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2025 DIGILAW 42 (MP)

Kishori v. State of M. P.

2025-01-20

MILIND RAMESH PHADKE

body2025
ORDER 1. The present petition under Article 226/227 of the Constitution is directed against the order passed by Board of Revenue in revision No.1052/PBR/01 dated 3.1.2007, whereunder the order dated 16.4.2001 passed by the Additional Commissioner, Gwalior Division, Gwalior in revision No.130/97-98/revision preferred by the present respondent No.5 was challenged and while allowing the revision, the order of Additional Commissioner was allowed, was affirmed. 2. Further challenge is made to the order dated 16.4.2001, whereby the revision preferred against the order dated 20.7.1998 passed in appeal No.88/97-98 by Sub Divisional Officer, whereby the appeal was dismissed on the ground of limitation, was reversed and the revision was allowed without condoning the delay in filing the appeal before the Sub Divisional Officer. 3. Learned counsel for the petitioner had argued before this Court that vide order dated 30.06.1997 Tehsildar while invoking the provisions under section 3 of Madhya Pradesh Krishi Prayojano Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhumi Par Bhumiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Adhiniyam, 1984 (in short ‘Adhiniyam, 1984’) had conferred upon the petitioner the Bhumiswami rights of land bearing survey No.836/1 admeasuring 2.23 hectare situated at village Tiwari Ka Pura, Karera, Shivpuri, which was challenged by present respondent No.6, for which he had no locus to challenge the order of settlement in favour of present petitioners after delay of one month, which was dismissed on the ground of limitation but later on, when challenged before the Additional Commissioner, the learned Additional Commissioner without condoning the delay in preferring the appeal before the Sub Divisional Officer had straightaway gone into the merits of the matter and had allowed the revision, which was per se illegal. 4. 4. It was further argued that if the Additional Commissioner was of the view that the delay in preferring in appeal was condonable, after condoning the delay in preferring the appeal before the Sub Divisional Officer, the matter should have been remanded to the Sub Divisional Officer for adjudication on merits as admittedly there was no decision on merits of the Sub Divisional Officer, but instead thereof, he went on to decide the revision on merits and had taken a view, which is contrary to the provisions of section 3 of the Adhiniyam 1984, as under the said Section the possession of an agricultural labourer as on 2.10.1984 was only required to be seen and not his prolonged occupation over the said land but learned Additional Commissioner though had held that only for previous one year the petitioner was in occupation of the land in question and he could not prove the factum of possession for the last 17 years as claimed, therefore, the settlement done in favour of the petitioner under the Adhiniyam, 1984 by Tehsildar was per se illegal, is wholly perverse. 5. It was further argued that the Board of Revenue had also fell into error of law in not considering the aforesaid aspect and instead of remitting the matter back to the SDO for adjudication on merits had upheld the order passed by Additional Commissioner, which doesn't deserves to stand. It was thus prayed that the petition deserves to be allowed and the orders passed by Board of Revenue dated 3.1.2007 and Additional Commissioner dated 16.04.2001 are required to be quashed. 6. Per contra, Shri M.S. Jadon, learned Govt. Advocate for the respondent/State had supported the impugned orders and had argued that no purpose would have been served for remand of the matter to the Sub Divisional Officer, as learned Additional Commissioner and the Board of Revenue both have found that consideration done by the Tehsildar was not proper. Since the petitioner could not prove his long possession over the land, as claimed, and since there are concurrent findings by two Courts below, the present petition deserves to be dismissed. 7. Since the petitioner could not prove his long possession over the land, as claimed, and since there are concurrent findings by two Courts below, the present petition deserves to be dismissed. 7. Learned counsel for the State has also argued that no objection with regard to consideration of delay in preferring the appeal before Sub Divisional Officer, which was made basis for dismissal of the appeal, was raised before the revisional authority, thus, there was no occasion for the learned Additional Commissioner to have gone into the aforesaid aspect and decide the same at the first instance, thus, decision on merits cannot be held to be bad. 8. Heard learned counsel for the parties and perused the record. 9. Admittedly, the appeal preferred before the Sub Divisional Officer against the order of settlement of land in favour of present petitioner was time barred and on the basis of the appeal being time barred, Sub Divisional Officer had dismissed the same on the ground of limitation. The order when challenged before the Additional Commissioner in revision by respondent No.6, the fact of limitation was very much pleaded as would be evident in paragraph 02 of the order passed by Additional Commissioner dated 16.4.2001, thus, when the lower Appellate Authority has not decided the matter on merits, in view of the revisional authority, if the delay was condonable, the matter should had been remitted back to the Sub Divisional Officer for adjudication on merits but instead thereof revisional authority had gone into to decide the said revision on merits and while deciding the same it had observed that the petitioner could only prove the factum of possession over the land of period of one year and not of 17 years, which he had claimed, thus, when the factum of possession of the petitioner was not proved by cogent material, it appeared to the revisional authority that just to complete the formalities of the settlement, said order has been passed by the Tehsildar. 10. The order appears to be in total derogation of provisions of section 3 of the Adhiniyam 1984. For reference section 3 of the Adhiniyam 1984 is hereby quoted as under:- 3. 10. The order appears to be in total derogation of provisions of section 3 of the Adhiniyam 1984. For reference section 3 of the Adhiniyam 1984 is hereby quoted as under:- 3. Conferral of Bhoomiswami rights on agricultural labourer:- (1) All unoccupied land in a village in possession of an agricultural labourer on the 2nd October 1984 shall, notwithstanding anything contained in the Code, or the rules made thereunder shall be held by such person as from the said date in Bhoomiswami rights and he shall be a Bhoomiswami of the said land for all purposes of the Code and any other enactment for the time being in force: Provided that such conferral of Bhoomiswami rights shall not be for such land exceeding two hectares: Provided further that nothing contained in this section shall apply in respect of land- (a) set apart under section 237 of the code for the following purposes:- (i) for burial ground and cremation ground; (ii) for gaothan; (iii) for threshing floor; (iv) for skinning ground; (v) for bazar; (vi) for public purpose such as schools, playgrounds, parks, roads, lanes and drains; (vii) for the Pasture, grass, bir or fodderl (b) hold or reserved by the Central Government or the State Government for any specific purpose; (c) which stands allotted to any person other than the person in possession of the land on the said date. (2) Nothing contained in sub-section (1) shall apply unless the agricultural labourer is in possession of the land in the village in which he resides and none of the members of his family holds and land. 11. As per the aforesaid Section, all unoccupied lands in a village in possession of an agricultural labourer on 2.10.1984 shall be construed to be held by such persons as from that date in capacity of Bhumiswami and when an Act provides for confer Bhumiswami rights for a particular date the revisional authority was required to see whether the petitioner was in occupation of the land on the date as mentioned in the said Section. 12. Further the revisional authority has not concluded that on 2.10.1984 the petitioner was not in possession of the land in question. 12. Further the revisional authority has not concluded that on 2.10.1984 the petitioner was not in possession of the land in question. Also, there is no finding that the petitioner doesn't fall in the category of an agricultural labourer, as defined in section 2(A) of Adhiniyam, 1984, so as to debar him from the becoming to be ineligible from applying for allotment of the land. Threre is also no discussion that the land could nothad been allotted to the peititoner as it was barred by proviso to section 3 of Adhiniyam, 1984. Further, there is also no finding that the petitioner was not a landless person, as under Section 7 of the Adhiniyam, 1984, the provisions of the Act was to apply to landless persons only, thus, when there is no finding on the aforesaid aspect, this Court has no hesitation to hold that the order passed by Additional Commissioner is per se illegal and not sustainable. Likewise, there is total non consideration of the aforesaid aspect by the Board of Revenue, therefore, the said order also deserves to be quashed. 13. Accordingly, the present petition is hereby allowed and the orders dated 16.4.2001 passed by the Additional Commissioner and the order dated 3.1.2007 passed by the Board of Revenue are hereby quashed and that of the order dated 30.6.1997 passed by the Tehsildar is hereby restored. 14. With the aforesaid, the present petition stands allowed and disposed off. Certified copy as per rules/directions.