Madhya Pradesh High Court
Smt.Madhu Bhadkariya vs State Of M.P. on 22 February, 2024
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
ON THE 22 nd OF FEBRUARY, 2024
WRIT PETITION No. 4606 of 2010
BETWEEN:-
1. SMT.MADHU BHADKARIYA W/O MAHESH
BHADKARIYA R/O SIKANDAR
KAMPOO,LASHKAR,GWALIOR (MADHYA
PRADESH)
2. SMT. FATIMA BEGAM W/O SHARIF KHAN R/O
SIKANDAR KAMPOO, LASHKAR GWALIOR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI N.K. GUPTA SR. ADVOCATE WITH MS. RASHI KUSHWAHA AND
SHRI ML BANSAL - ADVOCATE )
AND
1. STATE OF M.P., THR. COLLECTOR, DISTT.
GWALIOR (MADHYA PRADESH)
2. COLLECTOR, DISTT. GWALIOR GORKHI,
LASHKAR GWALIOR (MADHYA PRADESH)
3. COMMISSIONER, GWALIOR DIVISION MOTI
MAHAL, GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIVEK KHEDKAR -ADDITIONAL ADVOCATE GENERAL AND
SOHIT MISHRA - GOVT. ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
Present petition under Article 226/227 of the Constitution of India is preferred against the order dated 29.01.2010 passed by Commissioner, Division Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 2 Gwalior, Gwalior in Suo Moto Revision No. 33/2009-10 whereby the order dated 13.06.2008 passed by the then Collector whereby land bearing Survey No. 98/3 admeasuring 1.097 hectares, 210/1 min-2 admeasuring 0.994 hecatares, Survey No. 222, admeasuring 1.066 hectares, Survey No. 224 admeasuring 1.902 hectares, Survey No. 225, admeasuring 0.261 hecatares, Survey No. 226 admeasuring 0.052 hectares, Survey No. 227 admeasuring 0.502 hectares total measuring 5.874 hectares situated at Gram Ghutina belonging to the petitioners was directed to be exchanged with government land admeasuring 3.874 hectares, out of 11.497 hectares of Survey No. 281 with present petitioner no. 1 and 2 hectares out of 3.459 hectares of Survey No. 310/1 with petitioner no.2 total admeasuring area 5.874 hectares was taken in suo-moto revision and was declared to be null and void and it was further directed that the said government lands which were given in exchange to the present petitioners be recorded in the name of government and the lands which were of the petitioners be registered in their names.
Drapped with brevity, the facts necessary for adjudication of the present controversy are that the petitioners were the owners and recorded Bhoomiswamis' of agricultural lands bearing suvey nos. 98/3, 210/1 min-2, Survey No. 222, Survey No. 224, Survey No. 225, Survey No. 226 and Survey No. 227 situated at village Baretha Tehsil and Distt. Gwalior. The total area of aforesaid lands were 5.874 hectares. Since even after putting all their efforts the petitioner were not able to fetch their desired quantity of crop, under some government policy, they applied for exchange of their said lands with government land bearing survey no. 281 and 310/1 of same village. The application was presented before Collector, Gwalior who was the authority to grant permission for exchange of land. Collector send the application to Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 3 Tehsildar for detailed enquiry and sought his report. Tehsildar issued a proclamation inviting objections on the proposed exchange and also sought the opinion of Gram Panchayat. Since the application of the petitioner was objected by none and Gram Panchayat also did not submit any objection a report was submitted by Tehsildar to the Collector but the Collector again sent the matter back to Tehsildar with directions for carrying further enquiry and clarification. The then Tehsildar thereafter obtained the report from Patwari and after ascertaining the difference of the market value of the land of the petitioner as to the government land submitted his report to SDO, Gwalior who after endorsing the report, sent the matter for orders to the Collector.
The Collector after carefully scrutinizing the case sanctioned the desired exchange and directed the petitioner to deposit the amount of difference of the market value vide order dated 13.06.2008. In compliance of the said order, the petitioners deposited the amount of difference which was Rs.26,99,200/- and submitted the chalan of State of Bank India and thereafter the names of the petitioners were mutated in the revenue records over the government lands and the petitioners thereafter developed the land for cultivation.
On 07.01.2010, the then Collector vide a letter dated 7.1.2010 sent a report to the Commissioner, Gwalior Division, Gwalior for initiating suo-moto revision to quash the exchange order dated 29.01.2010. The Commissioner registered the suo-moto revision and issued show-cause notices to the petitioners on 08.01.2010 and thereafter fixed the date for hearing on 12.01.2010. The said notices issued to the petitioners were not served upon them as the addressi thereof were incomplete and the aforesaid factum was mentioned by the process server in his report. On 12.01.2010, no efforts were Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 4 made by the Commissioner to serve the notices upon the petitioners as per rules under the Code and directly it was ordered that the notices would be served on the petitioners, through, publication in the news paper.
In light of such order the notices were published in local news paper on 13.01.2010. On coming to know about the notice, the petitioners appeared before the Collector and sought time to file reply and on 25.01.2010, the petitioner no. 1 filed reply and petitioner no.2 on 19.1.2020 submitted an application for setting the ex-parte proceedings drawn against her. The Commissioner fixed the case for arguments on 27.01.2010. On 27.01.2010, the Counsel for the petitioner Nos. 1 and 2 came to the Court of Commissioner where they were told that the Presiding Officer is not available today and since the case file is with him, therefore, further date cannot be given. On 28.01.2010 again both the Counsels for the petitioners were informed that the file has not yet come to the Reader and the Commissioner is busy at his Bungalow Office. On 30.01.2010, Reader informed the Counsel for the petitioner No. 1 that order has been passed and the Counsel for the petitioner no. 2 was informed on 01.02.2010 about passing of the order. Since the Commissioner who was going to retire on 31.01.2010 appears that in a very hurried manner without providing any opportunity of hearing to the petitioners had proceeded in the matter and had passed the impugned order. The Commissioner being determined to quash the order is reflected from the way the proceedings were carried and completed as an old ripe case was decided within a span of 28 days. Being aggrieved by aforesaid proceedings and the order impunged, the present petition has been filed.
Learned Sr. Counsel Shri N.K. Gupta along with Ms. Rashi Kushwaha and Shri ML Bansal while assailing the impugned order passed by Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 5 Commissioner contended it to be arbitrary and illegal against the settled principle of justice. Thus, prayed for dismissal of the petition. It was further contended that learned Commissioner did not afford any real opportunity of hearing to the petitioners and had passed the order behind their back. As the Commissioner though was not available on 27.01.2010 and 28.01.2010 and when the case file was not available with the Reader of the Commissioner, the order sheet recorded on 27.01.2010 was fully illegal and against the real truth as there was no reason for the petitioners or their Counsel to remain absent on those dates.
Learned Sr. Counsel further argued that the findings arrived at by the Commissioner is based on surmises and conjectures, no enquiry has been conducted or actual report has been called to ascertain the factual positions of the lands exchanged nor any guidelines for valuation of the lands were discussed to hold that the valuation done by the then Collector while directing exchange was not proper which had resulted in loss to the public exchequer and the said exchange was de horse the provisions of Part 4 and Sr. No. 3 Para 20 provisio (ka) While referring to Para 20 of Part 4 of Chapter 3 of Revenue Book Circular it was submitted that the Collector had powers to exchange government agricultural land with private lands which are approximately of the same value, on the basis of current market value and as there was a difference of certain amount between the private land and the government land as per the then market rate, the same was asked to be deposited by the petitioners which were deposited without any hue and cry and, therefore, the finding of the learned Commissioner that there is no provision under para-20 of part 4, Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 6 chapter 3 of getting the difference amount of the land to be exchanged to be deposited, the order passed by Collector in that regard is not correct is per se illegal.
It was further submitted that learned Commissioner while exercising the suo-moto revisional powers had taken a view that the government land which was given in exchange was situated adjacent to the State high way and was very costly whereas land of the petitioners was situated on much interior side and was rough and uneven and also the land was situated 6 Kms. away from the corporation boundary, therefore, the Collector was not having any powers to exchange the said land with the government land, is perverse, as no report was called from any Revenue Officer with regard to the distance of the lands of the petitioners and that of the government land from the main road whereas the Collector while passing the order dated 13.06.2008 had only observed that the land bearing Survey No. 281 was situated within 100 meters of the main road and the land bearing Survey No. 310/1 was situated beyond 100 meters from the main road and, accordingly, as per the market guidelines prevailing in the year 2008, the valuation of the said lands were fixed, so also on the basis of situation of the petitioner's land its valuation was calculated and as there was a difference of Rs. 26,99,200/-, the same was directed to be paid by the petitioners which they have paid and therefore, it can very well be said that the provisions of para 20 of part 4 of chapter 3, had been complied with.
Learned Sr. Counsel further contended that as per para-20 only, the government agricultural lands could be exchanged with private agricultural land and as per report submitted by the Tehsildar dated 11.06.2008, the land bearing Survey No. 281 admeasuring 11.497 was registered as kabil kasht and so also land bearing Survey No. 310/1 admeasuring 3.459 hectares was held to be for Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 7 agricultural use, coupled with the fact that since no scheme of any authority was prescribed over the said survey numbers, it could not be said that the exchange was bad and only on the basis of some report of Additional Tehsildar, Khutina , wherein it was mentioned that the said land was not beyond nazul bahayseema and was only six Kms from the municipal corporation boundaries which is contrary to the earlier report and also the market value of the lands have not been ascertained properly without there being any adherence to the guidelines and also holding that for exchange there was no opinion of the Panchayat and therefore the said exchange was not beneficial in the interest of State is per se illegal as what loss had been caused to the public exchequer, has not been ascertained or dealt with by the learned Commissioner, also when the exchange amount of Rs. 26, 99,200/- which was ascertained by the then Collector as per the prevailing market rate was paid by the petitioners.
Lastly, it was argued that the powers of suo-moto revision exercised by the Commissioner was not within a reasonable time as the order impugned before the Commissioner was dated 13.06.2008 and the suo-moto powers of revision was exercised by the Commissioner on 08.01.2010 i.e. after more than approximately one and half years, that too on the basis of letter dated 07.01.2010 issued by Collector for taking the matter in suo-moto revision without applying its mind, therefore, the order dated 29.01.2010 passed by the Commissioner is beyound the period of limitation and per se illegal. In the aforesaid regard learned Sr. Counsel has placed reliance in the matters of Shaheed Anwar v. Board of Revenue reported in 2000 RN 76 and Manjeet Bhalla and Anr. v. State of M.P. reported in 2011 RN 186.
Per contra, Shri Vivek Khedkar, Additional Advocate General and Shri Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 8 Sohit Mishra - Govt. Advocate appearing for the State while refuting the arguments advanced by the learned Sr. Counsel had taken a preliminary objection that the order passed by the Commissioner is assailable under the Provisions of M.P. Land Revenue Code, and without adverting to the remedy available had preferred the present writ petition which is not maintainable, therefore, the same is liable to be dismissed. It was further submitted that the Collector vide its letter dated 07.01.2010 has reported the matter to the Commissioner, Gwalior Division for exercising suo-moto proceedings with respect to exchange of land situated at village Baretha and from bare perusal of the aforesaid submission, it was revealed that certain grave irregularities were committed while passing the order by the then Collector, Gwalior. It was further submitted that from bare persual of the order dated 13.08.2008, it would be evident that no case was registered for exchange of the land and only on the basis of the report submitted by the Tehsildar and SDO, the Collector had approved the said exchange and since this irregularity was noticed by the new incumbent to the office of Collector, the matter was referred to the revisional authority and after receiving the information from the Collector, the Commissioner immediately issued notices to the petitioners but even after granting opportunity a reply on behalf of the petitioner no. 1 was only submitted, and petitioner no. 2 did not file reply to show cause notice, thus proper action was taken by the revisional authority within the specified time from the date when the irregularities were found and came to the knowledge, therefore, it cannot be said that the said exercise of suo-moto revisional powers were beyond the period of limitation.
It was further submitted that from bare perusual of record it would be evident that the application for exchange of lands was forwarded by the then Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 9 Collector on 09.05.2008 and the order for issuance of proclamation by the Tehsildar was passed on 15.05.2008 but the proclamation was already issued on 06.05.2008 prior to passing of the order which itself goes to show that the proceedings conducted by the then Collector were in a very hasty manner coupled with the fact that no case was registered by the Collector as there is no case number mentioned in the order passed by the him.
It was further argued that apart from the aforesaid irregularities certain financial irregularities were also noted and without taking consent from Gram Panchayat the order was passed with respect to the exchange of land therefore the impugned letter dated 7.1.2010 was rightly issued by the Collector and that too within the prescribed limitation, hence the present petition is wholly misconceived and devoid of substance and deserves to be dismissed.
While referring to Annexure R/1 which is a letter issued by the Collector dated 07.01.2010 to the Commissioner, Gwalior Division, it was argued that the grounds for taking the matter in suo-moto revision mentioned therein reflects that the lands which were offered by the petitioners in exchange were rough and uneven and also were in pieces, the use of which could not be done as a one chunk of land whereas the government lands given in exchange were adjacent to the national highway and could be used for further development for the public; secondly, on 15.05.2008 proclamation was directed to be issued but on 06.05.2008 itself the proclamation was issued which was not legal; thirdly, there is no resolution of the concerned Gram Panchayat for exchange of the lands; fourthly, the then Additional Tehsildar who had earlier submitted the report had observed that the land was situated beyond the nazul limits whereas the present Patwari/Revenue Inspector had submitted the report wherein the lands are Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 10 stated to be about 6 Kms away from the Municipal boundaries and is coming within nazul limits and lastly in the order dated 13.6.2008 in the first five lines whitener has been used and again the figures have been typed and there are no signatures of the competent authority on the said corrections, thus, the possibility of manipulation cannot be ruled out in the aforesad regard, and therefore, it can very well be said that the order dated 13.08.2008 passed by the then Collector was rightly taken under suo-moto revision and had rightly been set aside. Thus, it was prayed that the present petition being devoid of any substance is liable to be dismissed with heavy costs.
Heard the Counsel for the parties and perused the record.
So far as objection of the petitioner with regard to delay occurred while exercising suo moto powers of revision by the Commissioner is concerned, since the matter pertains to Revenue Book Circular and as per Para 30 (8) (iii) of Chapter 4 of Part 3 of Revenue Book Circular which pertains to appeal, review and revision, there is no limitation of exercising suo moto revisional powers by the Commissioner, therefore the said objection has no force, the same is discarded.
The question now which is posed before this Court is as to whether the conclusions arrived at by the Commissioner invoking the suo-moto revisional powers for setting aside the order dated 13/06/2008 passed by the Collector under para 20 of Part IV chapter 3 of Revenue Book Circular, where by certain Government lands were ordered to be exchanged with the private lands of the Petitioners, after getting deposited a sum of Rs.26, 99, 200/- towards difference in the market value of both the lands, are in accordance with Law and sustainable?
In respect to the aforesaid controversy, if the facts of the present case Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 11 are analyzed, it would be observed that on 06/05/2008 an application was moved by the present Petitioners under Part IV chapter 3 para 20 of RBC before the Sub-Divisional-Officer, Gwalior, for exchange of their lands bearing survey number 98/3 admeasuring 1.097 Hect., 201/1 min-2 admeasuring 0.994 Hect., 222 admeasuring 1.066 Hect., 225 admeasuring 0.261 Hect., 226 admeasuring 0.052 Hect., 227 admeasuring 0.502 Hect., situated at gram Baretha, Patwari Halka No. 58, Tehsil, Morar District Gwalior, recorded in their names in the revenue records, as irrigated lands. In the application it was averred that since the said lands were not giving yield as desired, even after putting much of labour, therefore, they wanted to get it exchanged with Government lands bearing survey numbers 281 and 301/1 situated in the same village i.e. Baretha, which were recorded as agricultural lands, under the provisions of para 20 of Part IV chapter 3 of RBC.
The aforesaid application was registered by the Sub- Divisional-Officer as case No.205/07-08/B-121. From the letter dated 07/01/2010 written by the Collector to the Commissioner, it reflects that Ld. Collector while taking note of an order dated 15/05/2008 issued by Tehsildar whereby proclamation was directed to be issued, but the said proclamation since was issued prior to the order dated 15/05/2008 i.e. on 06/05/2008, had observed that it is not legal and further though the notices were directed to be issued to the Gram Panchayat on the same date but it was also issued on 06/05/2008, which creates a contradictory situation but from the aforesaid observation it is not clear as to whether the proclamation or the notice which are stated to have been issued to the general public and the Gram Panchayat were in pursuance to the order dated 15/05/2008 by Tehsildar or were by the S.D.O., as the application for exchange Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 12 was submitted by the Petitioners on 06/05/2008 before the SDO.
Even if it is assumed that the proclamation and notice were issued on 06/05/2008, it appears to be a typographical error, as neither it had been found by the Collector that said proclamation/notice were not pertaining to this case or were not issued upon the directives of the then Collector nor there is any observation that it was not issued at all and not served on the Gram Panchayat and when no objections were received either by any villager or the Gram Panchayat, it could not be said that there is no illegality in the procedural aspect of the matter.
So far as non-issuance of the resolution of the Gram Panchayat with regard to the aforesaid facet is concerned, there is no provision in para 20 of part IV of chapter 3 of RBC to obtain any such resolution from Gram Panchayat or even to issue an individual notice to it, the only requirement as per first proviso to para 20 is to issue a proclamation to all, calling objections from villagers, whose rights would be getting affected or would be adversely impacted by such exchange, no more and no less. Since there is no legal provision to call Gram Panchayat in individual, the ground taken by Collector for referring the matter for suo moto revision in that regard appears to be not sustainable.
Further, from the letter of the Collector it is reflected that the then Collector before passing the earlier order dated 13/08/2008 had accepted the report of Tehsildar, Circle-6, wherein the land was held to be beyond the nazul area, but from the report of the present Patwari/Revenue Inspector, the land was stated to be within nazul area and only 6 kms away from the Municipal limits, thus, made it non-transferable by the Collector, also appears to be far- fetched, as there is no discussion about the anomaly between the two reports Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 13 and whether the said land actually was declared to be nazul land in the records.
The term 'Nazul land' has a definite connotation. It interalia means " Land or buildings in or near towns or villages which have escheated to the Government; property escheated or lapsed to the State: commonly applied to any land or house property belonging to Government either as an escheat or as having belonged to a former Government."
Even in the Revenue Book Documents, Part IV Serial No. 1, Nazul land situated within the prescribed limits of the Municipal Corporation and the Nagar Palika is stated as under:
"1. "Nazul" and "Government land"
1. That land which is the property of the Government and which:-
(a) is not forming part of the records in the account of any village;
(b) is not recorded as Banjar, jharidar jungle, hilly and chattans, rivers, village trees or Government trees;
(c) is not recorded for Village roads, gothan, charai land, or in the shape of grazing in abadi Chargahs;
(d) is not ear-marked and reserved for development of the village or any other community development projects; or
(e) is not service land.
There are two categories i.e. "Nazul" and "Government land". In "Nazul" lands, such Government lands are included which are used for construction projects or for general public facilities like Bazars or entertainment parks, or the lands which may possibly be required to be used in future for such projects.
The categorization of the land which is in custody of any Department of the State Government or Central Government or which is recorded in the Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 14 records of Government Lands, will be done. In brief, it can be said that "Nazul" is that land which if kept as open site carries more importance and not agriculture related. The lands which are generally categorized as "Nazul" lands, are as under:-
-Plots of lands near the buildings, whether they are Government or non- government.
- Cantonment lands;
- Parks
- Plots of lands used for Bazards, Haat or fairs;
Lands of Shamshan Chat (Crematorium);
- Lands where possibility of construction is there, and other such lands where there is a possibility that these can be used for public purposes in the near future. Under the 'Nazul' land, those Government plot of lands will also be included which are meant for Sarais, Kanji Hauzes, Bazars, etc. and which are in possession of the local residents or which are standing in their names."
None of the aforesaid aspects had been considered by the Collector nor any efforts were made by the Collector for determining the factum of the government land whether was declared as Nazul Land while referring the matter for suo-moto revision, which makes the reference itself to be on extraneous considerations. Further, Ld.Commissioner had also not gone into the aforesaid aspect and on the ground that the land was situated near National Highway and is more valuable than the land of the Petitioners given in exchange, which is uneven and not in a single piece had held the order dated 13/08/2008 passed by the then Collector to be bad, which doesn't appear to be sustainable.
The reasons for not concurring with the findings arrived at by the Commissioner are also that there is no iota of evidence on the record to show Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 15 that the government land given in exchange was of more value than assessed by the then Collector, which had led to huge loss to the public exchequer. Apart from that Ld. Commissioner had also misread the impugned order before it, passed by the Collector as from perusal of the said order it could be seen that the Collector while assessing the valuation of the lands had just observed the value of lands situated within 100 meters of main road and beyond 100 meters and had accordingly, as per prevailing guidelines assessed the valuation, but Ld. Commissioner while passing the impugned order had held that the then Tehsildar had wrongly mentioned the land to be situated within 100 meters, whereas they were beyond 1 ½ kms, as the then Collector had just observed the valuation of irrigated private land beyond 100 meters and nowhere it was mentioned that the private land was situated within 100 meters of the main road.
Another aspect which attracts attention of this Court is the way Ld. Commissioner, in a very cursory manner, had dealt with the findings of the then Collector while passing the order of exchange, as it had been construed by him to be an interim order, while from its very wordings of the order of the Collector, it could be said that it was a final order, whereby the S.D.O. (Revenue) was directed to get the compliance of the order done and as a consequence thereof S.D.O. had directed Tehsildar to get the difference amount of the lands to be exchanged be deposited in State Bank of India and on 25/06/2008 Tehsildar issued a letter to the Petitioners and on 28/06/2008 after depositing Rs.26, 99, 200/- challan was submitted and accordingly the order of Collector was executed, thus, the very finding of Ld. Commissioner that exchange of lands was done in absence of any specific order appears to be perverse and bad in law. It is also required to be observed that the findings of Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM 16 Commissioner that no case was registered by Collector before passing the order dated 13.8.2008 appears to be not correct as the order of Commissioner itself reflects the cases registered by Tehsildar as 1/07-08/B-121 and by SDO at No.205/07-08/B-12 in that regard which were at the instance of the Collector and mere non-mentioning of any case number on the order does not render it otiose.
As a result, the directions of Ld. Commissioner to again record the government lands given in exchange to the Petitioners in the name of the Government and their private land, which was recorded as Government land be recorded in the name of the Petitioners, cannot be sustained and according are hereby quashed.
The Petition is allowed to the above extent and disposed off.
(MILIND RAMESH PHADKE) JUDGE ar Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 20-Mar-24 6:46:45 PM