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Madhya Pradesh High Court · body

2011 DIGILAW 805 (MP)

Soneju v. State of M. P.

2011-07-22

RAJENDRA MENON

body2011
ORDER 1. Challenging the orders passed by the Board of Revenue and the Commissioner, Sagar Division in the matter of interfering with an order passed by the Sub Divisional Officer, Tikamgarh on 27.1.1976-Annexure P/2, this writ petition has been filed by the petitioner. 2. Facts in brief indicate that petitioner was owner of 66.22 Acres of agricultural land. According to the petitioner, the said land was owned by him even before the M.P. Ceiling on Agricultural Holding Act, 1960 came into force and the cut-off date fixed under the Act was 1.1.1971. According to the petitioner apart from the aforesaid land, he also became owner of 51.91 Acres of land which came to him after death of his aunt-one Smt. Badi Dulaiya, in the year 1967. Accordingly, it is stated that prior to 1.1.1971 petitioner owned 119.33 Acres of land. Out of this land petitioner is alleged to have sold 31.88 Acres of land to respondent No.2 in the year 1968 and it is the case of the petitioner that in the year 1968 possession of this land was handed over to respondent No.2. Part consideration was also taken, but the formality of executing the registered sale-deed was done only in the year 1972 i.e. after the cut-off date 1.1.1971. It is the case of the petitioner that for all practical purposes the sale of this land to respondent No.2 was affected in the year 1968 and the possession was also handed over in the year 1968, therefore, the transaction was valid. 3. Similarly, petitioner is alleged to have transferred 28.81 Acres of land by way of a Gift Deed, said to have been executed in favour of his mother namely Smt. Phoolan Dulaiya. According to the petitioner, this transaction also took place much before the cut-off date 1.1.1971. It is the case of the petitioner that in view of the aforesaid two sales made, the land held by the petitioner was within the permissible limit and, therefore, the M.P. Ceiling on Agricultural Holding Act, 1960 (hereinafter referred to as 'Act of 1960') would have no application. It is the case of the petitioner that in view of the aforesaid two sales made, the land held by the petitioner was within the permissible limit and, therefore, the M.P. Ceiling on Agricultural Holding Act, 1960 (hereinafter referred to as 'Act of 1960') would have no application. Inspite thereof, when respondent No.3 -- the competent authority, issued notice to the petitioner under section 4, petitioner appeared and justified his holding in the manner as indicated hereinabove, examined himself and certain witnesses and on the basis of the averments made, it is stated that respondent No.3 accepted the contention of the petitioner and dropped the proceedings initiated under section 4 of the Act of 1960 on 27.1.1976 -- vide Annexure P/2. However, Collector, Tikamgarh finding the order of the SDO to be not in accordance to law, instead of filing an appeal referred the matter to the Additional Commissioner for taking up the issue under suo motu revision by exercising the powers under section 42. The Additional Commissioner refused to exercise this power vide Annexure P/3 on 11.7.1989, but on an order passed by the Board of Revenue on 3.3.1983, the matter was remanded back to the Commissioner and the Commissioner vide order dated 11.7.1989 quashed the order of the SDO, holding that the transaction allegedly made by the petitioner with respondent No.2 and his mother are not proved and, therefore, declared certain land as surplus under the Ceiling Act. Aggrieved thereof petitioner preferred further revision petition and review before the Board of Revenue and the same having been dismissed on 1.12.1989 and 6.5.2003-vide Annexure P/5 and P/6, petitioner is before this Court. 4. During the course of hearing the only argument advanced by learned counsel for the petitioner was that when an order is passed under section 4 of the Act of 1960, the aggrieved person has to file an appeal under section 3 and the powers of suo motu revision under section 42 cannot be exercised when no appeal is filed as provided for in the Act. Accordingly, placing reliance on the second proviso of section 42, and the provision of appeal contained in sub-section (4) of section 3, it is argued that the powers of suo motu revision exercised by the Additional Commissioner is illegal. 5. Accordingly, placing reliance on the second proviso of section 42, and the provision of appeal contained in sub-section (4) of section 3, it is argued that the powers of suo motu revision exercised by the Additional Commissioner is illegal. 5. From the facts that have come on record, it is clear that on the merits of the case, admittedly petitioner was holding land in excess of the permissible limit under the Act of 1960. However, it was the case of the petitioner that 31.88 Acres of land was sold by him to respondent No.2, in the year 1968, but the sale deed executed in the year 1972, and further 28.81 Acres of land was gifted by him to his mother. Even though the SDO accepted the aforesaid contentions of the petitioner in the order-dated 27.1.1976 - Annexure P/2, but when the matter was reconsidered by the Additional Commissioner in his order-dated 19.12.1988 -- Annexure P/4 and again by the Board of Revenue on 1.12.1989 vide Annexure P/5, the aforesaid transaction was found to be nothing but an illegal one to avoid liability under the Act of 1960. Both the authorities have recorded concurrent finding that the petitioner has miserably failed to prove these transactions and the contention of the petitioner that even though he had sold the land in the year 1968 but the formality the sale-deed was undertaken in the year 1972, was found to be incorrect and the finding recorded is that the transactions took place after the appointed date i.e. 1.1.1971. During the course of hearing of this writ petition, nothing was pointed out to this Court as to how and on what ground the aforesaid finding concurrently arrived at by the Commissioner and the Board of Revenue is found to be illegal. The only ground raised is that the Commissioner could not exercise the power of suo motu revision. During the course of hearing of this writ petition, nothing was pointed out to this Court as to how and on what ground the aforesaid finding concurrently arrived at by the Commissioner and the Board of Revenue is found to be illegal. The only ground raised is that the Commissioner could not exercise the power of suo motu revision. If the orders passed in this regard are taken note, it would be seen that initially when the Commissioner refused to exercise the powers of suo motu revision, the Commissioner did so on the basis of certain orders passed by a Revenue Court, as is evident from Annexure P/3 dated 11.7.1980, but when the matter was considered by the Board of Revenue, the Board of Revenue on 3.3.1983 -- vide Annexure P/7, found that a Bench of this Court in M.P. No. 95/1977 -- Ramchandra Ram v. Competent Authority, Tikamgarh, has held that a revision before the Commissioner was maintainable and, therefore, the matter was remanded back to the Additional Commissioner. This order-dated 3.3.1983 was never challenged by the petitioner. The petitioner did not at that point of time assail the jurisdiction of the Additional Commissioner in exercising the powers of suo motu revision nor did he challenge the order-dated 3.3.1983, passed by the Additional Commissioner. Even before this Court, this order of remand dated 3.3.1983 is not challenged. On the contrary in the body of the petition, it is stated that this order is not available with the petitioner and, therefore, he is not filing the same. It was only filed after a period of two years of filing the writ petition on 27.7.2005, vide I.A. No. 6393/2005. When the Board of Revenue found that the Commissioner could entertain the powers of revision and when the revision was being considered by the Commissioner and when the proceedings were held before the Commissioner which culminated in passing of the order-dated 19.12.1988 -- Annexure P/4, petitioner did not challenge the same, but participated in the revision proceedings without any objection. That being so, now after having submitted to the jurisdiction of the Additional Commissioner petitioner cannot now raise the ground before this Court. That being so, now after having submitted to the jurisdiction of the Additional Commissioner petitioner cannot now raise the ground before this Court. That apart, when the matter was adjudicated before the Board of Revenue, a perusal of the order passed by the Board vide Annexure P/5 on 1.12.1989 indicates that the Board of Revenue has taken note of the order passed earlier on 3.3.1983 and the order of the High Court in Writ Petition No. 95/1977 -- Ramcharan Ram v. Competent Authority, and there is nothing in the order of Board of Revenue that the petitioner has ever raised the question of jurisdiction of the Additional Commissioner to exercise the powers of revision. Nothing is pointed out to this Court during the course of hearing to indicate as to whether any such objection was raised when the proceedings were pending before the Board of Revenue in Revision No. 158-A/90/(V-3)/87-88. Once the petitioner chose not to challenge the order of remand made by the Board of Revenue on 3.3.1983 and when the petitioner submitted to the revisional jurisdiction of the Commissioner, now petitioner cannot be permitted to take a turn around and assail the jurisdiction, of the authority on, the grounds raised particularly when the concurrent findings available on record, is with regard to the fact that petitioner was holding land in excess of the ceiling limit and his contention that he had transferred the land before cut-off date i.e. 1.1.1971 is found to be incorrect by all the authorities. 6. Taking note of all these circumstances, this Court does not find any ground to interfere in the matter, now at the instance of the petitioner. 7. Accordingly, the petition is dismissed.