Madhya Pradesh High Court
The State Of Madhya Pradesh vs Shri Shankerji Maharaj Trust Jabalpur on 3 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 3rd OF MAY, 2024
REVIEW PETITION NO.898/2022
BETWEEN:-
1. STATE OF MADHYA PRADESH THROUGH PRINCIPAL
SECRETARY, REVENUE DEPARTMENT, VALLABH
BHAWAN, BHOPAL (M.P.)
2. COMPETENT AUTHORITY -CUM- ADDITIONAL
COLLECTOR, UNDER THE URBAN LAND CEILING ACT,
OFFICE OF THE COLLECTOR, JABALPUR (M.P.)
3. TEHSILDAR, OFFICE OF THE COLLECTOR, JABALPUR
(M.P.)
.....PETITIONERS
(BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)
AND
SHRI SHANKERJI MAHARAJ TRUST, JABALPUR, THROUGH
ITS SARWARAKAR, RAVINDRA KUMAR MISHRA, S/O LATE
SHRI H.P. MISHRA, AGED ABOUT 70 YEARS, R/O 127,
VEERSAVARKAR, WARD GULLAWA CHOWK, JABALPUR
.....RESPONDENT
(BY SHRI ABHIJEET AWASTHI - ADVOCATE)
................................................................................................................................................
Reserved on: 16.04.2024
Pronounced on: 03.05.2024
This petition having been heard and reserved for orders, coming on for
2
pronouncement this day, the Court pronounced the following:
ORDER
The matter was finally heard on 16.04.2024 and today the order is being pronounced.
2. Notably, there was delay in filing the review petition and the application for condonation of delay was allowed by this court on 07.02.2024 imposing cost of Rs.2000/- and then on 16.04.2024 this review petition was heard on merits.
3. By the instant review petition filed under Order XLVII Rule 1 of the Code of Civil Procedure, the petitioners are seeking recall of order dated 27.04.2021 passed in W.P.No.6986/2018 (Shri Shankerji Maharaj Trust v. The State of Madhya Pradesh and others).
4. To recapitulate laconically, this Court by the order under review considered the validity of the order dated 29.01.2018 passed by the competent authority-cum-Additional Collector under the Urban Land (Ceiling and Regulation) Act, 1976 (for brevity "Act, 1976") and finally the said order was set aside and also set aside the ceiling proceeding in respect of the land in question on the ground that there was no proper notices issued under Sections 10(5) and 10(6) of Act, 1976. It was also observed by this court that if any possession of the land said to have been taken in absence of said notices, such exercise of taking over the possession was illegal and under the provisions of Sections 3 and 4 of Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proceeding were declared abated.
5. Shri Dubey, learned counsel appearing for the review-petitioners sanguinely submitted that despite the order of the court, though the record of the ceiling proceeding was not produced before the court, but now they have filed certain documents showing that the notices under Section 19(5) and 10(6) were issued to the 3 writ-petitioners and possession was properly taken and as such the order passed by this court is liable to be recalled because it is based upon wrong facts and as such it tantamount to misconception of fact, which is abundantly sufficient for recalling the order. He drew the attention of this Court towards a document i.e. Annexure-RP/3, which is a possession letter dated 14.02.2000 showing that the possession was taken over. He further drew the attention of this Court towards a document i.e. Annexur- RP/2 saying that said notice under Section 10(5) was issued to the writ-petitioners. As per the said document, it is dated 13.08.1986 and counsel for the review-petitioners submitted that this notice has not been taken note of by the court and therefore in view of the said document, it is clear that very foundation of the order of the court was erroneous and under the wrong premise, the court has set aside the proceedings.
6. Combating the submissions urged on behalf of the review-petitioners, Shri Awasthi, learned counsel appearing for the respondent pointed out that the possession letter is dated 14.02.2000 whereas the Repeal Act came into force w.e.f. 18.03.1999, although the said Act has been implemented in the State of Madhya Pradesh w.e.f. 10.03.2000 and according to Shri Awasthi this possession letter does not contain any signature of the writ-petitioners and as per proceeding initiated in the possession case and the note-sheets produced by the review-petitioners, from the note sheet dated 26.07.1986 a notification under Section 10(3) got published in the State gazette on 14.03.1996 and that note-sheet reveals the Tahsildar Nazul has been directed to take possession of the land within a period of 30 days, but thereafter in none of the note-sheets it is shown that any notice was issued under Section 10(5) and nowhere it is shown that any notice was issued under Section 10(6) of Act, 1976. Albeit, while deciding the writ petition, this court had considered the facts of the case in detail and also considered that on 05.06.2003 Tahsildar in a possession case registered vide Case No.371/2002-03 directed Patwari to make spot inspection and 4 submit a report so as to ascertain the possession over the land. It is also considered by the court on 14.02.2007 that one-sided possession was taken over by the Tahsildar but that proceeding does not contain any signature of the land owner and even no panchnama was prepared to take signature of two independent witnesses. It is vividly laid down by the Supreme Court that when voluntary possession is not handed over then by issuing notice under Section 10(6), forceful possession can be taken. But, in the case at hand, no notice under Section 10(6) was served. Though review petitioners have filed a document showing notice under Section 10(5) but report does not contain whether it got served upon the land owner or not and admittedly this notice is of 1986. Surprisingly, the proceeding of taking over possession was not initiated upto 2002. Thus, it is clear that the documents which have been filed by the review-petitioners do not fulfill the requirement of law. This court has considered each and every aspect of the matter. In paragraph 21 of the order passed by this Court, the court has specifically considered that there was no notice under Section 10(5) and 10(6) of Act, 1976 ever served upon the land owner. Juxtaposing the stand taken by the writ-petitioner and the possession letter dated 14.02.2000 finding was given by this Court and as such I do not find any substance in the submissions made by the counsel for the review-petitioners and therefore review petition is accordingly dismissed.
7. Nevertheless, the Collector Jabalpur is directed to examine this aspect when notices under Sections 10(5) and 10(6) were not issued and served upon the land owner and possession shown to have been taken from the land owner one-sided whereas physical possession is still with the land owner, then the possession letter is itself illegal in the light of the law laid down by the Supreme Court in the case of State of U.P. v. Hariram (2013) 4 SCC 280. This court has also taken note of its earlier decisions in case of Dattatrey Rao Kale v. The State of Madhya Pradesh 5 and others rendered in W.P.No.1426/2011 and in case of Mangal Prasad Koshta & others v. State of M.P. & others rendered in W.P.No.18827/2010, wherein the manner in which voluntary possession is taken and also when the possession is taken forcefully, has been discussed. This Court has also taken note of the law laid down by the Division Bench in the case of State of Madhya Pradesh v. Anees Fatima rendered in W.A.No.1055/2017 and found that this is a case in which though on paper, possession has been shown to have been taken but not by following procedure prescribed under the law and as such the Supreme Court in the case of Hariram (supra) laid down that such proceeding is illegal and in view of the provisions of the Repeal Act, the same can be declared abated and as such this court allowed the writ petition. Ergo, the Collector shall examine this aspect in the light of law laid down by this Court relying upon various decisions of the Supreme Court and also Division Bench of this Court and then give effect to the order passed by this Court within a period of 30 days from today.
8. With the aforesaid direction, the review petition is dismissed.
(SANJAY DWIVEDI) JUDGE sudesh SUDESH KUMAR SHUKLA 2024.05.03 18:02:12 +05'30'