Madhya Pradesh High Court
Hemraj Kachhi vs The State Of Madhya Pradesh on 30 April, 2015
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W.A. No.854 of 2014
Later on:
Shri R.P. Khare, Advocate for the appellant.
Shri Samdarshi Tiwari, Deputy Advocate General, for the
respondents/State.
Heard counsel for the parties.
This appeal was dismissed for non-prosecution in the earlier part of the day. However, learned counsel for the appellant mentioned the matter and pointed out that as he was busy in some other Court at the relevant time, he could not appear when the matter was called out.
For the reason offered across the bar, in the interest of justice, as the litigant should not suffer for the mistake of the Advocate and as the respondents have no objection for restoring the appeal to file to its original number,we recall the order passed in the morning session and restore the appeal.
The appeal is taken up for final hearing forthwith, with consent.
This appeal takes exception to the decision of the learned Single Judge dated 25.9.2014 in W.P. No.9581/2014. By that writ petition, the appellant had challenged the decision of the Additional Commissioner, Jabalpur Division, Jabalpur dated 26.2.2014, which in turn affirmed the decision of the Additional Collector dated 4.5.2011.
The Authorities, essentially, were of the view that the application preferred by the appellant - Annexure-P/1 was for mutating his name in the revenue records, which could be done only by the Tehsildar. Indeed, it is also noted by the first 2 Authority that it is not open to the appellant to claim relief as claimed in the application after 11 years from coming into force of 1999 repeal Act, which came into force from 17.2.2000. The opinion of the Authority, therefore, was that the application made by the appellant was beyond his jurisdiction.
This decision having been affirmed right upto the Additional Commissioner, Jabalpur Division, Jabalpur, the appellant approached this Court by way of Writ Petition. The learned Single Judge opined that it is too late in the day for the petitioner to claim that his title was restored over the land already declared surplus and possession thereof having been taken over by the State Government and recorded as owner of the land in question. Further, the illegal and unauthorized occupation cannot be considered as legal possession, but, trespass which does not create any right or title as claimed.
Having considered the rival submissions, we find force in the grievance of the appellant that the Authorities below and including the learned Single Judge has missed the main issue raised in the application - Annexure-P/1. The application was supported by affidavit of the appellant asserting that although the declaration was published in respect of the surplus land held by the appellant, the appellant lawfully continued to remain in possession of the said land and, therefore, by virtue of the provisions of the repeal Act of 1999, the title in that land, has been re-vested in the appellant and for which appropriate mutation entry must be recorded. According to the appellant, this legal position has also been expounded by the Apex Court in the case of State of U.P. vs. Hariram, 2013 (4) SCC 280.
3The core issue that was required to be answered by the Authority under the Land Ceiling Act pursuant to the application made by the appellant - Annexure-P/1, was whether after the publication of declaration of land held by the appellant as surplus, the possession was taken over from the appellant? If the answer was in the negative, it would mean that the appellant continued to remain in lawful possession of the said land inspite of the publication of declaration. Further question of fact that ought to be inquired by the Authorities under the Ceiling Act was whether the appellant continued to remain in possession of the land on the date on which the repeal Act came into force? If he had continued to do so, only then the benefit flowing from the provisions of the repeal Act would enure to the appellant and not otherwise. In other words, the question whether the appellant continued to be in lawful possession of the land irrespective of the publication of declaration under the Act of 1976 of the subject land being surplus, until the coming into force of the 1999 Repeal Act must be enquired into. For that the Authority must examine the relevant record and then record a clear finding on the merits of the application.
We are conscious of the fact that the Additional Collector has also noted that the application has been filed after expiry of 11 years. The fact that it is filed after 11 years, can be the basis to non-suit the appellant will depend on whether the repeal Act provides statutory period within which the application should be submitted. From the provisions of the repeal Act it appears that on coming into force of the repeal Act, if the person had continued to be in lawful possession of the surplus land until 4 that date, the title in respect of the said land would stand re- vested and the declaration about the surplus holding and the vesting of land continued u/s 10(3) cannot be taken forward having lapsed. These are the matters which the Authority ought to have examined keeping in mind the dictum of the Apex Court in State of U.P. vs. Hariram (supra) and in particular the provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 1999.
We, therefore, set aside the decision of the Additional Collector dated 4.5.2011 and also passed by the Additional Commissioner, Jabalpur Division, Jabalpur dt. 26.2.2014 and including the decision of the learned Single Judge dated 25.9.2014 in W.P. No.9581/2014 and instead partly allow the writ petition by relegating the appellant before the Additional Collector for reconsideration of his application - Annexurre-P/1 in accordance with law keeping in mind the observations made hitherto. The Authority must examine all aspects of the matter as may be necessary for answering the relief claimed in the subject application on merits as well as whether the claim of the appellant has become barred by any provision of law. In other words, the application - Annexure-P/1 made by the appellant should not be treated as simplicitor application for effecting mutation entry in the revenue record, as is the impression gathered from the impugned orders.
The appeal succeeds, on the above terms with no order as to costs.
(A. M. Khanwilkar) (K.K. Trivedi)
Chief Justice Judge
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