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Madhya Pradesh High Court · body

2019 DIGILAW 145 (MP)

Babu v. State of M. P.

2019-02-14

S.C.SHARMA

body2019
ORDER 1. The petitioners before this Court – Babu s/o Jafar and Rustam S/o Jafar have filed this present petition being aggrieved by the notice dated 8.10.2007 (annexure P-1) issued by the additional collector/competent authority under the Urban Ceiling Act informing the petitioners' father that the land bearing survey No. 209/2 situated in villageKhajrana is a government land and it was declared as a surplus land under the provision of Urban Ceiling Act and as they were enchoroachers why action should not be initiated against them. 2. Present petition was filed in the year 2008 and on 17.6.2009, the coordinate Bench of this Court has granted an interim order restraining dispossession of the petitioners. Learned counsel for the petitioners has argued before this Court that the petitioners' father namely Jafar s/o Launga was the title holder of the property and the property was purchased i.e. the property bearing survey No. 209/2, area 0.526 Hectare, Village-Khajrana, Tehsil-Indore on 16.3.1973 through a registered sale deed. The sale deed is also on record as annexure P-2. 3. Even a civil suit was preferred in the matter i.e. Civil Suit No. 612A/84 and 10th Civil Judge, Class-II, Indore has passed the judgment and decree on 16.4.1987 holding the father of the petitioners Jafar as title holder of the property bearing survey No. 209/2 area 0.526 hectare. The petitioners have further stated that the names of the petitioners were mutated in the revenue record and copy of Khasra Panchshala right from year 1980-84 (annexure P-2) reflects that the petitioners were title holders and they were in possession of the suit property. 4. The petitioner's grievance is that some proceedings were initiated against the predecessor in title 'Ibrahim' as well as his son- Ajij and based upon the proceedings initiated by the State Government under the Urban Ceiling Act, the land was declared as surplus including the land of the petitioner. The petitioners' contention is that the Urban Ceiling Act itself came in the year 1976 and by no stretch of imagination, the land which was purchased by the petitioners' father in the year 1973 could have been declared as surplus in the manner and method it has been done. The petitioners' contention is that the Urban Ceiling Act itself came in the year 1976 and by no stretch of imagination, the land which was purchased by the petitioners' father in the year 1973 could have been declared as surplus in the manner and method it has been done. It has been stated that no notice of any kind was issued at any pointy of time to the petitioner barring the notice which is impugned dated 8.10.2007 and therefore, the notice dated 8.10.2007 deserves to be quashed. 5. A reply has been filed in the matter and the State Government for the reasons best known to it has not commented upon the sale deed executed by the predecessor in title in favour of Jafar s/o Launga, who is father of the present petitioners. 6. The State Government has not denied the factum of execution of sale-deed, which is a registered sale-deed. The State Government has stated in its reply that the Urban Ceiling Act, 1976 came into force on 9.9.1976 and the respondent No. 3-Ajij s/o Ibrahim filed return in respect of land bearing survey No. 147/2, 177, 178 and 209/2 admeasuring 4.812 hectare. It has been further stated that on the basis of return filed by Ajij S/o Ibrahim, the land admeasuring 4.662 hectare was declared as surplus land and Ajij was held to be entitled for 0.150 hectare. 7. It has been further stated that after complying provisions of section 8(1) of the Urban Ceiling Act, final order was passed in the matter and a notice was published in the official gazette dated 28.9.1981 under section 10(1) and thereafter, notice under section 10(3) was published on 16.4.1982 and on 29.6.1982 as possession was not handed over by the land owner Abdul Ajij, the respondent/State has taken possession of the land and Panchnama 'R-6' is also on record. The respondents have stated that the petitioner has filed this present petition after 26 years and therefore, the petition deserves to be dismissed on the ground of delay and latches. 8. This Court has carefully gone through the writ petition as well as the reply filed by the respondent/State. The undisputed fact reveals that the land in question bearing Khasra No. 209/2 area 0.526 hectare was purchased by Jafar s/o Launga, who is the deceased father of the petitioners No. 1 and 2 through a registered sale deed on 16.3.1973. 8. This Court has carefully gone through the writ petition as well as the reply filed by the respondent/State. The undisputed fact reveals that the land in question bearing Khasra No. 209/2 area 0.526 hectare was purchased by Jafar s/o Launga, who is the deceased father of the petitioners No. 1 and 2 through a registered sale deed on 16.3.1973. There is no denial in respect of the aforesaid sale deed by the State Government. The Urban Ceiling Act came into force on 9.9.1976 and undisputed facts reveal that at the time the Act came into force, the petitioners' father was a title holder and no proceeding under the Act of 1976 against the petitioners' father nor against the petitioners has taken place. 9. Once, as the State Government has not taken any action against the petitioners nor against their petitioners' father and merely because a stranger, who was not having title in respect of the land in question and has included the land in question while filing the Return under the provisions of Urban Ceiling Act, 1976 does not mean that the title holder of the property can be deprived of his legitimate right to continue with his title. 10. Undisputedly, as stated in the return, no action was taken by the respondent/State Government against the petitioners, nor against the petitioners' father and, therefore, in the considered opinion of this Court, once there was a sale-deed in existence in respect of the land in question, all proceedings under the Urban Ceiling Act in respect of land in question are void ab initio. 11. The petitioners, who are in possession of the land in question and have received a notice dated 8.10.2007 stating that it is a government land. It can never be a government land as no process of law has been followed by the respondent/State so far as the present petitioners are concerned. Resultantly, the impugned notice dated 8.10.2007 deserves to be quashed and is accordingly quashed. 12. So far as the issue of delay and latches is concerned, the petitioners do have a judgment and decree in their favour and they were continuing to be in possession of the land in question. Resultantly, the impugned notice dated 8.10.2007 deserves to be quashed and is accordingly quashed. 12. So far as the issue of delay and latches is concerned, the petitioners do have a judgment and decree in their favour and they were continuing to be in possession of the land in question. It was only on 8.10.2007, they were served with a notice issued by the Additional Collector/competent authority of the urban land ceiling and they have filed a writ petition with quiet promptitude in the year 2008 and therefore, the plea canvased by the State Government that the matter suffers from delay and latches does not help the State Government in any manner. Resultantly, present writ petition is allowed. The impugned show-cause notice is hereby quashed.