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2025 DIGILAW 252 (MP)

Anwar Khan v. State of M. P.

2025-04-02

MILIND RAMESH PHADKE

body2025
ORDER 1. The present petition under Article 226/227 of the Constitution of India is not directed against any particular order, but is preferred against the observation made by the Commissioner in its order dated 5.4.2007, whereby while setting aside the order of Collector dated 17.8.2005 remanded the matter back with an observation that the present petitioner be given certain Government land in exchange to the land which was taken for the purpose of constructing road and Kabristan in the year, 1978-1979 in accordance with law or the proceedings under the Land Acquisition Act may be initiated. 2. Learned Sr. Counsel for the petitioner along with Shri Rahul Jha has argued before this Court that in the year, 1978-79 land bearing survey Nos. 1400 (new No.1400/2) and 1542 were taken by the State Government for laying down road as well as for the purpose of development of Kabaristan, without acquiring the said land or paying compensation to the petitioner on an assurance that the adjacent land bearing survey Nos.1518 and 1519 admeasuring 0.042 and 0.240 hectares respectively would be given to him, but even after repeated requests documentation/transfer or handing over of the said land was not done. Thus, constrained, the petitioner moved an application on 21.4.2005 before the Collector, Vidisha in pursuance of which Tehsildar was directed to submit his report which was submitted on 24.6.2005 from where it was evident that after following due procedure of issuance of proclamation, calling objections from the general public, it was found that there is no impediment in handing over of lands bearing survey Nos. 1518 and 1519 which were the Government lands in exchange to the petitioners. 3. It was further argued that though the report was in favor of present petitioner, the Collector vide order dated 17.8.2005 rejected the application holding that there is no provision under the Revenue Book Circular (Kandika-20 khand-4 Kramank-3) for exchange of lands in such type of cases, therefore, the application is not maintainable. 3. It was further argued that though the report was in favor of present petitioner, the Collector vide order dated 17.8.2005 rejected the application holding that there is no provision under the Revenue Book Circular (Kandika-20 khand-4 Kramank-3) for exchange of lands in such type of cases, therefore, the application is not maintainable. It was further argued that against the said order the petitioner has preferred an appeal before the Commissioner which was disposed of vide order dated 5.4.2007, wherein though it was held by the Commissioner that there is a provision under the Revenue Book Circular for exchange of the lands between private persons and the Government and had set aside the order passed by the Collector, but while remanding the matter has wrongly observed that the petitioner would be entitled for grant of any Government land in exchange, if he submits an application, instead of observing that the petitioner is entitled for the land bearing survey Nos.1518 and 1519 for which already a report was submitted by Tehsildar. It was, thus, submitted that when after adopting due procedure Tehsildar has already recommended for transferring a part of land bearing survey Nos. 1518 and 1519 to the petitioner as there was no objection from anyone or general public and also there was no other legal impediment, therefore, the said observation made by the Commissioner be deleted and directions be issued to the respondents to transfer survey Nos. 1518 and 1519 ad-measuring 0.042 and 0.240 hectares respectively in favor of the present petitioner. 4. On the other hand, learned counsel for the respondent/State while referring to the contents of reply had submitted that the observation made by the Commissioner in no way can be said to be perverse as the petitioner cannot as a matter of right claim a particular peace of land in exchange. It is also submitted that the application of the petitioner was time barred, therefore no relief could have been granted. 5. It was further argued that the petitioner had illegally encroached upon the said survey numbers and no right as such accrued in favor of the present petitioner on the basis of such illegal encroachment and demand for transfer of that land in his favor. Thus, had prayed for dismissal of the present petition. 6. Heard the counsels for the parties and perused the record. 7. Thus, had prayed for dismissal of the present petition. 6. Heard the counsels for the parties and perused the record. 7. Admittedly, the claim of the petitioner for exchange of the lands was rejected by the Collector in wake of non availability of any provision under the Revenue Book Circular for exchange of lands which has already been negatived by the Commissioner. The order passed by the Commissioner has not been assailed by the State and, thus, so far as the finding whereby the order of Collector has been set aside, has attained finality, thus, the observation made in the last paragraph of the order which has been assailed by the petitioner remains to be addressed. 8. It is also trite to mention that the application preferred by the petitioner was not rejected by the Collector on the ground of limitation though it had been made a ground of challenge by the learned Government, thus, this aspect is also not required to be gone into. 9. From the record it appears that in pursuance to the directions of Collector, the Tehsildar had conducted an enquiry and a proper procedure was followed while issuing proclamation and calling for objections. Also spot inspection was done. Even after publication of the notification no objections were received and even the value of both the lands were acquired from the sub-Registrar, Kurwai. 10. The statements of the present petitioner were recorded wherein this fact came on record that when the land of the petitioner were taken by authorities in the year, 1978-79, the petitioner was orally given the lands bearing survey Nos. 1518 and 1519 and since then he was carrying out the agricultural activities on the said survey numbers. This fact also came on record that the area which was taken from the petitioner was literary equivalent to the area which was found to be in his possession. On the basis of the aforesaid Tehsildar concluded that there is no legal impediment in giving the said lands in exchange to the petitioner. Thus, has recommended the case. 11. This fact also came on record that the area which was taken from the petitioner was literary equivalent to the area which was found to be in his possession. On the basis of the aforesaid Tehsildar concluded that there is no legal impediment in giving the said lands in exchange to the petitioner. Thus, has recommended the case. 11. In the written filed by the State, this fact has not been contended that the lands which were illegally encroached upon by the petitioner were of much higher value then the lands which were taken from the petitioner nor it has been pleaded that the said survey numbers were to be used for any other purpose by the State. In the return it has been averred that the survey No.1518 ad-measuring 0.042 were reserved as Charnoi land and survey No.1519 admeasuring 0.240 hectares has been recorded as nazul land, therefore, being encroacher the petitioner cannot be given the lands in exchange, but there is no averment that such lands why cannot be transferred? 12. In support of the aforesaid averments except for Annexure P/1 in the form of khasra, there is no other document available on record. The said khasra pertains to the year, 2003, 2004 and 2005, wherein both the survey numbers sought in exchange has been mentioned as nazul lands, but in the amended entries in column No.14 it has been mentioned that the crop of wheat has been sown on those lands by the petitioner. The aforesaid entries, thus, contradicts itself. No fresh khasras have been submitted with regard to aforesaid survey numbers to demonstrate as to whether as on date also the lands in the revenue records are recorded as nazul lands and are nontransferable. Even otherwise since the khasra pertaining to the year, 2003, 2004 and 2005 depicts that on said lands crop of wheat was already sown which goes to show that it is a cultivable land. 13. Apart from the aforesaid, learned Government counsel could not point out any provision in MPLRC or RBC, which completely restricts transfer of Charnoi or Nazul lands, as section 237 of MPLRC/ part IV of RBC provides for transfer of such lands, though in some circumstances. 13. 13. Apart from the aforesaid, learned Government counsel could not point out any provision in MPLRC or RBC, which completely restricts transfer of Charnoi or Nazul lands, as section 237 of MPLRC/ part IV of RBC provides for transfer of such lands, though in some circumstances. 13. Thus, looking to the peculiar facts of the case, this Court deems it appropriate to direct the revenue authorities to transfer the land bearing survey No.1518 ad-measuring 0.042 and survey No.1519 ad-measuring 0.240 in the name of the petitioner if there is no other legal impediment. 14. With the aforesaid observation, the petition stands allowed and disposed of.