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Madhya Pradesh High Court · body

2022 DIGILAW 1569 (MP)

Abhitendra Singh v. State of M. P.

2022-12-20

S.A.DHARMADHIKARI

body2022
ORDER 1. Since the pleadings are complete, therefore, with the consent of learned counsel for the parties, the petition is heard finally. 2. By the instant petition, under Article 226 of the Constitution of India, the petitioner is challenging the order dated 30.12.2019 (Annexure P-15) passed by the respondent No.3 Sub-Divisional Magistrate, Chhatarpur, declaring the lands belonging to the family of the petitioner as Government land. The petitioner is also assailing the order dated 6.5.2022 (Annexure P-18), which is an order passed by respondent No.4 by which it has been directed to record the land in question as a Government land. 3. The brief facts of the case are that the petitioner is the resident of Chhatarpur. Agricultural land bearing Khasra Nos.595/1, 595/2, 596/1, 592/2, 598, 599/2, 600/1/K, 600/2 situated in Village Bagota, District Chhatarpur were recorded in the name of the father of the petitioner namely, Surendra Singh and others. The aforesaid lands were recorded in the names of forefathers of the petitioner as Bhumiswami in the year 1958-59. It is pertinent to mention that prior to coming into force of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as the “Code”) the land of the forefathers of the petitioner was recorded in Class-6 of “Kashtkaran Mourusi or Pattedar”. Way back in the year 1969 one Sadanand Singh, who was holding the land, submitted an application before the Tahsildar for recording the name as Bhumiswami on various khasras bearing nos. 596, 598, 599, 600/2. The then Tahsildar registered the proceedings and recorded the name of Sadanand Singh as “Bhumiswami” on the aforesaid lands. Since thereafter the aforesaid lands were recorded in the names of forefathers of the petitioner. 4. Some proceedings were initiated on the basis of frivolous complaints made by one retired revenue officer and his associates, who have been held to be a “busy body” by the High Court in Writ Petition No.17304/2016; wherein this Court vide order dated 11.1.2018 has imposed a cost of Rs.25,000/- and has also been held that the petitioner is in habit of filing the frivolous complaints with the intent to create pressure upon the revenue officers and as a result that the orders passed against many such persons. On the basis of complaint, the Nazul Officer recommended action as per law. On the basis of complaint, the Nazul Officer recommended action as per law. Copy of the report dated 13.7.2011 was submitted and in the so called inquiry, no notice or opportunity of hearing was given to the effected persons/petitioner. Based on the aforesaid report, the Collector, Chhatarpur initiated action vide order dated 17.3.2016 but found that revision is not maintainable. However, the matter was remanded back to the Nazul Officer to pass appropriate orders in accordance with law. During the pendency of the proceedings, the father of the petitioner late Surendra Singh died and despite of the aforesaid, no efforts were made to substitute the legal representatives/petitioner and the order was passed against a dead person. 5. Learned counsel for the petitioner contended that the petitioner’s forefathers are the owners of the lands in question for last more than 75 years. The Sub-Divisional Magistrate held that no opportunity of hearing is required and the parties were already given opportunity of hearing by the Collector and by this Court. In fact the Sub-Divisional Magistrate himself had forwarded the matter to the Collector for its approval and he has refused to grant the approval even thereafter the Sub-Divisional Officer himself assumed the power on the basis of earlier order and passed the illegal order against the petitioner. 6. Learned counsel for the petitioner further contended that section 57 of the Code very clearly protects the rights of Bhumiswami existing prior to its coming into force of the Code. Apart from the aforesaid, section 108 of the Code contains the provisions for recording rights, section 123 of the Code contains provisions regarding record of rights of various kinds of persons at the commencement of the Code. For the purpose of convenience, sections 57, 108 and 123 of the Code are being reproduced hereinbelow :-- “57. Apart from the aforesaid, section 108 of the Code contains the provisions for recording rights, section 123 of the Code contains provisions regarding record of rights of various kinds of persons at the commencement of the Code. For the purpose of convenience, sections 57, 108 and 123 of the Code are being reproduced hereinbelow :-- “57. State ownership in all lands.-- (1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government : [Provided that nothing in this section shall, save as otherwise provided in this Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property.] [(2) ***] (3) Any person aggrieved by any order passed under sub-section (2) may institute a civil suit to contest the validity of the order within a period of one year from the date of such order. [(3-a)(a) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) no Civil Court shall, in a suit instituted under sub-section (3) on or after 24th October, 1983, by order of temporary injunction disturb the person to whom possession is restored under section 250 if such person furnishes a reliable surety to recompensate the aggrieved party against any loss in case the Civil Court grants a decree in favour of the aggrieved party : Provided that no surety shall be required to be furnished by a member of a tribe declared to be an aboriginal tribe under sub-section (6) of section 165; (b) Where a Civil Court by an order of temporary injunction disturbed the person referred to in clause (a) on or after 24th October, 1983 but before the publication of Revenue Department’s Notification No.1-70-VII-N-2-83, dated 4th January, 1984 such order shall abate on such publication and the Tahsildar shall restore possession to a person who is disturbed by such order.] (4) Where a civil suit has been instituted under subsection (3) against any order such order shall not be subject to appeal or revision. [108. Record of rights. [108. Record of rights. -- (1) A record of rights shall, in accordance with rules made in this behalf, be prepared and maintained for every village area and for each sector of every urban area and such record shall include following particulars :-- (a) the names of all Bhumiswamis together with survey numbers or plot numbers held by them and purposes for which they are being used and their area and status of irrigation in case of land used for agriculture; (b) the names of all Government lessees and such classes of lessees as may be specified by the State Government together with survey numbers or plot numbers held by them and purposes for which they are being used and their area and status of irrigation in case of land used for agriculture; (c) the names of all persons occupying the abadi of the village, or in urban area all persons occupying the land which was abadi of a village before the constitution of such urban area, as the case may be, along with the nature of their interest in land, plot numbers held by them and purpose for which the land is being used; (d) the nature and extent of interest in land assigned or granted to any person by the State Government or by the person authorised under any enactment or direction of the State Government or the Central Government along with-- (i) the nature and extent of the respective interests of such persons and the conditions or liabilities, if any; (ii) the land revenue or lease rent payable by such persons if any; and (iii) such other particulars as may be prescribed. (2) The record of rights mentioned in sub-section (1) shall be prepared during a land survey or whenever the State Government may, by notification, so direct.] 123. Record-of-rights at commencement of Code. -- (1) Until record of rights for the villages in the Madhya Bharat, Bhopal, Vindhya Pradesh and Sironj regions is prepared in accordance with the provisions of section 108 the jamabandi or khatauni of every such village for the agricultural year as the State Government may notify shall, so far as it contains the particulars specified in section 108, be deemed to be the record-of-rights, for that village. (2) The jamabandi or khatauni referred to in subsection (1) shall be published in the village in such manner as may be directed by the Collector. [(3) Objections may be filed to any entry in jamabandi or khatauni which shall be disposed of by the Tahsildar in such manner as may be prescribed.] (4) The jamabandi of the villages in the Mahakoshal region for the agricultural year [1954-55] shall continue to be deemed to be record-of-rights of such village until a record-of-rights is prepared in accordance with the provisions of section 108. 7. Learned counsel also contended that prior to coming into force of the Code, the Rewa Land Revenue and Tenancy Act, 1953 (hereinafter referred to as “the Act of 1953”) was in force. According to section 43(C) of the Act of 1953, the petitioner’s forefathers fell in the aforesaid category. The section 43 of the Act of 1953 is reproduced below:-- “43. (1) A pattedar tenant means and Pattedar tenants includes (a) every tenant, other than a pachpan-paintalis tenant, who, at the commencement of this Act, is in possession of a patta of land other than sir, groveland, tank, or land acquired or held for a public purpose or a work of public utility (b) every tenant other than a pachpan-paintalis tenant, who, at the commencement of this Act, is in possession as a tenant of land other than sir, groveland, or tank or land acquired or held for a public purpose or a work of public utility, and agrees to take a patta therefor; and (c) every person who may, after the commencement of this Act, be admitted as a tenant of land other than sir, grove-land or tank or land acquired or held for a public purpose or a work of public utility and who agrees to take a patta therefor. (2) A pattedar tenant shall enjoy all the rights and be subject to all the liabilities conferred and imposed on pattedar tenants by this Act; Provided that the rights of a pattedar tenant holding a State bandh shall in respect of permanent alienation, temporary alienation, division of a holding, exchange of holdings and making an improvement, be as laid down in section 46 and not those conferred on pattedar tenants in general under sections 49, 51, 61, 62 (6) and 64(1) respectively.” 8. The forefathers of the petitioner fell under category of Class-6 (Agricultrist, Mourusi or lease holders), which is evident from (Annexure P-4) that the lands in dispute were recorded in the name of forefathers of the petitioners; where they have been mentioned as Class 9. The Nazul Officer by its report dated 13.7.2011 did not even verify the status of the lands existing as on 2.10.1959 i.e. prior to coming into force the Code. In the said report, the Nazul Officer took into consideration the khasra entries of 1943-44; whereas deliberately did not consider the khasra entries of 1952-53. The complainant Shri B.L.Mishra had preferred a PIL W.P.No.19040/2015 on the basis of the said report dated 13.7.2011, which was disposed o f leaving all questions open to be decided by the Collector. Thereafter, the Collector vide order dated 20.8.2018 (Annexure P-10) dismissed the suo motu revision in part by holding it to be res judicata but again illegally forwarded the matter to the Tahsildar for correction of records. The Tahsildar vide its notesheet dated 10.5.2019 forwarded the case to the Sub-Divisional Magistrate for forwarding it to the Collector as it has no powers to correct the entries older than 5 years. As a consequence, the Sub-Divisional Magistrate forwarded the matter to the Collector vide notesheet dated 30.5.2019. Thereafter the Collector refused to accord permission and sent the file to the Sub-Divisional Magistrate on 10.6.2019. Despite refusal to accord permission, the illegal order has been passed without authority of law by declaring the ancestral land of the petitioner as Government land. For the aforesaid lapse, the Sub-Divisional Magistrate was proceeded in a departmental inquiry, in which punishment of termination has been imposed upon him. In view of the aforesaid, the petitioner prays that the impugned orders deserve to be quashed and set aside. 10. Per contra, learned counsel for the respondents/State vehemently opposed the prayer and raised a preliminary objection to the effect that the petitioner has suppressed the material fact that statutory efficacious alternative remedy of filing an appeal is available to him under section 44 of the Code. The petitioner has not come with clean hands before this Court. 10. Per contra, learned counsel for the respondents/State vehemently opposed the prayer and raised a preliminary objection to the effect that the petitioner has suppressed the material fact that statutory efficacious alternative remedy of filing an appeal is available to him under section 44 of the Code. The petitioner has not come with clean hands before this Court. It is submitted that in the light of directions issued by this Court in Writ Petition No.19040/2015 and on the basis of report dated 13.7.2011 submitted by the Nazul Officer, Chhatarpur, the Collector Chhatarpur in Case No.59/Suo motu revision/B-121/2015-2016, after issuing notice to the concerned persons remitted back the matter to the Nazul Officer, Chhatarpur to consider and decide the case after issuing notice to the concerned as well as after inspection of the ownership of documents and thereafter pass a reasoned order. It is further submitted that the relief claimed in this petition cannot be granted since the matter is pending before the learned Court below for adjudication. The petition, being misconceived, is liable to be dismissed. 11. Heard the learned counsel for parties. 12. It is not in dispute that the petitioner’s forefathers are the owners of the lands for last 75 years. It is also an admitted fact that the petitioner and his father were not the party in Writ Petition No.19040/2015. The khasra entry annexed at Page No.14 shows that the forefathers of the petitioners were in possession since 1949. The names of petitioner’s forefathers have been shown as “Kashtkaran Mourusi or Pattedar”, which falls under Class-6, which is evident from the extracts of the relevant clauses, which is annexed at Page No.22 of the petition. In the light of sections 157 and 158 of the Code, the petitioner has acquired the status of Bhumiswami. Admittedly, the Collector vide order dated 17.3.2016 (Annexure P-8) has held that powers of suo motu revision cannot be exercised in absence of any specific order. The Sub-Divisional Magistrate has passed the impugned order dated 30.12.2019 illegally, having no authority of law to declare the ancestral land of the petitioner as Government land and misused the power for which departmental action was taken against him and he was terminated. 13. The Sub-Divisional Magistrate has passed the impugned order dated 30.12.2019 illegally, having no authority of law to declare the ancestral land of the petitioner as Government land and misused the power for which departmental action was taken against him and he was terminated. 13. The Coordinate Bench of this Court in the case of Keshar Bai (Smt.) and others v.Ram Khilawan and another, 1993 RN 194 has dealt with the aforesaid aspects and has held as under :-- “10. The property in dispute is situated at Nagod, the patta was issued in favour of predecessor of the plaintiff in Samvat 2005. At the time of settlement The Rewa Land Revenue and Tenancy Code, 1935 was in force. The Vindhya Pradesh Application of Laws Ordinance (IV of 1948) came into force with effect from 9.8.1948. By virtue of section 1, read with section 2 of this ordinance, all Acts, Codes, Ordinance and other laws and rules and regulations made there- under, which have been enforced in the Rewa State, and continue to be in force, are extended so as to be applicable to the whole of Vindhya Pradesh. Thus, by virtue of this Ordinance, The Rewa Land Revenue and Tenancy Code, 1935 was extended to Nagod and the plaintiff's predecessor became a pattedar tenant as defined in section 43 of the Rewa Land Revenue and Tenancy Code, 1935 and by virtue of section 43 (1) (c) even if it is held that the patta is granted after 9.8.1948, then also the plaintiff's predecessor had acquired the right and status of a pattedar tenant, as under section 43 (1) (c) every person who may, after the commencement of this Act, be admitted as a tenant of land. In the previous litigation also the plaintiff's predecessor was held to be a pattedar tenant. By extension of laws Act to Nagod, his status remains as a pattedar tenant. The Vindhya Pradesh Land Revenue and Tenancy Act, 1953 also recognises and confers the right of pattedar tenant on the plaintiff's predecessor. In the previous litigation also the plaintiff's predecessor was held to be a pattedar tenant. By extension of laws Act to Nagod, his status remains as a pattedar tenant. The Vindhya Pradesh Land Revenue and Tenancy Act, 1953 also recognises and confers the right of pattedar tenant on the plaintiff's predecessor. A pattedar tenant is defined in clause (xvi) of sub-section (1) of section 2 of V.P. Land Revenue and Tenancy Act, 1953 which reads as under : "pattedar tenant" means (a) a tenant other than a pachpan- paintalis tenant on whom rights have been conferred or deemed to have been conferred under the Rewa Land Revenue and Tenancy Code, i1935 and such rights are subsisting at the commencement of this Act." On coming into force of the M. P. Land Revenue Code by virtue of section 158 (d) (i), the plaintiff/appellants have acquired the status of a Bhumiswami. The accrual is automatic and does not depend on the mutation or change in the Lands The plaintiffs/appellants filed the suit on the basis of their right, title and interest as Bhumiswamis which is also recorded in the revenue records filed by the appellants for the subsequent years. The appellants status as Bhumiswamis, recorded in the revenue records, shall be presumed to be correct unless rebutted by positive evidence. The recognition of the appellants' rights as Bhumiswamis are by virtue of and by operation of the statutory provisions of law and that once it has been held that the appellants predecessor was a pattedar tenant under the Rewa Land Revenue and Tenancy Code, 1935, the acquisition of rights of Bhumiswami is automatic. 11. On this point, the lower appellate Court had completely lost sight of and overlooked the findings arrived at between the parties in the previous suit, which are binding on the parties and cannot be challenged in this suit on the principles of res judicata, that the predecessor of the plaintiff/appellants was held to be a pattedar tenant of the suit lands. The lower appellant Court has failed to appreciate that by operation of law the plaintiff/appellants predecessor and consequently the plaintiff/appellants have acquired the status of Bhumiswamis and thus have all legal rights to obtain a decree. The finding arrived at that the plaintiff/appellants have failed to prove their title is contrary to finding already reached in the previous litigation and thus cannot be permitted to sustain. The finding arrived at that the plaintiff/appellants have failed to prove their title is contrary to finding already reached in the previous litigation and thus cannot be permitted to sustain. Besides this the lower appellate Court has failed to see that the plaintiff/appellants are recorded as Bhumiswamis in the revenue records prepared under M.P. Land Revenue Code, 1959, and there is no evidence in rebuttal to negative their status. It has already been held that the defendant/respondents have no title to the suit lands and the plaintiff's title is better than that of the defendant and as such they are entitled to have possession of the suit lands from the defendant”. 14. In view of the aforesaid analysis, this Court is of the considered opinion that the order dated 30.12.2019 has been passed against a dead person even without issuance of any notice or without giving any opportunity of hearing to the legal representatives/petitioner. The Sub-Divisional Magistrate had no authority to pass the order under section 116 of the M.P. Land Revenue Code. The authorities have acceded jurisdiction in recording the land in the name of Government. Accordingly both the orders dated 6.5.2022 (Annexure P-18) and 30.12.2019 (Annexure P-15) deserve to be and are hereby set aside. 15. The respondents/authorities are directed to record the names of the original owners/petitioner as existing on 30.12.2019, which continued from 1949 as also coming into force of the M.P.Land Revenue Code w.e.f. 2.10.1959 forthwith. The petition is allowed. No order as to costs.