for its action is drawn from time antecedent to its passing, which has received the approval of this Court, does not mean that a statute which is otherwise retrospective in the sense that it takes away or impairs any vested right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect to transactions or considerations already past, will not be treated as retrospective. In Alexander v. Mercouris (1979 (3) All ER 305) (supra), Goff, LJ, after referring to the said observations of Lord Denman, C.J. has observed that a stature would not be operating prospectively if it crates new rights and duties arising out of past transaction. The question whether a particular statute operates prospectively only or has retrospective operation 34 also will have to be determined on the basis of the effect it has on existing rights and obligations, whether it crates new obligations, whether it creates new obligations or imposes new duties or levies new liabilities in relation to past transactions. For that purpose it is necessary to ascertain the intention of the Legislature as indicated in the statute itself."
27. Author Justice G.P.Singh in his book - Principles of Statutory Interpretation, 12th Edn., 2010 has observed in regard to retrospective operation of statutes dealing with substantive rights after considering various judgments of Hon'ble Supreme Court and other courts, as under :-
"(ii) Statutes dealing with substantive rights.- It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation [Keshvan v. State of Bombay, AIR 1951 SC 128, P.130, Janardan Reddy v. State, AIR 1951 SC 124, p.127, Mahadeolal Kanodia v. Administrator General of W.B., AIR 1960 SC 936, P.939, State of Bombay v.
Vishnu Ramchandra, AIR 1961 SC 307, Rafiquennessa (Mst.) v. Lal Bahadur Chetri, AIR 1964 SC 1511, p.1514, State fo Madhya Pradesh 35 v. Rameshwar Rathod, AIR 1990 SC 1849, Zile Singh v. State of Haryana, AIR 2004, SC 5100.
p.5103]. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is "deemed to be prospective only 'nova constitutio futuris forman imponere debet non praeteritis. In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. "Every statute, it has been said", observed LPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect". As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is 36 a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectively intended by Parliament. But if the literal reading of the provision giving retrospectively produces absurdities and anomalies, a case not prima facie within the words may be taken to be covered, if the purpose of the provision indicates that the intention was to cover it. The inhibition against retrospective construction is not a rigid rule and must vary secundum materium. It has been said that "the basis of the rule is no more than simple fairness which ought to be the basis of every legal rule."
41. That apart the learned Single Judge has also allowed the petition on the ground of limitation while holding that the suo- moto revisional powers exercised by the Collector under Section 50 of MPLRC was hopelessly barred by limitation as it was exercised after a lapse of approximately 40 years. For coming to the aforesaid conclusion, learned Single Judge has placed reliance 37 in the matter of Ranveer Singh vs. State of M.P reported in 2010 (4) MPLJ 178 in which in para 36 it has been held as under:
"36. Ex consequenti we hereby hold that in order to exercise suo motu power of revision envisaged under section 50 of the Code and looking to the scheme of Chapter V, it should be exercised by the revisional authority within 180 days from the date of the knowledge of the illegality or impropriety of any order passed or as to the irregularity of the proceedings of any revenue officer subordinate to it and it will not be justifiable to stretch it for any length of period even for protection of the Government land or public interest."
42. From the aforesaid enunciation it could be gathered that the revenue officer cannot exercise the suo-moto powers beyond the period of 180 days from the date of the knowledge of the illegality or impropriety of the said order passed or as to the irregularity of the proceedings of any revenue officer subordinate to it. Thus, the starting point of limitation for exercise of suo-moto revision powers under Section 50 of MPLRC of 180 days would start from the date of knowledge and very perusal of the order of the 38 Collector itself shows that there is no mention of the date of acquisition or knowledge of the illegality or impropriety or irregularity committed by the Tehsildar. Even there is no discussion on the aforesaid aspect by the Collector, thus, the conclusion of the learned Single Judge that the authority ie. Collector had no authority to exercise the power of suo-moto revision also when it had given no objection certificate in regard to the same land, cannot be said to be illegal or perverse.
43. In the light of the aforesaid discussion, this Court finds that the learned Single Judge had rightly observed that there is no provision under Section 165 (7-b) of the Code of 1959 to cancel a Patta rather it only says that Bhumiswami has no right to sale the land without prior permission of the Collector, but ignoring the fact that after grant of Bhumiswami rights in the year, 1976-78 lands in question have exchanged number of hands and, thereafter, approximately 40 years were passed at the time of passing of the impugned order and without issuing notices to the persons who had acquired rights in the said property, the said order was bad in law, according to this Court is also correct 39 observation.
44. With regard to the judgment cited by the learned counsel for the respondent/State in the matter of Smt. Malti Sharma (supra), whereby in some what similar circumstances the order passed by the learned writ court in W.P. No.7805/2015 dated 29.11.2018, wherein while relying upon decision of Division Bench of this Court in the matter of Savina Park Resorts and Tours Pvt. Ltd vs. State of MP and Ors reported in 2012 (2) MPLJ 363, it was held that permission of Collector as provided under Section 165 (7-b) of Code of 1959 was required, was upheld and since the said aspect has already been analyzed by the Coordinate Bench of this Court in W.A. No.379/2019 in the light of the decisions in the matter of Savina Park Resorts and Tours Pvt. Ltd. (supra) and Official Liquidator vs. Dayanand (supra) and Mary Pushpam vs. Telvi Curusumary and Ors (supra), this Court is bound by the said decision and no contrary view can be taken therefrom is concerned, this Court finds that the judgment passed by the learned Single Bench was based upon the decision rendered by Division Bench of this Court in the matter of Savina 40 Park Resorts and Tours Pvt. Ltd. (supra), wherein the facts were that one Harmukha s/o Samle Jatav was granted Patta by Tehsildar vide order dated 04.01.1994 and the appellant therein had purchased the said land from Harmukha vide registered sale deed dated 15.01.2008 and 05.04.2008 respectively. Thereafter, the appellant submitted an application for mutation before Patwari who forwarded the same to Tehsildar, Gwalior. During pendency of mutation proceedings, appellant submitted an application before Nazul Officer, District Gwalior for grant of NOC. During the pendency of mutation application, the appellant came to know that seller Harmukha s/o Samle had not received permission from the Government under Section 165 (7-b) of the MPLRC for transfer of land, hence the appellant submitted an application before the Collector on 26.08.2008 for ratification of the transfer and validation of the transaction. On 15.09.2008, the appellant further submitted an application for permission/ratification and the matter was registered before Tehsildar as case no.245/2008- 09/B121. In the meanwhile, one Pushpendra Singh Sengar made complaint to the Collector in regard to forged registration of land 41 by land mafias. On the aforesaid application, the Collector registered a case under suo-moto revision and issued show-cause notices to the appellants. In the aforesaid factual backdrop the Division Bench after considering the provisions of Section 165 (7-b) of the Code of 1959 permission was required to be taken from the Collector before transfer of the land and on the basis of the aforesaid judgment which was based on altogether different facts, the learned Single Judge has come to the conclusion that permission as provided under Section 165 (7-b) of Code of 1959 since has not been taken from the Collector, the transaction was void and no right and title stand on the basis of said sale-deeds. The aforesaid judgment was then challenged by the petitioner Smt. Malti Sharma (supra) before the Division Bench of this Court in W.A. No.379/2019 in which no legal point was discussed except for affirming the judgment passed by the learned Division Bench and as such no ratio has been laid down by the Coordinate Bench of this Court which could be said to be binding upon this Bench. Thus, the judgments cited by the learned counsel for the State have no applicability.
42
45. It is well settled that a decision is an authority for what it actually decides. What is of the essence in its decision is its ratio and not every observation found therein nor what logically follows from the various observations made therein. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or a principle on which a question before the Court has been decided is alone binding between the parties to it, but it is the abstract ratio ascertained on a consideration of a judgment in relation to the subject matter of decision which alone has force of law. In that regard the judgment of the Hon'ble Apex Court in the matter of Union Of India & Ors vs Dhanwanti Devi & Ors reported in 1996 (6) SCC 40, could be seen.
46. Further it could be profitable to refer the decision of Hon'ble Apex Court in Commissioner Of Income-Tax vs M/S. Sun Engineering Works (P.) Ltd. reported in 1992 (198) ITR 297 (SC), wherein it has been observed that while applying the 43 decision to later cases, the Court must calculate as to ascertain the true principle laid down by the decision of the Supreme Court and not to pick out words or sentences from the judgment diverse on the context of decision under consideration by the Court to support their reason. Thus, it is clear that it is the ratio of the decision which must be accepted by Court of Tribunal before applying the same.
47. In the light of above discussion, this Court does not find any reason to interfere with the order passed by learned Single Judge, accordingly the appeal hereby fails and is dismissed.
48. CC as per rules/directions.
(Sunita Yadav) (Milind Ramesh Phadke)
Judge Judge
chandni/- 04/03/2024 04/03/2024
CHANDNI
NARWARIYA
2024.03.05
15:42:19
+05'30'