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Madhya Pradesh High Court · body

2012 DIGILAW 563 (MP)

Amar Singh Choudhary v. State of M. P.

2012-06-18

PRAKASH SHRIVASTAVA

body2012
JUDGMENT 1.This Second Appeal under Section 100 of the CPC is at the instance of the plaintiff challenging the judgment of the first appellate Court dated 10.3.2010 dismissing the appeal and affirming the judgment of the trial Court. The trial Court by judgment dated 4.1.2010 had dismissed the suit for declaration and injunction being C.S. No.46A/2009 filed by the appellant. 2. The appellant had filed the suit for declaration and injunction raising the plea that appellant and his family members were owner in possession of the land at Survey No. 663 adjoining to Mhow-Neemuch National Highway and on one corner of their land there was a shopping complex. For taking that land for the road widening purpose, it was proposed by the respondent to grant the land of Survey No.413 Area 136 hectare at village Bhuniakhedi in exchange and it was accepted by the Government vide Order dated 17.11.2010. Thereafter the land at Bhuniakhedi was given in exchange to the appellant and the mutation of the said land in the appellant’s name was done and the appellant’s land adjoining the National Highway was used for widening the road by demolishing the shopping compex. The exchange of land became final thereafter, vide order dated 4.4.2008, without any basis the earlier order of exchange dated 17.11.2000 was cancelled. Meanwhile a part of the land received in exchange was sold by the appellant to some other person. Therefore, a declaration was sought to the effect that the order dated 4.4.2008 was illegal and injunction was sought to restrain the respondent from interfering in the use of the land received by the appellant in exchange. 3. The suit was opposed by the respondent raising the plea that the appellant had got the exchange of land done by furnishing incorrect information. Land of Survey No.663 was not of the ownership of the appellant and there is no provision to exchange the agricultural land with the Nazul land. It was also pleaded that before passing the order dated 4.4.2008, a notice was given to the appellant who had filed the reply and documents. Land of Survey No.663 was not of the ownership of the appellant and there is no provision to exchange the agricultural land with the Nazul land. It was also pleaded that before passing the order dated 4.4.2008, a notice was given to the appellant who had filed the reply and documents. Further plea was raised that the land given in exchange in Survey No.413 is within 30 metres of the National Highway, which could not be given in exchange and that from the Revenue record the name of the appellant has already been deleted from Survey No. 413 and that the appellant had not approached the Court with the clean hands and in respect of the order dated 17.11.2000, the dispute is pending since the beginning and the appellant himself had earlier filed C.S.No2A/2004. 4. The suit filed by the appellant was dismissed by the trial Court holding that the order dated 4.4.2008 is neither illegal nor ineffective. It was also found that the respondent is not illegally trying to interfere in possession of the appellant on the land received by him in exchange, The suit was found to be maintainable and the objection of the respondent relating to non- joinder of necessary parties was rejected. 5. The lower appellate Court has re-appreciated the entire evidence on record and has found that the transaction of exchange of land was not legal and that the action of the appellant since beginning was not bona fide. It has also been found that the appellant had suppressed material facts while filing the present suit and he had not approached the Court with the clean hands. 6.This Court vide order dated 10.12.2010 had admitted the appeal for final hearing framing following substantial questions of law:- (1) Whether the non-speaking order dated 4.11.2008 (Ex.P/22) cancelling the earlier order dated 17.11.2000 is a legally sustainable order? (2) Whether the State Government could have revoked the order dated 17.11.2000 (Ex.P/14) when the land mentioned therein was already utilized by it? (3) Whether the two Courts below have committed an error in properly appreciating the validity and effect of the transaction of exchange of land in question between the appellant and the respondent? (4) Whether the appellant has been deprived of his property by following the due process of law? 7. For convenience the question no.2 and 3 are decided first as under:- Question No.2:- 8. (4) Whether the appellant has been deprived of his property by following the due process of law? 7. For convenience the question no.2 and 3 are decided first as under:- Question No.2:- 8. Learned counsel appearing for the appellant submitted that the Government was estopped from revoking the order dated 17.11.2000 (Ex.P/14) once the land of the appellant received by the Government was utilized for the purpose of widening the road. In support of his submission, he has placed reliance upon the judgment in the matter of Cauyery Coffee Traders, Mangalore Vs. Hornor Resources (International) Company Limited reported in 2011 (10) SCC 420 , in the matter of Suresh Seth Vs. State of M.P. and others reported in 2001 (1) JLJ 64 and in the matter of The Union of India and others Vs. M/s. Anglo Afgahan Agencies etc. reported in AIR 68 SC 718. 9. The learned counsel for the repondent has supported the impugned action of the State Government submitting that the initial transaction of exchange was illegal, therefore, the State has rightly revoked the order dated 17.11.2000 (Ex.P/14). 10.Having heard the learned counsel for the parties, it is noticed that the courts below have found that at the time of the transaction of the exchange of land, the appellant had got the exchange of land done though he was not the sole owner of the land at Survey No.663, which was given by him in exchange. He had also suppressed the fact that part of the land of Survey No.663 given in exchange was already sold by him to other persons namely Lajwanti, Omprakash and Vinod. The Courts below have also found that not only at the stage of transaction of exchange but in the plaint also the appellant had suppressed the fact that other persons are also owner of the land at Survey No.663 which was given by him in exchange. He had also given incorrect information about the area of land at Survey No.663 given by him in exchange. The Courts below have also taken note of the fact that the property in question are of value of more than Rs.100/- which can be sold or exchanged by the registered deeds only. There is no exchange deed on record executed by the State Government in respect of exchange of land in question. The valid exchange deed has neither been executed nor registered. 11. There is no exchange deed on record executed by the State Government in respect of exchange of land in question. The valid exchange deed has neither been executed nor registered. 11. The Courts below in respect of Ex.P/14 have noted that it is a conditional communication by the State to the Collector. In pursuance to this communication, as per the condition no agreement was executed with the appellant. 12. The lower appellate Court has also taken note of the fact that the agreement dated 7.8.2000 (Ex.P/11) was executed prior to the order Ex.P/14. Ex.P/11 relates to some other land of village Bhuniakhedi of Survey No.423 and not in respect of the land involved in the present transaction of exchange. It has also been noted that the agreement Ex.P/12 is on a plain paper. Since no agreement in pursuance to the order dated 17.11.2000 (Ex.P/14) has been found to be executed, therefore, the Courts below have reached to the conclusion that the transaction of exchange of land was not complete. 13. It has also been found that the brothers of the appellant had share in the land at Survey No.663 which was given by the appellant in exchange but no relinquishment deal duly executed and registered by the brothers of the appellant has been produced. 14. The action of the appellant has found to be malicious since even after selling the land to the other persons, he took the stand that he was the owner of the land which he had given in exchange. 15. In respect of the mutation of the land in exchange given to the appellant, it is found that the order of mutation has been cancelled. 16. The lower appellate Court has also noted that as per Clause 30 (b)(5) of No.3 of part 4 of RBC as amended by the notification dated 14.3.2002, the Government has the power to summon and examine the illegality and properiety of any action of the subordinate Revenue Officer and pass an appropriate order. Exercising the said power the State had passed the impugned order dated 4.4.2008 17. Exercising the said power the State had passed the impugned order dated 4.4.2008 17. The first appellate court has also noted that the alleged transaction of exchange was done under clause 20 of part 4-3 of the Revenue Book Circular, by which the Government agricultural land can be exchanged with the agricultural land of the private person, whereas in the present case exchange is with the Nazul land. The lower appellate Court has also placed reliance upon the judgment of this Court in the matter of Banwarilal Gupta Vs. State of M.P. reported in 2001 Revenue Nirnay 188, wherein it has been held that the Nazul land of the State cannot be exchanged with the agricultural land of a Bhumiswami. Referring to the Revenue documents Ex.D/25, D/26, D30 & D/32 the lower appellate Court has noted that the land of Survey No.413 is Nazul (Charnoi) land. It has been noted that before the exchange the No Objection of the concerned Gram Panchayat, Bhuniakhedi was not taken. The objection of the Municipal Corporation, Mandsaur as contained in Ex.P/34 has also been noted showing that in Survey No. 413, Area 0.136 hectare comes in the scheme of expansion of Mhow-Neemuch road. 18. Keeping in view the aforesaid relevant aspects of the matter, the Court below have not only found the transaction of exchange of be incomplete but they have found that the transaction of exchange was done on basis of the incorrect facts disclosed by the appellant and the said transaction was contrary to the provision of the RBC, and the same was also done ignoring the fact that land of Survey No. 413 admeasuring 0.136 hactare cold not be legally given in exchange to the appellant. 19. In view of the aforesaid findings of facts, the plea of estopple raised by the appellant is not attracted in the present case. 19. In view of the aforesaid findings of facts, the plea of estopple raised by the appellant is not attracted in the present case. Since the transaction of exchange is found to be not only a malafide transaction but it has been found that the appellant had suppressed material facts relating to the ownership of land at the stage of the said transaction, and that the transaction was not legally completed by executing the valid exchange deed in pursuance to the order Annexure P/14 and that the appellant had not approched the Court with the clean hands, therefore, the Courts below have not committed any error in rejecting the appellant’s argument in respect of the applicability of plea of estoppel. 20. So far as the judgments in the matter of Cauyery Coffee Traders, Mangalore Vs. Hornor Resources (International) Company Limited reported in 2011 (10) SCC 420 , in the matter of Suresh Seth Vs. State of M.P. and others reported in 2001 (1) JLJ 64 and in the matter of The Union of India and others Vs. M/s. Anglo Afgahan Agencies etc. reported in AIR 1968 SC 718 relied upon by the appellant is concerned, the promissory estoppel is a rule of equity. It is a doctrine evolved by equity to prevent injustice. It is the settled position that he who seeks equity must do equity. Since the appellant had got the exchange deed executed malafidely by suppressing the correct facts and he had not approached the Court with the clean hands, therefore, the principle of equity cannot be attracted in his favour. Thus, it is found that State had the power to revoke the order dated 17.11.2000 (Ex.P/14) and in the facts of the present case which have been found proved by the two Courts below the State has not committed any error in revoking the order Ex.P/14 after the utilization of the land mentioned therein. Thus, question No.2 is answered against the appellants. Question No.3:- 21. While dealing the question No.2 the reasoning of the Courts below and the material which has been relied upon by the Courts below relating to the validity and effect of the exchange of the land in question between the appellant and the respondent has been dealt with. Thus, question No.2 is answered against the appellants. Question No.3:- 21. While dealing the question No.2 the reasoning of the Courts below and the material which has been relied upon by the Courts below relating to the validity and effect of the exchange of the land in question between the appellant and the respondent has been dealt with. The aforesaid analysis clearly indicates that the two Courts below have not committed any error in appreciating the validity and effect of transaction of exchange of land. The transaction of exchange of land has been found to be illegal by the Court below after taking note of the relevant circumstances as well as the Government circulars, which are applicable in the present case, which have already been mentioned while dealing with the question No.2 above. The analysis contained in answer to the question No.2 clearly indicates that the two Courts below have rightly appreciated the material which has come on record indicating that the transaction of exchange was not only illegal but incomplete. Thus, question of law No.3 is answered against the appellant. Question No.1:- 22. In the order dated 4.4.2008 communicating the cancellation of the earlier order dated 17.11.2000, the State has not assigned any reasons. The lower appellate Court has noted that the Clause 30(b)(5) of Part-3 of the RBC does not require the State to assign any reason. 23. It cannot be disputed that every action of the State must be transparent and supported by the reasons. In the present case, it has come on record that before passing the order dated 4.4.2008, the appellant was given a show cause notice in response to which the appellant had given the reply and appeared before the respondent. The impugned order was passed by complying with the principle of audi alteram partem. So far as the giving of the reasons is concerned, though the impugned order does not disclose the reasons but before the trial Court, the respondents have produced the relevant material disclosing the reasons for cancellation of the earlier order dated 17.11.2000. The impugned order was passed by complying with the principle of audi alteram partem. So far as the giving of the reasons is concerned, though the impugned order does not disclose the reasons but before the trial Court, the respondents have produced the relevant material disclosing the reasons for cancellation of the earlier order dated 17.11.2000. In view of the detailed findings which have been recorded by the two Courts below in respect of the reasons, which have resulted into passing of the order dated 4.4.2008 (Annexure P/22) cancelling the earlier order dated 17.11.2000 (Ex.P/14), the order dated 4.4.2008 cannot be held to be illegal merely because reasons are not contained in the order. The person who had obtained the earlier order of exchange malafidely and had not approached the Court with the clean hands, cannot be granted the benefit of the technical plea that the order of cancellation (Ex.P/22) does not contain reasons specially when the detailed reasons have already come on record. Thus, question No.1 is answered against the appellant. Question No.4:- 24. The right to property is a constitutional right and as per Article 300-A of the Constitution no person can be deprived of his property except by authority of law. It is not in dispute that the land of Survey No. 663 admeasuring 0.136 hectare was a private land which has been utilized by the State for widening of the road, therefore, the lawful owners of the said land can not be deprived of their land without authority of law. Once the deed of exchange of land has been held to be illegal and the order of exchange of land has been cancelled by the State, vide order dated 4.4.2008 (Ex.P/22), the natural consequence would be either the State should restore back the possession of the private land of Survey No. 663 admeasuring 0.136 hectare to their lawful owners or acquire same by paying the compensation in accordance with law, but for that reason the suit of the appellant cannot be decreed because the appellant is required to establish the extent of his ownership on the land of Survey No.663 admeasuring 0.136 hectare, which has been utilized for widening of the road. It has been found by the Courts below that not only the appellant’s brothers have share in that land but part of the land was already sold to third parties before the exchange. It has been found by the Courts below that not only the appellant’s brothers have share in that land but part of the land was already sold to third parties before the exchange. Even otherwise, in the present suit no relief has been claimed by the appellant in respect of this land. The suit is in respect of Survey No.413/2, area 136 hectare of village Bhuniakhedi, which illegally received by the appellant in exchange. The question No.4 is, therefore, answered against the appellant. 25. Thus, the appeal has no merit, which is accordingly dismissed. No costs.