Madhya Pradesh High Court
Smt. Malti Sharma vs The State Of Madhya Pradesh Thr on 29 November, 2018
1
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.7805/2015
Smt. Malti Sharma Vs. State of M.P. and others
Gwalior, Dated :29/11/2018
Shri H.K. Shukla and Shri Neeraj Shrivastava, Advocates
for petitioner.
Shri Yogesh Chaturvedi, Government Advocate for
respondents/State.
This petition under Article 226 of the Constitution of India has been filed seeking following reliefs:-
"(i) That, the respondents may kindly be directed to initiate land acquisition proceedings under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 for acquiring the land in question and grant appropriate compensation to the petitioner with statutory interest thereon.
(ii) The petitioner is a widow has not only suffered in terms of being harassed by the department heads and running from one office to other but has also suffered monetarily fighting for her rights and is in urgent and dire need of funds for her well being and children's education and for this seeks relief in terms of monetary compensation.
(iii) That, other relief deemed fit in the facts and circumstances of the case doing justice in the matter including costs be also awarded."
The necessary facts for disposal of the present petition in short are that the husband of the petitioner, namely, Late Shri 2 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.7805/2015 Smt. Malti Sharma Vs. State of M.P. and others Rajendra Sharma had purchased some parcels of land bearing survey nos.63 min, 64 min, 65 min and 66 situated in village Lakhnoti Kalan, Tahsil and District Gwalior admeasuring 24 Bigha 10 Biswa from the legal representatives of previous owner Colonel Harikrishna Sharma by registered sale deed. It is submitted that the name of the petitioner has been duly mutated in the revenue records.
The undisputed facts are that the land originally belongs to the State Government and the lease was granted by the competent authority in favour of Colonel Harikrishan Sharma. Later on, Colonel Harikrishan Sharma moved an application before the Tahsildar for declaration as Bhumiswami, as he had occupied and cultivated more than 75% of the land and was cultivating the same for the last more than five years and accordingly, by order dated 2/1/1974 passed by the Naib Tahsildar, the said Colonel Harikrishan Sharma was declared as Bhumiswami of the said land.
It is submitted that Colonel Harikrishan Sharma remained in cultivating possession of the land and later on in the year 2003 by two sale deeds, the said land was sold by the legal representatives of said Colonel Harikrishan Sharma to the husband of the petitioner. It is submitted that the husband of the petitioner expired on 14/10/2003 and the petitioner was all alone to manage the affairs because her children were minor at the relevant time. Later on, when the petitioner came to cultivate the lands, she found that the major portion of her land was under submersion due to back water of Ramau Dam and thereafter the petitioner started correspondence with the respondents for providing compensation for the land, however, 3 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.7805/2015 Smt. Malti Sharma Vs. State of M.P. and others her grievance was not redressed and the respondents are giving vague replies to avoid payment of compensation to the petitioner. Thus, it was claimed that the petitioner has been denied the fruits of the land rightfully owned by her and the department has failed to take a definite stand in the matter, although the petitioner had enquired from the respondents that whether the lands owned by the petitioner are officially under the submersion of Ramaua Dam or not. It is submitted by the counsel for the petitioner that the respondents have refused to give compensation to the petitioner on the ground that the land in dispute is a government land and the said stand has been taken by the respondents on the basis of the record of 1956, whereas it is submitted that Colonel Harikrishan Sharma was already granted lease in the year 1968 and subsequently, he was declared Bhumiswami. It is submitted by the counsel for the petitioner that the names of the petitioner as well as her children were recorded in the revenue records by order dated 9/12/2005 passed by the the Naib Tahsildar in case No.45/04- 05/A-6. The legal representatives of Colonel Harikrishan Sharma had executed the sale deeds in favour of the husband of the petitioner and after his death, she and her children became the owners of the land by virtue of the sale deeds dated 21/5/2003 and 28/3/2003. However, it is an undisputed fact that a government lease was granted in favour of Colonel Harikrishan Sharma and later on, he was declared as Bhumiswami under Section 58 of the M.P. Land Revenue Code. By referring to the order dated 25/4/2015 passed by the Collector, Gwalior in case No.156/2014-15/B-12, it is submitted by the counsel for the petitioner that initially in the revenue 4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.7805/2015 Smt. Malti Sharma Vs. State of M.P. and others records it was mentioned that the property is non-transferable and thereafter, an application was made by the petitioner seeking deletion of the word "non-transferable" from the revenue records and for approval of the sale deeds. A report was submitted by the Naib Tahsildar, Tahsil Gwalior to the Collector and accordingly, the Collector by order dated 25/4/2015 directed for deletion of the word "non-transferable"
from the revenue records. It is submitted by the counsel for the petitioner that the said order should be treated as a deemed permission by the Collector to sell the land under Section 165 (7-b) of the M.P. Land Revenue Code.
Per contra, it is submitted by the counsel for the State that the undisputed fact is that the land in question was the government land and the government lease was given in favour of Colonel Harikrishan Sharma, who was subsequently declared as Bhumiswami, but for selling the said land, permission from the Collector was mandatory and the sale deeds were executed by the legal representatives of Colonel Harikrishan Sharma without obtaining sanction from the Collector and thus, such sale deeds were bad in absence of permission from the Collector and accordingly, the petitioner did not derive any title from the sale deeds, which were executed in favour of her husband.
Heard learned counsel for the parties. The Division Bench of this Court in the case of Savina Park Resorts and Tours Pvt. Ltd. Vs. State of M.P. and others reported in 2012 (2) MPLJ 363 has held as under:-
"13. Section 165 (7-b) of the M.P. Land Revenue Code contains a provision in regard to taking permission from the Collector before 5 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.7805/2015 Smt. Malti Sharma Vs. State of M.P. and others transfer of the land, which was granted by the State Government on lease. The Hon'ble Supreme Court in the case of Keshabo and another vs. State of M.P. and others, reported in (1996) 7 SCC 765, which has been quoted by the learned Single Judge in the order impugned, has clearly held that non- compliance of the aforesaid section makes the transaction void. The same proposition has been held by the Division Bench of this Court in the case of Budhuwa Chamar vs. Board of Revenue, M.P. and others, reported in 2002 (1) MPLJ, Note 2."
Thus, it is clear that the provisions of Section 165 (7-b) of the M.P. Land Revenue Code requires grant of permission by the Collector before transfer of the land, which was granted by the State Government on lease, and it is a mandatory provision and non-compliance of the aforesaid Section makes the transaction void. In the present case also the land, which was sold by the legal representatives of Colonel Harikrishan Sharma, was the government land which was given on lease and later on Colonel Harikrishan Sharma was granted the Bhumiswami rights.
Section 165 (7-b) of M.P. Land Revenue Code reads as under:-
"165. Rights of transfer.-
(1) to (7-a) xxxxxxxxx
(7-b) Notwithstanding anything
contained in sub-section (1), a person who holds land from the State Government or a person who holds land in Bhoomiswami 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 becomes Bhoomiswami of such land, shall not transfer such land without the permission of a revenue 6 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.7805/2015 Smt. Malti Sharma Vs. State of M.P. and others officer, not below the rank of a Collector, given for reasons to be recorded in writing."
Thus, it is clear that the government land in respect of which Bhumiswami rights have been conferred on the lessee cannot be sold without the permission of the Collector.
It is submitted by the counsel for the petitioner that after 10 years of grant of Government lease, permission from the Collector is not required. The submission made by the counsel for the petitioner cannot be accepted in the light of the circular issued by the State Government.
The notification dated 17/1/2014 reads as under:-
e/;izns'k 'kklu jktLo foHkkx] ea=ky;
Ø- ,Q 16&36@2013@lkr@'kk- 2, Hkksiky]fnukad 17&01&14 izfr] leLr dysDVj] e/;izns'kA fo"k;% HkwfeLokeh gd esa vkoafVr Hkwfe ds 'kkldh;
iV~Vsnkjksa }kjk O;fDrxr ifjfLFkfr;ksa ds dkj.k Hkwfe foØ;@varj.k ds laca/k esaA jkT; 'kklu ds /;ku esa ;g ckr ykbZ xbZ gS fd dfri; 'kkldh; iV~Vsnkj tks e/;izns'k Hkw&jktLo lafgrk] 1959 dh /kkjk 158 ¼3½ ds vuqlkj HkfeLokeh gS vkSj os viuh dfri; O;fDrxr ifjfLFkfr;ksa ds dkj.k] 'kkldh; iV~Vs dh Hkwfe ij mlds va'k Hkkx dks foØ;@varj.k djuk pkgrs gSa fdUrq mUgsa bl laca/k esa dysDVj }kjk lafgrk ds izok/kkuksa ds vuqlkj 'krksZa dks iwjk djus ,oa 10 o"kZ dh vof/k iw.kZ djus ds mijkUr Hkh foØ; djus dh vuqefr ugha nh tk jgh gS ,oa izdj.k o"kksZa ls yfEcr j[ks x;s gSA 2- (i) KkrO; gks fd e-iz- Hkw&jktLo lafgrk] 1959 dh /kkjk 158¼3½ ds izok/kku vuqlkj 28 vDVwcj] 1992 ds iwoZ ds lHkh d`f"k Hkwfe ds 'kkldh; iV~Vsnkjksa dks HkwfeLokeh le>k x;k gSA mDr fnukad ds i'pkr~ jkT; ljdkj@dysDVj@vkoaVu vf/kdkjh }kjk Hkwfe dk vkoaVu HkwfeLokeh vf/kdkj esa fd;k tkrk jgk gSA bl izdkj d`f"k Hkwfe ds leLr iV~Vsnkj HkwfeLokeh gSA fdUrq /kkjk 158¼3½ ds 7 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.7805/2015 Smt. Malti Sharma Vs. State of M.P. and others ijUrqd esa ;g izok/kku gS fd ,slk dksbZ Hkh O;fDr iV~Vs ;k vkoaVu dh rkjh[k ls 10 o"kZ rd dh dkykof/k ds Hkhrj ,slh Hkwfe dks varfjr ugha djsxkA 2- (ii) lafgrk dh /kkjk 165 ¼7[k½ esa ;g izko/kku gS fd /kkjk 158¼3½ ds lHkh HkwfeLokeh vius /kkj.kkf/kdkj dh ,slh Hkwfe dysDVj dh inJs.kh ls vfuEu inJs.kh ds jktLo vf/kdkjh dh ys[kc) fd, tkus okys dkj.kksa ls nh xbZ vuqKk ds fcuk varfjr ugha djsxkA 3- mijksDr izok/kkuksa dk rkRi;Z ;g gS fd d`f"k Hkwfe ds iV~Vsnkj vkoaVu dh rkjh[k ls 10 o"kZ rd fdlh Hkh :i esa ¼foØ;] nku ;k vU;Fkk½ Hkwfe varfjr ugha dj ldrs vkSj 10 o"kZ ckn ;fn ,sls HkwfeLokeh Hkwfe foØ;@varfjr djuk pkgsa rks dysDVj dh vuqKk ysdj os iV~Vs dh Hkwfe dk foØ; dj ldrs gSaA 4- Li"V fd;k tkrk gS fd ,sls 'kkldh; iV~Vsnkj&HkwfeLokeh ds varj.k ds ekeyksa esa lafgrk dh /kkjk 110 ds vUrxZr dk;Zokgh djrs gq, ukekarj.k ds iwoZ ;g lqfuf'pr fd;k tk, fd ,slh Hkwfe dk foØ;@vUrj.k fof/klaxr vuqKk izkIr dj fd;k tk jgk gS ;k ughaA 5- mijksDr fo"k; ij lE;d~ fopkj djus ds mijkar jkT;
'kklu }kjk fu.kZ; fy;k x;k gS fd dysDVj ,sls izdj.kksa dk Hkw&jktLo lafgrk ds mijksDr of.kZr izko/kkuksa ds vUrxZr fof/klaxr ijh{k.k djsa vkSj ;g ns[ksa fd lafgrk dh /kkjk 158¼3½ ds ijUrqd esa fofgr dkykof/k ¼10o"kZ½ ds i'pkr~ viuh Hkwfe vFkok mlds va'kHkkx dks foØ;@varj.k dh vuqKk izkIr djus ds fy, viuh O;fDrxr ifjfLFkfr;ksa dk fooj.k nsrs gq, dysDVj dks vkosnu djrk gS rks dysDVj ,sls izdj.kksa esa tk¡p mijkar] tSlk fd og mfpr le>s] ;fn foØ;@varj.k dk i;kZIr vk/kkj ikrk gS] rks ,sls dkj.kksa dks ys[kc) djrs gq, vuqKk ns ldrk gSA gLrk-@& ¼fdj.k feJk½] voj lfpo] e-iz- 'kklu] jktLo foHkkx 8 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.7805/2015 Smt. Malti Sharma Vs. State of M.P. and others Thus, it is clear that within a period of 10 years, from the date of grant of Government lease, the said land cannot be sold, however, later on, the land can be sold only after grant of permission by the Collector.
In the present case, it is not the case of the petitioner that the land was sold by the legal representatives of the Bhumiswami, after obtaining due permission from the Collector under Section 165 (7-b) of the M.P. Land Revenue Code. Since the non-compliance of provisions of Section 165 (7-b) of the M.P. Land Revenue Code makes the transaction void, therefore, no right or title stands transferred to the purchaser on the basis of the said sale deeds, which were executed in utter violation of Section 165 (7-b) of the M.P. Land Revenue Code.
Under these circumstances, this Court is of the considered opinion that no relief can be granted to the petitioner as sought by her. Accordingly, this petition fails and is hereby dismissed.
(G.S. Ahluwalia)
Arun* Judge
ARUN KUMAR MISHRA
2018.12.04 10:24:54 +05'30'