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2002 DIGILAW 724 (MP)

Bhaiyaji @ Udayram v. State of M. P.

2002-07-31

BHAWANI SINGH, S.L.JAIN

body2002
ORDER (Oral) Jain, J. -- 1. Being aggrieved by the order dated 18.3.2002 passed by the learned Single Judge in Writ Petition No. 1407/02 the appellant has filed this appeal under Clause 10 of the Letters Patent. 2. A brief resume of facts required to be stated for the disposal of the petition is that the appellant is a Bhumiswami of agricultural land being khasra No. 3/1, 3/2, 4/2 and 221/1 of village Purwa, Tehsil and District Jabalpur for which the holder Chirojilal has filed a return under section 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 'Act') before the respondent No.2, who without holding any inquiry passed an order on 6.12.1983 in case No. 153/A-90/B-9179-80 declaring an area of 7332.25 sq. meters as surplus after giving one unit to the holder and ordered to issue draft statement. The holder filed an objection against the draft statement which was not accepted and the respondent No.2 passed an order on 26.7.1984 declaring the area of 7332.25 sq. meters as surplus. 3. Appellant filed an appeal under section 33 of the repealed Act, 1976 before the Additional Commissioner, Jabalpur Division, Jabalpur, which was dismissed in default on 31.12.1990. A notice under section 10 (5) of the Act was issued and alleged to have been served on the son of the holder while the holder was issueless and therefore, report of the process server is obviously wrong. According to the appellant, possession of the land declared as surplus was never taken by any authority and the appellant in whose favour the land was declared, is still in possession of the land in question. It is averred by the appellant that Act has been repealed vide repealing Act, 1999 and hence after, the repealing of the Act, the respondents have no authority to interfere with the peaceful possession of the appellant. Appellant further pleaded that order passed by the respondent No.2 was contrary to the provisions of repealed Act and the provision of law, therefore, it is illegal. 4. Appellant filed a writ petition before this Court challenging the order passed by the comptent authority with a prayer to quash the same as it was without jurisdiction. This writ petition was registered as Writ Petition No. 1407/2002. 4. Appellant filed a writ petition before this Court challenging the order passed by the comptent authority with a prayer to quash the same as it was without jurisdiction. This writ petition was registered as Writ Petition No. 1407/2002. It was contended in the writ petition that proceedings of the Court of competent authority shall stand abated in view of section 4 of repealing Act. The learned Single Judge, relying on the judgment of the Apex Court in State of Andhra Pradesh and others v. N. Audikesava Reddi and others [ (2002) 1 SCC 227 ] held that the land in question was in the master plan and was meant for housing purpose and therefore, competent authority was justified in declaring the land as surplus. The learned Single Judge also concluded that the petitioner cannot be allowed to reopen the order passed by the competent authority. 5. It is against this order, the appellant has filed this appeal. 6. It is contended by the learned counsel appearing for the appellant that at the time of filing of the return by the holder, the land in question was recorded as agricultural land and as there was no master plan in force at Jabalpur the land in question was liable to be excluded from the operation of the Act. Admittedly the land was declared as surplus land on 6.12.1983 as per Annexure A-2, filed by the appellant. The master plan for Jabalpur city had come into force on 8.2.1980. Thus, on the date of order the land was in the master plan and was reserved for housing purpose therefore, it cannot be said that the land in question was not a surplus land. In Audikesava Reddi (supra) it has been held by the Apex Court that the master plan prepared as per law in force even subsequent to enforcement of the Act is to be taken into consideration to determine whether a particular piece of land is vacant land or not. Therefore, submission of the appellant that land in question was agricultural land on the date when the Act came in force is of no consequence. In the order of the competent authority a clear finding has been recorded that in the master plan the land in question was meant for housing purpose. This question of fact cannot be re-agritated in this appeal. 7. In the order of the competent authority a clear finding has been recorded that in the master plan the land in question was meant for housing purpose. This question of fact cannot be re-agritated in this appeal. 7. It is also submitted that notice under section 10 (5) of the Act was never served to Chirojilal. Chirojilal was issueless therefore, report of the process server that notice was served on the son of Chirojilal is absolutely incorrect. Therefore, the possession taken, if any, is against the provisions of law. An inquiry as to the fact that holder Chirojilal had any son or not cannot be held in this appeal. Unless clinching evidence is given, report of process server/public servant cannot be said to be absolutely false. Even if service was made to some family member, it will be said to be a proper service. The date of the notice for delivery of possession is 4.9.1986. From the date of th~ notice till the filing of the writ petition no action was taken by the holder or the appellant in whose favour the land was bequeathed. An important ground on which the writ petition was dismissed by the learned Single Judge was that the order passed by the Competent Authority declaring the land as surplus is dated 6.12.1983 and final statement was issued on 26.7.1984. According to appellant's own showing appeal of Chirojilal was dismissed long back on 31.12.1990. Thus, proceedings were concluded in the year 1990 therefore, proceedings could not be reopened by filing a writ petition in the year 2002. The learned Single judge was justified in dismissing the petition on the ground of latches. 8. For the foregoing reasons, we do not find any merit in this appeal and accordingly it is dismissed in limine.