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Madhya Pradesh High Court · body

2008 DIGILAW 1244 (MP)

Brahaspati Bai v. State of M. P.

2008-10-22

PRAKASH SHRIVASTAVA

body2008
JUDGMENT 1. This writ petition is directed against the order of the Sub-Divisional Officer dated 28.6.1998 (Annexure P-20) finding the respondent No.4 eligible for allotment of patta and against the order dated 5.10.2004 passed by the Collector (Annexure P-31) rejecting the petitioner's case for grant of patta under Madhya Pradesh Nagariya Kshetro Ke Bhoomihin Vyakti (Pattadhriti Adhikaron Ke Pradan Kiya Jana) Adhiniyam, 1984 (for short "Act of 1984"). 2. The case set up by the petitioner in the writ petition is that the petitioner was occupying the land admeasuring 406 sq.ft. situated in ward No.2 of Maharajpur, Mandla on which the petitioner had constructed a hut and had also obtained electric connection. She was paying the electricity bills and property tax for the said hut. Her further case is that respondent No.4 who was residing in front of the petitioner's hut was constructing her hut, therefore, the respondent No.4 was granted temporarypem1ission to live in the hut of the petitioner. When survey was conducted under the Act of 1984 the petitioner had gone out of Mandla and the authorised officer recorded the name of the respondent No.4 as occupant of the hut and consequently the impugned order Annexure P-20 dated 28.6.1998 was passed by the authorised officer sanctioning the patta in favour of the respondent No.4 under the Act of 1984 as amended by the Amending Act of 1998. The petitioner raised objection against the allotment of patta to the respondent No.4 but the Naib Tahsildar by order dated April 2000 did not accept objection. Aggrieved with this, petitioner preferred revision before the Collector under section 4-A of the Act of 1984, which was dismissed by the Collector by order dated 29.4.2002. Petitioner filed Writ Petition No. 296512003 before this Court which was disposed of by this Court by order dated 27.6.2003 with a direction to the Collector to reconsider the matter by considering the documents filed by the petitioner. The Collector thereafter passed the order dated 5.10.2004 rejecting the petitioner's case for grant of patta. Aggrieved with this, the petitioner has approached this Court by way of the present writ petition. 3. Learned counsel appearing for the petitioner submitted that the petitioner is entitled for allotment of patta under the provisions of the Act of 1984. The Collector thereafter passed the order dated 5.10.2004 rejecting the petitioner's case for grant of patta. Aggrieved with this, the petitioner has approached this Court by way of the present writ petition. 3. Learned counsel appearing for the petitioner submitted that the petitioner is entitled for allotment of patta under the provisions of the Act of 1984. He further submitted that there is no finding that the petitioner is not a landless person and for the purpose of claiming benefit under the Act of 1984 actual possession is not necessary but the possession through the tenant is sufficient and that after the remand the Collector has not considered the documents which were required to be considered as per the direction of this Court. 4. Learned counsel appearing for the respondents opposed the writ petition by pointing out that the patta has rightly been allotted to the respondent No.4 in accordance with the provisions of the Act and there is delay in filing the writ petition and also that the finding of fact about the possession which has been recorded by the Collector is not open to challenge. 5. State Government has enacted the Act of 1984, which provides for conferring the leasehold rights on landless persons in respect of sites for dwelling house in urban areas in the State of Madhya Pradesh. As per section 3 of the Act of 1984, the land occupied by landless person in any urban area on the specified date is deemed to be settled in his favour. Under sub-section (2) of section 3 the authorised officer can either settle the land in occupation of the landless person not exceeding 50 sq.mt. or settle any other land up to 50 sq.mt. in lease hold rights in his favour. "Landless person" has been defined in section 2 (d) of the Act as follows: "Landless person" means a person who does not own either in his own name or in the name of any member of his family any house or land in an urban area where he is actually residing." Section 2 (d-1) gives the meaning of "occupy" as under: "Occupy" means occupation of land in urban area belonging to the State Government, local body or Development Authority for residential purpose. Thus, only the landless person under section 3 of the Act of1984 is entitled for settlement of land occupied by him in his favour. Thus, only the landless person under section 3 of the Act of1984 is entitled for settlement of land occupied by him in his favour. Landless person is one who does not own any land in an urban area and does not occupy land exceeding 50 sq. meters. 6. In the present case, it is not in dispute that when the report Annexure P-19 was submitted by the Sub-Divisional Officer respondent No.4 was in occupation of the hut in question and the respondent No.4 was found entitled for allotment of patta under section 3 of the Act of 1984. It was also found that she had no other land and she was a landless person, therefore, a decision was taken to grant patta to respondent No.4 and to settle her at some other place. 7. So far as the petitioner's claim in respect of grant of patta under the Act of 1984 is concerned, the Collector on the detailed analysis has recorded the following factual findings : (i) During the survey it was found that the respondent No.4 was living as a tenant in the hut of the petitioner. (ii) The husband of the petitioner Gyani Lal Sahu is serving in home guard and on the date of survey he was posted in Karjiya Police Station. (iii) The land in question is Government land. (iv) In the earlier case the fact that the petitioner had constructed hut at other place also came in light, which has not been rebutted by the petitioner by submitting any proof. (v) The petitioner whose husband is in home guard by constructing a hut by encroaching upon the Government land and giving it to respondent No.4 has tried to take the benefit of the scheme. On the basis of the aforesaid findings, the Collector had rejected the petitioner's case for grant of patta. 8. The petitioner can claim patta under the Act of 1984 only it she establishes that she is an eligible person under section 3 of the Act of 1984 for allotment of patta. Under the Act of 1984, patta can be allotted to the landless person. The petitioner has failed to establish that she is covered by definition of "landless person" under section 2 (d) of the Act of 1984. Admittedly the petitioner was not occupying the hut as the same was let out to the respondent No.4. Under the Act of 1984, patta can be allotted to the landless person. The petitioner has failed to establish that she is covered by definition of "landless person" under section 2 (d) of the Act of 1984. Admittedly the petitioner was not occupying the hut as the same was let out to the respondent No.4. The petitioner's case that she was occupying the hut through the tenant cannot be accepted since the word "occupy" has also been defined under section 2 (d-1) to mean the occupation of the Government land in urban area for residential purpose. A person who is occupying such a land for residence alone is covered by the definition of landless person. Thus, the petitioner has rightly been denied the patta since she failed to establish that she was a landless person and was occupying the hut in question at the relevant time. 9. Learned counsel appearing for the petitioner has also impugned the order of the Collector on the ground that the direction issued by this Court on 27.6.2003 is W.P. No. 2965/2003 has not been complied with. This Court while disposing of the W.P. No. 2965/2003 by order dated 27.6.2003 had recorded the petitioner's submissions that electricity bills, property tax receipt and other documents showing possession of the petitioner over the disputed area have not been taken into consideration. This Court had directed the Collector to reconsider the matter and consider the documents and to go into the question whether the petitioner is landless and owns the structure. A perusal of the order of the Collector indicates that the Collector has considered the documents relating to purchase of material of construction of hut, property tax and electricity charges and has recorded that by these documents the eligibility of the petitioner is not established, therefore, the petitioner's grievance that these documents have not been considered is meritless. 10. In view of the aforesaid, I do not find any merit in the writ petition and the same is accordingly dismissed.