Madhya Pradesh High Court
Ajmer Singh vs The State Of Madhya Pradesh on 23 July, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 7673 of 2014
AJMER SINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anand Vinod Bhardwaj - Advocate for the petitioner [P-1].
Shri M S Jadon - GA appearing on behalf of State.
Shri Aditya Dixit - Advocate for the respondent [R-5].
Shri Nirmal Sharma - Advocate for the respondent [R-5].
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Reserved on 18/07/2025
Delivered on 23/07/2025
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ORDER
1. The present petition under Article 227 of the Constitution of India is directed against the order dated 03.02.2014 passed in Revision No.1482-PBR/2006 passed by Board of Revenue, whereby while allowing the said revision the order passed by the Additional Commissioner dated 10.07.2006 passed in Appeal No.18/1999-2000, dismissing the appeal, was reversed. The 2 petitioner is further aggrieved by the order dated 04.10.1999 passed in Appeal No.10/1998-99 passed by Collector, Shivpuri, wherein challenge was made to the order dated 31.08.1999 passed by SDO in Case No.03/1998-99/A-23, wherein while invoking the provisions under Section 170B of the MPLRC, the sale executed in favor of the present petitioner in auction by the bank was held to be void and Patwari was directed to register the name of Mungaram the original owner over survey no.66, 67 and 68 in the revenue records, which was affirmed and the appeal was dismissed.
2. Shorts facts of the case are that the land bearing survey no.24, 26 and 27 (new no.66, 67 and 68 respectively) ad- measuring 0.01 hectares, 1.10 hectares and 1.01 hectares situated at village Badagaon belonged to one Mungaram father of the present respondents no.5 and 6. He had taken loan from respondent no.8/Cooperative Bank i.e. Bhumi Vikas Bank, Branch Shivpuri and due to non-payment of the loan, the bank applied before the Collector seeking permission for sale of the said land as provided under Section 165(6) of the MPLRC. Vide letter dated 26.06.1981 the Collector informed to the bank that by virtue of Section 165(9) of MPLRC there is no need for permission. Thereafter, the above land was auctioned by the bank in favor of respondent no.7 and sale certificate was issued in his favor. On the basis of the said sale certificate respondent no.7 got his name mutated in the revenue records vide order dated 12.10.1989. No 3 one at any point of time challenged the auction sale and mutation order passed in favor of respondent no.7, thus, the said fact has attained finality.
3. Vide sale-deed dated 05.08.1998, Gurdeep Singh, father of petitioner no.1 and grandfather of petitioner no.2 purchased the above land from respondent no.7 and on its basis mutation of the name of Gurdeep Singh took place in the revenue records.
4. After the aforesaid exercise was completed Mungaram who was the original owner applied before SDO under Section 170B of MPLRC.
5. Before passing of any orders on the aforesaid application a Civil Suit No.19A/2001 was filed by Gurdeep Singh for declaration and permanent injunction against Mungaram. Before the said suit could be decided, on 31.08.1999 the application under Section 170B preferred by Mungaram came to be decided vide order dated 31.08.1999 and learned SDO vide said order held that the very sale-deed executed in favor of Gurdeep Singh was not binding and directions were issued to record the lands in question in the name of Mungaram and further it was observed that since Mungaram was in possession of the said lands, Gurdeep Singh and his seller Ramesh Chandra Mittal should not interfere in his possession. Against the said order Gurdeep Singh preferred an appeal before Collector which was numbered as 10/1998-99 which came to be dismissed vide order dated 04.10.1999. The order of Collector was then challenged in Revision No.1683- 4 1/1999 before Board of Revenue, wherein vide order dated 03.02.2014 the revision was also dismissed and the orders passed by the Collector dated 04.10.1999 and that of SDO dated 31.08.1999 were maintained. In the Civil Suit preferred by Gurdeep Singh challenge was also made to the proceedings under Section 170B of MPLRC initiated by Mungaram. The very suit on the ground of maintainability was challenged by Mungaram by filing an application alleging that the Civil Court has no jurisdiction to decide the matter under Section 170B of MPLRC and it was only within the purview of the revenue authorities. The said application was rejected vide order dated 30.07.1999 against which a revision No.822/1999 was preferred by Mungaram and vide order dated 11.04.2000 the said revision was disposed of with an observation that it would be open for Mungaram to make a specific plea in the written statement in regard to the inherent lack of jurisdiction of the Trial Court and place on record the decision of the competent authority in the proceedings under Section 170B of MPLRC.
6. Thereafter, the record of the proceedings under Section 170B of MPLRC and the orders passed therein were placed before the Trial Court, but the suit was decreed in favor of Gurdeep Singh vide judgment dated 15.07.2003 and he was declared as Bhumiswami of the lands in question, with a further injunction against Mungaram for not to interfere in his peaceful possession. While decreeing the suit the learned Trial Court had also found 5 that the compliance of Section 170B of the Code of 1959 was truly made and only, thereafter, the auction sale was done. Against the said judgment and decree a first appeal was preferred by Mungaram which was also dismissed vide judgment and decree dated 09.02.2005. Thereafter, the said judgment and decree was never challenged before any higher forum.
7. An appeal was preferred by Mungaram against the order dated 05.08.1998 of mutation of name of the father and grandfather of the petitioners which was allowed by the SDO vide order dated 31.08.1999, on the basis of the same date order passed in Case No.03/1998-99/A-23 against which Gurdeep Singh preferred an appeal No.19/1999-2000 before Additional Commissioner, Gwalior Division which was allowed vide order dated 10.07.2006 on the basis of decisions of Civil Court.
8. Against the said order the present respondent no.5 and 6 went before the Board of Revenue in revision, whereby while allowing the revision, the order passed by the Additional Commissioner was reversed and the order passed by SDO dated 31.08.1999 was affirmed. Aggrieved by the aforesaid, the present petition has been filed.
ARGUMENTS:
9. Learned counsel for the petitioner has argued that the predecessor in title of the petitioners had purchased the lands in question in an auction sale which took place in the year, 1981, therefore, the amended provisions of Sections 154-A and 165(9) 6 were not applicable, but the SDO while passing the impugned order had relied upon the amended provisions of the aforesaid Sections which had made the said order a nullity.
10. While referring to the un-amended provisions of Section 165(9), learned Counsel argued that as per the said provisions nothing prevented the Bhumiswami from transferring any rights in his land to secure payment made in advance to him by a society or shall affect the right of such society to sell such right for recovery of such advance and when the said right was absolute, the Collector vide order dated 26.06.1981 had rightly observed that no permission is required to respondent no.8 to auction the property, which was duly purchased by respondent no.7 in the said auction vide auction dated 12.06.1981 and got his name mutated vide order dated 12.10.1989. Thus, all the Courts below has wrongly held that since the land was transferred by fraud without adhering to the provisions of Section 170B of the Code, therefore, the land is to be reverted back to the original owner i.e. Mungaram.
11. It was further argued that Section 165(9) of MPLRC was amended by M.P. Amendment Act No.2 of 1990 w.e.f 06.02.1990 and a clause was inserted that the land kept mortgage with the Cooperative Society shall not be sold to secure recovery, without exhausting the procedure prescribed in Section 154A and as this aspect of the matter was not considered by any of the authorities below, the orders are liable to be quashed.7
12. Learned counsel further referring to provisions of Section 154A argued that the amendment in sub-section 1 of the aforesaid section was carried out in the year, 1990, whereby powers were given to Tehsildar to let out the holding in respect of which arrear is due notwithstanding anything contained in the Code, after attachment of the holding under clause (b) for recovery of dues of a Cooperative Society or clause (bb) or clause (bbb) of Section 147 to any person other than the defaulter for the period not exceeding 10 years and prior to its amendment so far as Clause (b) of Section 147 which dealt with recovery of dues of the Cooperative Societies after its amendment, did not find any mention, thus, when the said provision also was not available in the year, 1981 when the property was auctioned, it was not correct to say that Tehsildar was required to first let out the property for agricultural purpose to any other person for a period not exceeding 10 years. On the basis of the aforesaid argument, it was submitted that the very order passed by the revenue authority was not in consonance with the legal provisions.
13. It was further submitted that even if for the shake of the arguments it is construed that the judgment and decree passed in favor of the predecessor in title of the petitioners could not have conferred any right in the property to the predecessor in title of the petitioners, in the light of the provisions of Clause (L) and L-
1) of Section 257 of the Code, the jurisdiction so far as claim to set aside transfer by a Bhumiswami under sub-Section 1 of 8 Section 170 and Clauses (a) and (b) of sub-Section (2) of Section 170-A and any matter covered under Section 170B lay with the revenue authorities and no Civil Court shall exercise jurisdiction over it, but the fact remains that the proper provisions prevailing at the time of auction were not appreciated by the authorities below and the decisions were based upon the amended provisions which had no applicability, thus, had rendered the said orders to be otios.
14. On the basis of the aforesaid argument, it was submitted that since the revenue authorities have committed grave illegality in passing the impugned orders, they be quashed and the revenue authorities be directed to carry out the mutation of the petitioners in the revenue records.
15. To bolster his submissions, reliance was placed in the matter of Ramgopal Kanhaiyalal vs. Chetu Batt reported in AIR 1976 MP 160, in the matter of State of M.P and Ors vs. Harcharan Singh reported in AIR 2002 MP 17, in the matter of Tukaram Kana Joshi and Ors vs. Maharashtra Industrial Development Corporation and Ors reported in 2013 (1) SCC
353.
16. On the other hand, learned counsel for the respondents no.5 to 8 has argued that no illegality has been committed by the Courts below in allowing the application preferred by their predecessor in title under Section 170B of Code as the said auction was done in total derogation of the provisions of Section 9 165 (9) which provided that for recovery of any payment of an advance made to by a Cooperative Society on account of the mortgage of the property kept with it shall not be sold to secure such recovery without exhusting the procedure prescribed under Section 154(A) and as Section 154(A) provides that where the arrears of land revenue is due in respect where any money is recoverable, Tehsildar after attachment of holding under clause
(b) of Section 147 would first let out the holding on which arrears is due to any person other than the defaulter for a period not exceeding ten years, but admittedly, the provisions of the aforesaid procedure was not followed by Tehsildar, therefore, the land could not had been auctioned. Thus, wrong was committed by the then Collector in granting permission for auction which was later on corrected by the SDO and was maintained till the Board of Revenue. Thus, when no fault can be found with the impugned orders, the petition deserves to be dismissed.
17. Heard the counsels for the parties and perused the record. CONCLUSION:
18. The facts which are admitted and not controverted by the other-side are that the father of petitioner no.1 and grandfather of petitioner no.2 Gurdeep Singh had purchased the land by way of registered sale-deed dated 05.08.1998 from respondent no.7 who on earlier occasion had purchased the property in an auction conducted by respondent no.8 for recovery of certain dues of Mungaram father of respondent no.5 and 6 in the year, 1981.
10Respondent no.8 before auctioning the property had sought permission from the Collector under Section 165(6) of Code. Collector vide letter dated 26.06.1981 had informed respondent no.8 that in wake of Section 165(9) as it existed on that date no permission for sale is required. For reference the un-amended Section 165(9) is reproduced herein below:-
"Nothing in this section shall prevent a Bhumiswami from transferring any right in his land to secure payment of an advance made to him by a cooperative society or shall affect the right of any such society to sell such right for the recovery of such advance."
19. As per un-amended provision of Section 165(9) an unfattered right was given to the Bhumiswami for transferring his rights in the land to secure payment of an advance made to him by a Cooperative Society or would affect the right of any such society to sell such right for recovery of such advance and as the property was kept mortgage with the bank, certain rights were transferred by Mungaram in favor of respondent no.8 which had, thus, right to sell such rights for recovery of an advance. From the aforesaid un-amended definition of Section 165(9), this Court finds that no illegality was committed by the Collector in informing the respondent no.8 that no permission under Section 165(6) of Code was required for sale of the land and, thereafter, the land was sold in auction to respondent no.7.
20. The amended provision of Section 165(9) came into the statute books by amending act no.2 of 1990 dated 06.02.1990, 11 whereby a condition was imposed that the land mortgage with the Cooperative Society for recovery of the loan amount shall not be sold without exhausting the procedure prescribed in Section 154 (A) and Section 154 (A) sub-section-1 with which we are concerned, prior to amendment in the year, 1990 w.e.f 06.02.1990 did not provide for letting out the land for recovery of any dues of a Cooperative Society as provided under Clause (b) of Section 147 by Tehsildar. Thus, when after attachment by Tehsildar as per provisions as contained under Section 147 for recovery of any dues of the Cooperative Society was not available in the statue books prior to 06.02.1990, then it would not be correct to say that the procedure thereof was required to be followed and first the property should have been let out for agricultural purpose to any person other than the defaulter for a period not exceeding ten years.
21. So far as the judgment and decree dated 15.07.2003 passed in Civil Suit No.19A/2001, whereby declaration was granted in favor of the father and grandfather of present petitioners with regard to same land wherein also the provisions of Section 170B was discussed and it was held that the auction was proper is concerned, the Civil Court had no jurisdiction to hear on said application as per provisions of Section 257 (L-1), which provided sole domain to hear such application over the revenue authorities, but the fact remains that the revenue authorities had committed illegality in not properly appreciating the provisions 12 prevailing at the time when the auction has taken place, therefore, the said orders did not withstand a judicial scrutiny and accordingly, are hereby set aside. The revenue authorities are directed to mutate the name of petitioners in the revenue records as they had purchased the said land by way of sale-deed dated 05.08.1998.
22. With the aforesaid direction, the present petition stands allowed and disposed of.
(Milind Ramesh Phadke) Judge chandni/ CHAN Digitally signed by CHANDNI NARWARIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR, DNI 2.5.4.20=4a0af498d89b2d94b5 abcc1b4614d98feabd8b78228 e0ec6eab9a0bd4e622c09, ou=HIGH COURT OF MADHYA PRADESH BENCH AT NARW GWALIOR,CID - 7022823, postalCode=474001, st=Madhya Pradesh, serialNumber=8c306c586aaa4 3d19976f07886865f6fac4a246 ARIYA eee6bccd256acdfce3dcf944f, cn=CHANDNI NARWARIYA Date: 2025.07.23 16:52:13 +05'30'