Madhya Pradesh High Court
Daya Shankar Mishra vs The State Of Madhya Pradesh on 4 March, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 4 th OF MARCH, 2024
WRIT PETITION No. 11949 of 2010
BETWEEN:-
DAYA SHANKAR MISHRA S/O LATE SHRI JAGDEO
MISHRA, AGED ABOUT 61 YEARS, KHURAI TEH.
KHURAI DISTT. SAGAR M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI Z.M. SHAH - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY REVENUE DEPARTMENT
VALLABH BHAWAN BHOPAL M.P. (MADHYA
PRADESH)
2. THE BOARD OF REVENUE M.P. GWALIOR (M.P.)
(MADHYA PRADESH)
3. COMMISSIONER (REVENUE) SAGAR DIVISION,
SAGAR (M.P.) (MADHYA PRADESH)
4. COLLECTOR / DISTRICT MAGISTRATE SAGAR
DISTRICT SAGAR (M.P.) (MADHYA PRADESH)
5. HARERAM S/O BHAGWAL SINGH VILLAGE
SIMRIYA CHITE MAN TAH. KHURAI, DISTT.
SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUNIL RAO - PANEL LAWYER)
T h is petition coming on for order this day, t h e cou rt passed the
following:
ORDER
Learned counsel for the petitioner submits that the original petitioner / Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 2 Late Daya Shankar Mishra was an Ex-serviceman who was allotted a patta of agricultural land situated on Khasra No.66 at Village Gudwal Tah. Khurai District, Sagar area 4.01. Ha. As he was in dire need of money, he mortgaged the said land in the year 1983 to one Shiv Bai. In order to secure the said loan, a sale-deed was executed on 13.09.1983. The execution of sale-deed was taken note of by the Collector in suo-moto exercise of powers and the Collector vide order dated 31.05.2004 declared the transaction to be void and directed that the land be vested in the State Government and be recorded in record as Charokhar Land. The order passed by the Collector was assailed by the original petitioner/Daya Shankar Mishra and also by successor of Shiv Bai namely Hare ram by filing appeals before the Commissioner. Both the appeals were clubbed together and were decided by a common order dated 29.11.2006. The Commissioner by passing the said order, allowed the appeal preferred by legal heir of Shiv Bai and dismissed the appeal preferred by the petitioner and while allowing the appeal, the order of Collector dated 31.05.2004 was set aside. The order passed by the Commissioner was then assailed by the original petitioner Daya Shankar by filing a revision. However the Board of Revenue also vide impugned order has dismissed the revision.
2. It is contended by the counsel that the orders passed by Commissioner as well as Board of Revenue were nullity inasmuch as, it is undisputed statutory provision that any transaction which takes place after 24.10.1980 in terms of Section 165(7)(b) of the M.P. Land Revenue Code, requires prior permission of Revenue Officer not below the rank of Collector and the said permission was required to be given while assigning the cogent reasons. In the present case, as there was no permission by the Revenue Officer, the sale deed which was executed on 13.09.1993 was nullity. The said Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 3 aspect was rightly taken note of by the Collector while passing the impugned order.
3. Learned counsel for the petitioner in support of his submissions has placed reliance on the order passed by this Court in the case of Dharmendra Jatav vs. The State of M.P. and Ors. [2021 (2) M.P.L.J. 327]. Learned counsel, thus submits that the impugned order passed by the Commissioner as well as Board of Revenue deserve to be quashed.
4. Learned counsel for the State has supported the order passed by the Commissioner as well as Board of Revenue.
5. Having considered the submissions advanced on behalf of the parties, a perusal of the record reflects that the patta of land in question was granted way back on 17.07.1963. It is undisputed from perusal of paragraph 5.1 of the petition, as the original petitioner was in need of amount, he availed a loan from one Shiv Bai and as a security of the loan, the sale-deed in question was executed on 13.09.1983. The said sale-deed could have been executed or not, is a question which is required to be mulled over in the present case. In order to deal with the same, it would be apposite to consider the provisions of Section 165(7)(b) of M.P. Land Revenue Code which is reproduced herein:-
(7-b) Not withstanding anything contained in sub
-section (1), 4 [a person who holds land from the State Government or a person who holds land in bhumiswami 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 bhumiswami of such land, shall Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 4 not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing.
6. A perusal of Section 165(7)(b) of M.P. Land Revenue Code makes it abundantly clear that a person who holds a land from the State Government or whom right to occupy land is granted by the State Government, he shall not transfer any such land without permission of a Revenue Officer not below the rank of Collector.
7. In the present case, undsiputedly the land to original petitioner was allotted on patta, which is evident from the averments made in the petition on 17.07.1963. The amendment in Section 165(7)(b) of M.P. Land Revenue Code was inserted in statute book by way of an amendment dated 24.10.1980. After the said insertion of the provision, the sale-deed in question was executed on 13.09.1983, therefore, the sale deed in question was directly hit by the insertion made in Section 165 of M.P. Land Revenue Code. This aspect has also been taken note of by this Court in the case of Dharmendra Jatav (supra).
8. This Court in the case of Dharmendra Jatav (supra) has held in paragraph 10 as under:-
10. The expressions "void" and "voidable" have been subject matter of consideration on innumerable occasions by Courts.
Law is now well settled.
A transaction from its very inception being in violation of law is a nullity and, therefore, void ab initio. As a matter of fact, a declaration in that behalf is not Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 5 required by a Court of law; whereas in contrast, a transaction which otherwise is good act in the eyes of law, unless; avoided is a voidable act, i.e., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated and a party who alleges so is obliged to prove it; seeking a declaration in that behalf in a Court of law.
In other words, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would obviously be voidable [Judgments of Hon'ble Supreme Court in the cases of Dhurandhar Prasad Singh Vs. Jai Prakash University and others, (2001) 6 SCC 534 relied upon.
De Smith, Woolf and Jewell in their treatise Judicial Review of Administrative Action, fifth edition, paragraph 5-044, has summarised the concept of void and voidable as follows:
"Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 6 is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record."
In the instant case, the lease was originally granted to Kishanlal in the year 1966-67 after coming into force of the Code and after his death, the name of his heir Narayan Jatav was entered by way of succession vide entry No.40/93-94 on 30/12/1993. Bhumiswami right was recorded on 10/01/1994 in favour of Narayan Jatav the father of the present petitioner. The sale deed in favour of respondent No.5 was executed on 01/03/1994.
In the considered opinion of this Court, the bar or prohibition as contained under sub-section 7(b) of section 165 of the Code is with reference to the date of transfer and not the date of grant of patta. The contention advanced to the contrary and as concluded by the Commissioner in the impugned order dated 09/09/2020 (Annexure P/1) is misconceived and misdirected. Hence, rejected. Therefore, the offending sale deed dated 01/03/1994 without prior permission of the Collector was void ab initio.
Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 7The sale deed dated 01/03/1994 since has been held to be void for which no declaration in that behalf is required from a Court of law, the question of limitation as raised by learned senor counsel for the respondent No.5 is of no consequence and pales into insignificance. Hence, rejected.
In the judgment reported in 2002(2) MPLJ 480 Mulayam Singh and another Vs. Budhawa Chamar and others; a division Bench in an authoritative pronouncement of law has ruled as under:
"It is not in dispute that no permission from the Collector was obtained and the sale was made without the permission of Collector. The respondent cannot transfer his land even though he is declared Bhumiswami, without the permission of the Collector. Transfer was made without such permission, so the appellants will not get any legal rights. In the circumstances, the Additional Collector has rightly held that the sale was in contravention of the provisions of section 165(7-B) of the Code and is void. Mutation effected on the basis of sale was set aside and the land was directed to be recorded in the name of the respondent No.1."Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 8
The view of this Court in the matter of alienation of land without permission under section 165(7b) of the Code finds support from the judgment of the Hon'ble Supreme Court in the case of Keshabo and another Vs. State of M.P., and others, (1996) 7 SCC 765 and a division Bench of this Court in the case of Mulayam Singh and another (supra).
At this stage it is appropriate to reiterate the legal connotation of word "bhumiswami" as perceived by a Full Bench of this Court in the case of Ramgopal Kanhaiyalal Vs. Chetu Batte AIR 1976 MP 160 and held as under:
"14. It must be remembered that a Bhumiswami has a title though he is not the "Swami" of the "Bhumi" which he holds, in the sense of absolute ownership of land vests in the State Government, yet, he is a Bhumiswami. He is not a mere lessee. His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable, and he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation."Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 9
As affirmed by Hon'ble Supreme Court in (2000) 3 SCC 668 Rohini Prasad and others Vs. Kasturchand and another & (2005) 10 SCC 124 Hukum Singh (Dead) by LR., and others Vs. State of M.P., as well as by a division Bench of this Court reported in 2012(2) MPLJ 363 Savina Park Resorts and Tours Pvt. Limited Vs. State of M.P., and others.
Since, the ownership of land covered under the Code vests in the State Government. The revenue authorities under the Code have exclusive jurisdiction in respect of matters enlisted in section 257 of the Code and the jurisdiction of the civil Court is ousted in that behalf.
The cancellation of an entry in the revenue record on a complaint or otherwise in relation to transfer of land without permission of the Collector under sub- section 7(b) of section 165 of the Code cannot be construed substitution of name in revenue record arising out of inter se competitive claims of two parties over a entry / claim. This exercise, therefore, has rightly been carried out by a revenue officer under section 257(1)(f) of the Code.
Section 111 of the Code provides jurisdiction of the civil Court to decide a dispute inter se between two private parties relating to any right recorded in the record of rights, where the State government is not a Signature Not Verified party. This provision has no application in the facts and Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 10 circumstances of the case.
The Sub Divisional Officer on a complaint by the petitioner has cancelled / omitted the entry No.74 dated 02/04/1994 recorded in favour of respondent No.5 by order dated 07/08/2014 (Annexure P/3) on the premise that the sale in favour of respondent No.5 vide sale deed dated 01/03/1994 was contrary to section 165(7-b) of the Code and also bearing in mind the general directions issued by the Collector on 13/01/2012.
The contention of learned senior counsel for the respondent No.5 is that unless; appeal was preferred against the entry made in revenue record on 02/04/1994 (supra), the Sub Divisional Officer had no jurisdiction to cancel or omit the entry vide order dated 07/08/2014 is held to be misconceived for the reason that the Sub Divisional Officer upon acquisition of knowledge of void transaction,viz., sale deed dated 01/03/1994 has cancelled / omitted the entry with due notice to the respondent No.5. Records of rights can always can be corrected if prohibited in law or polluted by a void act in the eyes of law.
Consequently, there was no illegality in the order of the Sub Divisional Officer dated 07/08/2014 (Anneuxre P/3) amending / omitting the entry at sl.No.74 on 02/04/1994 made pursuant to the sale deed Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM 11 dated 01/03/1994 in favour of respondent No.5 while exercising the power under section 257(1)(f) of the Code.
9. Therefore, in view of the aforesaid, as it is settled that as the land which was allotted to original petitioner on patta by the State Government has been alienated after the enforcement of the provisions contained in Section 165(7)(b) of M.P. Land Revenue Code, in the considered view of this Court, the Collector did not commit any error while passing the order dated 31.05.2004 (Annexure-P/2). The Commissioner as well as Board of Revenue were required to appreciate the aspect that it is not the date of allotment of patta but on the contrary, the date of execution of sale-deed is the guiding factor for considering the applicability of provisions of Section 165(7)(b) of M.P. Land Revenue Code.
10. Resultantly, the order passed by the Commissioner dated 29.11.2006 and passed by Board of Revenue dated 16.07.2010 stand quashed. The order passed by Collector dated 31.05.2004 (Annexure-P/2) is upheld.
11. Accordingly, the petition stands allowed to the extent indicated herein above.
(MANINDER S. BHATTI) JUDGE mn Signature Not Verified Signed by: MANOJ NAIR Signing time: 3/6/2024 12:01:09 PM