Madhya Pradesh High Court
Smt.Manohar Kumari Daga vs The State Of Madhya Pradesh on 21 February, 2012
1
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.1133/2008
Smt. Manohar Kumari Daga and others.
-Versus-
State of M.P. and others.
Shri , learned counsel for the petitioners.
Shri, learned Govt. Advocate for the respondents.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
ORDER
(21.2.2012) This order will also govern the disposal of Writ Petition No.7335/2002. However, for the convenience facts are taken from Writ Petition No.1133/2008.
2: The petitioners have approached this Court calling in question the orders dated 31.5.2006 and lease deed dated 6.10.2007 executed by the respondent No.1 in favour of respondent No.7 contending inter alia that they are the owners and in cultivating possession of the land bearing Khasra Nos. 361, 362, 363, 364, 371/1, 434, 437, 439, 405/1, 356/1, 406, 407/1, 422/1 and 421 total area admeasuring 37.58 acres situated at Village Babadiyakala, Tahsil Huzur, District Bhopal. It is contended by the petitioners that since treating as if the aforesaid land vested in the State Government under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act for brevity), despite the fact that the land was never vested in the State government, the orders of allotment of land on a lease to the 2 respondent No.7 has been issued, therefore, they are required to approach this Court by way of filing writ petition. It is contended that earlier a writ petition was filed on the same subject matter when certain land was being used by the State Government without the consent of the holder of the land and since the subject matter of the writ petition is also identical, the main grievance of the petitioners may be considered in view of the subsequent orders passed, which have been brought on record and the order impugned be quashed.
3: Shown of the details, the brief facts are given for the proper appreciation of controversy involved in the petition. Originally the land belongs to one Shri Chandmal Daga and his brother. There was a partition between the two brothers and the disputed land fell in the share of Shri Chandmal Daga. Since said Chandmal Daga has died on 9.2.2005, the present petitioners have filed this petition as the legal representative and successor of estate of Chandmal Daga. It is contended that some sort of report was given and though the land was situated within the Urban Agglomeration, on being informed that the land is being used for agriculture purpose, the proceedings initiated against the brother of said Shri Chandmal Daga under the Act were closed. However, Shri Chandmal Daga was called upon to furnish a return as provided under Section 6 of the Act. For the purposes to demonstrate that the use of the land in particular area was agriculture and it was not to be treated as urban residential open land, said Shri Chandmal Daga made an application for grant of time to ascertain certain documents and after obtaining their copies to file his reply. Such a request made by Chandmal Daga was rejected and an appeal was preferred before the competent appellate authority as per the Act i.e. the Commissioner of Bhopal Division. Hasty actions were being taken by the competent authority, Urban Ceiling, and therefore, a prayer for grant of interim relief was also made. Prior to this, certain orders were already issued, the lands were declared to be surplus and proceedings were initiated for 3 taking possession of the land after making a declaration that the land stand vested in the State Government. It is the contention of the petitioners that well before the date which was fixed for taking possession, the interim order of stay was obtained, the same was brought to the notice of the competent authority under the Act, the said authority endorsed the order to the Tahsildar, who was executing the directions for taking possession of the land, but the said Tahsildar acted only when paper possession of the land was taken. It is contended that even when the fact was well within the knowledge of the competent authority that there was an interim stay granted by the appellate authority with respect to the possession of the land, no proceedings were required to be done, but fraudulently, the possession of the land was said to be taken. As a result, certain representations were required to be made. Thereafter, the matter was referred to the higher authorities. Some part of the land was allotted to the Kendriya Vidhyalaya Sangathan for the purposes of establishment of a school and keeping in mind such facts, the petitioners moved an application seeking redressal in respect of illegal act of taking possession of the land in dispute on papers. It is contended that a revision was also filed by said Chandmal Daga before the competent authority and in the said revision, the orders were passed. In the meanwhile, since repealing of the original Act was made applicable in the State of Madhya Pradesh, ultimately, the revision petition of said Chandmal Daga was closed. As a result, there was no vesting of the land in the State Government and the entire land of the petitioners was required to be set free, but instead of doing this, the order impugned was issued with respect to the allotment of land to the respondent No.7, therefore, the present writ petition is required to be filed. It is contended that the Repeal Act contains the provision of Repeal and its effect as also the Saving Clause. Sections 3 and 4 of the Repeal Act if are to be read harmoniously, it will be clear that by no stretch of imagination could it be said that the land in dispute vests in the State Government and, therefore, the same was rightly 4 allotted to the respondent No.7. It is submitted by the learned senior counsel for petitioners that in view of such facts, the orders impugned are bad in law and are liable to be quashed.
4: Upon service of the notice on respondents, the respondents No. 1 to 6 have filed a return denying the claim of petitioners. It is contended in the return by the respondents that the petitioners have come before this Court in another Writ Petition No.7335/2002 in which the interim stay has been granted. The said writ petition is pending consideration. It is contended that since time was allowed to the petitioners, but no return was filed nor any facts were brought to the notice of the competent authority, final order was passed and the draft statement was issued. The petitioner was called upon to make objection to the draft statement as per the provisions of the Act. Such notice was served on the original holder, but he simply asked for grant of time. The time was refused because it was found that at the time of initiation of proceedings sufficient opportunity was granted to the said holder to file the return or any objection, but the same was not was filed. Against this order, the appeal was preferred by the petitioners before the Commissioner, Bhopal Division. He never challenged the final order of vesting of land issued against him. Thus, it is contended that it was to be seen that the interim stay granted to the petitioners was not with respect to the entire proceedings which were initiated against the original holder under the provisions of the Act. It is further contended that the final statement was thereafter passed and the same was brought to the notice of the petitioners as well. Again no appeal was preferred against such an order.
5: The departmental authorities were thereafter required to take action as per Section 10 of the Act and they issued the notice to the original holder which was duly served within time. After the service of the notice, the possession of the land was taken by the Tahsildar under the orders of the competent authority and the said Tahsildar was never 5 informed that any interim stay was obtained by the petitioners or the original holder from any competent Court. In view of this, it cannot be said that the action was improperly initiated and the effect of the Repeal of the original Act would be abatement of entire proceedings. It is emphatically contended by the official respondent that vesting of land was under sub- section (1) of Section 10 of the Act and thereafter for the purposes of taking possession of the land in dispute, notice was served on the original holder and within his knowledge since the interim stay was not brought to the notice of the Executive Officer, who was executing the warrant of possession, the possession was already taken. Since the land vests in the State Government for which the possession was already taken by the respondents, it cannot be said that any illegality was committed by the authorities and, as such, entire claim made by the petitioners is baseless. Producing the records and certain documents, it is contended by the respondents that the order of stay passed by the Commissioner of Bhopal Division was brought to the notice of the Executing Officer only when the possession of the land in dispute was already taken. Therefore, it cannot be said that the possession of the land was not taken when the Repeal Act of the original Act become applicable in the State of Madhya Pradesh. Since there is a saving Clause with respect to the proceedings in which the possession of the land is already taken, under the Repeal Act, the proceedings so far as they relate to declaring the land of the original holder surplus and taking possession of the same after its vesting in the State Government are saved. Thus, it is contended that in such a belated writ petition, nothing can be done, no relief can be granted to the petitioners. The petition is liable to be dismissed.
8: The respondent No.7 has filed a separate return and has placed on record various documents to indicate that the possession of the land was already taken by the State Government. It is contended that in fact the original holder 6 moved an application before the competent authority for forwarding the same to the State Government, on 26.7.1980, claiming exemption of his land from the application of the Act as prescribed under Section 20 of the Act. It is contended that since such an application was made, the original holder was hopeful that his land would be exempted. However, the State Government rejected the application vide order dated 23.6.1984 and this order was never called in question anywhere by the original holder. Since the order was received by the competent authority, the proceedings were restarted against the original holder. The title holder was summoned and the proceedings were initiated under Section 8 of the Act. The counsel of the original holder was heard and thereafter the draft statement was prepared. However, for a long time, nothing was done, but when this fact came to the notice that the orders were already issued way back in the year 1984 for issuing the draft statement, the authority directed to issue a notice of draft statement to the original holder and the same was sent by registered post. The case was fixed for 23.3.1987. For about a period of one month again nothing was done, when an application was made by the counsel for the original holder that sometime may be allowed for filing objection to the draft statement. Since this prayer was rejected, the appeal was preferred against such an order, but not against final order which was passed on 24.4.1987. Thereafter, the final statement issued under Section 9 of the Principal Act was sent for service on the original holder of the land and the same was served on him on 16.6.1987. Final statement become operative with effect from 2.7.1987 as no objection whatsoever was filed with respect to the statement prepared under the Act. The proceedings were thereafter taken under Section 10 of the Act and the Notification was issued in this respect. The same was published on 7.8.1987 and from that day, the land declared surplus and stood vested in the State Government. When the proceedings were initiated for taking possession of the land as prescribed under Section 10(5) of the Act, notice was issued to the original 7 holder which was served in appropriate manner. The competent authority vide order dated 17.8.1991 directed the Tahsildar to take possession of the land and for the said purposes, the case was fixed on 26.8.1991. The Tahsildar started the order sheet separately and took possession of the land on 26.8.1991. After when these proceedings were completed, the original holder appeared before the Tahsildar on 27.8.1991, whether copy of the stay order issued by the Commissioner Bhopal on 20.8.1991. Since the possession of the land was already taken by the authorities, therefore, nothing remained to be done and thus the stay order was of no consequence. The appeal filed by the original holder was also dismissed and since nothing was done thereafter, the State Government passed an order allotting about 8 acres land to Kendriya Vidhyalaya Sangathan and the possession of the land was delivered to said Kendriya Vidhyalaya Sangathan on 1.6.1995. No objection was raised at this stage also by the original holder when the land was given to Kendriya Vidhyalaya Sangathan. This shows that the original holder had accepted the title of the State Government on account of vesting of the surplus land in dispute in favour of the State under the Act. Only when the repeal of the original Act was being considered and a Bill was brought and, ultimately, Ordinance was issued. The original holder of the land wake up from slumber and moved an application before the Government of Madhya Pradesh on 15.2.1999. This application was not filed against any specific order. In fact, the only prayer was made for reopening of the case before the competent authority so as to get a benefit of repeal of the Act in case the Act is promulgated. This is how the things were moved, some order was passed, but when the ultimate result was known to the original holder that nothing can be obtained from the State Government, a Civil Suit was filed only for declaration and permanent injunction in the year 2002. The application for grant of temporary injunction was rejected, therefore, a Miscellaneous Appeal was filed by the original holder, but the same was also dismissed. It was recorded in 8 the proceedings that the original holder has categorically admitted that he was not in possession of the land and, therefore, there was no question of granting any protection.
9: It is further contended by respondent No.7 that after the death of the original holder, the legal representatives of the holder were brought on record of the Civil Suit. The said persons moved an application for seeking permission to withdraw the Civil Suit. In fact, it is to be seen that the original holder himself had taken recourse to two remedies as on one hand a Civil Suit was filed on 1.2.2002 and at the same time, he also rushed to this Court by way of filing Writ Petition No.7335/2002 on 24.12.2002. It is contended that there was suppression of material fact that such a Civil Suit was already filed on the same subject matter which was pending consideration. Ultimately, the Civil Suit was withdrawn by the present petitioners for the purposes of filing a more appropriate suit, but instead of filing the Civil Suit, this writ petition has been filed with a malafide intention and, as such, the entire claim made in the writ petition is misconceived. Since the land has already been vested in the State Government, the possession of the same has already been taken by the competent authority, if the land is now allotted to the respondent No.7 by the State Government, the petitioners cannot say that their valuable right of property is snatched away by the State Government. Thus, it is contended that the petition not only being wholly misconceived, but there is no suppression of material facts and, as such, the writ petition is liable to be dismissed.
10 : The petitioners by way of rejoinder have controverted all such allegations made by the respondents NO. 1 to 6 and respondent No.7. In the joint rejoinder emphatically it is contended that the entire things have been misconstrued by the respondents by stating that there was no effect of interim stay granted by the Commissioner in respect of taking of possession of the land. It is contended that the appeal 9 preferred by the petitioners was maintainable and, therefore, the competent appellate authority in exercise of its power has rightly granted the interim stay. This fact that an interim stay has been granted, was required to be brought to the notice of the competent authority of Urban Ceiling. Such a fact was brought to the notice of the said authority on 23.8.1991, even when the possession of the land was not taken. The said competent authority directed on the said application itself, addressing to the Tahsildar that if possession of the land is not taken, not to take possession of the land till the stay order remained operative. Thus, in fact, this was the responsibility of the competent authority to inform the Executive Authority not to execute the order in view of the interim stay granted by the appellate authority. If this information was not given to the said authority or this information was given, but not taken on the note sheet prior to the date, the possession of the land was said to be taken on papers, it cannot be said that the possession of the land was rightly taken. Further, it is pointed out that the notice under sub-section (5) of Section 10 of the Act was required to be served on the holder of the land in person, because the land was belonging to the original holder at that time and the possession of the same was to be taken only from the original holder, but instead of serving the said notice on the original holder of the land, the same was served on the minor-grand-son of the original holder. It is further emphatically contended in the rejoinder that these facts were well within the knowledge of the authorities that the notice was not served on the original holder in rightful manner. Therefore, there was no requirement to take possession of the land even on papers, but simply to regal out the effect of the interim stay granted by the appellate authority, such a fraudulent act was played. It is further contended that the original holder was required to approach the Minister because of such illegal activities and when the revision petition was filed, the Minister of the Department passed an order that the matter be reopened and the decision be taken in this respect. It is further contended that the original holder was ailing and 10 was under treatment for a period of about five years, therefore, he could not prosecute the remedies earlier, but when he become fit, he moved an application in appropriate manner and orders were passed on the said application. How could it be that a Minister who was required to get the order passed by himself executed, recalled that order or to say that the proceedings have abated. It is contended that in view of the letter dated 8.8.2000, in fact there were no proceedings under the Act and entire proceedings have abated, therefore, the land of the original holder was required to be set free. Instead of doing this, since the allotment of the land has been done to the respondent No.7 illegally by the order dated 31.5.2006 and the lease deed has been executed on 6.10.2007, the present writ petition is required to be filed and, therefore, the same cannot be said to be misconceived or misleading. There is no suppression of material facts and as such, the petitioners are entitled to the reliefs claimed.
11 : Heard Shri S. B. Upadhyay, learned senior counsel for the petitioners and Shri R.D. Jain, learned Advocate General for the respondent-State has also Ravish Agrawal, learned Senior counsel for respondent No.7 at length, and perused the record minutely.
12 : The some and substance in the arguments of learned counsels, issues which are required to be considered in this petition are formulated thus :-
(1) Whether the possession of the land of the original holder was lawfully taken by the State Government after declaring the land surplus under the Urban Land (Ceiling and Regulation) Act, 1976; and if so, the effect ?
(2) Whether the land of the original holder is said to be surplus, is vested in the State Government or not ?
11(3) Whether the entire proceedings under the Ceiling Act stand abated on account of coming into force of the Repeal Act ?
13 : To meet out the first question, the submission of learned senior counsels are to be considered aptly. It is, vehemently, contended by learned senior counsel appearing for the petitioners that in fact the order was passed rejecting the application for grant of time to file objection against the draft statement on 24.4.1987. An appeal was preferred against the order so passed on 16.6.1987 and the said appeal was entertained. The directions were issued to send for the records, the memos were issued calling the records, but the records were not produced before the appellate authority, therefore, the appeal could not be heard. In fact, malafidely, knowing fully well that such an appeal was preferred by the original holder, in fact, the proceedings were kept on by the competent authority malafidely and an order was issued for delivered of possession which necessitated for filing of a revision also before the State Government. The revision was preferred by the original holder before the State Government and the said revision was sent back vide order dated 25.4.1990 saying that against the order in fact the appeal is provided under Section 33 of the Act and no revision would lie under Section 34 of the Act. It is contended that this order was not final in nature as nothing was decided except the jurisdiction of the authority and the matter was sent back. The original holder was, thus, required to move an application on 19.8.1991 in the pending appeal for grant of interim stay. The matter was heard by the appellate authority on 20.8.1991 and recording the fact that despite making the demand the record was not made available for the purposes of hearing of the appeal, the appellate authority granted an interim stay for a period of two months and very categorically said that :-
1214 : There was no condition which stipulates that in case possession of the land is not taken, the same will not be taken for a period of two months. The order of interim stay was absolute and specific. It is contended that after passing of this order Annx.P/46, the same was immediately brought to the notice of the authorities, who was required to take possession and, in fact, who has directed the Tahsildar to take possession of the land on his behalf. When the application was made before the competent authority, he immediately passed an order on the application itself directing that possession of the land if not taken, be not taken upto 23.10.1991, that means the period for which interim stay was granted by the appellate authority. It was further specifically directed that on 26.10.1991, the possession of the land have taken and intimation be given by 31.10.1991. This order was passed on 23.8.1991 on the application of the original holder itself and a seal after putting signature was placed by the competent authority. There were other directions also that the file be sent to the Additional Commissioner, the appellate authority and the Tahsildar Huzur, be informed accordingly, and a direction be given to him. It is, thus, contended by learned senior counsel for petitioners that the original holder was confident that full compliance of the order of interim stay would be done and no action would be taken for dispossessing the original holder from the land. Apart from this, it is vehemently contended that sub-section (5) of Section 10 of the Act, specifically prescribes that a notice is required to be issued by the competent authority to the holder of the land, which stood vested in the State Government to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. Taking this Court to the specific pleadings made in the rejoinder, learned senior counsel for petitioners contended that the notice under 13 Section 10(5) of the Act was never served on the original holder as is categorically contended because the report of service of such a notice was sent back stating therein that the original holder was not available, therefore, the notice was served on the grand-son of the original holder. It is categorically contended that the notice which was served on the grand-son of the original holder by name Priyank, was not proper, inasmuch as, said grand-son, namely, Priyank was a minor on the date when the notice was served on him. Service of a notice on a minor by no stretch of imagination can be said to be a valid service of notice. Thus, it is contended that since the notice was not lawfully served on the original holder, he was not aware that any proceeding would take for obtaining possession by the respondents authorities of the land in dispute on 26.8.1991. Had the notice been served on the said holder, he would have brought this fact to the notice of the authority at that time also that there is an interim stay granted by the competent appellate authority and that stay is operative, therefore, no action was required to be taken on 26.8.1991 for taking possession of the disputed land.
15 : Taking this Court to the law laid down by the Apex Court in various cases, the legal consequence of the interim order of stay, learned senior counsel for the petitioners stated that the well settled legal position of law is that if by disobedience the persons enjoined claim that they have validly effected the order and have taken the possession where they are liable to the penalty for contempt of Courts for doing what they did, their act cannot be said to be validly done. Learned senior counsel for petitioners relying on the case of Delhi Development Authority V. Skippers Construction Company Private Limited and another (AIR 1996 SC 2005), contended that similar is the situation in the case in hand and even when the order of stay was brought to the notice of the authorities, the complete ignorance of law was shown and illegally the possession of the land was taken. If that being the situation, the action of taking the possession in 14 such illegal manner cannot be validated by any authority of law and such an act is liable to be declared as nonest in the eye of law. Further placing reliance in the case of Mulraj V.Murti Raghunathji Maharaj (AIR 1967 SC 1386) and various other cases considered by the Apex Court and heavily placing reliance in the case of Manoharlal (D) by Legal Representatives V. Ugrasen (D) by Legal Representatives and others (AIR 2010 SC 2210), learned senior counsel for petitioners forcefully contended that the well settled law is that any order passed by any authority inspite of the interim order of the Court is of no consequence as it remains a nullity. Reading paragraphs 23 to 28 of the report, learned senior counsel for petitioners contended that all previous Laws laid down by the Apex Court in this respect were duly considered and it was categorically held that ignorance or avoidance of the interim order of stay would not justify any action taken by the authorities. Thus, it is contended that not only the possession of the land was illegally taken, but before taking possession, even the requirement of law was not fulfilled as the notice under sub-
section (5) of Section 10 of the Act, was not served on the original holder.
16 : It is further contended by learned senior counsel for petitioners that in some what similar circumstances a coordinate Bench of this Court at Gwalior has already decided Writ Petition No.975/2000 (Chhiddi and another Vs. State of M.P. And others) in which it was categorically held that unless notice under Section 10(5) of the Act is properly served on the original holder of the land, the proceedings for taking possession of the land, said to be declared surplus could not have been initiated or completed. It is contended that the said order of this Court was challenged in the Apex Court by the respondent-State, but the Special Leave Petition has been dismissed. Thus, it is contended that in view of the facts which have come on record, it has to be held that the possession of the land was not lawfully taken and, as such, all 15 other proceedings initiated thereafter were bad in law. In fact, after coming into force of the Repeal Act of the Principal Act, the proceedings were to be treated as abated from the date of inception and the land of petitioners was to be returned to them.
17 : Shri R.D. Jain, learned Advocate General for the respondent-State, replying to such submissions of earned senior counsel for petitioners contended that certain facts are to be kept in mind before reaching to the conclusion whether the possession of the land was ever taken or not. It is contended that the mischief of the original holder is clear from the fact that despite the knowledge that the land was taken in possession by the State Government as back as in the year 1991, the earlier revision of the holder of the land as dismissed by the State Government saying that such a revision was not maintainable under Section 34 of the Act, yet another revision was filed on the basis of which certain facts were recorded. Taking this Court to the order dated 28.1.2000, it is contended that on an application submitted by the original holder, certain facts were recorded saying that the original holder was willing to leave 8 acres of land out of the land bearing Khasra Nos. 406 and 407/1 and for the rest of the land, he was insisting that the matter may be remitted back to the competent authority. This was done intentionally because by that time the Ordinance was already promulgated for the purposes of making of Repeal Act and this was well within the knowledge of the original holder of the land that in case any such matters remained pending, the repeal would be effective. Knowing fully well that the proceedings so far as the land of the original holder are concerned have completed, the attempt was made to show as if the entire proceedings were to lapse and fresh proceedings were to be started. Pointing out from the note sheets filed along with the return, learned Advocate General has contended that this particular aspect even if it was accepted by the Minister at the relevant time, would not have conferred any right on the petitioners to say that 16 proceedings were to be done in the manner as directed by the Minister of the Department after setting aside the order already passed, putting at knot the proceedings done with respect to the land of the original holder. It is contended that this itself is enough to demonstrate that neither the original holder of the land had ever come to the Court with clean hands nor the present petitioners have come with the clean hands before this Court claiming anything.
18 : Referring to the documents filed along with the return of respondent No.7, learned Advocate General contended that the proceedings were initiated in the year 1980 by submitting a return by the original holder of the land before the competent authority under the Act. An application for grant of exemption from the application Ceiling Act was moved under Section 20 of the Act by the original holder and the said application was considered by the State Government and the same was rejected. Thus, it was not that the original holder was not aware of the fact that the disputed land was not to be treated as use for agriculture purpose and, therefore, if at all, the original holder was aggrieved by such action/orders of the State authorities, it was not open to the original holder to challenge such orders before the competent authorities or in the Courts of Law. Nothing was done in this respect. Ultimately, the draft statements were prepared and the same were sent by registered post A.D. to the original holder. This fact is duly recorded in the note sheet. It was deemed that such a draft statement was served on the original holder on the address mentioned because on the next date of hearing of the matter before the competent authority one of the counsel engaged by the original holder appeared before the competent authority. Since thereafter the original holder had not filed any objection but was asking for grant of time for production of certain documents and objection, such an application was rejected. Against this order, the appeal was preferred by the original holder before the Additional Commissioner, Bhopal Division. Since there was no interim stay, the proceedings 17 before the competent authority remained continued and after passing an order under Section 10(1) of the Act, final statement was passed and was sent for publication in the Gazette. The land was said to be declared surplus and vested in the State Government and such a Notification was published on 7.12.1990. Thereafter, the case was fixed on 31.7.1991 when it was directed that the notice be issued to the original holder for delivery of possession of the land on or before 17.8.1991. The notice to this effect was sent for service and since before the Executing Officer the interim stay order passed by the Additional Commissioner was never brought to the notice, the possession of the land was already taken by the State Government.
19 : Learned Advocate General has specifically pointed out that on 26.8.1991 possession of the land in dispute was taken and a Panchnama was prepared on the spot itself mentioning every fact. It was categorically recorded that the holder was duly informed by notice, but since he was absent on the spot, the possession of the land was taken in presence of witnesses, who have also signed the said document which is available on record as Annx.R7/5. It is contended that thus the entire allegations are misconceived. Learned Advocate General has further contended that if no findings were available before the Civil Court where a suit was also filed by the original holder, the Civil Court would not have dismissed the application of the original holder for grant of temporary injunction, had it been proved before the said Court that the possession of the land was with the original holder. It is contended that since the State has categorically proved this fact that the possession of the land was already taken, such a fact was in fact admitted by the original holder of the land in the plaint and in the application submitted for grant of temporary injunction before the Civil Court that the original holder was not in possession of the land in dispute. Therefore, it is contended that such pleas of the petitioners cannot be accepted at this stage. It is further contended by learned Advocate General that the law is 18 well settled that in case the stay order is not communicated properly to the authority concerned, there would be no effect of such stay. Relying in the case of Mulraj (supra) and reading paragraph 8 of the report, learned Advocate General contended that the well settled principle of law is that stay orders become effective from the date it is brought to the notice of the executing authority. It is contended that till the order comes to the notice of the executing authority, the proceedings done by the executing authority are not effected by the stay orders. It is contended that the stay orders are nothing, but the prohibitory orders and they do not take away the jurisdiction of the authorities, therefore, unless the orders are brought to the notice of the executing authority, it cannot be said that keeping continuing the proceedings by the executing authority was illegal or unjustified. Drawing the attention of this Court to the order sheets and specifically contending that a manipulation was done in the document to the effect certain parts of the order sheets were not fully photocopied, it is contended that the stay order was brought to the notice of the Tahsildar, who was executing the order for taking possession of the land on 26.8.1991, whereas the stay order was brought to the notice of the said Tahsildar, only on 27.8.1991. Thus, it is contended that there was no folly on the part of the Executive Officer to take possession of the land.
20 : It is further contended by learned Advocate General that the conduct of the parties are required to be kept in the mind when a Court is deciding a dispute on the basis of principle of equity. It is contended by learned Advocate General forcefully that the conduct of the original holder was that he had sought a remedy of filing a Civil Suit against the action initiated against him in the year 2002. In the said proceedings, a decree of declaration and permanent injunction was claimed though in the plaint, it was said that the original holder was deprived of the possession may be because of certain illegal acts, but the fact was that he admitted that he was not in lawful possession of the land in dispute at that time. These 19 aspects were considered by the Court and the application for grant of temporary injunction was rejected. An unsuccessful Miscellaneous Appeal was filed against such order of rejection of application of temporary injunction and thereafter an application was made seeking permission to withdraw the suit. The suit was withdrawn with an opportunity to file a fresh suit, but instead of filing the suit, the writ petition was filed before this Court. Placing reliance in the case of Sarguja Transport Service V. State Transport Appellate Tribunal, gwalior and others (AIR 1987 SC 88), learned Advocate General has contended that the law is well settled by the Apex Court that since there was no permission granted to institute the petition, the fresh petition filed under Article 226 of the Constitution of India on the same subject, was not maintainable. Further, it is contended that after taking possession of the land and after its vesting in the State Government, the order of allotment of land was already issued. The first order was passed by the State Government allotting the land in favour of Kendriya Vidhyalaya Sangathan, New Delhi, Vide order dated 15.12.1995. The original holder thereafter made an application before the Minister of the Department of Revenue, Government of Madhya Pradesh, stating that his application for revision is pending before the authorities and during pendency of the said revision since the allotment has been done in favour of Kendriya Vidhyalaya Sangathan allotting 8 acres of land out of Khasra Nos. 406-407/1, the original holder will not make claim with respect to the aforesaid land. Thus, it is contended that part of the order is required to be set aside. Thus, it is contended that the land of the original holder which was already vested in the State Government, there was no question of passing any order in the revision of the original holder. Rather such a revision was not maintainable and was liable to be dismissed. It is, thus, vehemently contended that such a submission of the learned senior counsel for the petitioners are not to be accepted and the petition is liable to be dismissed.
2021 : Shri Ravish Agrawal, learned senior counsel appearing for the respondent No.7 has put much emphasis on the reliefs claimed, the grounds for grant of such reliefs in the writ petition and has categorically contended that in case such facts and the reliefs are put together, it will be clear that all submissions have been raised only on the basis of an interim order just to indicate that stay order was not to be violated and possession of the land was not required to be taken. It is contended that from the pleadings in paragraph 5.3 of the writ petition filed by the petitioners, it is clear that there was complete suppression of relevant facts. It is contended that if we accept the continuity of the proceedings, the appeal of the original holder was dismissed on 5.11.1992 and a revision was said to be filed under Section 34 of the Act against such an order. Since the revision lies against an order against which no appeal is preferred, in fact such a revision was not maintainable. It is contended that the basic ground on which the writ petition is said to be filed, is an order passed in exercise of revisional powers by the State Government wherein it is said that the proceedings initiated against the original holders have come to an end because of coming into force of the Repeal Act of the original Ceiling Act and the proceedings in that respect have been closed. It is contended that such an order would not give any benefit to the petitioners or even a cause of action for filing of the present writ petition. The order dated 8.1.2000 was nonest in the eye of law as neither any title was conferred over the land in dispute on the petitioners nor any proceedings were initiated on the basis of the said order. Placing great emphasis on the conduct of the original holder, it is vehemently contended that as soon as the Ordinance of Repeal Act was promulgated, the actions were initiated by the original holder of the land. In view of all this, it is vehemently contended that if the interim stay was never before the authorities and the possession of the disputed land was taken, the repeal would not come into play nor the petitioners would be benefited by such a repeal. Placing reliance in the case of Sulochana Chandrakant 21 Galande V. Pune Municipal Transport and others [(2010) 8 SCC 467], it is, vehemently, contended that even if such a revision is filed belatedly by the original holder, nothing was to be done in the said matter. If any order was passed in such a belated revision, no interference was called for by the said order or on the strength of the said order in any such proceedings. Thus, it is contended that the claim made in this respect is wholly misconceived. The possession of the land was rightly taken. The same has rightly been allotted to the respondent No.7 and, therefore, such a petition is liable to be dismissed.
22 : For the purposes of examining the rival submissions of the learned counsel for parties, it would be apposite to see the Scheme of the Act. Certain definitions are prescribed in Section 2 of the Act. Words 'Competent Authority' and 'Person' are duly defined in Section 2(d) and 2(i) which are reproduced hereunder :-
"2(d) 'Competent Authority' means any person or authority authorised by the State Government, by notification in the Official Gazette, to perform the functions of the competent authority under this Act for such area as may be specified in the notification and different persons or authorities may be authorised to perform different functions."
"2(i) 'Person' includes an individual, a family, a firm, a company or an association or body of individuals, whether incorporated or not."
23 : After submission of the objections etc., a draft statement is required to be prepared with respect to the vacant land held in excess of ceiling limit under Section 8 of the Act. It is the requirement of this Section that after preparation of the draft statement, the same be sent to the person concerned, who has filed the statement under Section 6 of the Act, by the competent authority. This was rightly done in the case in hand 22 as is proved sufficiently. The manner of service of notice of draft statement is prescribed in sub-section (3) of Section 8 of the Act. After hearing all objections, a final statement is required to be prepared under Section 9 of the Act and again the same is to be served in the manner indicated in sub- section (3) of Section 8 of the Act on the holder of the land. To this extent also, there may not be any difficulty in holding that proceedings were done by the competent authority in accordance to the Act. Now the serious things starts when the final statement is prepared and served because surplus land is to be acquired by the State Government under the provisions of Section 10 of the Act. For the purposes of proper appreciation of the action on the part of the respondents or better to say the competent authority, it would be apposite to reproduce the entire Section 10 of the Act which reads thus :-
"10. Acquisition of vacant land in excess of ceiling limit.- (1) As soon as may be after the service of the statement under section 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 and stating that -
(i) such vacant land is to be acquired by the concerned State Government; and
(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interest in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the 23 declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub- section (3),-
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess vacant land.
(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary. "
24 : Sub-section (1) of Section 10 of the Act requires that the notice is required to be published in the Official Gazette for the purposes of information to the general public with respect to the declaration of the land this was done. After the publication of the notification under sub-section (1) of Section 10 of the Act, as per the provisions of sub-section (3) of Section 10 of the Act, the competent authority is required to issue a notification again to be published in the Official Gazette to declare that excess vacant land referred to in the notification published under sub-section (1) of Section 10 of the Act shall with effect from such date as may be specified in the declaration be "deemed to have been acquired by the 24 State Government" and upon publication of such land shall be deemed "vested absolutely in the State Government free from all encumbrances with effect from the date so specified". There are prohibitory direction contained in sub- section (4) of Section 10 of the Act with respect to the use of land or any transfer of the land by any holder in respect of which a notification is already published under sub-section (1) of Section 10 of the Act. Sub-section (5) of Section 10 of the Act is most important and is the main concern of consideration for this particular point which is to be decided in this writ petition. It prescribes that where any vacant land is vested in the State Government, the competent authority may by notice in writing order any person who may be in possession of it, to surrender or deliver possession thereof, to the State Government, or to any person duly authorised by the Stte Government in this behalf, within thirty days of the service of notice, though it is not provided that notice in this respect is required to be issued in the same manner as is provided under sub-section (3) of Section 8 of the Act, but there is no other mode prescribed for service of notice. Earlier notice was sent to the original holder by the competent authority by registered post. This particular notice was said to be sent by a process server. Now the crucial point is whether this notice was ever served on the original holder or not. It is very categorically pointed out by the learned senior counsel for petitioners that the notice was though addressed to Shri Chandmal Daga, the original holder of the land, but as per the report mentioned in the notice itself, the same was not served on the said holder, on the other hand, it was delivered to his minor grand-son. Though the word 'person' as defined under Section 2(i) of the Act, included a family whether a minor grand-son is also to be treated as a member of the family for the said purposes of service of notice or not, is not clear from the definition. The general rule of service is that notice could be served on a member of the family, but the said member should be adult and not a minor. If a service of notice is made on the minor member of the family, it will be no service of notice in the eye 25 of law. Thus, from the documentary evidence available on record, at least this much is proved that the notice of delivery of possession sent to the original holder fixing a date by the competent authority, issued under sub-section (5) of Section 10 of the Act, was not duly served on the original holder. At least, in the eye of law service of such a notice on the minor grand-son of the original holder could not be said to be a valid service.
25 : That this is not only the issue whether the service was proper or improper. It is required to be seen whether any prejudice was caused to the original holder on account of non- service of the notice or not. It is the case of the original holder that he filed a revision against an order passed in the year 1987 before the competent authority on 16.6.1987 and the said appeal remained pending. Some application was moved on 19.8.1991 for grant of interim stay which was considered by the appellate authority on 20.8.1991. In the said application, the fact was intimated that proceedings have been initiated for taking possession of the land and the date is fixed for the said purpose on 26.8.1991. Exactly, this was the date fixed in the notice sent to the original holder by the competent authority and if such a notice was never brought to the notice of the original holder, he would not have mentioned the date in such a manner in his application. This makes it clear that the original holder of the land was aware of the proceedings initiated under sub-section (5) of Section 10 of the Act and was also aware of the fact that the possession of the land would be taken on 26.8.1991. The very purpose of notice as prescribed under sub-section (5) of Section 10 of the Act is to inform the person, the holder of the land, that either he has to deliver the possession of the land on his own or if he fails to do so, possession of the land would be taken by the authorities ex-parte. Thus, it is clear that no prejudice was caused to the original holder because of the service of the notice issued under sub-section (5) of Section 10 of the Act on his minor grand-son and, as such, if there was a lapse, only because of 26 that lapse, the entire action was not to be initiated at all. It cannot be said that original holder was not aware of the proceedings though he may not have been personally served with the notice issued by the authorities.
26 : Now the other aspect which is to be considered is whether the stay order dated 20.8.1991 was effectively brought to the notice of the authorities or not. It is clear from the documentary evidence that the stay order was communicated to the competent authority on 23.8.1991 and till that time, the possession of the land in dispute was not taken. The said authority directed the Tahsildar not to take possession of the land upto 26.10.1991. There is another endorsement in the application itself where it is said that the Tahsildar concerned be informed about such an interim stay. Now it is to be seen, who authorises the Tahsildar to take possession of the land. As is prescribed under sub-section (5) of Section 10 of the Act, either the competent authority or any authority duly authorised by the State Government may take possession of the surplus land which stood vested in the State Government under the Act, nothing has been placed on record by the respondents to indicate that Tahsildar was ever authorised by the State Government to take possession of such land which were declared surplus and were vested in the State Government by operation of the law under the provisions of the Act. It is an endorsement made by the competent authority in the notice issued under sub-section (5) of Section 10 of the Act by which the Tahsildar (Nazul) was directed to take possession of the surplus land belonging to the original holder of the land. Thus, it was the competent authority which has authorised the Tahsildar (Nazul) to take possession. No other finding can be given in this respect except the one aforesaid in absence of any notification placed on record by the respondent-State to indicate that the Tahsildar (Nazul) or any Tahsildar of the Government Department was authorised to take possession of the land by the State Government under the aforesaid provisions of Act. If the competent authority had 27 authorised the Tahsildar (Nazul) to take possession, once the competent authority is apprised of the fact that there is an interim stay, it was the responsibility on the part of the competent authority to inform the Tahsildar (Nazul) not to take possession of the land because of the interim stay. In fact, Tahsildar (Nazul) was acting on the directions of the competent authority and such direction was to carry out the orders of the competent authority, but by himself the Tahsildar (Nazul) was the competent executing authority. As per the Scheme of the Act, the executing authority is either the competent authority or any authority notified by the State Government. Again in absence of any notification, it was not necessary on the part of the original holder to serve the copy of interim stay on the Tahsildar (Nazul), rather it was the responsibility of the competent authority to inform Tahsildar (Nazul) not to carry out the orders of the competent authority because of the interim stay granted. The law as laid down by the Apex Court in the case of Mulraj (supra), it nowhere prescribes that communication of the order should not be on the competent authority. Rather, it says that the communication should be made to the Executing Court. The matter was somewhat different where it was being considered by the Apex Court whether an order passed under Order 41 Rule 5 of Code of Civil Procedure, if not communicated to the Executing Court which has passed the decree, could it be said that any action taken after passing of the interim order would be a nullity or not. Rather this would help the learned counsel for the petitioners inasmuch as it has been categorically said that if the information with respect to the stay order is brought to the notice of the authorities executing the order, the said authority is not required to take any action and if any actions are taken even after the notice of the interim stay, the same would be a nullity. As under the Act 'Competent Authority' is defined, but there is no definition of 'Executing Authority', all actions are to be taken only and only by the competent authority under sub-section (5) of Section 10 of the Act or by an authority duly authorised by the State Government by 28 issuance of notification. It is the case of the respondent- State that Tahsildar (Nazul) has been authorised to take possession of the surplus land in terms of the provisions of the Act. Even if there is an authorisation, the orders for taking possession of the land in dispute were issued only by the competent authority and the said authority was informed about the interim stay. The said authority was duty bound to immediately call on his sub-ordinate and inform that the possession of the land was not to be taken. If the competent authority fails to do this or that in abandoned caution the information was also given to the executing authority or the Tahsildar (Nazul) on a latter date, the proceedings of taking possession cannot be saved as during the currency of the order of interim stay all proceedings are to be treated as null and void. As has been held by the Apex Court such proceedings would be a nullity and nothing else.
(K.K.Trivedi) Judge /02/2012 29 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.
-Versus-
State of M.P. and others.
O R D E R ( .7.2011) Post it for /7/2011 (Krishna Kumar Trivedi) Judge /07/2011