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2007 DIGILAW 158 (MP)

Chanan Singh v. State of M. P.

2007-02-09

ABHAY M.NAIK

body2007
ORDER Abhay M. Naik, J. 1. Short facts leading to the writ petition are that the petitioner is a holder of piece of land comprised in Survey No. 382 in area 14.2 acres and 393 in area 2.92 acres situated at village Bawadia Kalan Tahsil Huzur, District Bhopal. The land was purchased vide registered sale deed dated 30-11-1963 contained in Annexure/P-1 by Sardar Vir Singh son of Ganda Singh and Bal Singh and Chanan Singh both sons of Arun Singh. A partition is stated to have been effected in Case No. 6-A-27/85-86 as revealed in Annexure/P-2. It is further averred that all the persons continued with the possession over the respective shares as per the partition. The petitioner came to know from a publication issued by the Bhopal Development Authority that the competent authority under Urban Land (Ceiling And Regulations) Act, 1976 had passed orders against the petitioner on 13-11-1980 and 19-8-1991 in Case No. 103/80 and 125/80 respectively. Appeals preferred by the petitioner have also been dismissed by the Commissioner, Bhopal Division. 2. The petition has been preferred on the grounds that the possession of the subject land and the mandatory procedure of notice provided under Section 8(3) of the Act was not followed as per the rules. The appeal ought to have been decided by the Commissioner on merits and should not have been dismissed on the question of limitation. 3. In the return it is stated that the petitioner has asserted title over 3.26 acres of land comprised in Survey Nos. 382 and 393 whereas he is entitled only to possess 1500 sq. mts. of land. Hence, a case was registered against him bearing Revenue Case No. 103/80 and the draft statement was served on him under Section 8 on 13-10-1980 as revealed in Annexure/R-2. Petitioner did not appear before the competent authority and choose to remain^ absent. Final statement under Section 9 was served on his wife. The surplus land was determined and finally notified in M. P. Gazette dated 5-12-1980 and 27-3-1981 as revealed in Annexure/R-3. The Respondent/State has placed on record a 'Kabzanama' which reveals that Chanan Singh handed over the possession of the surplus land. A 'Panchnama' was also prepared which is placed on record. 4. The surplus land was determined and finally notified in M. P. Gazette dated 5-12-1980 and 27-3-1981 as revealed in Annexure/R-3. The Respondent/State has placed on record a 'Kabzanama' which reveals that Chanan Singh handed over the possession of the surplus land. A 'Panchnama' was also prepared which is placed on record. 4. Shri Ashok Lalwani, learned counsel appearing for the petitioner contended that the actual possession of the land in question was not delivered and the Kabzanama and Punchnama are evidence of mere paper possession and not of actual delivery. Learned counsel further referred to affidavits of Chanan Singh and certain persons placed on record as Annexure/P-5 and certain photographs marked as Annexure/P-6 and contended that possession of the subject land is still with the petitioner and it was never taken pursuant to ceiling proceedings. 5. Per contra, Shri Deepak Awashty, learned Dy. Govt. Advocate the land was duly declared surplus and its possession was obtained in lawful manner. Learned Dy. Govt. Advocate has made available the original file of ceiling case which has been perused by me in the light of the submissions made by the respective parties. It is seen that the petitioner submitted returns under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 on 6-6-1980 in case No. 103/80. Copy of the draft statement under Section 8 was issued on 13-10-1980. Final statement under Section 9 was served upon the wife of the petitioner as revealed in the order-sheet dated 13-11-1980. No objection was preferred. Consequently, the notification about surplus land was published under Section 10(1) of the Act in the Gazette 5-12-1980. No claim was preferred within the prescribed period. Ultimately, the publication was made under Section 10(3) of the Act in the Gazette of Madhya Pradesh dated 27-3-1981 and the Tahsildar Huzur was asked to obtain possession under Section 10(5) of the surplus land to the extent of 11,707.51 sq. mts. Pursuant thereto, possession of the surplus land was handed over by Chanan Singh @ Chandan Singh on 17-8-1983. This is revealed in the Kabzanama executed by Chanan Singh himself. A Panchanama was also prepared on the said date recording delivery of surplus land from Chanan Singh which was signed by independent witnesses and is on record of the original file. 6. This is revealed in the Kabzanama executed by Chanan Singh himself. A Panchanama was also prepared on the said date recording delivery of surplus land from Chanan Singh which was signed by independent witnesses and is on record of the original file. 6. Shri Lalwani, learned counsel appearing for the petitioner contended that Kabzanama and Panchanama record merely a paper delivery and no actual possession was delivered by Chanan Singh. It may be seen that the petitioner has not made any averment in the writ petition about Kabzanama and Panchanama. He has not disputed his signature on the Kabzanama which is substantially corroborated by the Panchanama signed by certain independent persons. Although, the petitioner has asserted his continuous possession over the subject land, he has nowhere challenged the Kabzanama executed by him on 17-8-1983. In the absence of a challenge to it, the same is binding on the petitioner and the various affidavits submitted contrary to the Kabzanama are not found to be believable. Although, Chanan Singh has stated in his affidavit submitted on 5-1-2001 that Panchanama dated 17-8-1983 was prepared at the office of District Collector, Bhopal, he has not chosen to controvert the Kabzanama which has been executed by him. As regards the photographs submitted on 5-1-2001, it may be seen that the affidavit of the photographer is not on record. It is not clear that when and by whom the photographs were taken. No date is mentioned on the photographs so as to relate them with the date of institution of writ petition. They are undated and unsigned. Negatives of the photographs and the receipt of the studio with respect to the development of negatives are also not on record. In this view of the matter, the photographs contained in Annexure/P-6 are of no help to the petitioner. 7. Shri Lalwani, learned counsel relying upon the decision of this Court in the case of Gaurav Agroplast Ltd. v. State of M. P., W.P. No. 603/2000 rendered on 6-9-2000 contended that the possession of the surplus land was not obtained and respondents have merely performed paper formalities. In the case of Gaurav Agroplast (supra), there was no document on record regarding delivery of possession which was signed by the person in possession. In the present case, the petitioner himself is found to have executed the Kabzanama handing over the possession thereby of the surplus land. In the case of Gaurav Agroplast (supra), there was no document on record regarding delivery of possession which was signed by the person in possession. In the present case, the petitioner himself is found to have executed the Kabzanama handing over the possession thereby of the surplus land. In the case of Gaurav Agroplast (supra), a non-compliance of mandatory provision of Section 10(5) of the Act was found whereas in the present case, no objection has been raised in the writ petition about non-compliance of Section 10(5) presumably because the petitioner himself has executed the Kabzanama while handing over the possession of surplus land. In the absence of a challenge in the writ petition to the Kabzanama dated 17-8-1983 executed by the petitioner, it is not now open for him to contend that the possession of the subject land was not delivered by him and the same was not obtained by the respondents. Reliance by Shri Lalwani on AIR 2006 Kar 12 is of no avail because in the present case the petitioner himself has handed over possession of the subject land vide Kabzanama executed by him which has not been challenged in the present writ petition. Equally, the decision of this Court in Sudhir Agrawal and Anr. v. State of Madhya Pradesh and others, reported as 2004 (3) M.P.H.T. 16 (NOC) being distinguishable on facts is not found to be applicable. 8. Shri Deepak Awasthy, learned Dy. Govt. Advocate contended that the possession of the subject land was obtained from the petitioner under his own signature as revealed in the Kabzanama executed by the petitioner himself. The Kabzanama having not been disputed by the petitioner is further corroborated by the Panchanama signed by certain independent witnesses. Reliance has been placed on the decision of the Supreme Court of India in the case of Tamil Nadu Housing Board v. A. Viswam (Dead) by Lrs., AIR 1996 SC 3377 wherein it has been held: The question is: whether the land in question was taken possession? The issue squarely arises vis a vis the respondents. Unfortunately, the respondents had not impleaded the LAO who had taken possession and delivered possession of the land to the appellant. It is not in dispute that under Ex.P-5, the LAO delivered possession to the appellant. The issue squarely arises vis a vis the respondents. Unfortunately, the respondents had not impleaded the LAO who had taken possession and delivered possession of the land to the appellant. It is not in dispute that under Ex.P-5, the LAO delivered possession to the appellant. Therefore, as rightly contended by Shri Harish Salve, learned senior counsel for the appellant, that the presumption under Section 114(e) of the Evidence Act would consequently get attracted to the facts in this case. The LAO in discharge of his official duty after taking possession of the disputed land along with other lands, had, in turn, delivered the same to the appellant. It is seen that 339 acres of land acquired by a common notification was taken and the award came to be made and possession was taken of all the lands. Question arises: whether it would be possible for the LAO to take physical possession of the entire 339 acres of land and deliver the same to the Housing Board? The approach to the question must be pragmatic and realistic but not purely legalistic. It is true that in Balwant Narayan Bhadge's case, (1975 Supp. SCR 250: AIR 1975 SC 1767 ), Untwalia, J. had held at page 263 SCR 1777, para 28 of AIR) thus: The question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. In the present case there is a Kabzanama executed by the petitioner in addition to the Panchanama. Thus, it cannot be doubted that the possession was delivered by the petitioner on 17-8-1983 as revealed in the said documents. 9. Shri Deepak Awashty, learned Dy. Govt. Advocate further placed reliance on the decision of this Court dated 20-5-2006 rendered in W. P. No. 5586/2006 to buttress his submission that the possession has been obtained of the surplus land. 10. 9. Shri Deepak Awashty, learned Dy. Govt. Advocate further placed reliance on the decision of this Court dated 20-5-2006 rendered in W. P. No. 5586/2006 to buttress his submission that the possession has been obtained of the surplus land. 10. In the totality of the facts and circumstances it is hereby concluded that the possession of the subject land is found to have been delivered by the petitioner on 17-8-1983 as revealed in the Kabzanama executed by him and it is not open for the petitioner to contend contrary in the absence of a challenge to the Kabzanama executed by him. 11. In the result, the petition is found to have no merits. Accordingly, the writ petition is dismissed, however, without order as to costs. Writ petition dismissed.