Madhya Pradesh High Court
Kranti Kumar Jain vs The State Of Madhya Pradesh on 28 September, 2012
Author: U. C. Maheshwari
Bench: U. C. Maheshwari
W P 12207 of 2012
HIGH COURT OF MADHYA PRADESH PRINCIPAL BENCH AT JABALPUR
Writ Petition No. 12207 of 2012
Kranti Kumar Jain and another
Versus.
State of Madhya Pradesh & anr.
For the petitioners :- Shri Kishore Shrivastava, Sr. Adv assisted by
Shri Kunal Thakre, Adv.
For respondent-State :- Shri S.M. Lal, G.A.
ORDER
(28.09.2012) Per U. C. Maheshwari J.
1. The petitioners have filed this writ petition under Article 226 of the Constitution of India for the following reliefs:-
(i) This Hon'ble Court may kindly be pleased to issue appropriate writ to set aside the impugned order dated 23.04.2012 (Annexure P-24) and allow the application dated 06.03.2002 filed by the petitioner in its entirety.
(ii) Any other relief/order/direction as deem fit and proper in the present facts and circumstances of case may be issued.
(iii) Cost of the petition may also be granted.
2. The facts giving rise to this petition in short are that the petitioners stating themselves to be the owner of agricultural land in question bearing kh. no. 173/1/2, 173/1/2/3, 173/1/2/4, 174/2/2, 174/2/3 and 174/4 total area near about 6 acres situated in Patwari Halka No. 38 of Bairagarh Chichali, Bhopal has filed this petition contending that the same were purchased by them from its earlier Bhumiswamis namely W P 12207 of 2012 Abdul Ajeet, Abdul Mazeet and Abdul Rasheed through registered sale deeds dated 1.2.1982, (Ann. P-1, P-2 and P-3) respectively. Subsequent to purchase, their names were mutated in the revenue records as Bhumiswami. In this respect copy of Khasra and Bhu-adhikar Rin Pustika have also been Annexures as P-4 and P-5.
3. As per further averments since the aforesaid date of purchase the petitioners being in uninterrupted continuous possession of aforesaid land have been cultivating through canal water and as per policy decision of the State such land having area below 10 acres, they were exempted from payment of the land revenue, hence they were not required to pay the same. By placing some receipts of the payment of water tax of Canal Water from the year 1987, Annexure P-6, it is stated that in the year 1998-1999, on account of losses suffered by the Agriculturists, the State of M.P. exempted formers to pay the irrigation tax, therefore they did not pay but subsequently it was paid by them regularly. During this period on some occasion due to hail storm the crops of such area was heavily damaged, on which policy decision to grant compensation to the formers was taken by the State of Madhya Pradesh. Pursuant to it, the petitioners also approached the authority for grant of compensation, then came to know first time that the aforesaid land has been declared as Government Land under the provision of Urban Land (Ceiling & Regulation ) Act 1976, in short "The Act" and pursuant to it, the compensation was not granted to them.
4. On the aforesaid information, the petitioners obtained the copy of Khasra Panchshala, then they came to know that after declaring the aforesaid land to be surplus has been mutated in the name of W P 12207 of 2012 Government of M.P.
5. It is further stated that erst while owners of the aforesaid land filed their returns under Section 6 of the Act on 25.4.1992, (Ann. P-7). Pursuant to that in Ceiling Revenue Case No. 137/91-92 the report of Revenue Inspector was called by the competent authority. The same, (Ann. P-8) was placed on record. After holding the proceeding in such case, vide order dated 29.1.1994, (Ann. P-9) the competent authority declared 95.11 acres including the above mentioned disputed land to be surplus.
6. Pursuant to aforesaid order, (Ann. P-9) by virtue of Section 8 of the Act, vide order dated 29.1.1994, (Ann. P-10) the competent authority issued a draft statement of such land to the erst while Bhumiswami/owners, who sold the above mentioned land to the petitioners vide dated 1.2.1982, as stated above but no intimation in this regard was given to the petitioner.
7. In response of the aforesaid, draft statement the erst while Bhumiswami of the land did not file any objection because subsequent to aforesaid sale transaction, they did not have any interest in the land. Consequently by virtue of Section 9 of the Act, the final statement, (Ann. P-11) with respect of declared surplus land was issued by the competent authority on 16.1.1995.
8. Subsequent to aforesaid the proceedings under Section 10 (1) of the Act was initiated and its gazette notification, (Ann. P-12) was published on dated 5.5.1995, (Ann. P-12). In this regard official notification under Section 10 (3) of the Act, (Ann. P-13) was also issued on dated 10.11.1995. Thereafter the competent authority issued a notice dated 19.9.1996 under Section 10 (5) of the Act (Ann. P-14) to the erst while owners, including the persons who executed the sale deed in favour of W P 12207 of 2012 the petitioners, directing them to deliver the possession of above mentioned declared surplus land to the Tahsildar on 23.10.1996 at 11 o'clock with an intimation failing which possession would be taken exparte. As per averment of the petition the possession of the land was not taken on such date and once the possession was not taken on such date, then the Tahsildar could not have taken the possession of the disputed land. But in compliance of the aforesaid notice of the competent authority issued under Section 10 (5) of the Act the possession of above mentioned land including the disputed land by preparing the alleged Panchanama, (Ann. P-15) was taken over by the revenue authorities on 13.12.1999.
9. It is also stated that as per order sheets dated 29.1.1996 of the abovementioned Ceiling Case, the notices of Section 10 (5) of the Act were prepared, signed and issued to the Tahsildar and all concerned but infact the same were not issued to the petitioners. It is also stated that the order sheet dated 18.9.1996, (Ann. P-16) shows that the aforesaid earlier order has not been complied with and pursuant to this, it could not be said that the erst while owner surrendered the possession of the disputed land to the Tahsildar or written a letter dated 19.5.1996 to the Tahsildar for taking over the possession and accordingly possession of the land was not taken on the date and time so fixed in the notice issued under Section 10 (5) of the Act.
10.After taking the possession of the land in the aforesaid manner the name of the State Government was mutated as Bhumiswami in the record of Rights, (Ann. P-17).
11.On earlier occasion stating that the possession of the land was not taken W P 12207 of 2012 from the petitioners in accordance with the provisions in compliance of the directions of the authority, the petitioners approached this Court by way of a Writ Petition NO. 1188/2000 (Kranti Kumar and another Vs. State of M.P. and others) to quash the proceedings of taking over the possession of the land. On consideration such writ petition was disposed of vide order dated 28.1.2002, (Annexure P-18) with following direction:-
"9....................................In view of this, I am inclined to direct that the petitioner shall put fourth his grievance before the competent authority that the possession has not been taken over and, therefore, no further action can be taken as Section 4 clearly stipulates all proceedings except proceedings under Sections 11, 12, 13 and 14 would abate. In fact, in the case of N. Audikesaya Raddy (supra), it was clearly laid down that if the possession is not taken over the same cannot be taken over by the State Government. Keeping in view the factual scenario, it is directed that the competent authority shall afford an opportunity of hearing to the petitioner to put fourth his grievance that how the possession has not been taken over as per law and nothing subsists to be done in the proceeding. It will be open to the petitioner to raise all the contention from all fours relating to the factum of taking over of possession.
6. In my considered opinion the aforesaid observations and directions would apply in full force to the present case and accordingly, the writ petition stands disposed of in similar terms.
W P 12207 of 2012 However, there shall be no order as to costs."
12.In compliance of the aforesaid order of this Court, Annexure P-18 the petitioners filed an application, (Ann. P-19) dated 6.3.2002 before the respondent no. 2 competent authority and raised all their grievances. In response of such application some reports regarding possession of the land was called by the competent authority through Patwari. Pursuant to it, Patwari alongwith the Panchanama and statement of some villagers submitted his report, (Annexure P-20), according to which the land in dispute are in cultivation of the petitioners since last 15 to 16 years. Even after receiving such report, (Ann. P-20), the competent authority further directed the Tahsildar, Huzur, Bhopal to make spot inspection of the land in dispute and submit its report. In compliance of the same the Tahsildar accompanied with revenue Inspector and Halka Patwari after making spot inspection on 25.4.2008 submitted its report dated 2.6.08, (Ann. P-21) according to it, in such inspection sign of harvested wheat crop (Gehu Ke Danthal) were found on the dispute land. In such premises, it is also stated that according to aforesaid report, Ann. P-20 and Ann.-P-21, the possession of the disputed land was found with the petitioners and pursuant to such report through application dated 15.11.2007, (Ann. P-22) the petitioners, besides the grounds taken in initial application, (Annexure P-19) filed in compliance of the order of this court, (Annexure P-18) have taken some additional ground, subsequent to it the written argument dated 25.6.2010, (Ann. P-23) was also submitted on behalf of the petitioners before the respondent no. 2, competent authority.
13.After taking into consideration the aforesaid entire circumstances and the W P 12207 of 2012 documents, the competent authority vide impugned order dated 23.4.2012, (Ann. P-24) rejected the petitioners' application by holding that the possession of the surplus lands was already taken in compliance of the earlier order of the competent authority by the official of the Revenue Department on dated 13.12.199 by preparing a Panchanama, (Ann. P-15). Being aggrieved by such order the petitioners have come again to this court with this petition for issuing appropriate writ as mentioned in the beginning para of this order.
14.Shri Kishore Shrivastava, learned Sr. Adv assisted by Shri Kunal Thakre, learned counsel for the petitioners after taking me through the averments of the petition as well as papers annexed with the petition by referring paragraph 6 of the impugned order, (Ann. P-24) said that while giving such finding the objection raised by the petitioners that possession of the lands was not taken over by the official of the respondents in compliance of the order in accordance with the provisions of Section 10 (3) and 10 (5) of the Act was not considered with proper approach. Infact while considering the validity of Panchanama, dated 13.12.1999, (Ann. P-15) the aforesaid report of the Patwari, (Ann. P-20), so also report of the Tahsildar, (Ann. P-21) ought to have been taken into consideration with proper approach, but by ignoring the same only by placing reliance on above mentioned Panchanama dated 13.12.1999, (Ann. P-15), it was wrongly held that the possession of the land was taken over by the authority on 13.12.1999. Such approach being contrary to the record is not sustainable. He further argued that erstwhile owners/ Bhumiswamis of the land after selling the land to the petitioners, vide registered sale deed dated 1.2.1982, (Annexures P-1, W P 12207 of 2012 P-2 and P-3) were not interested to defend any litigation of such land including the impugned litigation of Cealing Act. So they did not contest or defend the matter in accordance with the procedure prescribed under the law. He further argued that after purchasing the land by the petitioners the same was mutated in their name and since the date of purchase, i.e. 1.2.1982, the same was remained in their cultivation, which is evident from Annexure P-4, khasra of 1991 - 92 in which their crop of wheat, Gram and Soyabean is stated. Inspite such available information the respondent no. 2, the competent authority did not intimate to the petitioners about Cealing Proceeding and in such premises, the opportunity of hearing or to submit their return/objection was also not extended to them and only after holding the proceedings in the name of erst while Bhumiswamis, who had already sold the same to the petitioners, the Cealing Proceeding was decided. By referring the order sheets of the Cealing Case dated 20.1.1996, 18.9.1996, the part of Annexure P-16, said that in compliance of such proceeding when the possession was not taken on the date so fixed then without any fresh intimation or issuing any fresh notice, the possession of the land could not have been taken by the officials on dated 13.12.1999. So in such premises, also the alleged Panchanama, Annexure P-15 could not be deemed to be a valid Panchanama. Pursuant to that, it could not be deemed that the possession of the land was taken by the authority in accordance with law and in compliance of the order of competent authority. He also demonstrated the case by referring Section 10 (3), 10 (5)and 10 (6) of the Act and said that for taking over the possession of the surplus land the competent authority did not have any power to sub W P 12207 of 2012 delegate the authority to any other officer or officials. With these submissions he prayed for admission and allowing this petition. He also placed his reliance on some decided cases of this court in the matter, of Ram Narain and others vs. State of M.P. and another and in the matter of Chiddi and another vs. State of M.P. and others reported in 2005(4) M.P. L.J. Short Note 10 and 14 respectively.
15.Having heard the learned Senior Counsel at length, keeping in view their arguments advanced, I have carefully gone through the averments of the petition as well as papers annexed with the petition, so also the aforesaid case laws cited by the senior counsel.
16.As the impugned order has been passed by the respondent no. 2- competent authority after taking into consideration the above mentioned factual and technical circumstances by placing reliance on some decisions of the Apex Court as well as of this Court therefore, before proceeding further to consider the arguments advanced by the counsel on admission as ready reference, I would like to reproduce the concerning extracts of the cited cases mentioned in the impugned order for dismissing the application of the petitioners.
17. In the matter of Larsen & Toubro Ltd. Vs. State of Gujraj and others reported in (1998) 4 SCC 387 the Apex Court has held as under:-
"10. ....................................................... It is not enough to allege that a particular rule or any provision has not been complied with. It is a requirement of good pleading to give details, i.e., particulars as to why it is alleged that there is non-compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particular. No issue can be W P 12207 of 2012 raised on a plea the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action when the court finds that a plea has been advanced without any substance, though ordinarily the department may have to place its full cards before the court. In the present case, however, we find that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no challenge to Rule 3 and the averments regarding non-compliance with Rule 4 were sketchy and without any particulars whatsoever. The High Court was, therefore, not right in quashing the acquisition proceedings in SCA No. 1568 of 1987."
18. The Apex Court in the matter of Balmokand Khatri Educational And Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212, has held as under:-
4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.
5. Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would W P 12207 of 2012 have acquired some other land leaving the acquired land for the appellant. In the counter-
affidavit filed in the High Court, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land.
Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed.
19.In the matter of Gokul Prasad Vs. State of M.P. and others reported in 2003, Vol. 2, M.P.L.J. page 270 this Court has held as under:-
"It is clear from the reading of Section 3 contains savings clause the repeal of the principal Act shall not affect the vesting of any vacant land under sub- section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority and where 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 authorized by the State Government in this behalf and if amount has been paid by the State Government with respect to such land, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government. In this case this is not a case of the petitioner that the amount has been refunded to the State Government and even otherwise once the possession of the State is reflected in revenue papers presumption enumerates in favour of the State, it has been taken and vesting as per averment made by the petitioner in the petition has already taken place. Petitioner has not averred that he has applied for restoration on payment of the amount received by him nor it is the pleading that compensation has not been been disbursed. Petitioner has relied on a decision in Smt. Saroj Khare Vs. State of M. P. of this Court passed in W. P. No.6261/2001 dated 28.1.2002. in that case it is clear that the case was pending as mentioned in para 2 of W P 12207 of 2012 the order. In the instant case no proceeding is pending. The order was passed in the year 1988 and it is not the averment that any proceeding is pending at present, only those proceedings abate by virtue of section 4 which are pending as on the date on which Repeal Act came into force. On the conjoint reading of section ¾ it is clear that as no proceeding is pending, it cannot be said that the order P-1 passed in the year 1988 abates."
20.In view of the aforesaid dictum of the Apex Court and the earlier decision of this Court on examining the case at hand, it is undisputed fact on record that the petitioners had purchased the land from the erst while recorded Bhumiswamis and owners on 1.2.1982 through registered sale deeds, (Ann. P-1 to P-3), subsequent to the appointed date 9.9.1976 notified for the State of M.P. under the provision of the Act, therefore, in the light of the date of the alleged sale transaction the competent authority was neither bound to take the notice of such subsequent transactions nor bound to issue any notice to the petitioners with respect of the impugned proceeding of the Cealing Act.
21.It is undisputed fact on record as pleaded in the petition that even subsequent to the execution of the aforesaid sale deed only the sellers and erst while recorded Bhumiswamis on the basis of the appointed date had filed their return as per requirement of Section 6 of the Act, (Ann. P-7) and on the basis of such return in accordance with the procedure prescribed the proceeding was drawn up by the competent authority and the land including the disputed land was declared to be surplus land, vide order dated 29.1.1994, (Ann. P-9). Pursuant to it, the draft statement was also issued on 29.1.1994, (Ann. P-10) and in continuation of it by following the procedure of Section 9 of the Act, the final statement (Ann. P-11) was issued on 16.1.1995 and the same was published under W P 12207 of 2012 Section 10 (1) of the Act in the official gazette on 5.5.1995, (Ann. P-15) and in this regard the requisite notification under Section 10 (3) of the Act, (Ann. P-13) was also issued on 10.11.1995 and pursuant to that the notice under Section 10 (5) of the Act to deliver the possession of the land was issued on 9.9.1996, (Ann. P-14). In continuation of it, in accordance with the procedure prescribed under the law by preparing the Panchanama, (Ann. P-15) by Revenue Officials in presence of the other persons, the possession of the surplus land including the disputed land was taken on 13.12.1999 and it is apparent fact from the averments of the entire petition and papers placed on record that till taking over the possession by the official in compliance of the order of the respondent no. 2 the competent authority, the erst while Bhumiswamis or any of the present petitioners did not take any objection with respect of any of the aforesaid order or against the notice issued for taking over the possession of the land. As such impugned proceedings were started by the petitioners only after taking over the possession by the respondents authority, vide Panchanama, dated 13.12.1999, Ann. P-14. As such after coming into force the Urban and Land (Ceiling & Regulation) Repeal Act 1999, (in short "The Repeal Act") petitioners have tried and are trying to take over the possession of the land again, which has already been vested in the State. The petitioners' counsel after demonstrating the various interpretations of Section 10 (5) and 10 (3) of the Act also by referring Sub Section (6) of Section 10 tried to convince me to admit this petition on the ground that the aforesaid Panchanama, dated 13.13.1999, (Ann. P-15) being prima facie contrary to law and procedures is neither admissible nor reliable as such the same is ab initio W P 12207 of 2012 void. But in view of the principles laid down by the Apex Court as well as by this Court in the above mentioned cited cases such arguments of the counsel have not appealed me.
22.According to the above mentioned Supreme Court's decisions which is the law of land, if the possession of the land had taken over by the authority of respondent no. 2, competent authority through revenue official by preparing a Panchanama, (Ann. P-15), then such Panchanama itself is sufficient to draw an inference that the possession of the land was taken over on 13.3.199, i.e. prior to coming into force the Repeal Act and in such premises, the subsequent reports of Patwari and Tahsildar, (Anns. P-20 & P-21) and their annexed papers including the annexed statement of villagers and Panchanama could not be deemed to be the valid document to hold the possession of the petitioners or of their predecessors from whom they had purchased the land. As such after taking the possession of the land on 13.3.1999 through Panchanama, there was no occasion to hold the legal possession of the petitioners. In such premises, the respondent no. 2 has not committed error in discarding the Annexures P-20 and P-21 with a direction to take appropriate action against the concerning officials who tried to facilitated the petitioners to show their possession over the land contrary to the aforesaid Panchnama (Annexure-P-15).
23. My aforesaid approach, besides the case laws cited in earlier paragraphs is also fortified by other following decisions of the Apex Court. ,
24.In the matter of Natwarbhai Magainbhai Patel v. Collector, reported in (1996) 5 SCC 498 in which the Bench of the Apex Court presided over by the three Hon'ble Judges, has held as under:-
W P 12207 of 2012
2. Counsel for the petitioner admits that a notification under Section 10(5) of the Urban Ceiling Act was published pursuant to which the excess vacant land was surrendered and taken possession of by the Government.
Consequently, the land stands vested in the State free from all the encumbrances. In what manner the lands require to be utilised has been regulated under the provisions of the Act. It is not a condition, under the Act, that payment of compensation be made before utilisation of the land of which the petitioner was an erstwhile owner. Under these circumstances, we do not find any illegality in the order passed by the High Court in Special Civil Appeal No. 4093 of 1993 on 15-5-1995.
25.Such question is also answered by the Apex Court in the matter of Ritesh Tewari v. State of Uttar Pradesh, reported in (2010) 10 SCC 677, at page 679 in which it was held as under:-
4. The original tenure-holders did not challenge the said assessment orders in appeal or writ jurisdiction, thus they attained finality. It is stated that the said tenure-holders transferred the major part of land so declared as surplus with them on 20-4-1982 in favour of Mayur Sahkari Awas Samiti. The authorities under the 1976 Act proceeded against those tenure-holders under Section 10(3) publishing a Notification dated 6-7-1993 which effectuated the deemed vesting of such land in the State. Notices under Section 10(5) were issued on 31-3-1993, 13-9-1993 and 18-2-1994, directing the said tenure-holders to hand over the possession to the statutory authority, however, there is nothing on record to show that actual physical possession was taken by the statutory authorities in exercise of their power under Section 10(6) of the 1976 Act.
17. The ex parte orders of assessment of surplus land against the original tenure-holders have been placed on record. Admittedly, the said assessment orders had not been challenged by them and W P 12207 of 2012 attained finality. In view of the provisions of Sections 5 and 10 of the 1976 Act, transfer of such land by them in favour of anyone was not only prohibited but null and void.
18. Section 5(1) of the 1976 Act provided that transfer of vacant land in excess of the ceiling limit at any time during the period commencing on the appointed day and ending with the commencement of this Act, by way of sale, mortgage, gift, lease or otherwise, the extent of the land so transferred shall also be taken into account in calculating the extent of vacant land held by such person.
19. Section 5(3) provided that transfer of vacant land or part thereof effected by a recorded tenure-
holder having land in excess of the ceiling limit subsequent to the commencement of the 1976 Act by way of sale, mortgage or lease until he had furnished a statement under Section 6, and a notification under Section 10(1) has been published would be deemed to be null and void.
20. Section 10(4) of the 1976 Act reads as follows:
"10. Acquisition of vacant land in excess of ceiling limit.-- * * * (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."
26. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in the writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in case of a grave miscarriage of justice or where there has W P 12207 of 2012 been a flagrant violation of law. The writ court has not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the court. However, being that the power is discretionary, the court has to balance competing interests, keeping in mind that the interests of justice and public interest coalesce generally. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. The petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner. (Vide Champalal Binani v. CIT10; Chimajirao Kanhojirao Shirke v. Oriental Fire and General Insurance Co. Ltd.11; LIC v. Asha Goel12; Haryana Financial Corpn. v. Jagdamba Oil Mills13; Chandra Singh v. State of Rajasthan14 and Punjab Roadways v. Punja Sahib Bus and Transport Co.15)
27. Where a party's claim is not founded on valid grounds, the party cannot claim equity. A party that claims equity must come before the court with clean hands as equities have to be properly worked out between parties to ensure that no one is allowed to have their pound of flesh vis-à-vis the others unjustly. (Vide Sikkim Subba Associates v. State of Sikkim16.)
29. In M.P. Mittal v. State of Haryana18 this Court held: (SCC p. 374, para 5) "5. ... it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain."
30. This Court in State of Maharashtra v. Prabhu19 considered the scope of equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows: (SCC p. 486, para 5) W P 12207 of 2012 "5. ... It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."
33. In C. Albert Morris v. K. Chandrasekaran23 this Court held that a right in law exists only and only when it has a lawful origin.
35. In the instant case, as we have observed that the alleged sale deed dated 20-4-1982 in favour of Mayur Sahkari Awas Samiti has been a void transaction, all subsequent transactions have merely to be ignored.
26.Further Such question was resolved by the Apex Court in the matter of Omprakash Verma v. State of Andhra Pradesh, reported in (2010) 13 SCC 158 :- in which it was held as under:-
85. As pointed out earlier, the expression "civil appeals are allowed" carry only one meaning i.e. the judgment of the High Court is set aside and the writ petitions are dismissed. Moreover, the determination of surplus land based on the declaration of owners has become final long back.
The notifications issued under Section 10 of the Act and the panchnama taking possession are also final. On behalf of the State, it was asserted that the possession of surplus land was taken on 20-7-1993 and the panchnama was executed showing that the possession has been taken. It is signed by the witnesses. We have perused the details which are available in the paper book. It is settled law that where possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama. [Vide Sita Ram Bhandar Society v. Govt. (NCT of Delhi)45.]
86. It is not in dispute that the panchnama has not been questioned in any proceedings by any of the appellants. Though it is stated that Chanakyapuri Cooperative Society was in possession at one stage and Shri Venkateshawar Enterprises was given possession by the owners and possession was also given to Golden Hill W P 12207 of 2012 Construction Corporation and thereafter it was given to the purchasers, the fact remains that the owners are not in possession. In view of the same, the finding of the High Court that the possession was taken by the State legally and validly through a panchnama is absolutely correct and deserves to be upheld.
27.Such question is further decided by the Apex Court in the matter of Sulochana Chandrakant Galande v. Pune Municipal Transport, reported in (2010) 8 SCC 467 : - in the following manner:-
36. Undoubtedly, the 1976 Act, stood repealed by the 1999 Act. However, it has no bearing on this case for the reason that proceeding pending in any court relating to the 1976 Act, stood abated, provided the possession of the land had not been taken from the owner. Therefore, in a case, where the possession has been taken, the repeal of the Act would not confer any benefit on the owner of the land. (Vide Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P.37, Ghasitey Lal Sahu v. Competent Authority38 and Mukarram Ali Khan v. State of U.P.39)
38. Therefore, the law, as it exists today, is that the land in dispute could be subjected to the provisions of the 1976 Act, with effect from 17-5-1976 i.e. the date on which the suit land came within the limits of the Municipal Corporation. The Act stood repealed in 1999, but the proceedings pending in any court would stand abated provided the tenure-holder was in possession of the land on the date of the commencement of the 1999 Act. The High Court has taken note of the fact that the appellant's revision had been entertained only on the basis of the judgment of this Court in Atia Mohammadi Begum1, which stood overruled by the subsequent judgment in N. Audikesava Reddy2.
39. The aforesaid factual position makes it clear that the appellant is not entitled to any relief whatsoever as per the law, as it exists today. The land once vested in the State cannot W P 12207 of 2012 be divested. Once the land is vested in the State it has a right to change the user. The appellant cannot be heard raising grievance on either of these issues.
28. In view of the aforesaid discussion of the Apex Court's the case laws of this Court in the matter of Ram Narain and others vs. State of M.P. and another and of Chhidi and another vs. State of M.P. and another reported in 2005 MPLJ (4) Short Notes 10 and 14 respectively cited by the petitioner's counsel are not helping to the petitioner.
29.In view of the aforesaid proposition of law in the available factual matrix of the case at hand, I have not found any infirmity, illegality, perversity, illegality of anything against the propriety of law in the order impugned, Annexure P-24, requiring any consideration or interference under Article 227 of the Constitution of India even for admission of this petition. This petition being filed against the order Annexure P-24 of the respondent no. 2, competent authority/Collector, so it could not be deemed to be a petition under Article 226 of the Constitution of India but for the sake of arguments if the same is examined, keeping in view such Article 226 also even, then I have not found any material circumstances requiring any interference under extra ordinary jurisdiction of this Court enumerated under Article 226 of the Constitution of India. Consequently this petition being devoid of any merits deserves to be and is hereby dismissed at the initial stage of motion hearing.
(U. C. Maheshwari) Judge bks W P 12207 of 2012 HIGH COURT OF MADHYA PRADESH PRINCIPAL BENCH AT JABALPUR Writ Petition No. 12207 of 2012 Kranti Kumar Jain and another Versus.
State of Madhya Pradesh & anr.
For the petitioners :- Shri Kishore Shrivastava, Sr. Adv assisted by Shri Kunal Thakre, Adv.
For respondent-State :- Shri S.M. Lal, G.A. ORDER Post it for 28/09/2012.
(U. C. Maheshwari) Judge