Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 956 (MP)

Gwalior Dairy v. State of M. P.

2013-08-14

S.K.GANGELE

body2013
ORDER 1. The petitioner is a company incorporated under the Companies Act. Initially, it challenged Annexures P/1 to P/4 in the writ petition. By way of amendment, it also challenged the order date10.12.2009 passed by the Additional Collector and prayed for restoration of order date 6.6.2005 passed by the Tahsildar and also prayed a relief that the possession of the land be restored with the petitioner and allotments made during the pendency of writ petition be set aside. 2. A lease deed of 391.05 acres of land was executed in favour of the petitioner on 1.7.1942 for a period of 25 years. Other parcels of the land of 104 acres was also granted to the petitioner by another lease deed date 1st May 1943 for a period of 10 years. The lease deeds were executed by Sanitary, Engineering Department of the then Gwalior Government. Period of lease deeds was expired in 1953 and 1967. Then the petitioner filed a civil suit before the Court. A compromise was entered into between the Government and the petitioner and it was agreed that the petitioner shall pay a rent of Rs. 400/- per acre of the land for a period of ten years and in future also. The rent was enhanced to Rs. 700/- per acre. The petitioner did not pay the lease rent and on 30.6.1976 an amount of Rs. 14,98,365/- was due against the petitioner. Then Additional Collector, Gwalior initiated proceeding against the petitioner and vide order dated 1st October 1977 the authority directed the petitioner to hand over the possession, failing which the possession shall be taken. Against the aforesaid order, a Misc. Petition was filed before the High Court, which was registered as Misc.Pet. No. 84/1978. High Court allowed the petition vide order dated 20.2.1980 and set aside the order of the Additional Collector date 1.10.1977. 3. Against the aforesaid order, Special Leave Petition was filed before the Hon’ble Supreme Court. Hon’ble Supreme Court granted the leave and appeal was registered as Civil Appeal No. 1046/1982. Hon’ble Supreme Court vide order dated 29.1.1991 set aside the order passed by the High Court and restored the order passed by the Additional Collector. Thereafter, the possession of the land was taken by the authority on 6.5.1991. 4. Hon’ble Supreme Court granted the leave and appeal was registered as Civil Appeal No. 1046/1982. Hon’ble Supreme Court vide order dated 29.1.1991 set aside the order passed by the High Court and restored the order passed by the Additional Collector. Thereafter, the possession of the land was taken by the authority on 6.5.1991. 4. On 15.9.2003, the petitioner company filed an application under section 158 (3) of M.P.Land Revenue Code 1959 (hereinafter referred to ‘Code of 1959’) in regard to grant of Bhumiswami rights of the land area 23.735 hectare of survey nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 situate at village Swej Farm, Tahsil and District Gwalior. 5. The petitioner pleaded that it was in possession over the lands and it had been paying lagan. It acquired Bhumiswami rights of the land. After taking evidence, Tahsildar vide order dated 6.6.2005 observed that in khatoni of Samwat 2007 name of the petitioner was recorded as Mourisi Krishak and in khasra of 2010-2013 it was recorded as Pakka Krishak and after 2010 it was recorded as Govt. lessee. The authority has held that the petitioner became Bhumiswami of the land in pursuance to the circular issued by the Revenue dated 27.1.1984 and ordered that entry be made in this regard in the revenue record. 6. Subsequently, vide another order dated 21.6.2005 without hearing the petitioner Tahsildar cancelled the order dated 6.6.2005. Subsequently, Tahsildar passed the order on 30.1.2006 and sent the case to the SDO for taking the matter in suo motu review. SDO vide order dated 10.2.2006 transferred the matter to the Collector to take the matter in suo motu revision against the order passed by the Tahsildar date 6.6.2005. Against the aforesaid order, a revision was filed before the Additional Commissioner, that was dismissed and thereafter a further revision was filed before the Board of Revenue, that was also dismissed. 7. The petitioner in this petition pleaded that in pursuance to the order passed by the Additional Collector dated 1.10.1997 possession of the land area 495.05 acres was taken by the respondents on 6.5.1991 in pursuance to the show cause notice issued by the Tahsildar on 1.4.1991. 7. The petitioner in this petition pleaded that in pursuance to the order passed by the Additional Collector dated 1.10.1997 possession of the land area 495.05 acres was taken by the respondents on 6.5.1991 in pursuance to the show cause notice issued by the Tahsildar on 1.4.1991. This is the same land which was granted to the petitioner on lease by two lease deeds dated 1.7.1942 and 1.5.1943. The area is the same. Subsequently, the petitioner filed an application for declaring the company as Bhumiswami of the land area 23.735 hectare, which is quite different and it is not covered by the decision of the Hon’ble Supreme Court, hence, the Tahsildar could not set aside the earlier order dated 6.6.2005 without giving any opportunity of hearing to the petitioner. It is further pleaded that the order passed by the Tahsildar is null and void. 8. The respondents in the return pleaded that the Tahsildar has wrongly passed the order dated 6.6.2005 and it was of the same land, which was a part and parcel of the order dt.1.10.1997 passed by the Additional Collector and it was upheld by the Hon’ble Supreme Court, hence, the order of Tahsildar was void ab initio. It is further pleaded that the petitioner company is trying to get the valuable Government land without any right. 9. Learned senior counsel appearing on behalf of the petitioner pleaded that the Tahsildar vide order dated 6.6.2005 granted Bhumiswami rights to the petitioner in regard to land area 23.735 hectare. It is a quite different land. Same authority without giving any opportunity of hearing cancelled the aforesaid order vide another order dated 21.6.2005 which is illegal and contrary to the provisions of M.P.Land Revenue Code, 1959 (hereinafter referred to as the ‘Code of 1959’). It is further submitted that the land in question is quite different to the land, for which earlier two lease deeds were executed in favour of the petitioner, hence, without giving any opportunity of hearing the order could not be cancelled. 10. Section 158 of the Code of 1959 prescribes conferral of Bhumiswami rights under the aforesaid section a person can be conferred Bhumiswami rights if he fulfills the conditions mentioned in the section. The petitioner submitted an application to the Tahsildar for conferral of Bhumiswami rights. 10. Section 158 of the Code of 1959 prescribes conferral of Bhumiswami rights under the aforesaid section a person can be conferred Bhumiswami rights if he fulfills the conditions mentioned in the section. The petitioner submitted an application to the Tahsildar for conferral of Bhumiswami rights. Thereafter, Tahsildar vide order dated 6.6.2005 declared the petitioner as Bhumiswami after holding that in Samwat 2007 the petitioner was recorded as Maurishi Krishak and 2012 as Pakka Krishak. Thereafter, the aforesaid order was cancelled by the Tahsildar vide anotehr order date 21.6.2005. In passing the aforesaid order, no opportunity of hearing was afforded to the petitioner. 11. Section 51 of the Code of 1959 prescribes review of the order. In accordance with section 51 (i) of the Code of 1959, it is necessary to obtain sanction from the higher authority. Section 51 (i) (i-a) of the Code of 1959 prescribes that no order shall be reversed without notice to the other parties. The aforesaid section is as under :- “(i-a) no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order.” 12. Admittedly, no such opportunity of hearing was given to the petitioner while passing the order dated 21.6.2005. Section 50 (1) (iii) of the Code of 1959 prescribes that no order shall be varied or reversed in revision unless notice is served on the parties interested and opportunity be given to the parties. In the present case, the contention of the petitioner is that in pursuance to the order passed by the Hon’ble Supreme Court possession of the land area 495.05 acre had already been given to the State authorities on 6.5.1991 in compliance to the notice date 1.5.1991. The government itself appointed Mr.Manoj Kumar Shrivastava to submit its report. A copy of the report dated 17.11.2000 submitted by Mr. Shrivastava has been filed by the respondents along with the reply to the amendment application. In the aforesaid report, it is mentioned that the land area 25.324 hectare situated at village Loharpur was registered in the name of Gwalior Dairy Ltd. The report is dated 17.11.2000. A copy of the report dated 17.11.2000 submitted by Mr. Shrivastava has been filed by the respondents along with the reply to the amendment application. In the aforesaid report, it is mentioned that the land area 25.324 hectare situated at village Loharpur was registered in the name of Gwalior Dairy Ltd. The report is dated 17.11.2000. From the aforesaid report also, it is clear that possession of the land was not handed over to the State authority, so whether the land is part and parcel of the land in pursuance to which earlier order of the Additional Collector dated 1.10.1977 was passed and upheld by the Hon’ble Supreme Court vide judgment dated 29.1.1999 is a disputed question. In such circumstances, in my opinion, it was necessary for the authority to give an opportunity of hearing to the petitioner before cancellation of the order dated 6.6.2005. It is also in consonance of section 51 of the Code of 1959. SDO has already forwarded the matter to the Collector to take the case in suo motu revision. In such circumstances, there was no necessity to pass an order dated 21.6.2005 without giving opportunity of hearing to the petitioner. 13. Hon’ble Supreme Court in the case of Darshan Lal Nagpal v. Govt. (NCT of Delhi) reported in reported in 2012 (2) SCC 327 has considered the earlier judgments of the Hon’ble Supreme Court in regard to hearing to principle of audi altram partem and held as under :- “30. The scope of the rule of hearing i.e. audi alteram partem was highlighted by the three-Judge Bench in Sayeedur Rehman v. State of Bihar in the following words: (SCC p. 338, para 11) “11. ... This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties.” 31. In Maneka Gandhi v. Union of India Bhagwati, J. speaking for himself and Untwalia and Fazal Ali, JJ. observed: (SCC p. 291, para 14) “14. ... In Maneka Gandhi v. Union of India Bhagwati, J. speaking for himself and Untwalia and Fazal Ali, JJ. observed: (SCC p. 291, para 14) “14. ... The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law ‘lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation.’ Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need fro promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that ‘natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances.’ The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.” 32. In Mohinder Singh Gill v. Chief Election Commr. Krishna Iyer, J. speaking for himself, Beg. C.J. and Bhagwati, J. observed as under: (SCC pp. 432-34, paras 43 & 48) : “43. In Mohinder Singh Gill v. Chief Election Commr. Krishna Iyer, J. speaking for himself, Beg. C.J. and Bhagwati, J. observed as under: (SCC pp. 432-34, paras 43 & 48) : “43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy Government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adamand of Kautilys’s Arthashastra- the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system. * * * 48. Once we understand the soul of the rule as fair play in action- and it is so- we must hold that it extends to both the fields. After all, administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one’s bonnet. Its essence is good conscience in a given situation; nothing more-but nothing less. The ‘exceptions’ to the rules of natural justice are a misnomer or rather are but a shorthand from the expressing the idea that in those exclusionary cases nothing unfair cab be inferred by not affording an opportunity to present or meet a case. Textbook excerpts and rations from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation.” 33. Textbook excerpts and rations from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation.” 33. In Swadeshi Cotton Mills v. Union of India the majority of the three-Judge Bench held that the rule of audi alteram partem must be complied with even when the Government exercises power under section 18-AA of the Industries (Development and Regulation) Act, 1951 which empowers the Central Government to authorise taking over of the management of industrial undertaking Sarkaria, J. speaking for himself and Desai, J. referred to the development of law relating to applicability of the rule of audi alteram partem to administrative actions, noticed the judgments in Ridge v. Baldwin, A.K. Kraipak v. Union of India, Mohinder Singh Gill v. Chief Election Commr, Maneka Gandhi v. Union of India and State of Orissa v. Binapani Dei and quashed the order passed by the Central Government for taking over the management of the industrial undertaking of the appellant on the ground that opportunity of hearing has not been given to the owner of the undertaking and remanded the matter for fresh consideration and compliance with the rule of audi alteram partem.” 14. From the judgments of the Hon’ble Supreme Court mentioned in the aforesaid judgment it is clear that the right of hearing is fundamental to a just decision by any authority which decides the controversial issue affecting rights of rival party. 15. In the present case, the valuable right to hold the land of the petitioner has been taken away without giving opportunity of hearing to the petitioner. This is not a case where no opportunity of hearing is required. Hence, the order passed by the Tahsildar dated 21.6.2005 cancelling the order dated 6.6.2005 and subsequent orders of allotment of land by the Collector to other departments are bad in law. However, the order passed by the SDO for recommending the matter to take in suo motu revision and the orders of Additional Commissioner and Board of Revenue are in accordance with law. 16. Consequently, the petition is disposed of with the following directions :- (i) Order dated 21.6.2005 passed by the Tahsildar is hereby quashed. However, the order passed by the SDO for recommending the matter to take in suo motu revision and the orders of Additional Commissioner and Board of Revenue are in accordance with law. 16. Consequently, the petition is disposed of with the following directions :- (i) Order dated 21.6.2005 passed by the Tahsildar is hereby quashed. Similarly orders date 6.1.2010 (Annexure R/4) and date 6.10.2010 (Annexure R/5) regarding allotment of land to other Government departments are also hereby quashed. (ii) It is further observed that this Court has not opined about the merits of the case and the competent authority is at liberty to take action in accordance with law. No order as to costs.