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2002 DIGILAW 469 (MP)

Ramprasad v. State Of M. P.

2002-04-30

ARUN MISHRA

body2002
ORDER : In this writ petition petitioners challenge the order Annexure P-9 by the competent authority, Urban Land (Ceiling and Regulation) affirmed in appeal by the Additional Commissioner on 3-7-1987 as per order Annex. P-11 as also consequent order Annexure P-12. Further prayer has been made to restore the lands taken in possession by the Tahsildar as per Annexure P-12 A. 2. The facts relevant for decision of this petition are that the petitioners claim to be an agriculturist resident of village Kathonda, Tahsil and Distt. Jabalpur. Ramprasad, deceased petitioner No. 1 was eldest male member of the family as Karta, while Manohar and Vishnu petitioners 2 and 3 claim to be co-parceners. Subhadrabai, Mayabai and Samudribai have been brought on record on death of petitioner 1 Ramprasad during the pendency of the petition. 3. This fact has not been disputed that the land in question falls within the 'urban agglomeration' as defined under section 2(n) of the Urban Land (Ceiling and Regulation) Act, 1976. A notice dated 17-8-1979 (Annexure P-1) was issued under Section 6(2) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act). In the notice it is stated that on preliminary enquiry competent authority was satisfied that Ramprasad holds vacant land in excess of the ceiling limit but has not filed the return. He was called upon to file the return within 15 days. Notice mentioned 3 khasra Nos. i.e. 32, 129 and 166, total area 1.776 hectares. Deceased Ramprasad filed the return (Annexure P-2) in pursuant to the notice Annexure P-1. In the return 4 khasra numbers were mentioned. Ramprasad claimed 3/8 share in Khasra Nos. 32, 129 and 166 situate in village Kathonda and 3/4 share in Khasra No. 502. A report Annexure P-3 dated 26-11-1980 was obtained from Revenue Inspector. Revenue Inspector mentioned that the family of Ramprasad consists of Ramprasad himself, his wife Subhadrabai, major son Manohar and a minor son Vishnu. A notice was issued to Manohar under Section 6(2) for filing his return in revenue case No. 626-A-90 B-9 of 1979-80 but he failed to comply with the same. It was further mentioned in the report of the revenue inspector that in the master plan village Kathonda is reserved for residential accommodation, agricultural and public service purpose (PSP). Petitioners submit that in the revenue papers Kh. Nos. It was further mentioned in the report of the revenue inspector that in the master plan village Kathonda is reserved for residential accommodation, agricultural and public service purpose (PSP). Petitioners submit that in the revenue papers Kh. Nos. 32, 129, 166 were used for the purpose of agriculture. The petitioner further avers that on 29-1-1983 Annexure P-5 was prepared wherein the lands at village Gurgawan was recorded as agricultural land as such beyond purview of the Act while in relation to lands at village Kathonda, the entitlement of petitioner 1 Ramprasad was worked out under Section 4(1) (c) of the Act and two units entitling him to hold 3000 sq. metres land and deducting this from the area held by Ramprasad it was proposed that an area of 56448.17 sq. metres be declared as held in excess and an appropriate draft statement under Section 8(1) be issued. Petitioner submits that while preparing the precis the competent authority directed to prepare a draft statement. The competent authority considered the land held by family. The total area considered was 6.718 hectares of Khasra Nos. 16, 42, 93/1, 89/1, 93/2 and 76. It was also observed that Ramprasad hold at village Kathonda 2 houses, the constructed area of which is 2670 sq. feet and its courtyard consists of 1985 sq. feet. It was further observed by the competent authority that the land at village Kathonda has been shown and proposed as residential, agricultural and P.S.P. while the land at Gurgawan was left out in the master plan. Ramprasad was entitled to hold the land at two units i.e. 3000 sq. metres and deducting this 3000 sq. metres, the remaining land was declared surplus. Draft statement was prepared and signed on 18-10-1983 and was served on petitioner No. 1 on 24-10-1983 as per annexures P-7 and P-7 A. Objection Annexure P-8 was filed on 29-11-1983 by Ramprasad. It was objected that the land has been shown for agricultural use in the master plan and are beyond the purview of the vacant land as defined under Section 2(q) of the Act. It was also pointed out that the land was held by joint hindu family consisting of Ramprasad, his wife Subhadrabai, Manohar and Vishnu. The objections were rejected as per P-9 on 13-12-1983 by the competent authority as barred by time being after 30 days. 4. It was also pointed out that the land was held by joint hindu family consisting of Ramprasad, his wife Subhadrabai, Manohar and Vishnu. The objections were rejected as per P-9 on 13-12-1983 by the competent authority as barred by time being after 30 days. 4. An appeal was filed before the Additional Commissioner under Section 33 of the Act which was dismissed on 3-7-1987 as per Annexure P-11. Thereafter a finals statement under Section 9 was prepared and competent authority directed Tahsildar to take possession of the surplus land. An amendment was incorporated that notice under Section 6 was issued only in respect of only 3 khasra numbers i.e. 32,129 and 166. The proceedings were dropped against Manohar in Revenue Case No. 626. The land recorded in his name has been illegally computed as held by petitioner 1. Manohar was denied of an opportunity of hearing. It is alleged that Rule 5 of the Urban Land (Ceiling and Regulation) Rules, 1976 provide the mode of service of draft statement by registered post addressed to the person concerned. Rule 2(ii) further provides for a service of draft statement upon all persons having any claim, interest, ownership or possession over the lands. The draft statement has neither been served on Manohar and Vishnu nor by registered post to Ramprasad. The rejection of objection as time barred is contrary to law. 5. In the return filed by the respondents it is contended that petitioner No. 1 was karta of the family and petitioners 2 and 3 were minors. As such petitioner, his wife and minor sons constituted a family. They were thus entitled to one unit of 1500 sq. metres only. The land in excess fall in urban agglomeration. On inspection of various reports it was found that the various lands held by the family were recorded as residential, agricultural and P.S.P. A draft statement was accordingly prepared and duly served on the petitioner 1. No objection was filed within time. As such final statement was issued and the possession of the surplus land was taken. No interference is called for in the matter. 6. Shri Ravish Agarwal senior counsel for the petitioners submits that in the master plan as per P-14 and P-14 A the area in question i.e. Khasra Nos. 32, 42, 89/1, 129, 166, 93/1, 93/2 were mentioned for the purpose of agriculture. No interference is called for in the matter. 6. Shri Ravish Agarwal senior counsel for the petitioners submits that in the master plan as per P-14 and P-14 A the area in question i.e. Khasra Nos. 32, 42, 89/1, 129, 166, 93/1, 93/2 were mentioned for the purpose of agriculture. He further submits that only a fraction of Khasra Nos. 93/1, 93/2 were shown for roads and mainly for agriculture purposes. The document Annex. P/14 and P/14 A issued by the Joint Director of Town and Country Planning also show that major part of land was reserved for agriculture purpose. He further submits that draft statement was not served on the petitioner as required by the Rules. Notice was required to be served by registered post only as held in Gajraj Singh vs. State of M. P.; 1995 MPLJ 646 . There was no proper service of the draft statement and objections were illegally discarded. The order declaring the land as surplus is bad in law. It has been further contended that Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act is applicable in the case. Thus the proceedings cannot be further continued for determination of surplus land. No draft statement can now be served on the holders. 7. Shri V. Awasthy, G.A. submits that the land was rightly declared as surplus. His submission is that when the land was reserved for 3 purposes i.e. for residential, agriculture and P.S.P., it cannot be said only for agriculture purpose. Notice was served on Manohar son of Ramprasad. Service of notice cannot be said to be illegal. Objection if any was to be filed within 30 days. He further submits that since the possession was taken long back in the year 1991 nothing further survives in the matter and proceedings cannot be assailed by the petitioners. 8. The first question for consideration is whether the land which was used for agriculture and in master plan also which was reserved for agriculture could be treated as urban land under Section 2(o) of the Act. S. No. 32,42,129,166,93/1 and 93/2 have been shown reserved for agriculture in P-14 A. Khasra shows the land was used for the purpose of agriculture; certificate P-14 shows inter alia S. No. 89/1 also for agriculture and S. No. 93/1 and 93/2 reserved for agriculture purpose; only part for road. S. No. 32,42,129,166,93/1 and 93/2 have been shown reserved for agriculture in P-14 A. Khasra shows the land was used for the purpose of agriculture; certificate P-14 shows inter alia S. No. 89/1 also for agriculture and S. No. 93/1 and 93/2 reserved for agriculture purpose; only part for road. How much portion was reserved for road has not been specified thus in view of P/14 it has to be taken that major portion of land has been reserved for agriculture purpose in master plan and was being also used for agriculture purpose that part or not could be treated as "urban land" as defined under Section 2(o) of the Act. The land in above S. No. was used for purpose of agriculture in the master plan itself and part for road. Urban land is defined under Section 2(o) of the Act as under :- "(o) 'urban land' means - (i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of municipality (by whatever name called) a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture. Explanation :- For the purpose of this clause and clause (q) - (A) 'agriculture' includes horticulture, but does not include,- (i) raising of grass, (ii) dairy farming, (iii) Poultry farming, (iv) breeding of livestock, and (v) such cultivation, or the growing of such plant, as may be prescribed; (B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture; Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farmhouse, then so, much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture; Provided further that if any question arises whether any building is in the nature of a farmhouse, such question shall be referred to the State Government and the decision of the State Government thereon shall be final; (C) Notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture;" 9. Agriculture includes horticulture, but does not include raising of grass, dairy farming, poultry farming, breeding of livestock and such cultivation of the growing of such plant as may be prescribed. From explanation (b) it is clear that the land should be so recorded before the appointed day as for the purpose of agriculture. Thus the requirement is that the land should have been used for the purpose of agriculture and so entered in the land records then it is not included within the purview of "urban land". 10. This question came for consideration before their Lordships of the Apex Court in State of U. P. vs. Nand Kumar Agarwal; (1997) 11 SCC 754 . Their lordships held that an urban land within the meaning of Section 2(o) being not saved by the exception clause but does not include any such land which is mainly used for the purpose of agriculture. Their lordships held that an urban land within the meaning of Section 2(o) being not saved by the exception clause but does not include any such land which is mainly used for the purpose of agriculture. Relevant portion of State of U. P. vs. Nand Kumar (supra) is quoted below :- Para 6 - "In the master plan the area in question is no doubt shown as agriculture. If we refer to the Schedule mentioned in the definition or ubran agglomeration it could be seen that the area in question falls within urban agglomeration as it is situated within the peripheral area of the Municipal Corporation of Lucknow (Lucknow Nagar Mahapalika). The land in question will not be urban land if though situated within the limits of an urban agglomeration, it is mainly used for the purpose of agriculture. Operating of a bhatta cannot certainly be an agriculture purpose. Mr. Rohtagi, learned counsel for the 1st respondent, submitted that explanation to clause (o) shows as (sic) what is not included in agriculture and since bhatta is not one of the entries therein it would mean that operating bhatta would be an agriculture purpose. We do not find any substance in the submission. It is correct that the land in question is entered in the revenue record but at the same time the record shows that the land is being used for bhatta. The foremost question is : If the land in question though agricultural was being mainly used for the purpose of agriculture on the appointed day? Seeing the definitions as set out above and the affidavit of the 1st respondent dated 13-8-1976 the answer is obvious that the land in question is not being mainly used for the purpose of agriculture. Agriculture under the explanation to clause (o) has limited meaning. It includes horticulture but does not include cultivation of every type of vegetation or rearing of animals or birds. That apart, to hold that land is mainly used for the purpose of agriculture it is not enough even if the land is entered in the revenue records before the appointed day used for the purpose of agriculture or even if so entered the master plan gives purpose of the land other than agriculture. That apart, to hold that land is mainly used for the purpose of agriculture it is not enough even if the land is entered in the revenue records before the appointed day used for the purpose of agriculture or even if so entered the master plan gives purpose of the land other than agriculture. In the present case though (B) and (C) to the explanation are satisfied but (A) is not as the purpose to which the land, though agriculture and so entered in the revenue records, was being used for running of brick kiln. The High Court was not, therefore, correct in holding that the land was being mainly used for the purpose of agriculture merely on the strength of the purpose of master plan which is specified as agriculture (Krishi bhumi) and that the land is entered in the revenue records. The High Court has wrongly applied Explanation B to clause (o) of Section 2 of the Act. Simply because land is entered in the revenue record would not mean that it is being used mainly for the purpose of agriculture. Here the land is mainly used for the purpose of brick kiln business of the 1st respondent. It is not material if a small portion of the land was being used for the purpose of agriculture as well." 11. In Nand Kumar (supra) since the land was not used mainly for the purpose of agriculture it could not be held to be used for agriculture purpose. In the instant case it is apparent from the Khasras that the land mentioned above was used for the purpose of agriculture and this fact find support from P-14 and P-14-A issued by respondents that the land was mainly used for the purpose of agriculture and the land use of S. No. 32,42,89/1,129,166 and part of S.No. 93/1 and 93/2 has been reserved for the purpose of agriculture in master plan. Only part of S. No. 93/1, 93/2 has been reserved for road in master plan. Thus portion reserved for agriculture purpose could not be treated as urban land as it was used for the purpose of agriculture also. Hence order declaring it as surplus is bad in law. 12. Second question for consideration is whether the draft statement was served along with the copy of the order in the prescribed form on the holder. Thus portion reserved for agriculture purpose could not be treated as urban land as it was used for the purpose of agriculture also. Hence order declaring it as surplus is bad in law. 12. Second question for consideration is whether the draft statement was served along with the copy of the order in the prescribed form on the holder. Rule 5 requires that every draft statement prepared under sub-section (1) of section 8 shall contain the particulars specified in Form III. The draft statement shall be served together with the notice on the holder of the vacant lands and all other persons, who have or likely to have any claim to or interest in the ownership or possession or both of the vacant lands. Another requirement is that the same shall be sent by registered post addressed to the person concerned. "Rule 5. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same. - (1) Every draft statement prepared under sub-section (1) of section 8 shall contain the particulars specified in form III. (2) (a) The draft statement shall be served, together with the notice referred to in sub-section (3) of Section 8 on - (i) the holder of the vacant lands, and (ii) all other persons, so far as may be known, who have or are likely to have, any claim to, or interest in, the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned; (i) in the case of the holder of the vacant lands, to his address as given in the statement filed in pursuance of sub-section (1) of section 6 and; (ii) in the case of other persons at their last known address. (b) Where the draft statement and the notice are returned as refused by the addressee, the same shall be deemed to have been duly served on such person. (b) Where the draft statement and the notice are returned as refused by the addressee, the same shall be deemed to have been duly served on such person. (c) Where the efforts to serve the draft statement and the notice, on the holder of the vacant lands or as the case may be, any other person referred to in clause (a) in the manner specified in that clause is not successful for reasons other than the reason referred to in clause (b), the draft statement and notice shall be served by affixing copies of the same in a conspicuous place in the office of the competent authority and also upon some conspicious part of the house (if any), in which the holder of the vacant lands or, as the case may be, the other person is known to have last resided or carried on business or personally worked for gain." 13. In the instant case notice was not served on the holder of the vacant land i.e. deceased Ramprasad but was served on Manohar. Thus there was no service as prescribed in Rule 5. Thus in the eye of law no draft statement was served on Ramprasad. Yet another flaw is that the same was not sent by registered post addressed to the person concerned. There is no denial in the return filed by the respondents that notice was not sent by registered post. Thus the notice was not sent in the proper mode. It was not served as such it is held that without service of draft statement the further steps taken are illegal and are liable to be quashed. Possession could not be taken and the land could not be declared as surplus land. 14. The outcome of the aforesaid discussion is that the orders annexures P-9, P-11 and further proceedings as per annexures P-12 and P-12A are illegal and are liable to be quashed. 15. The next question for consideration is whether the matter is required to be remitted back to the competent authority for determination of area in question afresh. Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 provides that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act, before any Court, tribunal or other authority shall abate. Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 provides that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act, before any Court, tribunal or other authority shall abate. However the abatement shall not apply to the proceedings relating to Sections 11,12,13 and 14 of the Principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. 16. Learned counsel for the State wants to take benefit of proviso to Section 4 to contend that writ abates as possession has been taken over. But the submission is liable to be rejected. The abatement contemplated under Section 4 is for the benefit of the holder owing to repeal of Act. Writ petition/appeals challenging correctness and legality of the orders declaring the land as surplus even when the possession has been taken by the State or any of the person on its behalf, cannot abate. Question is when final order and draft statement has been found to be illegal whether matter can be remanded back to the competent authority for determination of excess land. Once the order is set aside proceedings shall be deemed to be pending and such proceedings abate by application of Section 4 of Repeal Act. What is saved only proceeding for determination of compensation under Section 11 to 14 not the pending proceedings. If order under which possession was taken has been set aside matter cannot be remitted back for determination afresh of the surplus land as continuation of such proceedings is barred as holder becomes entitled to restoration of possession also. If the possession is taken in unlawful manner, the State/Competent Authority cannot have the right to continue with the proceedings to declare the land surplus with respect to which possession has been taken under an invalid order. Thus no useful purpose would be served by remitting the matter back to the competent authority, particularly when the Act has been repealed. 17. The Apex Court in Pt. Thus no useful purpose would be served by remitting the matter back to the competent authority, particularly when the Act has been repealed. 17. The Apex Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust vs. State of U. P., (2000) 6 SCC 325 , has held that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of the Act, before any Court, tribunal or other authority shall abate. The facts of this case are distinguishable. However, in my opinion as discussed above the matter cannot be remitted back as per Section 4 of the Repeal Act. 18. The writ petition is allowed. Annexures P-9, P-12 and P-12-A are quashed and consequence to section 4 of the Repeal Act the matter cannot be remitted back. In the facts of the case no order as to costs.