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2025 DIGILAW 339 (MP)

Janki Bai v. State of M. P.

2025-06-12

MILIND RAMESH PHADKE

body2025
ORDER 1. The present petition, under Article 226 of the Constitution of India, is preferred being aggrieved by the action on the part of the respondent authorities in recording the land bearing Survey No.1/19 Min 1 Rakba 0.585 hectares situated at Village Ari Tehsil and District Guna in Column No.12 as 'non-transferable' though the said land is of the ownership of the petitioners. 2. The aforesaid action has been assailed on the ground that the said entry was made in the revenue records without there being any specific order and even though it didn't belonged to any of the categories of non- transferable lands. 3. Short facts of the case are that in the year 1961, a lease was granted to one Gopi Lal S/o Chhutti Lal Lodha vide order dated 6.2.1961 in Case No.188/161-162, admeasuring 10 Bighas from Aaraji No.1 situated at Village Ari Tehsil and District Guna. In the Khasra Panchshala of the Samvat 2034-2038, the entry with regard to Survey No.1/19 was made against the name of Gopi Lal and later the name of Gangaram/predecessor of present petitioners was mutated by mutation No.19 dated 25.9.1980 for the land bearing survey No.1/19 Min 1 Rakba 0.585 hectare in Column No.12. Since thereafter the land remained in the name of Gangaram s/o Behro Singh in Khasra Panchshala of Samvat 2039-2043 and other respective khasras. Since the year 1964 and thereafter, the land bearing survey No.1/19 situated at village Ari Tehsil and District Guna has been continued in revenue records i.e. khasras of ownership of petitioner and as of now also in the new khasras and the revenue entries, the land is registered under the ownership of petitioners. The petitioners are mainly aggrieved by the action of respondents authorities in mentioning the said land, which is of the ownership of petitioners as 'non-transferable' without there being any order in that regard. Alleging the aforesaid entry to be de-hors the provisions of Madhya Pradesh Land Revenue Code, 1959 and is not legally sustainable, prayer is made to delete such entry from the Khasra relating to Aaraji No.1 by filing the present petition. 4. Alleging the aforesaid entry to be de-hors the provisions of Madhya Pradesh Land Revenue Code, 1959 and is not legally sustainable, prayer is made to delete such entry from the Khasra relating to Aaraji No.1 by filing the present petition. 4. Learned counsel for the petitioner has submitted before this Court that the entry 'non-transferable' in Column No.12 with regard to Survey No.1/19 situated at Village Ari, Tehsil and District Guna has been made without there being any order and without following any procedure of law, therefore, the said entry being completely arbitrary is liable to be deleted. 5. It was further submitted that the land bearing Survey No.1/19 was given on Patta to one Gopi lal by order dated 6.2.1961 and in the Khatoni of the year 1964, in respect of Survey No.1/19 specific entry was made that the Bhumiswami rights have been accrued to Gopilal and even in the Khasra of the samvat 2034-2028, the entry has been made in the area of survey No.1/19 against the name of Gopilal. 6. It was further submitted that in the year 1980, the land bearing Survey No.1/19 was mutated in the name of Granga Ram (predecessor of the petitioners), which was transferred to him by Gopilal in his capacity as Bhumiswami of the said survey number. 7. It was also submitted that the provisions of 'nontransferable' land is made for the categories of the lands which are affected by the provisions under section 158(3), section 165(7-A) and (7-B) of the Code i.e. the lands, which are allotted under the lease hold rights or later, there is accrual of Bhumiswami Rights and cannot be transferred after the allotment till 10 years and after 10 years, the land can be transferred only with the permission of the Competent Authority whereas in the present case, the land bearing Survey No.1/19 was allotted and in the year 1961, itself, the Bhumiswami rights have accrued in favour of Gopilal, therefore, the amended provisions of section 158(3) and section 165(7-A) & (7-B) of the MPLRC will not be applicable, which were incorporated later on and cannot be said to have any retrospective effect, therefore, the entry 'non-transferable, being bad in law deserves to be deleted. 8. 8. Lastly, it was submitted that the action of the revenue authorities by arbitrarily making the entry of 'non-transferable' in the Khasra had caused undue hardship to the petitioners, making them to go through a detailed process of litigation and to face undue hardship and harassment of the lengthy process, when the land was free from the provisions of section 158(3) and 165(7-A) & (7-B) of the MPLRC and no permission was required for sale of the land from any of the revenue authorities, as the land was of exclusive ownership in the capacity of Bhumiwami. 9. To bolster his submission, reliance was placed in the matter of Adhunik Grih Nirman Samiti Maryadit Gwalior v. State of M.P. & Others passed in Writ Petition No.8414 of 2011, decided on 2.11.2012 which later on when challenged before the Division Bench of this Court by way of filing Writ Appeal No.275 of 2013, was affirmed vide order dated 4.3.2024. [reported in 2024(1) RN 363 ]. 10. On the basis of the above submission, it was prayed that the present petition be allowed and respondents be directed to delete the entry of land being 'non-transferable' with regard to survey No.1/19 Min 1 Rakba 0.585 hectare situated at Village Ari Tehsil and District Guna which is of the ownership of the petitioners from the respective Khasras. 11. On the other hand, Shri Sohit Mishra - Govt. Advocate for the State had raised a preliminary objection that since it is a correction of wrong entry made in Khasra, an application under section 115 of the MPLRC would be maintainable and in wake of availability of alternate efficacious remedy to the petitioner, the present petition is liable to be dismissed. 12. On merits, it has been submitted that since the land admittedly was given on Patta and was a Government land, rights of the Bhumiswami as alleged had never accrued to the person in whose favour the patta was granted, as per the provisions of section 165(7-b) of the Code, for any sale of such Patta land, permission is required from the revenue authorities, therefore, mentioning of the land as 'non-transferable' in Column No.12 is wholly justified and no illegality has been said to be committed in recording the same. 13. Heard counsel for the parties and perused the record. 14. 13. Heard counsel for the parties and perused the record. 14. From the provisions of section 157 and 158 of the then Madhya Pradesh Land Revenue Code, 1959 as it existed at the time of allotment of land to the previous land holder, as per section 157, there shall be only one class of tenure holder of lands held from the State to be known as Bhumiswami. Further section 158 defined the persons who could be termed as Bhumswami. For reference section 157 and 158 are quoted herein-below:- 157. Class of tenure- There shall be only one class of tenure-holders of land held from the State to be known as bhumiswami. 158. Further section 158 defined the persons who could be termed as Bhumswami. For reference section 157 and 158 are quoted herein-below:- 157. Class of tenure- There shall be only one class of tenure-holders of land held from the State to be known as bhumiswami. 158. Bhumiswami - Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a bhumiswami by or under this Code, namely (a)every person in respect of land held by him in the Mahakoshal region in bhumiswami or bhumidhari rights in accordance with the provisions of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955); (b)every person in respect of land held by him in the Madhya Bharat region as a Pakka tenant or as a Muafidar, Inamdar or Concessional holder, as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat, 2007 (66 of 1950); (c)every person in respect of land held by him in the Bhopal region as an occupant as defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932); (d)(i)every person in respect of land held by him in the Vindhya Pradesh region as a pachapan paintalis tenant, pattedar tenant, a grove holder or as a holder of tank as defined in the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1955); (ii)every person in respect of land (other than land which is a grover or tank or which has been acquired or which is required for Government or public purposes) held by him in the Vindhya Pradesh region as a gair haqdar tenant and in respect of which he is entitled to a patta in accordance with the provisions of sub-section (4) of section 57 of the Rewa State Land Revenue and Tenancy Code, 1935; (iii)every person in respect of land held by him as a tenant in the Vindhya Pradesh region and in respect of which he is entitled to a patta in accordance with the provisions of sub- sections (2) and (3) of section 151 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (III of 1955), but has omitted to obtain such patta before the coming into force of this Code, (e)every person in respect of land held by him in Sironj region as a khatedar tenant or as a grove holder as defined in the Rajasthan Tenancy Act, 1955 (3 of 1955). 15. Apart from the aforesaid provisions, another provision was provided under Section 162 for disposal of land belonging to State Government, except for the lands as provided under sub-Section 2 of section 162. For reference Section 162 is also quoted herein-below:- 162. Disposal of land by Collector- (1) Unless the State Government otherwise directs by general or special order and subject to rules made under this Code, land belonging to State Government, not being land hereinafter mentioned in sub-section (2), shall be disposed of for agricultural purposes only in bhumiswami rights by the Collector or by such other Revenue Officer and to such extent as may be prescribed, who may require payment of a premium for such right or sell the same by auction or give it in exchange. (2) The land referred to in sub-section (1) shall be the following namely:- (a) land situate in the bed of a river, State bandh or tank; (b) land to be reserved for commercial purposes such as common grazing ground and cremation grounds; (c) land to be given out on favourable terms for the promotion of religious, charitable, educational, co-operative, public or social purposes; (d) land to be given out to persons on the condition that it shall be used only for grazing cattle; (e) land to be given out for temporary purposes or for limited periods or for mining and purposes subsidiary thereto or for industrial or commercial purposes. (f) land to be given out to persons on favourable terms or rendering service as kotwar; (g) land acquired or held for a public purpose or a work of public utility; (h) land acquired for shifting cultivation; (i) land to be leased by Government for purposes other than agriculture. (j) any other land which the State Government may, by notification issued in this behalf, specify. 16. As per provision of section 162 (1), the land belonging to State Government could be disposed of for agricultural purposes by general or special order and subject to rules made under the Code in bhumiswami rights by the Collector or by such other Revenue Officer and to such extent as may be prescribed. Thus, section 162 sub-section 1 provides another mode of acquiring bhumiswami rights. 17. Thus, section 162 sub-section 1 provides another mode of acquiring bhumiswami rights. 17. As per Sub-rule (2) of Rule 2 framed under section 162 of the Code, allotment of the land by the Collector could had been made to landless persons other than the persons belonging to class of Military Personnels, Co-operative Societies of landless persons belonging to Political sufferers, Members of Aboriginal tribes, Harijans, landless persons belonging to Political sufferers, Members of Aboriginal tribes, Harijans; Co-operative Societies of landless persons and landless persons of Co-operative Societies other than those specified in clause [(aa)] and landless persons other than those specified in clause (a) and (b)] and as per rule 7, the following Revenue Officers were entitled to allot the lands to the following classes of persons: (i) Tahsildars and Naib-Tahsildars exercising powers of Tahsildar -To individuals. (ii) Sub-Divisional Officers-To Co-operative Societies. (iii) Collectors With the approval of the Commissioner to persons other than those mentioned above. 18. Thus, the Tahsildars and Naib-Tahsildars so far as individuals were concerned were entitled to grant Patta in the Bhumiswami rights which appears to have been granted by the Naib Tahsildar dated 6.2.1961 to Gopilal in the capacity of Bhumiswami. Thus, from the day one, the land was held by Gopilal in capacity of a Bhumiswami and not as a lessee of the Government. 19. By M.P. Act.15 of 1975 w.e.f. 30.10.1968, Sub-section (7-a) of section 165 of the Code was inserted and Sub-section (7-b) which deals with the transfer of land held by the persons by Bhumiswami for certain categories of Bhumiswami and was inserted in the statute books by M.P. Act 15 of 1980. Thus, for the first time, the provisions of said sub-section came in the statute books in the year 1980. For reference, Sub- section (7-b) of section 165 of the Code is quoted herein-below: "(7-b) Notwithstanding anything contained in sub- section (1), a person who holds land from the State Government or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes bhumiswami 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." 20. Now, the question would arise that once Gopilal had acquired rights of Bhumiswami in the land, whether he was required to obtain permission under section 165(7-b) to transfer the land to someone-else. 21. In the aforesaid context, if the provisions of section 165(7-b) are seen, it is found that the said provisions are inserted in the statute books by M.P. Act 15 of 1980 in the year 1980. Prior to that there was no such impediment or rider of seeking permission, but even after insertion, rider was only with regard to a person, who held the land from the State Government or whom right to occupy land was granted by the State Government or the Collector as a Government lessee and who subsequently became bhumiswami of such land and only he was required to seek permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing to transfer such land. 22. Thus, when prior to insertion of section 165(7-b) of the Code, there was no rider, then the bhumiswami like Gopilal was not required to seek permission from the State Government to transfer such land, thus, the question of the land being 'non-transferable' since the land in question is a Patta land did not arise. 23. In view of above, the entry of word 'non-transferable' in Column No.12 of the Khasra appears to be not proper. Accordingly, the revenue authorities are directed to correct the entry in the revenue records by deleting the entry of word "non-transferable". 24. With the aforesaid observation and directions, the present petition is allowed and disposed of.