Madhya Pradesh High Court
Kasturibai And Anr. vs The State Of Madhya Pradesh And 2 Ors. on 18 March, 2015
W.P. No.3945/2010 1
IN THE HIGH COURT OF MADHYA PRADESH :
BENCH AT INDORE
S.B.:- Hon'ble Smt. Justice S.R. Waghmare
W.P. No.3945/2010
Sunil s/o. Prakash
vs.
State of MP and others
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Shri Prakash Verma, learned Counsel for the
petitioner.
Shri Sudhanshu Vyas, learned Counsel for the
respondents/State.
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ORDER
(Passed on 18/03/2015) By this petition under Article 226 of the Constitution of India, the petitioner is aggrieved by order dated passed by the respondent No.3 Upper Collector and Competent Authority, Nagar Bhumi Viniyaman (Annexure P/1) noticing the petitioner for handing over possession of the disputed land under the Urban Land Ceiling Act.
02. Briefly stated the petitioner is a citizen of Indore and resides at village Tejpur Gadbadi and is in possession of ancestral property bearing survey No.310 and half the land of the survey ad-measuring 0.509 hectare. That the said land was agricultural land and application was filed that the land be excluded under Section 20 of the Ceiling Act. The application is Annexure P/2. A case for urban land ceiling bearing No.384/A-90/C-
W.P. No.3945/2010 21/77-78 was pending before the respondent No.3 competent authority under the Urban Land Ceiling Act, 1976. It was also stated that all the family members were the equal share holders in the ancestral land and the respondent No.3 had erred in only excluding 0.150 hectare of the said land. However, Respondent No.3 declared 0.359 hectares as surplus and demanded filing of the draft statement under Section 8(1) of the Urban Land Ceiling Act, 16.02.1982 which is also filed as Annexure P/3. The draft statement was issued without notice. Similarly application under Section 20 of the Act was also pending consideration and hence the notice issued by the respondent No.3 impugned in this petition was without jurisdiction and contrary to the provisions of law. Thereafter, the respondents also included the land in the notification issued by the State Govt. and under Section 10(1) of the Act and a notice dated 14.02.1984 was issued and possession was taken over by the petitioner on 27.02.1984 by preparing panchnama. And whereas the disputed land was ancestral land in the possession of the petitioner the panchnama is Annexures P/5 & P/6 annexed with the petition. Thereafter in the revenue records the name of the government is entered and the entire action of the respondent No.3 is, therefore, vitiated and contrary to the provisions of law. Counsel submitted that opportunity of hearing was not granted to the petitioner besides an important fact which cannot be marginalised is that the petitioner is in possession even today and notice was W.P. No.3945/2010 3 received by the petitioner issued by the respondent No.3 on 29.01.2010 that the land be excluded from the provisions of Act of Urban Land Ceiling.
03. Counsel for the petitioner has vehemently urged the fact that Urban Land Ceiling Act was repealed on 17.02.2000 and it is wrongly stated by the respondents that the land in question has been declared surplus and possession thereof was taken on 27.02.1984. The notice was also issued to the petitioner according to the respondents vide Annexure P/1, however Counsel urged that it is incorrect since Annexure P/6 was just a mere paper formality and the possession of the petitioner's was actual and legal. Moreover Section 10(5) of the present Act requires that a notice to be given to the owner before taking possession of land and such a notice has not been issued and hence in this light also Annexure P/6; the notice in question is vitiated and contrary to the provisions of law.
04. Counsel placed reliance in the matter of Gaurav Agro Plast Ltd Vs. State and others in WP No.603/2000 and the Court had held as under:-
"No possession in fact also seems to have been taken on the spot and the punchnama (R/6) appears to be an empty formality. Curiously enough this document is not signed by any puch witness much less by any person in possession of the land, so as to entitle it to be called as W.P. No.3945/2010 4 punchnama......"
And the Court further held that:-
"Sequence of things leave no manner of doubt that this punchnama was a mere paper formality designed to frustrate the effect of Repeal Act...."
The judgment in the matter of Gaurav Agro Plast (supra) had attained finality since, the LPA filed by the State Govt. bearing No.179/2001 was dismissed.
05. Similarly relying on the decision of WP 887/98 Narayan Dharam Vs. State of MP and others, Counsel submitted that the Court held thus:
"17. So far as the punchnama is concerned, it appers that it was a paper possession because it was not in accordance with law. By one punchnama possession of two properties situated at two different places could not have been taken at a time. Apart from this no notice was given to the petitioner who was occupying the land at the relevant time.
18. No notice was given to the occupiers whose huts were found on spot. Apart from this no independent witness has signed the punchnama while the land was situated in thickly populated area as it was residential colony of the city."
06. Counsel also placed reliance on WP No.3241/2008 (Badrilal and others Vs. Commissioner, Indore Division, Indore and others) to bolster his submissions. Counsel submitted that in the present case also it is denied that kabza panchnama dated 27.02.1984 (Annexure P/6) was in accordance with the provisions of W.P. No.3945/2010 5 law; even khasra in column No.12 is considered the petitioner was in possession of the land in the year 1999. Counsel submitted that all the activity of the respondent Authorities has been behind the back of the petitioner and hence it ought to be set aside.
07. Counsel for the respondents per contra has vehemently opposed the contentions put forth by the Counsel for the petitioner and submitted that the claim of the petitioner was hopelessly time barred. The possession was already taken from the petitioner on 27.02.1984 and he had also filed proceedings under Section 20 of the Urban Land Ceiling Act vide Case No.384/A-90/C-1/77- 78 which were dismissed, and has now filed the petition after 26 years. Besides the petitioner had also suppressed the fact that the petitioner had filed an appeal against decision passed in the above mentioned ceiling case bearing No.225/84-85 and the same was also dismissed on 18.07.1985. A copy of the order was filed as Annexure R/1 and thereafter even today the petition has been filed after 26 years knowing well that the claim of the petitioner in appeal has been dismissed. The fact has been suppressed from this Court.
08. The respondents also placed reliance on Radha Kishan Vs. State of MP in WP No.1669/05 whereby the Court had categorically held that the kabza panchnama was dated 05.05.1998 and the petition was filed on 01.06.2005 after seven years and the Court had dismissed the petition on the ground of delay and latches. Similarly W.P. No.3945/2010 6 the writ appeal filed before the Division Bench placed by the petitioner in the matter of Radha Kishan (supra) had been dismissed by the Division Bench. Besides the appellate Court also held that the petitioner had appeared before the competent authority on 30.12.1996 and filed objections which were dismissed in the year 1997 and the notification was issued regarding the land use on 07.11.1997 under the provisions of sub-Section 3 of the Ceiling Act and in this sense also the present petition is time barred by 26 years and ought to be dismissed on this ground alone. Moreover the recovery panchnama dated 27.02.1984 (Annexure P/6) had been properly prepared; the possession of the disputed land was taken over on the same day in accordance with the provisions of law. Moreover the declaration under Section 8(1) filling by the petitioner themselves had attained finality vide Ex.P/3 & P/4 filed by them and it is the petitioner who had filed the claim under Section 20 of the Act before the competent authority. Besides under Section 10(1) a notification had been issued on 12.01.1982 and was properly published in all open places. The ceiling case under Section 20 filed by the petitioner was dismissed on 24.09.1983 and since the matter was published under Sections 10(1) & 10(3) of the Act, it had attained finality on notification in the gazette on 24.10.1983. The land has already vested in the government as per the notice dated 14.02.1984 whereby the land was declared surplus and the same was also published by a affixture. It is only because the petitioner W.P. No.3945/2010 7 has refused to handover the vacant possession of the land that the kabza panchnama dated 27.02.1984 (Annexure P/6) was prepared by the competent authority Assistant Land Measurement Officer, Additional Tehsildar Urban Land Ceiling and other employees were present on the spot along with the petitioner. The land has been recorded in the revenue records as government land. The khasra panchshala and the spot panchnama are filed as Annexures R/9 & R/10. Moreover the respondents Counsel also vehemently urged the fact that the land had already been declared surplus when the Ceiling Act was in existence and it was repealed only in the year 1999, whereas the kabza panchnama (Annexure P/6) is dated 27.02.1984 thereby clearly indicating that the savings clause could not held as applicable to the petitioner, since on the date of repeal the land was already declared to be government land. The very fact that the petitioner had filed the claim under Section 20 of the Act indicated that the petitioner had knowledge that the land was government land and both the claim as well as the appeal were dismissed by the Courts below. Similarly Annexure P/1 the impugned notice dated 29.01.2010 was issued by the Additional Collector and competent authority since the petitioner; as encroacher was selling the land to different persons and he had no right to do so. Besides Counsel for the respondent/State urged that this Annexure P/1 was a notice, it was not an order but only notice to show cause why government land was being alienated. Moreover W.P. No.3945/2010 8 Counsel urged the fact that after the publication in the official gazette the matter had attained finality and merely permissive holders and the kabza panchnama (Annexure P/6) would not help the petitioner. The claim was also hopelessly time barred. The petitioner has not come with the clean hands. The petitioner suppressed the fact that his appeal was dismissed by the competent authority and in this light also the petition deserves to be dismissed.
09. On considering the above submissions and the record, I find that the sole question that arises for consideration in the present case is whether by the kabza panchnama the possession was taken from the petitioner on 27.02.1984 (Annexure P/6) and whether the action of the competent authority under Section 10(1) and thereafter under Section 10(3) of the Ceiling Act were in accordance with the provisions of law. Hence it is essential to consider the validity of the kabza panchnama first. Considering the Annexure P/6 the kabza panchnama, I find that by the signatures of Sitaram, R.B. Manglia and Amritlal were present on the spot. Moreover since Kasturibai the petitioner was not present the kabza panchnama clearly mentions that the proceedings were being taken ex-parte and there was a crop of wheat standing on the spot and hence it was directed that proper proceedings be initiated. Considering the khasra panchnama it is for the year 1982-1983, 1983-1984, 1987-1988, 1988-1989 and thereafter 1992-1994 and 1996-1999. The khasra in column No.12 up to the year W.P. No.3945/2010 9 1988 indicated the possession of the petitioner and their family members and khasra panchshalas 1988-1992 indicated that the land was being taken over by the competent authority under the Urban Land Ceiling Act then the stand of the respondents government is demolished in this regard regarding the fact that of the disputed land the possession was taken from the petitioner in the year 1984 itself by the respondents/State. Considering the affidavit of the petitioner it supports the averments made in the petition and in the petition it has been stated that in para 5.8 that the possession was with the petitioners till date and they were tilling the land. Then in this light the notice under Sections 10(1) and 10(3) has to be considered.
10. Considering the impugned annexure P/1, I find that the notice indicates that since in the revenue records the possession was recorded in the name of the State Govt. the petitioners were required to show cause why they were alienating the said land and were also encroachers on the same. However, even this document of notice does not indicate that the possession was with the State Govt. and Annexure P/5 the letter of Authority by the Additional Tehsildar and Assistant survey Officer of Urban Land Ceiling has also been discarded by the petitioner as being mere a paper formality and hence Counsel has rightly urged that there is no compliance of provision under Section 10 (5) of the Urban Land Ceiling Act. If the objections under Section 10 of the Act were not W.P. No.3945/2010 10 decided in accordance with the provisions of law, then placing reliance on Narayan Dharam (supra) I find that so far as the panchnama is considered it was merely a paper possession and made only to with the purpose of completing the paper formalities. Even if the claim and appeal of the petitioner were dismissed by the competent authority mere declaration would not be sufficient according to Section 3 of the Repeal Act which reads thus:-
"3. Saving.-(1) The appeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under sub-section 91) of Section
20. (2) Where-
(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land then, such land shall not be restored W.P. No.3945/2010 11 unless the amount paid, if any, has been refunded to the State Government."
11. It is, therefore, held that the possession cannot be now taken from the petitioner since as already held above. Annexure P/6, the kabza panchnama dated 27.02.1984 does not appear in the order or in accordance with the provisions of law. Moreover taking over possession has remained a mere paper formality designed to frustrate the provision of the Repeal Act.
12. Thus the facts and circumstances of the case clearly reflect that the proceedings of taking over the possession of the disputed land have remained to be merely a paper transaction and the possession of the land in question has remained with the present petitioner all through out. Thus I find that the notice needs to be set aside. Consequently the notice dated 29/01/2010 (Annexure P/1) issued by the Additional Collector and Competent Authority, Urban Land Ceiling, Indore (MP) is hereby quashed.
With the aforesaid observations and directions, the petition is allowed only to the extent herein above indicated. No costs.
CC as per rules.
(Mrs. S.R. Waghmare) Judge soumya