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2025 DIGILAW 141 (MP)

Mo. Ateek v. State Of Madhya Pradesh

2025-02-25

VISHAL DHAGAT

body2025
ORDER : VISHAL DHAGAT, J. 1. Petitioner has filed this petition under Article 226 of the Constitution of India challenging order dated 26.07.2021 passed by Commissioner, Shahdol Division, Shahdol in Revision No.0044/2019-20. 2. Brief facts of the case is that land bearing Khasra No.807 measuring 0.45 acre situated in Village Maiki, Tehsil Sohagpur, District Shahdol was of State Government. Said land was settled in favour of one Siddharth Kumar Mishra by Tehsildar Sohagpur in Case No.56/A-19(4)/1983-84. Registered sale deed was executed in favour of petitioner by Siddharth Kumar Mishra on 16.03.2004. Said land is said to have been sold to petitioner namely Mohd. Ateek without seeking permission from Collector under Section 165(7-b) of the Madhya Pradesh Land Revenue Code, 1959. Respondents No.4 to 6 were in possession of said land. Respondents No.4 to 6 filed an application before Tehsildar Sohagpur regarding violation of provisions under Section 165 (7-b). Collector Shahdol took cognizance in suo moto revision and set aside order of settlement dated 11.08.1986. Said order of Collector dated 28.01.2017 was challenged in revision before Board of Revenue which was remanded to Commissioner for decision. Commissioner considered Section 4 of Madhya Pradesh Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Adhiniyam, 1984, Section 165(7-b) of the Madhya Pradesh Land Revenue Code, 1959 and Section 158(3) of M.P. Land Revenue Code. Section 4 of Madhya Pradesh Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Adhiniyam, 1984 and Section 165(7-b) and 158(3) of M.P. Land Revenue Code, 1959 are reproduced as under:- "Section 4. Section 4 of Madhya Pradesh Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Adhiniyam, 1984 and Section 165(7-b) and 158(3) of M.P. Land Revenue Code, 1959 are reproduced as under:- "Section 4. Transfer or diversion not permissible.- The agricultural labourer who becomes Bhoomiswami under section 3 shall, notwithstanding anything contained in the Code, not be entitled to transfer the said land to nay other person or to divert it for any other purpose." Section 165[(7-b) Notwithstanding anything contained in sub-section (1), [ a person who holds land from the State Government or a person who holds land in Bhoomiswami rights under sub-section (3) of Section 158] or whom right to occupy land is granted by the State government or the Collector as a Government lessee and who subsequently becomes Bhoomiswami of such land, shall not transfer such land without the permission of a revenue officer, not below the rank of a Collector, given for reasons to be recorded in writing.] Section 158 [(3) Every person-? (i)who is holding land in bhumiswami right by virtue of a lease granted to him by the State Government or the Collector or the Allotment Officer on or before the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such commencement, and (ii) to whom land is allotted in bhumiswami right by the State Government or the Collector or the Allotment Officer after the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such allotment, shall be deemed to be a bhumiswami in respect of such land and shall be subject to all the rights and liabilities conferred and imposed upon a bhumiswami by or under this Code :] [Provided that no such person shall transfer such land within a period of ten years from the date of lease or allotment and thereafter may transfer such land with the permission obtained under sub-section (7-b) of section 165.]" Commissioner Shahdol relying on aforesaid provisions affirmed the order passed by Collector in revision and dismissed revision vide its order dated 26.07.2021. 3. Counsel appearing for petitioner submitted that Collector has committed an error of law in exercising its power of suo moto revision after lapse of long time. 3. Counsel appearing for petitioner submitted that Collector has committed an error of law in exercising its power of suo moto revision after lapse of long time. Erstwhile owner Siddharth Kumar Mishra was in possession of land since 1974-75 and land was allotted to him in year 1986 and he was declared bhoomiswami. Land was also mutated in his name. Order of settlement was set aside after about 30 years. Law of natural justice is violated as Siddharth Kumar Mishra was not made party in revision. It was submitted that land was sold after settlement was made in favour of petitioner after period of 18 years and bar to sell land is for period of 10 years, therefore, provisions under Section 165(7-b) of M.P. Land Revenue Code, 1959 is not attracted in the case. Impugned order be set aside. 4. Government Advocate appearing for State opposed the prayer for setting aside of order. It is submitted that land was settled in favour of Siddharth Kumar Mishra in year 1986 under Madhya Pradesh Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Adhiniyam, 1984. Section 4 of said Act bars transfer of land settled in favour of a person under the said Act. Said provision of Section 4 overwrites other provisions of M.P. Land Revenue Code. In view of same, there is violation of conditions of settlement and no error has been committed by Collector and Commissioner in passing of impugned order. 5. Heard the counsel for the parties. 6. Section 4 of of Madhya Pradesh Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Adhiniyam, 1984 is not mandatory in nature. No penalty or consequential action is provided in said Act if provisions of Section 4 has been violated. Section 165(7-b) of M.P. Land Revenue Code, 1959 again creates a bar on transfer of land by a bhoomiswami without permission of a Revenue Officer not below the rank of Collector. Collector granting permission for transfer of land has to give reasons in writing. Further section 165(11-a) and 11(b) lays down that nothing in Section 165 will invalidate any transfer which was validly made or validate any transfer invalidly made. Section 165(7-b) was introduced in M.P. Land Revenue Code by amendment Act 15 of 1980 w.e.f. 24.10.1980. Collector granting permission for transfer of land has to give reasons in writing. Further section 165(11-a) and 11(b) lays down that nothing in Section 165 will invalidate any transfer which was validly made or validate any transfer invalidly made. Section 165(7-b) was introduced in M.P. Land Revenue Code by amendment Act 15 of 1980 w.e.f. 24.10.1980. Proviso to Section 158 sub-section (3) was substituted by M.P. Act No.23 of 2018. Amendment of 2018 was brought into effect from date of publication in Gazette i.e. from 27.07.2018. Prior to said amendment there was no provision in M.P. Land Revenue Code, 1959 to seek permission of Collector for transfer of land after lapse of 10 years from grant of lease. 7. On going through aforesaid provisions of Madhya Pradesh Land Revenue Code 1959, it becomes clear that permission of Collector to transfer the land under Section 158(3) of Madhya Pradesh Land Revenue Code 1959 was added by amendment from July, 2018. Earlier, there was bar under Section 158(3) to sell the land for a period of 10 years but thereafter land allottee can transfer the land without permission of Collector. Clause of seeking permission was introduced from July, 2018. However, Section 165(7-b), which existed in Madhya Pradesh Land Revenue Code 1980 creates a bar for transfer of land without permission of the revenue officer not below the rank of Collector. Collector has to give permission for transfer of land recording reasons in writing. Section 158(3) and 165(7-b) have to be read in harmony, which means there will be no transfer of land for a period of 10 years and thereafter, permission of Collector is required for transfer of land by a land holder. Since, permission of Collector is required for transfering of land under Section 165(7-b) and there was no permission from Collector, therefore, transfer of land will be hit by Section 156(11)(b) of the Code. Transfer cannot be validated which was invalidly made. Further, Section 4 of of Madhya Pradesh Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Adhiniyam, 1984 also creates a bar for transfer of land on a Bhoomiswami. 8. In view of same, writ petition filed by petitioner is allowed. Order passed by Commissioner, Shahdol dated 26.07.2021 in revision No.0044/2019-20 is set aside. Certified copy as per rules.