Madhya Pradesh High Court
Rajendrakumar Thru.Attor.Ashok & Ors. vs State Of M.P. & Ors. on 16 January, 2019
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
Writ Petition No.5738 of 2008
Rajendrakumar & 6 others. ... Petitioners
Vs.
State of M.P. & 2 others. ... Respondents.
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Shri A.K. Sethi, Sr. Advocate with Shri Harish Joshi, Advocate for
petitioners.
Shri Aditya Garg, Govt. Advocate for respondents/State.
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ORDER
(Passed on 16th January, 2019) The petitioners have filed the present writ petition being aggrieved by order dated 14.7.2008 passed by respondent No.2, Commissioner, (Revenue), Indore Division, Indore whereby the appeal filed u/s. 33 of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter, for short, "ULCR Act") has been dismissed and Notification issued u/s. 10(3) dated 11.6.1999 has been upheld.
2. Facts of the case necessary for disposal of this petition are as under:
(i) Late Shriniwas and his wife Smt. Lalitadevi being the owners of land bearing Survey No.147, 141, 149 and 150 situated at Village Bank, Tehsil & District Indore submitted the statement called as 'Vivrani' u/s. 8(1) of the ULCR Act before respondent No.3 on 16.4.1985, which was registered as Case No. 733/A-90/C-1077-78. Thereafter, notice was issued for inviting objections on or before 2.6.1985. On 2.5.1985, respondent no.3 did received any objection in respect of draft 2 statement filed u/s. 8(1) of the ULCR Act and thereafter, he proceeded further. Vide order dated 11.9.1985 it was observed that notices published u/s. 8(1) were not proper, therefore, a fresh notices be issued. On 21.11.1985, the competent authority recorded the order-sheet to the effect that the draft statement has duly been served upon the person concerned and no one has submitted objection , therefore, directed for issuance of final statement u/s. 9 of the ULCR Act. Vide order dated 4.1.1993, the competent authority has held that the final statement has been served and also directed the revenue authorities to submit the spot inspection report. On 27.9.1995, the Revenue Inspector submitted the spot inspection report and after completing proceedings u/s. 9 of the ULCR Act, final statements were sent for publication in M.P. Gazette Notification as per Section 10(1) of the ULCR Act. On 28.8.1998, Gopal S/o. Shriniwas appeared and informed to the respondent no.3 that the case u/s. 20 of ULCR Act is pending. By order dated 24.12.1998, the respondent No. 3 has stayed the proceedings awaiting the decision of the proceedings pending u/s. 20 of the ULCR Act.
(ii) Vide order dated 11.3.1999, again the order-sheet was written and the objections submitted by the legal heir of Shriniwas have been considered and decided by the respondent no.3 by declaring the land bearing Survey No.147 admeasuring 0.412 Hect. as surplus land (here in after referred as 'surplus land') . On 29.5.1999, the Notification published u/s. 10(1) dated 15.9.1999 was taken on record and again the matter was kept after 15 days awaiting the objections. When respondent no.3 did not receive any objection , then he has directed for publication of Gazette Notification u/s. 10(3) of the ULCR Act, 3 which was published and thereafter, vide order dated 19.7.1999, the competent authority has issued declaration that 'surplus land' been vested with the State Government w.e.f. 11.6.1999 and directed for issuance of notice u/s. 10(5) of the ULCR Act for obtaining possession. Notices issued u/s. 10(5) was served upon the concerned occupiers on 2.8.1999 and the period of submission of objection came to an end on 2.9.1999. The respondent no.3 directed for issuance of notice u/s. 10(6) for obtaining the possession.
(iii) On 2.7.9.1999, Yakub and Taj (petitioners No.2 and 3) submitted objections. That on 29.10.1999 they were heard and their objections have been turned down and direction was issued to the revenue authorities for obtaining the possession of 'surplus land'. On 25.1.2000, Panchnama was prepared after taking possession and thereafter, vide order dated 31.1.2000, the proceedings were closed with a direction to register a case for the purposes of assessment of compensation u/s. 11 of the ULCR Act.
3. Being aggrieved by the order dated 4.9.1999, 31.5.1999, 18.3.1999 and 11.3.1999, petitioners preferred appeal u/s. 33 of the ULCR Act. Vide order dated 6.4.2000, their appeal has been dismissed as abated on account of abolition of ULCR Act by Urban Land (Ceiling & Regulation) Repeal Act, 1999 published in Official Gazette Notification dated 10.3.2000 adopted by the State Government w.e.f. 17.2.2000. Thereafter, the petitioners preferred Writ Petition No.1555/2000 before this Court. By order dated 5.12.2000, said writ petition was disposed of with a direction to respondent No.2 to decide the appeal afresh in the light of observations made in the judgment 4 rendered in W.P. No.992/2000 decided on 5.12.2000. In the said judgment rendered in W.P. No.992/2000, this Court has held that the Commissioner is required to examine the facts of the case if the proceedings relate to Section 11, 12, 13 and 14 and whether the possession of the land in question has been taken over by the State or any person duly authorised by State in this behalf and if so, on what date? It is only after recording the said findings in each case, then the Commissioner will decide whether the appeal before him abates by virtue of section 4 or not.
5. After the aforesaid order of this Court, the petitioners filed an application for amendment in the pending appeal. Thereafter, written arguments were also submitted. By order dated 16.5.2001, the appellate authority again dismissed the appeal. Petitioners being aggrieved by the said order again filed W.P. No.1299/2001 before this Court. Vide order dated 30.4.2007, said writ petition was disposed of by this Court with a direction to the Commissioner to record finding as to whether the State has taken the actual possession of the land in question as per Section 10(5) of the ULCR Act and if it is found that the possession had been taken over, then Repeal Act will not be applicable and in that situation, the Commissioner will have to decide the appeal on merits. After the remand, the petitioners filed the affidavits that the possession Panchnama dated 25.1.2000 is a paper-Panchnama and they are still in possession of the land in question. By order dated 14.7.2008, learned Commissioner has again dismissed the appeal on the ground that the petitioners did not challenge the order dated 11.6.1999 by which the land has been vested with the State Government.
6. Being aggrieved by the aforesaid order dated 5 14.7.2008, the petitioners have filed the present writ petition . Case of the petitioners is that Yakub, Taj, Babu, Dhanraj and Rajeshkumar had been declared "Bhoomi Swami" of 'surplus land' , by Tehsildar vide order dated 30.9.1983 passed in Case No.59/A-6/1982-83 u/s. 169 of M.P. Land Revenue Code (MPLRC). Thereafter surplus land was sold by three different sale deeds viz (i) Dhanraj and Rajeshkumar sold the land bearing Survey No.147 area 0.139 Hect. to Haji Mehmood (petitioner No.4) vide registered sale-deed dated 12.9.1997, (ii) land bearing Survey No.147/1 area 0.139 Hect. to Smt. Mehrun Bi (petitioner No.5) vide registered sale-deed dated 12.9.1997 and (iii) land bearing Survey No.147/1 area 0.139 Hect. to Smt. Kubra Bi vide registered sale-deed dated 12.9.1997 (Annexures P/2 to P/7) respectively. Petitioners No.1 to 3 were in actual possession over the 'surplus land' in question since 1983 in the capacity of Sub-tenant ("Up-Krishak") hence they acquired the "Bhoomi Swami" rights by virtue of the provisions of u/s. 169 of MPLRC. No possession has been taken from them and no notice issued by respondent No.3 was served upon them hence entire proceedings undertaken by the respondent no.3 are illegal and all the impugned orders are liable to be set aside.
7. Shri Sethi, learned senior counsel appearing for the petitioners, emphasised on the fact that the predecessors of the petitioners have been declared "Bhoomi Swami" of the 'surplus land' by the Tehsildar vide order dated 30.9.1983 by virtue of Section 169 of MPLRC. Even today they are in actual possession over 'surplus land', therefore, it was incumbent upon respondent No.3 to serve the notice on them because notice u/s. 10(5) of the ULCR Act is required to be served upon the 6 person who is in actual possession over the 'surplus land' and/or who is required to deliver the possession to the State Government or to any person duly authorised by the State. As the petitioners have been declared as "Bhoomi Swami" of the land and admittedly, no notice was served upon them, therefore, the entire proceeding vitiates. He has drawn attention of this Court to the Panchnama prepared by the revenue authorities and according to him, this is nothing but a paper Panchnama which was prepared behind the back of the petitioners keeping in view the fact that the ULCR Act is going to be repealed w.e.f. 17.2.2000 very soon. The 'surplus land' is not a vacant land, rather a pipe factory had been established thereon and wherein in the Panchanama, 'surplus land' is shown as an open land which prima facie establishes that the Panchnama is a bogus Panchnama and prepared only to conclude the proceedings before the ULCR Act before the act being repealed. He further submitted that despite directions given by this Court, the commissioner has not decided the issue of taking possession of the land in question from the petitioners and has wrongly dismissed the appeal on the ground that the petitioners did not challenge the order dated 11.6.1999.
8. Shri Sethi, learned senior counsel, further submitted that order dated 30.9.1983 was passed by Tehsildar virtue of provisions of Section 169 of MPLRC by which the petitioners have acquired the title over the 'surplus land', therefore, it is out of purview of Section 5 and 42 of the ULCR Act. He further submitted that the original owner viz. Shriniwas and his wife Smt. Lalitadevi did not contest the proceedings under ULCR Act in respect of 'surplus land' because the petitioners had already 7 become owners of the said land.
09. Shri Sethi, learned senior counsel for the petitioners further submitted that the 'surplus land' cannot be said to be a vacant land within the meaning of Section 20 of the ULCR Act because a pipe factory had already been established prior to the commencement of ULCR Act, therefore, the proceedings of the ULCR Act ought not to have been drawn in respect of the 'surplus land'. By order dated 10.11.1999, the respondent No.3 had kept the proceedings in abeyance awaiting the decision in the proceedings u/s. 20 of the ULCR Act, but without any notice, again the proceedings has been initiated and final order dated 11.6.1999 u/s. 10(1) has been passed, hence the impugned orders are liable to be set aside.
10. Shri Sethi, learned senior counsel for the petitioners, has placed reliance over the judgment passed by this Court in the case of Gayatri Devi V/s. State of M.P. : 2017 (I) MPJR 140, in which, this Court has held that the possession taken without following the procedure as laid down u/s. 10 of the ULCR Act will not amount to taking valid possession because possession taken means taking of actual physical possession and not symbolic possession on paper. It has further been held that as per requirement of section 10(5) of the ULCR Act, notice ought to be issued in the name of person in possession, therefore, issuance of notice u/s. 10(5) is invalid. The aforesaid judgment has been upheld by the Division Bench of this Court in W.A. No.921/2016. Thereafter, the State Government preferred Special Leave Petition and that too has been dismissed vide order dated 28.7.2017.
11. Shri Sethi, learned counsel for the petitioners, further 8 placed reliance over the judgment of this Court in the case of The Friend's Association V/s. The Competent Authority (W.P. No.955/2011 decided on 12.4.2018). In this case also, the Writ Court has quashed the order passed by the competent authority on the ground that there is no material on record to show that the petitioner was duly served with the notice and possession was taken. He has also placed reliance over the judgment of this Court in the case of Habib Mustafa V/s. State of M.P. : 2017 (I) MPJR 7.
12. Per contra , Shri Aditya Garg, learned Govt. Advocate appearing for the respondents/State, argued in support of the impugned orders passed by respondents No.2 and 3. He submitted that Late Shriniwas and his wife Smt. Lalitadevi submitted the "Vivrani on 29.4.1978 for the entire land held by them i.e. Survey Nos. 149, 150, 147 and 141. They never disclosed that the petitioners are in possession over the 'surplus land' as "Up-Krishak". Thereafter, respondent No.3 has registered the case u/s. 8(1) of the ULCR Act, therefore, the order dated 30.9.1983 passed by Tehsildar is of no consequence by virtue of Section 5 and 42 of the ULCR Act. Respondent No.3 had issued the notice inviting objections, but the petitioners did not submit any objection, therefore, vide Notification dated 31.5.1999, the 'surplus land' had been vested with the State Government . Hence objections submitted by the petitioners have no consequence . The petitioners have utterly failed to prove their right and title over the land in question. Order dated 30.9.1983 does not confer "Bhoomi Swami" rights in favour of the petitioners because that was passed without the permission of the State Government, hence, the petition is devoid of any 9 merit and is liable to be dismissed.
13. I have heard Shri A.K. Sethi, learned senior counsel appearing for the petitioners and Shri Aditya Garg, learned Govt. Advocate appearing for the respondents/State.
14. That vide order dated 30.9.1983 the tehsildar directed for recording the name of Yakub, Taj, Babu, Dhanraj and Rajesh Kumar in place of Smt. Lalitadevi w/o. Shriniwas in respect of 'surplus land'. According to the petitioners, they are in possession over the 'surplus land' which they got from their ancestors. The entire 'surplus land' had been sold by Dhanraj and Rajeshkumar to petitioners No.4 to 7 by three different sale- deeds. The status of petitioner No.1 has not been shown in this petition , who filed the present petition through Power of Attorney Shri Ashok Keshwani. One of the so called owner whose name is there in the order of Tehsildar i.e. Babu S/o. Ibrahim has not joined as petitioner and no explanation has been given. During pendency of the proceedings under the ULCR Act, petitioners No.2 and 3 had sold the entire 'surplus land' to petitioners No.4 to 7 by three different sale-deeds dated 12.9.1997. In order to challenge the proceedings under ULCR Act on the basis of statements filed u/s. 6 by Shriniwas and Lalitadevi, all the petitioners must have clear title over the said property.
15. According to the petitioners, they have acquired the "Bhoomi Swami" rights by virtue of the status of "Up-Krishak"
and the Tehsildar has directed for recording their name as "Bhoomi Swami". According to the petitioners, they have acquired the title by virtue of Section 169 of MPLRC and they are in possession over the land in question, therefore, notice 10 ought to have been served upon them.
16. As per the scheme of ULCR Act, the person holding the vacant land in excess to the ceiling limit is required to file statement ("Vivrani") u/s. 6 before the competent authority having jurisdiction specifying the local and other particulars of all vacant lands and of land on which there is a building. After submission of the said statement, the competent authority may direct for an enquiry and thereafter shall prepare a draft statement in respect of the said person who has filed the statement u/s. 6 of the ULCR Act. The draft statement shall be served on the person concerned together with notice stating that any objection to the draft statement shall be preferred within a period of 30 days. On receipt of any objection, the competent authority shall duly consider the same and shall decide in accordance with law. Section 9 of ULCR Act provides for preparation of final statement after disposal of the objections, if any, received under sub-section (4) of Section 8. The competent authority, if required, shall make necessary alteration in the draft statement and shall determine the vacant land held by the person concerned in excess of ceiling limit. U/s. 10 of ULCR Act, as soon as may be after the service of statement u/s. 9 on the person concerned, the competent authority shall cause a Notification giving the particulars of the vacant land held by such person in excess of the ceiling limit that such land is to be acquired by the State Government. Again, the objections are required to be obtained and it is incumbent upon the competent authority to determine the nature and extent of such claim and pass the order.
17. Under sub-section (3) of Section 10, the land be deemed to have been acquired by the State Government and 11 upon publication of such declaration, such land shall be deemed to have been vested in the State Government free from all encumbrances. Thereafter, a notice u/s. 10(5) is required to be served to the person who may be in possession of it to surrender or deliver the possession thereof to the State Government and if the person concerned refuses or fails to comply with the order, the competent authority shall take the possession of the vacant land under sub-section(6) of Section 10. Therefore, after publication of the Notification under sub-section (3) of Section 10, the land deemed to have been vested with the State Government.
18. According to the petitioners and as held by this Court in the case of Gayatridevi (supra), notice was required to be served u/s. 10(5) of the ULCR Act to a person concerned. In the case of Gayatridevi (supra), the notice was issued to the owner who had already expired before passing of order u/s. 10(3). The notice was not served on the legal heir of Gayatriedevi i.e. the original owner, therefore, this Court has held that such service of notice is invalid and the further proceedings vitiates. But, in the present case, the land in question was owned by Shriniwas and his wife Lalitadevi and all the notices were served to them but they never raised any objection. Only one son of Shriniwas raised an objection and that too was in respect of pendency of the proceedings u/s. 20 of the ULCR Act. Said object was duly considered by the competent authority and same was rejected vide order dated 10.6.1999. Admittedly, till publication of notice u/s. 10(3) of ULCR Act, the petitioners did not submit any objection before the competent authority and it was not known to the competent authority that the petitioners are claiming that 12 they are in possession over the 'surplus land' as owner. Up to the stage of Section 10(3), notices were required to be served to the person concerned who submitted the statement u/s. 6. Notice u/s. 10(5) is required to be served on the person only for the purposes of delivery of possession and if the said person refuses or fails to comply with the order passed u/s. 10(5), then the competent authority may take possession of the vacant land and thereafter the issue of payment of amount of vacant land would be considered. In view of the above, it is clear that the proceedings up to the stage of Section 10(3) were drawn against Shriniwas and Lalitdevi and same had been concluded and attained finality. The petitioners are only disputing the mode of taking possession u/s. 10(5) and 10(6) of the ULCR Act.
19. The petitioners preferred the appeal u/s. 33 of the ULCR Act against the orders dated 4.9.1999, 31.5.1999, 18.3.1999 and 11.3.1999 passed by respondent No.3. Thereafter, an application for amendment was filed assailing the Panchnama dated 25.1.2000. Vide order dated 11.3.1999, respondent No.3 had already declared that the transfer of land in question in favour of Taj S/o. Adam and others by virtue of Section 169 of MPLRC is nonest and void by virtue of Section 5(3) read with Section 42 of the ULCR Act. The ULCR Act came into force w.e.f. 1976 and Section 5 of the said Act restricts the transfer of excess land by way of sale, mortgage, gift, lease or otherwise and if any transfer had taken place under sub-section (1) of Section 5, the same shall be deemed to be null and void. In sub- section (1) of Section, transfer by way of sale, mortgage, gift, lease or otherwise is prohibited, therefore, transfer of land in favour of petitioners by virtue of Section 190 of MPLRC is also 13 prohibited under the head of "otherwise". As per Section 190 of MPLRC, where a Bhoomiswami whose land is held by an occupancy tenant belonging to any of the categories specified in sub-section (1) of section 185 except in items (a) and (b) of Clause (i) thereof fails to make an application under sub-section (1) of Section 189, the rights of a Bhoomiswami shall accrue to the occupancy tenant in respect of the land held by him. Therefore, for the purposes of Section 190, the person concerned must be occupancy tenant belonging to any category specified in sub-section (1) of Section 185. As per Section 185, every person who at the coming into force of MPLRC holds any land in Mahakaushal, Madhya Bharat, Vindhya Pradesh or Bhopal region, shall be called as occupancy tenant. Hence, such person must hold a land before coming into force of MPLRC. The case of the petitioners is that they are occupancy tenant from 1980-
81. The Bhoomi Swami is required to make an application for resumption of land from occupancy tenant within a period of one year from the date of coming into force of MPLRC. Therefore, u/s. 190 of MPLRC, the Bhoomiswami can be conferred an occupancy tenant if he holds a land before coming into force of MPLRC.
20. According to the petitioners, they are in possession over the land in question since 1980-81, therefore, they cannot get a declaration of Bhoomi Swami by virtue of Section 190 of the MPLRC. Even otherwise, order dated 30.9.1083 passed by Tehsidar is void and nonest by virtue of Section 5 and 42 of ULCR Act which have overriding effect over all other law, therefore, any declaration made under MPLRC will not affect the provisions of ULCR Act. Hence, the respondent No.3 has 14 not committed any error of law while passing the order dated 11.3.1999 and the learned Commissioner has rightly upheld vide his order dated 14.7.2008 the final statement u/s. 10(3) done on 11.6.1999. The petitioners submitted an objection on 27.9.1999.
21. The petitioners are disputing only the mode of taking possession of 'surplus land' which is a disputed question of fact and the same can be decided by the civil court after taking evidence. The petitioners have no right to challenge the proceedings of ULCR Act in absence of title over the land in question because the so-called transfer of land in their favour has already been declared as void by the competent authority.
22. In view of the foregoing discussion, I find no merit and substance in this writ petition and the same deserves to be and is hereby dismissed.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.01.16 17:46:30 +05'30'