Madhya Pradesh High Court
Bishop,Roman Catholic Diocese ... vs The State Of M.P. And Ors. on 9 December, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
NEUTRAL CITATION NO. 2024:MPHC-JBP:61338
1 WP-1932-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 9 th OF DECEMBER, 2024
WRIT PETITION No. 1932 of 2004
BISHOP, ROMAN CATHOLIC DIOCESE ALLAHABAD
Versus
THE STATE OF M.P. AND ORS.
Appearance:
Shri Sankalp Kochar - Advocate with Shri Sughosh Bhamore - Advocate for the
petitioner.
Shri Amit Seth - Additional Advocate General for the State.
ORDER
Petitioner has filed this petition under Article 226 of the Constitution of India challenging order dated 09.09.2003 contained in Annexure-P/10 passed by Commissioner Sagar Division, Sagar (MP).
2. Said order was addressed to Collector Sagar. Collector has sent a proposal for renewal of lease granted in favour of petitioner in year 1886. Commissioner considering the said proposal held that entire land is not being used by the institution. Land which is under use by the institution is sufficient for their activities. Government is in requirement of land. Defence establishment wants to take back its land which was granted to Kushwaha Society and artillery department is also in requirement of 177 acres of land for establishing artillery brigade. Due to unavailability of land, said issue could not be resolved. Proposal was remanded back to Collector for allotment of land to artillery brigade and for allotment to Kushwaha Society Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-01-2025 11:32:48 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:61338 2 WP-1932-2004 and Roman Catholic Diocese Mission (hereinafter mentioned as RCD mission) may continue on the part of land which is under use by them. With said direction, Collector was asked to take a decision. However, proposal for renewal of lease deed was rejected.
3. Learned counsel appearing for the petitioner submitted that petitioner institution was allotted lease of land at village Amakhurd Sagar measuring 175 acres for period of 99 years. On 16.05.1910, lease was granted in respect of 90.95 acres beginning from 01.04.1910 to current settlement. Deputy Commissioner Sagar representing Secretary of State for India entered into indenture dated 03.10.1935 with Roman Catholic Mission Shyampura District Sagar by which lease of land measuring 277.25 acres of Mouja Aamkhurd, settlement No.2, Tehsil and District Sagar was entered.
Lease was granted till expiry of current settlement. Land granted on lease is to be used for cultivation and pasturage and for agriculture purposes but not for purposes other than agriculture. Lease was not transferable and lessee has right to sublet portion of land to tenants. Lessee and sub-tenant had right to erect and construct building suitable for agriculture purposes including dwelling house by lessee and such sub-tenant, orphans and ex-orphans. Lease is to be renewed as per the terms which may be agreed between the parties on approval of local administration. In year 1954, name of State Government was wrongly entered in revenue record. Land settlement started in year 1975-76 and it ended on 11.01.1994. Collector on 29.04.1997 declared the land in question to be Nazul. Avar Sachiv Government of Madhya Pradesh, Revenue Department wrote a letter to Collector on 03.01.2003 for renewal of Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-01-2025 11:32:48 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:61338 3 WP-1932-2004 permanent lease under Chapter-IV(1) of Revenue Book Circular (RBC). Copy of this letter was given to petitioner institution and Commissioner Sagar. In Revenue Records of year 1912-13 in Column No.-3, entries were made in respect of owner as Milkiyat Sarkar Thekedar Lord Whisphero Roman Catholic Mission Allahabad through Mohtim Priest Sahab Jahim Khana Shyampura.
4. It is further submitted by learned counsel for the petitioner that Collector wrote a letter to Commissioner on 09.04.2003 for taking steps for renewal of lease under RBC in accordance with letter of Secretary Government of India, revenue department dated 03.01.2003. In revenue records after survey and bandobast which was completed on 11.01.1994, land bearing Khasra No.241015 measuring 9.96 hectare was entered in name of RCD mission Shayampura government lessee on land revene of Rs.50/-. Khasra No.1, 3, 5, 6, 7, 8, 11, 12, 13, 14, 16, 17, 19, 20, 21, 22 were entered in revenue records as Chota Ghas, road, Shamshan Kabristan, Aabadi and Nazul in name of State of Madhya Pradesh by order dated 29.04.1997. Land which is registered under heading of Nazul was declared as Government land and record was amended on 29.04.1997 in revenue Case No.16B/121/1996-
97. Proposal was given to amend the record and land be entered into name of RCD mission as was earlier entered in record on basis of lease thereafter, proceedings can be undertaken for renewal of lease. Permission is sought for correction of records. Commissioner vide its order dated 09.09.2003, remanded the matter back to consider renewal of lease only in respect of 9.96 hectare of land which is in use by the institution. Rest of the land may Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-01-2025 11:32:48 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:61338 4 WP-1932-2004 be allotted to defence and from remaining part of land some land may be allotted to Kushwaha Society. Commissioner rejected the prayer for renewal of lease in favour of RCD mission.
5. Learned counsel appearing for the petitioner also submitted that impugned order may be set aside. Secretary vide its letter dated 03.01.2003 has directed grant of permanent lease under Chapter 4(1) of the Revenue Book Circular. Collector acting on said letter has asked permission to correct the revenue record in accordance with lease in favour of petitioner so that order can be passed in respect of renewal of permanent lease. Commissioner has wrongly applied its mind and rejected the application. Petitioner was granted lease in perpetuity from year 1886 onwards. Commissioner has committed an error in passing of impugned order without giving an opportunity of hearing to petitioner institution and order is bad in law, therefore, same may be set aside. Further prayer is made for quashing of order dated 09.09.2003 (Annexure-P/10) passed by Commissioner and to quash Annexure-P/12 an advertisement for allotment of 177.66 acres of land for defence department.
6. Learned counsel appearing for the petitioner has relied upon the judgment passed by Apex Court in case of Maharashtra State Financial Corporation Vs. M/s Suvarna Board Mills and Another reported in (1994) 5 SCC 566. Relying on said judgment, it is stated that no order, which results in adverse civil consequences, be passed against the party without putting him to notice. Petitioner has also relied upon the judgment reported in State Bank of India and Others Vs. Rajesh Agarwal and Others reported in (2023) Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-01-2025 11:32:48 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:61338 5 WP-1932-2004 6 SCC 1; Dharampal Saytapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others report in (2015) 8 SCC 519 to buttress the submission of violation of natural justice. Reliance is also placed on judgment passed by Apex Court in case of Jitendra Singh Vs. The State of Madhya Pradesh reported in 2021 SCC online SC 802 . In said judgment, it has been held by Apex Court that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only purpose for collecting land revenue. It is submitted that merely entering the name of State Government will not affect the title/lease of petitioner.
7. Learned Additional Advocate General appearing for the State submitted that land was allotted to petitioner-institution in year 1886. Thereafter, some more land was settled by lease in favour of petitioner by indenture dated 03.10.1935 which was to continue till next date of settlement. With passage of time, land has become scarce commodity and same is required for use by public and Government. It is necessary in interest of State and country to allot the land to defence department. Best use of limited resources which are available with the State Government is to be made. Most of the land which has been leased out to respondent is not in use. Collector has specifically stated that only 9.96 hectare of land is under use by the institution. No error has been committed by Commissioner in giving a proposal to consider the case of renewal of lease only restricting it to the land which is under use by the institution and to make use of rest of the land in the interest of State and public. As per indenture which was signed Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-01-2025 11:32:48 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:61338 6 WP-1932-2004 between Government and petitioner, there was a specific condition that renewal shall be subject to approval of local administration. Local administration has not approved renewal of lease and case was remanded for renewal restricting it to 9.96 hectare in Shaympura, Sagar. Rest of land may be used for interest of State and public. No error has been committed by Commissioner in passing the order by which case was remanded back to Collector for consideration. It is submitted that no cause of action has arisen in favour of petitioner as no adverse order has yet been passed. In view of same, petition may be dismissed.
8. Learned counsel appearing for the respondent/State has placed reliance on the Paragraph No.15 of the judgment passed by Apex Court reported in (2004) 1 SCC 1 in case of State of Uttar Pradesh and Others Vs. Lalji Tandan (dead) through Lrs , wherein it was held that law in India does not prohibit perpetual lease. There has to be clear and unambiguous language to infer perpetual lease. If language is ambiguous, Court would opt for an interpretation negating the plea of the perpetual lease. Lease deed is to be read as a whole and single clause or term should not be read in isolation so as to defeat other clauses. Court would also lean against a perpetual renewal where there is a clause for renewal subject to some terms and condition. It would be construed as giving a right to renewal for the same period as the period of original lease but not a right to second or third renewal and so on unless, of course, the language is clear and unambiguous.
9. Heard the counsel for the parties.
10. On going through the factual matrix of the case, it is found that Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-01-2025 11:32:48 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:61338 7 WP-1932-2004 terms and conditions of lease in details are mentioned in indenture dated 03.10.1935 which was signed by State Government as well as by representative of petitioner institution. In said deed, it is mentioned that renewal will be subject to approval of local administration. Since, renewal is subject of approval of State Government, therefore, lease cannot be held to be in perpetuity. There is no such clause that lease is to be renewed further for any specific period of time. Only condition mentioned is renewal is subject to approval of local administration. Petitioner is having right to apply for lease of land which was granted to it by indenture dated 03.10.1935 if petitioner so desires. Any application filed by petitioner has to be considered by competent authority in accordance with law. Collector has only sent a proposal to Commissioner for correction of revenue record so that case of renewal of lease can be considered by Collector. Issue before Commissioner is whether permission is to be granted for correction of record or not but Commissioner dwelt upon the issue of requirement of land by State Government for allotment to defence department and Kushwaha Society. It was further held by Commissioner that entire land which was allotted to petitioner institution on lease was not used by it and only part of it is under use. He has given said finding on basis of Bandobast survey which was mentioned in letter of Collector. However, it was beyond its authority to pass an order for rejecting proposal for renewal of lease in name of RCD Mission, Shyampura. Application for renewal of lease is to be considered by competent authority and if there are certain adverse findings regarding petitioner-institution like not using the land or diverting the use of land for Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-01-2025 11:32:48 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:61338 8 WP-1932-2004 other purposes then such issues can only be considered by Collector after giving an opportunity of hearing to petitioner-institution. Recording of finding by Commissioner without giving an opportunity of hearing to petitioner-institution is bad in law. Further question of renewal of lease is pending before authority, therefore, no advertisement or proclamation can be issued by State Government for allotment of land to other departments.
11. In view of same order passed by Commissioner dated 09.09.2003 contained in Annexure-P/10 and advertisement issued for allotment of land to defence department dated 11.09.2003 contained in Annexure-P/12, are quashed.
12. Matter is remanded back to Commissioner to apply its mind only in respect of granting permission to correct the records. If permission is received by Collector for correcting the records then Collector may proceed after giving opportunity of hearing to affected parties, correct records and if required then consider application for renewal of lease on merits of the case in accordance with covenants of lease deed.
13. With aforesaid direction, petition is disposed off.
(VISHAL DHAGAT) JUDGE $A Signature Not Verified Signed by: SHABANA ANSARI Signing time: 08-01-2025 11:32:48 AM