Savina Park Resorts and Tours Pvt. Ltd. v. State of M. P.
2012-03-19
SUJOY PAUL
body2012
DigiLaw.ai
JUDGMENT : Brief facts necessary for adjudication of this matter are as under:- The petitioner allegedly purchased the land situated in Survey No. 55/1/M-3 Rakba 0.470 hectare and 85/5 Rakba 0.627 hectare, from Harmukha by the alleged registered sale deeds dated 5.4.2008 and 15.1.2008. The petitioner received “Bhu Adhikar Rin Pustika” from the respondents. The petitioner's case is that in the land records the name of Harmukha was recorded as Bhumiswami and there was no mention regarding any “patta”. The petitioner further submits that after purchase of land, petitioner filed mutation application before respondent No.4 Tahsildar. He was informally informed that the land purchased by the petitioner may have been “patta land”. At this stage, petitioner preferred an application to Collector for ratifying the transfer and validating the transaction as per Section 165 (6-b) of the Madhya Pradesh Land Revenue Code (for brevity, the 'Code'). The petitioner submits that this application (Annexure P/7) is received in the Office of Collector on 26.8.2008. 3. The petitioner at this stage filed present petition for a direction to take a decision on the application dated 3.1.2008 before Tahsildar for mutation and on application dated 26.8.2008 before the Collector for ratification of aforesaid sale transaction. 4. During pendency of the petition, the Collector passed its order dated 14.1.2010 by taking up the matter in a suo motu revision. By way of amendment, the petitioner challenged this order dated 14.1.2010 as well. 5. Shri Gaurav Sarin and Shri Yogesh Chaturvedi, learned counsel for the petitioner have raised following points to assail the impugned order:- (A) The Collector took the matter in suo motu revision under the Code on 28.10.2009, which was barred by time. The impugned order dated 14.1.2010 is passed after 505 days from the date of application of petitioner to the Collector dated 26.8.2008. As per Full Bench judgment of this Court in Ranveer Singh and others vs. State of MP and others, reported in AIR 2011 MP 27 , it is held that suo motu powers could not have been exercised beyond a period of 180 days. (B) The respondents cannot take advantage of their own wrong, as at the time of purchase of land there was no remark in the revenue document that it is a “patta land”. Support is drawn from (2007) 11 SCC 447 (Kusheshwar Prasad Singh vs. State of Bihar and others).
(B) The respondents cannot take advantage of their own wrong, as at the time of purchase of land there was no remark in the revenue document that it is a “patta land”. Support is drawn from (2007) 11 SCC 447 (Kusheshwar Prasad Singh vs. State of Bihar and others). (C) The application dated 26.8.2008 for ratification is not considered and dealt with, which is contrary to the mandate of Section 165 (6-b) of the Code and Collector was under a legal obligation to decide it either way. (D) The transfer of land by Bhu Swami is after a period of ten years and thus, the sale transaction was neither fraudulent nor forged but legal and capable of ratification under Section 165 (6-b) of the Code. 6. Per Contra, Shri Bhagwan Raj Pandey, learned Government Advocate would submit that no relief is due to the petitioner in the present writ petition. He submits that in sale deed not a single word is mentioned regarding name of seller Harmukha showing him to be owner of the land on the basis of patta granted by the Government. In other words, learned Government Advocate submits that there is no mention of “patta land” in the alleged sale deed. Accordingly, this cannot be said that on perusal of this sale deed the Collector had gathered knowledge regarding the sale deed executed by a “patta holder”. It is the case of the State that when one Pushpendra Singh Sengar filed a complaint to the Collector with regard to transaction made between the parties, upon this an enquiry was felt necessary to ascertain the correctness and legality of the same. He further submits that the Collector on the said complaint of Shri Sengar ordered on 10.4.2009 to investigate the matter by Sub-Divisional Officer (S.D.O.). Accordingly, investigation was made and enquiry report was forwarded to the Collector. On perusal of enquiry report it was found that the land in question was granted on lease which was illegally sold to the petitioner without following the mandate prescribed under the Code.
Accordingly, investigation was made and enquiry report was forwarded to the Collector. On perusal of enquiry report it was found that the land in question was granted on lease which was illegally sold to the petitioner without following the mandate prescribed under the Code. The Collector for the first time came to know on 28.10.2009 regarding the illegality and the fact that “patta” was granted to the seller namely Harmukha in the year 1994 and on the basis of this patta he became Bhumiswami of the land and such a land was non-transferable and if it is transferred without permission of the Collector, such a transaction is void ab initio. In nutshell, the case of the Government is that the date of knowledge of Collector is 28.10.2009 and not 26.8.2008 as alleged by the petitioner. The learned Government Advocate also placed reliance on the same judgment of Full Bench rendered in Ranveer Singh (supra). The Government prayed for dismissal of the writ petition. No other point is pressed by parties. 7. I have bestowed my anxious consideration on the rival contentions of the parties and heard them at length. I have also perused the written submissions filed by both the sides. 8. Before dealing with legal points, it is relevant to mention certain important facts. On 9.4.2009 one Shri Sengar made a complaint against the petitioner before the Collector. On 10.4.2009 Collector directed for investigation. On 13.5.2009 Tahsildar prepared his report. The report of Tahsildar was placed before the Collector and Collector came to know about illegality and irregularity on 22.5.2009 and directed for issuance of show cause notice and started suo motu revision. In turn, on 28.10.2009 show cause notice was issued, which ended with issuance of final order on 14.1.2010. Point (A): 8. The Full Bench of this Court in Ranveer Singh's case (supra) held as under:- “38. Ab judicatio for the reasons stated hereinabove we hereby answer the question referred to us as under:- The suo motu powers can be exercised by the Revisional Authority envisaged under Section 50 of the Code within a period of 180 days from the date of the knowledge of illegality, impropriety and irregularity of the proceedings committed by any Revenue Officer subordinate to it even if the immovable property is Government land or having some public interest.
What should be the irreparable loss, it should be considered on the facts and circumstances of each case as no definite yardstick in that regard can be drawn. We have already mentioned hereinabove certain instances which can be said to be the “irreparable loss”.” (emphasis supplied) 9. In the light of this Full Bench judgment, it is clear that a reasonable period is construed as 180 days from the date of knowledge of illegality, impropriety and irregularity. Thus, for applying the ratio of this judgment, the pivotal question is as to what is the starting point/date. The petitioner submits that it is 26.8.2008, the date when he preferred application for ratification whereas the State submits that it is 28.10.2009 when Collector gathered knowledge about the illegalities. The answer of Point (A) would depend on the starting date. 10. In the opinion of this Court, the answer given by the Full Bench to the question referred is self-explanatory and explicit in nature. Consciously, the Full Bench has chosen to use the words “within a period of 180 days from the date of knowledge of illegality, impropriety and irregularity.” Reverting back to petitioner's application dated 26.8.2008 would show that petitioner has merely enclosed the sale deed, khasra and perhaps copy of 'Bhu Adhikar Rin Pustika'. The Office of Collector merely forwarded this letter for taking action to Tahsildar. Neither in this letter (Annexure P/7) nor in the sale deed it is mentioned that the land in question was “patta land”. Therefore, I am unable to hold that the Collector gathered knowledge on receiving Annexure P/6 on 26.8.2008 regarding any illegality, impropriety and irregularity in the matter. I find that on receiving complaint of said Shri Sengar when investigation was ordered, it is only on 22.5.2009 the Collector gathered the knowledge regarding the illegality and irregularity caused in the matter. Accordingly, he took up the matter in suo motu revision, issued show cause notice on 28.10.2009 and passed the order on 14.1.2010 which are within 180 days from the date of knowledge, a permissible time even as per the Full Bench judgment. On the basis of aforesaid facts, it is clear that the submission of petitioner's application dated 26.8.2008 before the Collector cannot amount to bringing irregularity and illegality in the knowledge of Collector. Same is the case with the complaint of Shri Sengar, which was preferred on 9.4.2009.
On the basis of aforesaid facts, it is clear that the submission of petitioner's application dated 26.8.2008 before the Collector cannot amount to bringing irregularity and illegality in the knowledge of Collector. Same is the case with the complaint of Shri Sengar, which was preferred on 9.4.2009. At best, these two letters contain some information. If the Collector had a doubt or suspicion about alleged irregularity/illegality on receiving Shri Sengar's complaint, the only course open for him was to direct a proper investigation to gather knowledge of actual situation. He did so. The question is as to what is knowledge, which will determine the point of date of knowledge. The Apex Court although in a different context in 1993 Supp (2) SCC 497 (Joti Parshad vs. State of Haryana) dealt with this issue in following words:- ““Knowledge” is an awareness on the part of the person concerned indicating his state of mind. “Reason to believe” is another facet of the state of mind. “Reason to believe” is not the same thing as “suspension” or “doubt” and mere seeing also cannot be equated to believing. “Reason to believe” is a higher level of state of mind. Likewise “knowledge” will be slightly on higher plane than “reason to believe”. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same.” On the basis of this analogy, it can be safely concluded that when complaint of Shri Sengar was received by the Collector, at best he had a doubt but he gathered knowledge only when the enquiry report was produced before him. Thus, the starting point would be the date when enquiry report was produced before him, i.e., 22.5.2009 and from this date, suo motu powers are exercised by the Collector within 180 days. Before this date even on receiving the petitioner's representation dated 26.8.2008 or complaint of Shri Sengar, by no stretch of imagination, it can be said that Collector had gathered knowledge about illegality, impropriety and irregularity. Thus, this point needs to be decided against the petitioner. Accordingly, the action of taking up the matter in suo motu revision is upheld because it is taken up within 180 days. Point (B): 11.
Thus, this point needs to be decided against the petitioner. Accordingly, the action of taking up the matter in suo motu revision is upheld because it is taken up within 180 days. Point (B): 11. True it is that in khasra entries (Annexure P/3) in relevant columns it is not mentioned that Harmukha was a “patta holder” or land in question is a “patta land”, however, in the opinion of this Court, merely because those entries are kept blank or even the entry is wrongly filled up will not confer any legal right to the seller. The principle of law laid down in Kusheshwar Prasad Singh's case (supra), which is heavily relied by the petitioner, is of no help to the petitioner. The ratio of that judgment is that no man shall take advantage of his own wrong to gain favourable interpretation of law. The principle is that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”. This principle has no application in the facts and circumstances of this case. The Government has not taken any benefit out of their non-performance nor Government can be said to be a wrongdoer in the fact situation of this case. On the contrary, the seller was a wrongdoer who, despite knowing the fact that it is a “patta land” allegedly sold the said land to the petitioner without following the mandate of the Code. Thus, this contention is rejected. Apart from this, even if it is not mentioned in the khasra entries that such land is restricted and cannot be transferred, this will not bestow any right to the seller or to the purchaser. Once admittedly the said land was a “patta land”, its transfer is permissible only in accordance with the mandate of the Code. Thus, mere nonmention or incorrect mention in khasra entries will not give any right of transfer to the petitioner. Point (C) : 12. Shri Sarin, learned counsel for the petitioner submits that when the petitioner came to know that it is a “patta land”, he preferred the application dated 26.8.2008 for ratification of the same.
Thus, mere nonmention or incorrect mention in khasra entries will not give any right of transfer to the petitioner. Point (C) : 12. Shri Sarin, learned counsel for the petitioner submits that when the petitioner came to know that it is a “patta land”, he preferred the application dated 26.8.2008 for ratification of the same. He heavily relied on Section 165 (6-b) of the Code, which reads as under:- “(6-b) Notwithstanding anything contained in the Limitation Act 1963 (No. 36 of 1963), the Collector may on his own motion at any time or on an application made in this behalf within three years of such transaction in such form as may be prescribed, make an enquiry as he may deem fit, and may, after giving a reasonable opportunity of being heard to the persons affected by the transfer, pass an order ratifying the transfer or refusing to ratify the transfer.” He would further submit that Section 165(7) has no application in the fact situation of the present case. 13. It is profitable to quote Section 165 (7-b) of the Code which reads as under:- “(7-b) Notwithstanding anything contained in sub-section (1), [a person who holds land from the State Government or a person who holds land in bhumiswami rights under sub-section (3) of section 158] or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes bhumiswami of such land, shall not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing.” 14. Although Section 165 (6-b) gives power to the Collector to ratify the transfer or refuse the same in accordance with law, the question is whether the order passed by the Collector is in consonance with Sec. 165 of the Code. The order passed by the Collector dated 14.1.2010 shows that the report was obtained from the Revenue Officer by the Collector and it was found that patta was granted to Harmukha on 4.1.1994 treating him to be a landless person. The report placed before the Collector shows that said seller never obtained any permission as per Section 165 (7-b) from the competent authority to sell it.
The report placed before the Collector shows that said seller never obtained any permission as per Section 165 (7-b) from the competent authority to sell it. Accordingly, on suo motu revision the sale was found to be void and non est in the teeth of the provisions of the Code by the Collector. Interestingly, Harmukha son of Shamle, caste Jatav, in his reply before the Collector stated that he never sold the land in question nor the sale deed contains his signature. The Collector accordingly gave a finding that admittedly the mandate of Section 165 (7- b) is violated. No permission is obtained by the seller as mandated in aforesaid provision to sell the land in question. Accordingly, the Collector cancelled the patta, which was issued on 4.1.1994 and came to hold that the said sale deed is void ab initio. 15. A Division Bench of this Court in 2002 (2) MPLJ 480 (Mulayam Singh vs. Budhwa Chamar) held as under:- “5. It is not in dispute that no permission from the Collector was obtained and the sale was made without the permission of Collector. The respondent cannot transfer his land even though he is declared Bhumiswami, without the permission of the Collector. Transfer was made without such permission, so the appellants will not get any legal rights. In the circumstances, the Additional Collector has rightly held that the sale was in contravention of the provisions of section 165 (7-B) of the Code and is void. Mutation effected on the basis of sale was set aside and the land was directed to be recorded in the name of the respondent No.1.” (Emphasis added) 16. Accordingly, I am unable to hold that the Collector has committed any error of law in passing the impugned order. So far the question of not deciding the petitioner's application dated 26.8.2008 preferred under Section 165 (6-b) of the Code is concerned, since the alleged transaction was void ab initio, there was no need to pass any separate order and said application is deemed to be rejected on passing of final order by the Collector on 14.1.2010.
So far the question of not deciding the petitioner's application dated 26.8.2008 preferred under Section 165 (6-b) of the Code is concerned, since the alleged transaction was void ab initio, there was no need to pass any separate order and said application is deemed to be rejected on passing of final order by the Collector on 14.1.2010. It is also relevant to mention that the Supreme Court in (1996) 7 SCC 765 (Keshabo and another vs. State of MP and others), held as under:- “The M.P.Revenue Code is a welfare legislation made to protect the ownership rights in the land of a Scheduled Tribe to effectuate the constitutional obligation of Articles 39 (b) and 46 of the Constitution read with the Preamble. Economic empowerment of a tribal to provide economic democracy is the goal. Prevention of their exploitation due to ignorance or indigency is a constitutional duty under Article 46. Agricultural land gives economic status to the tiller. Therefore, any alienation of land in contravention of the above objectives is void.” Therefore, I have no hesitation to hold that any transaction by petitioner and Harmukha is void and Collector has not committed any illegality in passing the impugned order. Thus, this point is also decided against the petitioner. Point (D): 17. So far the contention that the transfer of land by Bhumiswami is after a period of ten years is concerned, this point is also no more res integra. The Division Bench in Mulayam Singh's case (supra) held as under:- “This provision was enacted on 28.10.1992, much after the transaction of sale in this case. Though it provides that after expiry of a period of ten years, the land may be transferred but it is also subject to the prohibition of section 165 (7-B) of the Code. So until and unless such a permission is granted by the Collector with cogent reasons, the sale is not permissible.
Though it provides that after expiry of a period of ten years, the land may be transferred but it is also subject to the prohibition of section 165 (7-B) of the Code. So until and unless such a permission is granted by the Collector with cogent reasons, the sale is not permissible. The abovesaid enactment has been made to restrict the transfer of the land which has been granted on lease by the State Government to landless person and such person cannot be deprived of the land by any transfer except as permissible under section 165 (7-B) of the Code and gives jurisdiction to the Collector to consider such a prayer only after a period of ten years and not before that.” This Court in 2002 (1) MPLJ (Note 2) (Budhuwa Chamar vs. Board of Revenue, M.P. and ors.) held as under:- “(b) M.P.Land Revenue Code, 1959, Ss. 165 (7-B) and 50 - Transfer of Land by Bhumiswami - If permission of Collector is not obtained such transfer is void ab initio - In absence of permission when the transfer is bad in law, by no stretch of imagination it can be said that the sale-deeds would be treated as valid in the eye of law - One need not seek declaration that the sale-deeds are bad in law as they do not confer any right for the simple reason that there was no prior permission of the Collector.” 18. In the light of aforesaid, I have no hesitation to hold that no right accrued in favour of the petitioner merely because the land was sought to be transferred after ten years from 4.1.1994. Accordingly, this point is also decided against the petitioner. 19. In the result, since petition is bereft of merits and substance, it is hereby dismissed. No costs.