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Madhya Pradesh High Court · body

2012 DIGILAW 516 (MP)

Munna v. State of M. P.

2012-05-09

SUJOY PAUL

body2012
ORDER 1. Learned counsel for the parties submit that the matters are identical in nature. Accordingly, with the consent of parties, matters are analogously heard and decided by this common order. 2. The facts are taken from Writ Petition No. 8055/2011 (Munna vs. State of M.P. and others). 3. The land Survey No. 540540/1 area 0.836 hectare is situated at village Bhagwaj, District Sheopur. This land was earlier allotted to a tribal person namedy Fundya, resident of said village. However, the patta of said land was cancelled by the S.D.O. Sheopur in Case No. 24/94-95/A-86 Vide order dated 22.12.1995 and 16.8.1994. The order is placed on record as Annexure P/3. 4. After cancellation of patta the land became Government land and therefter in case No. 06/96-97/A-99 the land was settled by granting patta in favour of the petitioner. Thereafter the petitioner is cultivating the land on the basis of said patta. Accordingly, the petitioner is recorded in revenue record as “Government Patta Holder”. The revenue entries are marked as Annexure P/4. 5. The Sub-Divisional Officer issued a notice dated 26.10.2020 to the petitioner by invoking sections 170-A and 170-B of M.P. Land Revenue Code (MPLRC). Petitioner submitted his reply in the said suo motu proceedings initiated by the Sub-Divisional Officer. Thereafter by order dated 28.2.2011 (Annexure P/2) the attotment of the petitioner was cancelled by S.D.O. The petitioner preferred an appeal before the Collector, which was registered as Case No. 15/2010-11/Appeal Revenue, which was decided by him on 8.11.2011 (Annexure P/1). The Collector also rejected the appeal of the petitioner. 6. Shri Yogesh Singhal, learned counsel for the petitioner submits that patta in favour of the petitioner was not granted on cancellation or transfer of patta from a tribal person. He submits that patta of a tribal person was cancelled, the land became a Government land and then after following due process of law, patta was granted in his favour. He submits that section 170-A and 170-B have no application in the facts and circumstances of the case. He futher submits that another reason assigned for cancellation of land in the impugned order is that after 1992 ‘Bhu Dan Board’ was abolished and the land with regard to ‘Bhu Dan’ should not have been given on patta to the petitioner. He submits that section 170-A and 170-B have no application in the facts and circumstances of the case. He futher submits that another reason assigned for cancellation of land in the impugned order is that after 1992 ‘Bhu Dan Board’ was abolished and the land with regard to ‘Bhu Dan’ should not have been given on patta to the petitioner. Shri Singhal submits that this was not the reason assigned in the show cause notice nor any provision is quoted, on the strength of which such a conclusion is arrived at by the S.D.O. He further submits that even this reason does not fall within the ambit of sections 170-A and 170-B of the MPLRC. 7. Per Contra, Shri P.S. Raghuvanshi, learned Panel Lawyer supported the order passed by the authorities. 8. I have bestowed my anxious consideration on the rival contentions of the parties. 9. For ready perusal, sections 170-A and 170-B of MPLRC are reproduced as under:- “170-A. Certain transfers to be set aside. - (1) Notwithstanding anything contained in the Limitation Act, 1963 (No. 36 of 1963)), the Sub-Divisional Officer may, on his own motion or on an application made by a transferer of agricultural land belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of section 165 on or before the 31st December, 1978, enquire into a transfer effected by way of sale, or in pursuance of a decree of a Court of such land to a person not belonging to such tribe or transfer effected by way of accrual of right of occupancy tenant under section 169 or of bhumiswami under-section (2-A) of section 190 at any time during the period commencing on the 2nd October, 1959 and ending on the date of commencement of the Madhya Pradesh Land Revenue Code (Third Amendment) Act, 1976 to satisfy himself as to the bona fide nature of such transfer. (2) If the Sub-Divisional Officer on an enquiry and after giving a reasonable opportunity to the persons owning any interest in such land, is satisfied that such transter was not bona fide, he may notwithstanding anything contained in this Code or any other enactment for the time being in force,- [(a) subject to the provisions of clause (b), set aside such transfer if made by a holder belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of section 165 and restore the land to the transferor] [(a) subject to the provisions of clause (b), set aside such transfer if made by a holder belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of section 165 and [restore the land to the transferor by putting him in possession of the land forthwith]; or (b) where such land has been diverted for non-agricultural purposes, he shall fix the price of such land which it would have fetched at the time of transfer and order the transferee to pay the difference, if any, between the price so fixed and the price actually paid to the transferor within a period of six months.] “170-B. Reversion of land of members of aboriginal tribe which was transferred by fraud. - (1) Every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) 1960 (hereinafter referred to as the Amendment Act of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under sub-section (6) of section 165 between the period commencing on the 2nd October, 1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within (two years) of such commencement, notify to the Sub-Divisional Officer in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land. (2) If any person fails to notify the information as required by sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural land shall, on the expiration of the period aforesaid revert to the person to whom it originally belonged and if that person be dead, to his legal heirs. [(2-A) If a Gram Sabha in the Scheduled area referred to in clause (1) of Article 244 of the Constitution finds that any person, other than of a bhumiswami belongings to an aboriginal tribe, is in possession of any land of a bhumiswami belonging to an aboriginal tribe without any lawful authority, if shall restore the possession of such land to that person to whom it originally belonged and if that person is dead to his legal heirs: Provided that if the Gram Sabha fails to restore the possession of such land, it shall refer the matter to the Sub-Divisional Officer, who shall restore the possession of such land within three months from the date of receipt of the reference,] (3) On receipt of the information under sub-section (1), the Sub-Divisional Officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and pass an order revesting the agricultural land in the transferor and if he is dead, in his legal heirs.] [(3) On receipt of the information under sub-section (1), the Sub-Divisional Officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction nul and void and - (a) Where no building or structure has been erected on the agricultural land prior to such finding pass an order revesting the agricultural land in the transferor and if he be dead, in his legal heirs, (b) Where no building or structure has been erected on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act, 1984 (No. 1 of 1894) and order the person referred to in sub-section (1) to pay to the transferor the difference, if any, between the price so fixed and the price actually paid to the transferor: Provided that where the building or structure has been erected after the 1st day of January, 1984, the provisions of clause (b) above shall not apply: Provided further that fixation of price under clause (b) shall be with reference to the price on the date of registration of the case before the Sub-Divisional Officer.]” A bare perusal of sections 170-A and 170-B makes it crystal clear that the basic intention to bring these provisions in the Statute Book was to ensure that the land allotted to a tribe should not be transferred contrary to the mandate of MPLRC. Sub-section (1) of section 170-A and 170-B shows that the power can be invoked by S.D.O. suo motu or on an application by a transferor of agricultural land belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of section 165 on or before 31st December, 1978, enquire into a transfer effected by way of sale or in pursuance of a decree of a Court regarding transfer of such land to a person not belonging to such tribe. Sub-section (2) of section 170-A gives powers to the S.D.O. to enquire into the matter after giving reasonable opportunity to the persons having interest in such land and then decide whether transfer in bona fide or not. section 179-B also prescribes a methodology to take action. In this view of the matter, the basic question is whether the impugned order falls within the ambit of aforesaid sections? 10. In the present case the respondents have not applied their mind at all on the fact that land of tribal became a Government land on cancellation of his patta and from Government it is transferred to petitioner by way of a fresh patta. Thus, admittedly, land is not transferred directly from a tribal person to the petitioner. Thus, section 170-B has no application in the facts and circumstances of the case. Learned Panel Lawyer despite repeated questions from the Bench is not is a position to demonstrate as to which sub-sections of 170-B will apply in the present matter. 11. So far section 170-A is concerned, sub-section (1) will not apply for the same reason that the land is not transferred in favour of petitioner from a tribal person. However, section 170-A (2) is worded in a different fashion, yet its overriding power because of expression “notwithstanding anything contained in this Code” will have an operation in the event it falls within the ambit of clauses (a) and (b) of sub-section (2). Learned Panel Lawyer is not in a position to demonstrate as to how section 170-A will have application. 12. Learned Panel Lawyer is not in a position to demonstrate as to how section 170-A will have application. 12. I find force in the argument of learned counsel for the petitioner that the cancellation of the land on the basis of ‘Bhu Dan’ land does not fall within the ambit of sections 170-A and 170-B. In other words, the reasons/ingredients, on the strength of which sections 170-A and 170-B can be applied, are mentioned in extenso in those provisions. This does not contain the eventuality of ‘Bhu Dan’ land being transferred to somebody. Thus, under these provisions the impugned order could not have been passed. Learned Panel Lawyer, despite repeated queries, is not in a position to mention any other enabling provision under the MPLRC or otherwise, on the strength of which impugned orders could have been passed containing the reasons that the land so allotted in favour of petitioner was ‘Bhu Dan’ land. Even if there was an enabling provision in this regard, the respondents should have given an opportunity to the petitioner to put forth his case in this regard. 13. On the basis of aforesaid analysis, it is clear that the respondents have erroneously applied the provisions of sections 170-A and 170-B of the MPLRC. The respondents are not in a position to show the basis of conclusions of impugned order, Annexure P/2, i.e. regarding impermissibility of allotment of ‘Bhu Dan’ land in favour of the petitioner. Thus, the conclusion arrived at regarding ‘Bhu Dan’ land is not based on any disclosed provision and reason. Any conclusion which is not based on any reason and discussion is treated as ipse dixit of the authorities. The minimum expectation of the authorities exercising quasi judicial/judicial power is to assign reason for arriving at the conclusion. Reasons are heartbeat af the conclusion. The Apex Court in Kranti Associates Private Limited vs. Massod Ahmed Khan, (2010) 9 SCC 496, emphasized the reasons, which reads as under:- “(a) In India the judicial trend has always been to record reasons, even in administrative decision, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusion. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (b) A quasi-judicial authority must record reasons in support of its conclusion. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by Superior Courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in fovour of reasoned dicisions based on relevant facts. This is virtually the lifeblood of judicial dicision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. 14. In this view of the matter, I am unable to uphold the orders, Annexures P-1 and P-2. Accordingly, impugned orders are quashed. However, liberty is reserved to the respondents to proceed against the petitioner if there exists any other enabling provision. In other words, the respondents may proceed against the petitioner in accordince with law. 15. Petitions are allowed to the extent indicated above. No. costs.