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Madhya Pradesh High Court · body

2007 DIGILAW 1163 (MP)

KHUMAN SINGH v. STATE OF M. P.

2007-11-01

ABHAY GOHIL, SANJAY YADAV

body2007
Judgment ( 1. ) THIS order shall also govern the disposal of Writ petition No. 9205/03 and Writ Petition No. 9206/03. ( 2. ) THE petitioner alleging himself to be a public spirited person has filed both the Public Interest Litigation Petitions. In both the petitions he has challenged the order passed by Board of Revenue on 12-4-2001 in two Revisions no. 983-PBR/2000 and 984-PBR/2000. Both the orders were also challenged before the Single Judge. The order passed in Revision No. 983-PBR/2000 was challenged by the petitioner in Writ Petition No. 1613/01 and the order passed in revision No. 984-PBR/2000 was challenged in Writ Petition No. 1431/01. Both the petitions were disposed of on 18-11-2003 with liberty to file Public Interest litigation Petition. While disposing of the petitions the Court observed that in the aforesaid revision the petitioner was not a party and it was submitted that the present petition being in the nature of Public Interest Litigation the same is not maintainable in this Court and conversion was not permitted, as the petition was under Article 227 of the Constitution of India, that is how the petitioners have filed these two petitions in public interest. ( 3. ) THE brief facts of the case in Writ Petition No. 9206/03, (Revision petition No. 983-PBR/2000 and earlier Writ Petition No. 1613/01) are that the land bearing Survey No. 856 admeasuring 3 bighas 15 biswas is situated at village Raiyatwadi is a Government land and the name of one Chandrojirao was wrongly recorded as Gair Mourishi Krishak from Samvat 2007 to year 1992. It was further submitted that rights of Pucca Tenant under section 54 (7) of Madhya bharat Mal Prabandh Tatha Raiyatwadi Bhu-Agam Tatha Krishakadhikar Vidhan (for short, vidhan of Samvat 2007) and Bhumiswami rights on coming into force of the provisions of MP Land Revenue Code, 1959 (for short code of 1959) w. e. f. 2-10-1959 were wrongly conferred. Respondents No. 7 to 22 of this writ petition filed an application before Tehsildar for grant of Bhumiswami rights and Tehsildar vide order dated 10-4-1992 granted Bhumiswami rights in their favour. Respondents No. 7 to 22 of this writ petition filed an application before Tehsildar for grant of Bhumiswami rights and Tehsildar vide order dated 10-4-1992 granted Bhumiswami rights in their favour. The brief facts of Writ Petition No. 9205/03 (Revision No. 984-PBR/2000, and earlier Writ Petition No. 1431/01) are that for land bearing Survey No. 2883 admeasuring 6 bighas 2 biswas some persons filed application for grant of bhumiswami rights and Tehsildar vide order dated 14-10-1992 wrongly granted bhumiswami rights in their favour on the basis of patta which was granted by original owner Chandrojirao in the year of 1974. ( 4. ) IT was further contended in both the petitions that after the order passed by Tehsildar, by virtue of sale deed dated 8-1-1993 and 23-9-1993 respondent no. 3-society purchased the land from the aforesaid Bhumiswamis. It was contended that before purchasing the land they have obtained permission on 28-12-1992 from the Competent Authority under Urban Land Ceiling, on which objection was filed by the petitioner and thereafter Writ Petition No. 941/95 was filed and by order dated 9-10-1995 the petition was disposed of with a direction to the State and Collector to look into the grievance made by the petitioner in the petition. On the basis of the complaint made by the petitioner the-then Minister, department of Revenue, wrote a letter to Collector Gwalior on 21-9-1995 to look into the matter regarding grant of patta by Tehsildar and the matter be taken up in a suo motu revision and patta be cancelled. On the basis of the aforesaid letter of minister, the Additional Collector, Gwalior made separate enquiry and submitted two reports - one in respect of land bearing Survey No. 856 on 20-12-1995, in which it was found that before passing the order Tehsildar examined the validity of the original patta and the entries made in the revenue record, and in the report dated 27-10-1995 in respect of land bearing Survey No. 2883, found that the land was recorded in the name of Drainage Department and in col. No. 3 name of major Chandrojirao was recorded as "bila Swatva Darj", though Assistant engineer, Public Health Engineering Department, has submitted report that the aforesaid land is not in possession of the department and no document is available about ownership rights of the department over the land and recommended for taking up the matter in suo-motu revision. No. 3 name of major Chandrojirao was recorded as "bila Swatva Darj", though Assistant engineer, Public Health Engineering Department, has submitted report that the aforesaid land is not in possession of the department and no document is available about ownership rights of the department over the land and recommended for taking up the matter in suo-motu revision. On the basis of the aforesaid reports, the Collector registered two suo - motu revisions which were numbered as 18/97-98 and 17/97-98 and in both the revisions two separate orders were passed by the Collector on 14-1-1992 and it was found that the Tehsildar before passing the impugned orders dated 10-4-1992 and 14-10-1992 has not properly examined old revenue record of settlement, the status of the land and how the lesser was owner of the property and how his name was recorded and for what purpose the patta was granted, and has also not granted opportunity to the state. The Collector further found that the Tehsildar has also not examined whether Bhumiswami rights were properly conferred or not, therefore, the orders of Tehsildar dated 10-4-1992 and 14-10-1992 were set aside, though it was objected that after such a long time the matter cannot be taken up in suo-motu revision and that too at the instance of the Minister. In the meantime, Writ petition No. 844/95 was also filed challenging the sale deed dated 23-9-1993 and 14-10-1992 and the petition was dismissed as the matter was being examined by the revenue authorities and the petition was found premature. Against which two revisions were preferred before the Additional Commissioner and vide order dated 22-4-2000 both the revisions were dismissed. Against which, society filed two revisions before the Board of Revenue which were registered as revision No. 983-PBR/2000 and 984-PBR/2000. ( 5. ) IN Revision No. 983-PBR/2000 the Board of Revenue found that the aforesaid land was not a Nazul land and no objection certificate was also given by the Nazul Officer. The entry of Samvat 2007 was very relevant as on 2-10-1951 (Samvat 2008) the Zamindari was abolished and in the Samvat 2007 in the revenue record there was an entry that Chandrojirao was Gair Mourishi Krishak, therefore, he acquired rights of Pucca Tenant under section 54 (7) and subsequently acquired Bhumiswami rights on coming into force of the provisions of M. P. Land Revenue Code 1959. The Board has also found that it was not a nazul land and it will not be proper to treat it as a Nazul land. It was also found by the Board that Khuman Singh is not having any right in the land and he is simply an objector. The Board has also found that after a long time it is not proper to exercise power of suo motu revision and the Collector has committed illegality in taking up the matter in suo motu revision and also in setting aside the orders passed by the Tehsildar and set aside the order of Collector dated 14-1-99 and that of Add1. Commissioner dated 22-4-2000 and maintained the order passed by the Tehsildar on 10-4-1992. ( 6. ) IN Revision No. 984-PBR/2000 the Board has recorded similar finding that in the revenue record and in Khasra entry from Samvat 2007 to year 1992 name of Chandrojirao Shambhajirao was recorded as "gair Mourishi Krishak" prior to coming into force the provisions of Zamindari Abolition Act in Samvat 2008 (1951) and on the basis of the aforesaid finding found that the Tehsildar has also sought information from the Department of Public Health Engineering about the aforesaid land and they have not objected and considering the conditions of patta it was found that the earlier owner was Gair Mourishi Kashtakar and it was nazul land and Nazul Officer has also granted NOC and, therefore, the Tehsildar was right in conferring the Bhumiswami rights on them. ( 7. ) IN both the petitions the State Government has filed return supporting the case of the petitioner. In Writ Petition No. 9205/03 the State has taken the same stand that the land is recorded in the name of drainage department and in col. No. 3 the name of Chandrojirao is mentioned as "bila Swatva" and the report of Asstt. Engineer, P. H. E. , that the drainage department is not in possession of the land is an unauthorised report. The patta was granted by bhartendra Singh in favour of the respondents but nothing has been disclosed as to who had authorised him for grant of patta and the order was rightly recalled in suo motu revision by Collector and the Collector was having power of suo motu action. Chandrojirao was not having any title over the land. The patta was granted by bhartendra Singh in favour of the respondents but nothing has been disclosed as to who had authorised him for grant of patta and the order was rightly recalled in suo motu revision by Collector and the Collector was having power of suo motu action. Chandrojirao was not having any title over the land. The review petition was also filed before the Board of Revenue and in collusion with the revenue officers the land was mutated in their name in revenue record and now the land has been sold to respondent No. 9 and in turn the respondent No. 9 has also sold the same to plot-holders. On the same line return in Writ Petition No. 9206/03 has been filed stating that the disputed land involved in this petition was recorded in the name of Town Improvement Trust (Nazul) and in Col. Nos. 2 and 3 name of Chandrojirao was mentioned though the letter of no objection of G. D. A. was submitted and Tehsildar had not verified the record of settlement, therefore, the order passed by the Board of Revenue was rightly challenged in writ petition. ( 8. ) IN both the writ petitions respondents No. 3 and 9 society have also filed their return including the preliminary objection with regard to the maintainability of the petition as PIL. In the reply it is submitted that the PIL which has been filed at the instance of petitioner is not bona fide but is a mala fide petition, which has been filed with oblique motive in order to settle his personal score and personal vested interest. It was submitted that Chandrojirao was owner of the property and his name was mentioned in the khasra entries and on that basis under Section 54 of the Vidhan of Samvat 2007 they have acquired rights of pucca Tenant and thereafter on coming into force of Code of 1959 have acquired bhumiswami rights and have justified the orders passed by Tehsildar as well as by Board of Revenue. It was further submitted that adjoining to the land bearing survey No. 2883 and Survey No. 856 the lands comprising Survey Nos. 2855, 2856, 2858, 2859, 2860, 2861, 2862, 2863, 2866, 2868, 2871, 2872, 2875 and 2878, are also situated. It was further submitted that adjoining to the land bearing survey No. 2883 and Survey No. 856 the lands comprising Survey Nos. 2855, 2856, 2858, 2859, 2860, 2861, 2862, 2863, 2866, 2868, 2871, 2872, 2875 and 2878, are also situated. Disputed land of two survey numbers is adjoining to the aforesaid khasra number and in respect of which the petitioner had filed a suit for declaration and injunction against original owner, society and State, in which it was contended that he is in possession of the land of aforesaid survey numbers situated at village Kota, Lashkar, Gwalior admeasuring 8 bighas 1 biswa since 1972 and on 1-10-1979 respondent No. 1 entered into an oral agreement and has accepted Rs. 50000/- as earnest money and on 3-12-1983 written agreement was executed and it was mentioned that within five years they will execute the sale deed and now due to increase in the price of the land the respondent No. 1 dishonestly has refused to execute the sale deed. It was contended that subsequently he has sold the land to respondent No. 2 and he became owner of the property by virtue of adverse possession and the sale certificate issued by the civil Court in execution No. 4469/76 is also without jurisdiction. The aforesaid civil suit was registered as Civil Suit No. 8/99 (New number is 38/02), which was originally filed on 1-11-88 and was dismissed by the Civil Court vide judgment and decree dated 15-3-2002. In the written statement respondent No. 2 denied the aforesaid allegation and also denied the possession of the petitioner over the aforesaid land. It was contended that respondent No. 2 has purchased in auction the total land having an area of 298000 sq. ft. For a consideration of Rs. 4,10,000/- in execution on 11-11-1986. It was further contended that the grand father of respondent No. 1 had mortgaged the aforesaid land to M. P. Financial corporation, in which decree was passed in an execution and the land was auctioned and the society/respondents No. 3 and 9 have purchased the aforesaid land in auction. It was also contended that the suit also suffers from non-joinder of necessary parties. In the aforesaid suit the respondent No. 3-State has also filed their written statement in which the State has denied that respondent No. 1 was not Bhumiswami and the plaintiff was also not having possession thereon. It was also contended that the suit also suffers from non-joinder of necessary parties. In the aforesaid suit the respondent No. 3-State has also filed their written statement in which the State has denied that respondent No. 1 was not Bhumiswami and the plaintiff was also not having possession thereon. It is the land of the ceiling and the case under urban ceiling was registered. No notice under section 80, Civil Procedure Code was given to the State. The State is a necessary party. The legal heirs of Chandrojirao was not made party. ( 9. ) IN the aforesaid civil suit the trial Court found that since the plaintiff has not proved any relevant khasra entries showing his possession over the land, it cannot be held that the plaintiff is in possession of the land as he has failed to prove this fact by producing any revenue record or document or any evidence with regard to the same. The Court has also recorded a finding that the plaintiff has failed to prove that respondent No. 1 was having any right to sell the property in dispute and has also recorded adverse finding against the plaintiff that he became owner by virtue of adverse possession. The Court has also found that the suit was not properly valued and suit suffers from non-joinder of necessary parties and was not maintainable on that ground. It was also held that the State has also failed to prove that any proceedings under urban ceiling land were pending nor any documents were produced and, dismissed the suit. Against which First Appeal No. 91/02 was filed and the same was withdrawn on 21-6-2004 and subsequently it is mentioned that the petitioner has entered into a compromise with respondent No. 2 with regard to the suit land and on the basis of the aforesaid compromise the respondent No. 1 shall execute the sale deed of half of the land in favour of the plaintiff who is petitioner of this petition. After execution of the sale deed the permission under urban land ceiling has been obtained from Competent Authority and the land has already been diverted and lay out plan has already been sanctioned from Town and Country Planning and municipal Corporation, Gwalior. ( 10. After execution of the sale deed the permission under urban land ceiling has been obtained from Competent Authority and the land has already been diverted and lay out plan has already been sanctioned from Town and Country Planning and municipal Corporation, Gwalior. ( 10. ) IN the returns filed by the Society in both the petitions it was further submitted that it was personal property of one Chandrojirao Angre and was recorded as such in relevant khasra prior to abolition of Jagirdari. Khasra entries of Samvat 2007 have been produced and khasras pertaining to Samvats 2008, 2009 and 2010 to 2044 have also been produced. It is submitted that the petitioner has not challenged the permission granted by the Competent Authority under urban land ceiling and the other permissions granted by other authority, therefore, the aforesaid orders of permission became final in favour of the respondent-society. It is further submitted in nutshell that the predecessors have already acquired rights under the Vidhan of Samvat 2007 and Code of 1959 and the orders in suo motu revision were passed by the Collector on the political pressure of the Minister at the behest of the petitioner, who was interested in grabbing the land. ( 11. ) IN both the writ petitions we have heard learned counsel for the parties, perused the pleadings and documents on record. ( 12. ) FIRST of all we have considered the question of locus of the petitioner for filing the petitions. There is no dispute that since very beginning petitioner has raised objection about the ownership of late Chandrojirao or his predecessors on the land bearing Survey Nos. 856 and 2883. But in the Civil Suit No. 8/99 (new No. 38/02) filed by petitioner against Chandrojirao, original owner it was stated that he is in possession and respondents under oral agreement have agreed to sell the adjoining Survey Nos. 2855, 2856, 2858, 2859, 2860, 2861, 2862, 2863, 2866, 2868, 2871, 2872, 2875 and 2878 of Survey Nos. 856 and 2883 to him and the State was made party in the suit. The suit was filed for specific performance of oral agreement and in that suit the stand of the petitioner was that the adjoining land bearing aforesaid khasra numbers belong to respondent chandrojirao and his predecessors. The said suit has already been dismissed on 15-3-2002. 856 and 2883 to him and the State was made party in the suit. The suit was filed for specific performance of oral agreement and in that suit the stand of the petitioner was that the adjoining land bearing aforesaid khasra numbers belong to respondent chandrojirao and his predecessors. The said suit has already been dismissed on 15-3-2002. Thereafter the petitioner filed First Appeal No. 91/02 in the High court, which was withdrawn by him on 21-6-2004 and thereafter he pleaded that he entered into compromise with respondent No. 2, who is the successor of chandrojirao for the same land for getting half of the land for himself. This compromise is a very relevant document, which shows the personal interest of the petitioner in the land in dispute as on the one hand he has challenged the ownership of Chandrojirao in two Survey Nos. 856 and 2883 and on the other hand he has made contrary pleadings treating the land of adjoining survey numbers under the ownership of Chandrojirao on the basis of same entries in the revenue record. This contradictory conduct shows that he is personally interested in getting the land and making allegations with that intention. If the adjoining land was also placed at the same footing in the revenue record then why he has made contradictory pleadings regarding the adjoining land and also regarding the disputed survey numbers of these petitions. Trial Court found that he is not in possession over the other survey numbers and thereafter he entered into compromise with the legal heirs of Chandrojirao for half of the land. If the land of survey numbers of these petitioners are the Government land then the remaining land bearing other survey numbers is also the Government land and for that he cannot be allowed to enter into compromise that too without the permission and making the government as party. This declaration that the legal heirs of Chandrojirao will execute the sale deed for half of the land in favour of the petitioner clearly proves his personal interest in the entire Govt. land. This conduct of the petitioner that the lands which are in his own possession and part of compromise are the private lands of Chandrojirao and the lands which are not in his possession are the Government lands is not bona fide. land. This conduct of the petitioner that the lands which are in his own possession and part of compromise are the private lands of Chandrojirao and the lands which are not in his possession are the Government lands is not bona fide. Even when the compromise was filed, it was recorded without the consent and notice to the government, therefore, prima facie such a compromise cannot be said to be lawful or binding on the Govt. Thus, the entire conduct of the petitioner is doubtful and goes to show that he is interested in all the lands including adjoining land and land of survey numbers of these petitions, that is why he is contesting and filing objections and petitions one after another. Therefore, it cannot be held that he is having any locus standi to file these public interest petitions. Honble supreme Court time and again has warned about the maintainability of such public interest litigation petitions at the behest of litigants whose personal interests are involved in the matter. 13-14. In case of Balco Employees Union (Regd.) vs. Union of India, (2002) 2 SCC 333 , three Judges Bench of Supreme Court considering the other previous judgments has clearly laid down the law as under :- "80. PIL is not a pill or a panacea for all wrong. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this court and all we need to do is to recapitulate and re-emphasize the same ". There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this court and all we need to do is to recapitulate and re-emphasize the same ". In the matter of locus standi it has been held as under :- "the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal game or private profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity brake the queue muffling their faces by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions and thus, criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the court never moves which piquant situation creates frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system". ( 13. ) IN case of Chairman and M. D. B. P. L. Limited vs. S. P. Gururaja and others, reported in (2003) 8 SCC 567 , the Supreme Court has considered the question of delay in filing writ petition to challenge the allotment of land. The petition was filed after one year and by that time the allottees had not only taken possession of the land but also made sufficient investment and petition was objected on the ground of locus standi, as the same was set up on behalf of erstwhile land owners and in such circumstances the Supreme Court found that the High Court erred in allowing the writ petition without taking into consideration the locus of the writ petitioners on the ground that they are personally interested in the matter. ( 14. ) IN case of T. N. Godavarman Thirumulpad vs. Union of India, reported in (2006) 5 SCC 28 , the Supreme Court has held that :- "howsoever genuine a cause brought before a court by a public interest litigant may be, the Court has to decline its examination at the behest of a person, who, in fact, is not a public interest litigant and whose bona fides and credentials are in doubt. " "a person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. " ( 15. ) IN case of Guruvayoor Devaswom Managing Committee vs. C. K. Rajan, reported in (2003) 7 SCC 546 , after referring to the large number of decisions, the Supreme Court has held that:-"59. It is trite, where a segment of the public is not interest in the cause, a public interest litigation would not ordinarily be entertained. " ( 16. ) CONSEQUENTLY, in this case what we find that the Government is fully empowered to protect its own interest. The petitioner who is interested in the part of the land and has entered into a compromise for half of the land contrary to the interest of the Government, cannot be said to be a public-spirited person, who can maintain such a petition and it cannot be held that he is having any locus to file such a petition. The Government is free to protect its own interest. ( 17. ) IT has been pleaded by the parties that the respondent-society has purchased the land in auction in some execution proceedings by virtue of sale deed dated 8-1-1993 and 23-9-1993 from the aforesaid Bhumiswami after obtaining various permissions and they have developed the same and transferred to other persons. Since the rights of the various parties have been involved in the matter, therefore, it will not be proper to interfere in these public interest litigations. There is no dispute that in a Public Interest Litigation any sale deed executed by the party cannot be set aside without full adjudication in accordance with law and this is the subject-matter of the civil dispute, for that remedy of civil suit is available to the parties. On 10-3-2004 Government Advocate himself undertook that he will challenge the order of the Board of Revenue before the competent Court, therefore, the Government Advocate was aware about the protection of Govt. s right before the Competent Court. On 10-3-2004 Government Advocate himself undertook that he will challenge the order of the Board of Revenue before the competent Court, therefore, the Government Advocate was aware about the protection of Govt. s right before the Competent Court. There is no dispute that the Government was party to the civil suit as well as to the earlier two Writ petitions No. 1613/01 and 1431/01 and is also party in these petitions and government is fully aware about the orders passed by the Board of Revenue. The government is always free to protect its own interest in accordance with law before the appropriate court. ( 18. ) SECTION 57 (3) of Code of 1959 clearly provides that any party, who is having land dispute with the Government, may approach the Civil Court to get the dispute decided in respect of any right in land. Therefore, in view of the aforesaid legal situation, the remedy lies with the Civil Court. More so, the disputed facts cannot be examined in the writ petition by the Writ Court or even in Public Interest Litigation nor the sale deed can be set aside as it is the domain of the Civil Court to adjudicate and to enter into the controverted questions and to decide them in accordance with law. ( 19. ) CONSEQUENTLY, we find that the petitioner is very much interested in the disputed lands personally and therefore it cannot be held that he is a public spirited person or he has filed the petition in public interest. From the facts as emerged above, it is clear that the petitioner has made contradictory statements for his own benefit, therefore, for settling his personal interest the forum of filing pil cannot be used, as is obvious in the matter. Therefore, both these petitions being devoid of merit and substance are hereby dismissed. Parties to bear their own cost. Security amount be deposited with the Legal Service Authority of High court. Petition dismissed.