Badshah Barela (Deleted) vs The State Of Madhya Pradesh
2021 Latest Caselaw 3960 MP

                               1
       THE HIGH COURT OF MADHYA PRADESH
                      WP No.5788/2017
Badshah Barela (deleted) through LRs & Anr. vs. State of M.P. &
                             Ors.
                 Through Video Conferencing

Gwalior, Dated : 05.08.2021

      Shri N.K. Gupta, Senior Advocate with Shri SDS Bhadoriya,

Counsel for the petitioners.

      Shri Deepak Khot, Government Advocate for the State.

      This petition under Article 226 of the Constitution of India has

been filed seeking following reliefs:

             "(a) This Hon'ble Court may kindly be pleased to
             issue the appropriate writ for quashing the order
             dated 09.11.2016 passed by the President, Madhya
             Pradesh Board of Revenue, Gwalior in Revision
             Case No.808-2/2007.
             (b)   This Hon'ble Court may kindly be pleased to
             issue the appropriate writ for quashing the order
             dated 30.04.2007 passed by the Learned Collector,
             Guna in Case No.5/Suo-motto Revision/2006-07
             and order dated 22.02.2007 passed by Nayab
             Tehsildar, Circle Umari, Pargana Guna in Case
             No.197-B/121/2006-07.
             (c)   This Hon'ble Court may kindly be pleased to
             issue the direction to the Respondent No.4 to

record the name of the petitioners in the revenue records previously."

2. It is the case of the petitioners that the petitioner No.1 was

owner and in possession of land bearing Khasra No.9/26 area ad

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measuring 4.045 hectares and his name was also recorded in the

revenue record as Bhumiswami as well as holder of possession. It is

further submitted that the land bearing survey No.9/26, 11/8 and

12/11 total ad-measuring 20 Beegha was given on Patta by Naib

Tahdildar District Guna by order dated 18.7.1960. It is submitted that

the petitioner No.1 is the owner and in possession of survey No.9/26

and, accordingly, he applied for grant of certified copies of revenue

records from the year 1960 but the certified copies of Khasra

Panchshala from 1974-75 were provided.

3. The petitioner No.1 by a registered gift deed, gifted 1.045

hectares from Khasra No.9/26 to the petitioner No.2. On the basis of

said gift deed, the mutation order was passed in favour of petitioner

No.2 and, accordingly, the revenue records were amended. Similarly,

the petitioner No.1 also sold an area ad-measuring 1.009 hectares

from Khasra No.9/26 by a registered sale deed dated 20.8.2004 to the

petitioner No.2 and on the basis of the said registered sale deed, Gram

Sabha Nainpura passed resolution No.5 on 7.10.2004 in favour of

petitioner No.2 and the name of petitioner No.2 as mutated in the

revenue records.

4. After the mutation, the petitioner No.2 filed an application for

Batankan and by order dated 10.1.2005 Batankan was also done and

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a separate Khasra and Khatauni was prepared in the name of

petitioner No.2. It is submitted that on the basis of one baseless

complaint, respondent No.2 issued a direction to the respondent No.4

for enquiry and the respondent No.4 without giving any opportunity

of hearing to the petitioners, registered Case No.197/B-121/2006-07

and directed the Halka Patwari for his report and documents. The

Halka Patwari submitted his report that the land bearing Khasra

Nos.9/2/3, 9/3, 9/4/2, 9/26/1, 11/8, 12/11 total area ad-measuring

10.486 hectares is at present recorded in the name of farmer Badshah

whereas survey Nos.9, 11 and 12 are registered as Government land

in Misil Bandobast of the year 1956-57 and the said lands were

received by Badshah on lease. The petitioner No.1/Badshah has gifted

1.045 hectares out of survey No.9/26 by a registered gift deed dated

13.2.2002 and the name of the petitioner No.2 has been mutated in

the revenue record and similarly by registered sale deed dated

20.8.2004, 1.009 hectares forming part of survey No.9/26 has been

sold to petitioner No.2 and the name of petitioner No.2 has also been

mutated in the revenue record. On the basis of the report, the

respondent No.3 SDO came to a conclusion that the said land was

transferred without the permission of the Collector and, accordingly,

granted permission to review the mutation order passed in favour of

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petitioner No.2 and a further direction was given that the respondent

No.4 should enter in column No.12 of Khasra Panchshala that "the

said land are granted by Government on lease and the sale is

prohibited."

5. It is submitted that after receiving the review permission,

respondent No.4 did not give any proper opportunity of hearing to the

petitioners and also did not examine the record of Patta of petitioner

No.1 and without going through provision of Section 161 of MPLR

Code, 1959, cancelled the mutation order of the petitioner No.2.

6. After cancellation of mutation order of petitioner No.2, the

respondent No.4 again registered Case No.1953/2003-2004 and sent a

recommendation dated 12.4.2004 to respondent No.2 through

respondent No.3 pointing out that the land bearing Khasra No.9/26

ad-measuring 4.045 hectares was granted on lease to petitioner No.1

and he has transferred 1.045 hectares from the said land to petitioner

No.2 without the permission of the Collector thereby violating

Section 165 of MPLR Code, therefore, recommended that the matter

may be taken up in Suo motu revision. Thereafter, respondent No.3

registered a Case No.51/A-19/2003-04 and sent a proposal to

respondent No.2 on 7.6.2004 without giving any opportunity of

hearing to the petitioners. It is alleged that on the recommendations of

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respondents No.3 and 4, respondent No.2 registered a case No.5/ Suo

motu revision/06-07 and issued a show cause notice to petitioner

No.1.

7. The petitioner No.1 filed his reply before respondent No.2 and

it was specifically mentioned in the reply that the land is allotted to

petitioner No.1 on 18.7.1960 and thereafter petitioner No.1 has been

declared as Bhumiswami of the said land and his name is

continuously recorded as Bhumiswami. After the lapse of 47 years,

the proceedings of Suo motu revisional proceedings have been

initiated which are bad in law as the same can be initiated within a

reasonable time. The petitioner No.1 has spent lot of money, labour

and time of the disputed land and he has legally transferred the land

to petitioner No.2. The petitioner No.2 has also spent lot of money

after purchasing said land and after due permission and no objection

certificate from the Gram Panchayat he has also constructed the

building over the said land. The grounds for review invoked by

respondent No.2 and 3 are not as per law and order of Naib Tahsildar

dated 22.2.2007 is not sustainable in the eye of law. The petitioner

No.1 further specifically mentioned in his reply that under Section

158(3) of MPLR Code, it is provided that before 10 years of lease or

allotment, the transfer is not permissible. By further amendment, new

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sub-section 165(7-b) has been added. As per Section 158(3) of MPLR

Code, there was no restriction for transfer of land after 10 years and

prior permission was not required. The disputed land was given on

lease to petitioner No.1 prior to amendment dated 28.10.1992 hence

the provision of Section 165(7-b) of MPLR Code is not applicable.

8. It is submitted that respondent No.2 without considering the

submission made by counsel for petitioner No.1, passed an order

dated 30.4.2007 thereby cancelling the order dated 18.7.1960 passed

by Naib Tahsildar by which the Government lease was granted to

petitioner No.1 and, accordingly, the land was declared as

Government land. The Naib Tahsildar has also been directed to

remove the encroachment over the said land. The petitioners

thereafter filed a revision against the order dated 30.4.2007 passed by

respondent No.2 in Case No.5/ Suo motu revision/2006-07 before the

Board of Revenue. However, without considering the legal position

and citations submitted by the petitioners and without discussing the

facts of the case, has dismissed the revision in a slipshod manner.

9. Challenging the orders passed by the Revenue Courts, it is

submitted by the counsel for the petitioners that the respondents were

aware of the fact that the petitioner No.2 has purchased a part of

survey No.9/26 and has also raised certain buildings and park and,

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therefore, he was a necessary party before cancelling the Government

lease allotted to petitioner No.1. Since no notice was given to

petitioner No.2 in this regard, therefore, order dated 30.4.2007 passed

by the Collector, District Guna is bad in law. It is further submitted by

the counsel for the petitioner that before exercising Suo motu power,

the respondents should have considered that the action of respondents

would cause irreparable loss to the petitioners. To buttress his

contention, the counsel for the petitioners have relied upon the

judgment passed by a Full Bench of this Court in the case of Ranveer

Singh and another vs. State of M.P. reported in 2010 (III) MPJR

(FB) 347.

10. Per contra, the petition is vehemently opposed by the counsel

for the State. It is submitted by the counsel for the State that the sale

without permission of the Collector is void ab initio and, therefore, it

was not necessary to give any show cause notice to petitioner No.2.

The Government lease was granted to petitioner No.1 and he was

given full opportunity to place his case before the Court below. To

buttress his contention, counsel for respondents have relied upon

judgments passed by the Division Bench of this Court in the cases of

Savina Park Resorts and Tours Pvt. Ltd., Gwalior vs. State of

M.P. and others reported in 2012 RN 246, Keshabo and another vs.

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State of M.P. and others reported in 1996 RN 175 and Mulayam

Singh and another vs. Budhuwa Chamar and others reported in

2002 RN 250.

11. Heard the learned counsel for the parties.

Whether the petitioner No. 2 should have been given any

notice before review of order dated 18.07.1960 or not?

12. It is the case of the petitioners that petitioner No. 1 was granted

Government lease in respect of Survey No.9/26, 11/8 and 12/11. Out

of survey No.9/26, some part was transferred by petitioner No.1 to

petitioner No.2 either by way of registered gift deed or by way of

registered sale deed. In both the circumstances, there was a transfer of

ownership of land in dispute. The name of petitioner No.2 was

mutated in the revenue records on the basis of the said transactions.

However, by order dated 22.02.2007, the name of petitioner No.2 was

directed be deleted from the revenue record and it was further

directed that the lands be recorded in the names of the original

allotees. It is not the case of petitioner No.2 that the order dated

22.02.2007 was ever challenged by petitioner No.2. Once the name

of petitioner No. 2 was already deleted, and if he had decided not to

challenge the same, then he cannot say that he was a necessary party

in the review proceedings which were initiated for review of order

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dated 18.07.1960 by which the Government lease was granted to

petitioner No.1 in respect of survey Nos.9/26, 11/8 and 12/11. The

Naib Tahsildar, Circle Umari, District Guna by its order dated

22.02.2007 passed in Case No.197-B/121/2006-07 had specifically

held that since transactions were made without the permission of the

Collector, therefore, the transfer of property in favour of petitioner

No.2 is void ab initio and, accordingly the name of petitioner No.2

was deleted from the revenue records. As the petitioner No.2 did not

challenge the said order, therefore, the order dated 22.02.2007 passed

against the petitioners by the Naib-Tahsildar, Umari. District Guna

has attained finality. After the order dated 22.02.2007 was passed.

The petitioner went out of the picture, therefore, it was not necessary

for the respondents to give any opportunity of hearing to petitioner

No. 2 in the review proceedings which were initiated for review of

order dated 18.07.1960.

Whether the provisions of Section 165 (7-b) of MPLR Code

are retrospective in operation or not?

13. Sections 158(3) and 165 (7-b) of the MP Land Revenue Code

read as under:-

''S.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

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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.''

''165(7-b). Notwithstanding anything contained in sub-section (1), a person who hold 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.''

From the plain reading of these two Sections, it is clear that

the Government lessee can not dispose of the land within 10 years of

the grant of lease and thereafter, the land can be alienated only after

obtaining due permission from the Collector."

14. The Division Bench of this Court in the case of Mulayam

Singh and Another vs. Budhuwa Chamar and Others, reported in

2002 RN 250 has held as under:-

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''5. It is not in dispute that no permission from the Collector was obtained and the sale was made without the permission of Collector. The respondent cannot transfer his land even though he is declared Bhumiswami, without the permission of the Collector. Transfer was made without such permission, so the appellants will not get any legal rights. In the circumstances, the Additional Collector has rightly held that the sale was in contravention of the provisions of Section 165(7-B) of the Code and is void. Mutation effected on the basis of sale was set aside and the land was directed to be recorded in the name of the respondent No.1.'' This Court in the case of Raheesh Khan vs. Suresh Chand

and Others, reported in 2007 RN 218 has held as under:-

''7..................................From the provisions of section 158(3) and 165(7-b) of the MP Land Revenue Code, it is crystal clear that unless and until prior permission is granted by the Collector with cogent reasons regarding sale of the Patta land, the sale is not permissible. The said provisions have been engrafted in the Act to restrict the transfer of the land, which has been granted on lease by the State Government to landless persons and such persons cannot be deprived of the land by any transfer except as permissible under the said provisions of the Act and gives jurisdiction to the Collector to consider such a prayer only after a period of ten years and not before that. After expiry of the period of ten years, the lessee cannot execute a sale deed in favour of stranger without obtaining prior approval of the State Government. The prior approval is one of the precondition for executing the sale deed. Since no permission was granted, therefore, the sale deed executed by the father of respondents 2 to 4 in favour Meera Bai on 30.11.1985 vide Ex.P-9 is void and is ineffective and the Courts below have not committed any legal error in doing so and dismissing of the suit of the appellant........................'' This Court in the case of Mandu and another vs. State of MP

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and others, reported in 2015 (3) MPLJ 229 has held as under:-

''9.These findings when tested on the anvil of the provisions contained under section 165(7-a) as it existed when the transaction were effected wherein prior permission was a mandatory precondition and no prior permission having been sought even if the holding is beyond ten years, the decision arrived at by the Collector that the sale was a nullity ought not to have been interfered with.'' This Court in the case of Savina Park Resorts and Tours Pvt.

Ltd. Vs. State of MP and others, reported in 2012 (1) MPLJ 562

has held as under:-

''14. Although section 165(6-b) gives power to the Collector to ratify the transfer or refuse the same in accordance with law, the question is whether the order passed by the Collector is in consonance with section 165 of the Code. The order passed by the Collector dated 14-1-2010 shows that the report was obtained from the Revenue Officer by the Collector and it was found that patta was granted to Harmukha on 4-1-1994 treating him to be a landless person. The report placed before the Collector shows that the said seller never obtained any permission as per section 165(7-b) from the competent authority to sell it. Accordingly, on suo motu revision the sale was found to be void and non est in the teeth of the provisions of the Code by the Collector. Interestingly, Harmukha son of Shamle, caste Jatav, in his reply before the Collector stated that he never sold the land in question nor the sale deed contains his signature. The Collector accordingly gave a finding that admittedly the mandate of section 165(7-b) is violated. No permission is obtained by the seller as mandated in aforesaid provision to sell the land in question. Accordingly, the Collector cancelled the patta, which was issued on 4-1-1994 and came to hold that the said sale deed is void ab initio.

15. A Division Bench of this Court in 2002 (2) MPLJ 480, Mulayam Singh vs. Budhwa Chamar held as under:-

''5. It is not in dispute that no permission from the

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Collector was obtained and the sale was made without the permission of Collector. The respondent cannot transfer his land even though he is declared Bhumiswami, without the permission of the Collector. Transfer was made without such permission, so the appellants will not get any legal rights. In the circumstances, the Additional Collector has rightly held that the sale was in contravention of the provisions of section 165(7-B) of the Code and is void. Mutation effected on the basis of sale was set aside and the land was directed to be recorded in the name of the respondent No.1.'' (Emphasis added)

16. Accordingly, I am unable to hold that the Collector has committed any error of law in passing the impugned order. So far the question of not deciding the petitioner's application dated 26-8-2008 preferred under section 165(6-

b) of the Code is concerned, since the alleged transaction was void ab initio. There was no need to pass any separate order and said application is deemed to be rejected on passing of final order by the Collector on 14-1-2010. It is also relevant to mention that the Supreme Court in (1996) 7 SCC 765, Keshabo and another vs. State of MP and Others, held as under:-

''The MP Revenue Code is a welfare legislation made to protect the ownership rights in the land of a Scheduled Tribe to effectuate the constitutional obligation of Articles 39(b) and 46 of the Constitution read with the Preamble. Economic empowerment of a tribal to provide economic democracy is the goal. Prevention of their exploitation due to ignorance or indigency is a constitutional duty under Article 46. Agricultural land gives economic status to the tiller.

Therefore, any alienation of land in contravention of the above objectives is void.'' Therefore, I have no hesitation to hold that any transaction by petitioner and Harmukha is void and Collector has not committed any illegality in passing the impugned order. Thus, this point is also decided against the petitioner. Point(D):

17. So far the contention that the transfer of land by Bhumiswami is after a period of ten years is concerned, this

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point is also no more res integra. The Division Bench in Mulayam Singh's case (supra) held as under:-

''This provision was enacted on 28-10-1992, much after the transaction of sale in this case. Though it provides that after expiry of a period of ten years, the land may be transferred but it is also subject to the prohibition of section 165(7-B) of the Code. So until and unless such a permission is granted by the Collector with cogent reasons, the sale is not permissible. The above-said enactment has been made to restrict the transfer of the land which has been granted on lease by the State Government to landless person and such person cannot be deprived of the land by any transfer except as permissible under section 165(7-B) of the Code and gives jurisdiction to the Collector to consider such a prayer only after a period of ten years and not before that.''

This Court in 2002 (1) MPLJ (Note 2) Budhuwa Chamar vs. Board of Revenue, MP and ors.) held as under:-

''(b) M. P. Land Revenue Code, 1959, SS. 165 (7-B) and 50- Transfer of Land by Bhumiswami- If permission of Collector is not obtained such transfer is void an initio - In absence of permission when the transfer is bad in law, by no stretch of imagination it can be said that the sale-deeds would be treated as valid in the eye of law- One need not seek declaration that the sale-deeds are bad in law as they do not confer any right for the simple reason that there was no prior permission of the Collector.''

15. This Court in the case of Ramesh Chandra and another vs.

Vinod Bhargav and others by order dated 4.9.2019 passed in

M.P.No.3452/2019 has held as under:

"It is further submitted by the learned Senior Counsel for the petitioners that the Board

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of Revenue has relied upon the order passed by the Coordinate Bench of this Court in the case of Adhunik Grih Nirman Sahkari Samiti Mydt. vs. State of MP and another, reported in 2013 RN 8, to hold that the provisions of Section 165(7-b) of the MP Land Revenue Code were not retrospective. It is submitted that, the said order has been challenged by the State by filing Writ Appeal No.275/2013 and the effect and operation of the order passed by the Coordinate Bench of this Court in the case of Adhunik Grih Nirman Sahkari Samiti Mydt.(supra) has been stayed.

Under such circumstances, it is held that the sale deed dated 07/07/2005 executed by the petitioners in favour of Smt. Vidhyadevi was void, being in violation of provisions of Section 165(7-

b) of the MP Land Revenue Code.

Thus, it is clear that the sale deed executed in favour of Smt. Vidhyadevi by the petitioners on 07/07/2005 was void ab initio. Therefore, no right or title stood transferred in favour of Smt. Vidhyadevi as a result of which the respondents No.1 and 2 also could not acquire any right due to void sale deed in favour of Smt. Vidhyadevi. It is held that the mutation of names of the respondents no.1 and 2 in the revenue records, as directed by the Tahsildar by its order dated 09/05/2008 as well as the orders dated 24/08/2018 and 20/06/2019 passed by the Board of Revenue, are bad in law and accordingly, they are set aside and the names of the respondents No.1 and 2 are directed to be deleted from the revenue records.

Now, the next question for consideration is that whether under these circumstances, the names of the petitioners should be restored back in the revenue records or not; and whether they are entitled to remain in possession of the land in dispute or not ?

It is the claim of the petitioner that they are still in possession of the land in dispute, whereas it is the claim of the respondents No.1 and 2 that they were placed in possession after execution of

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the sale deed.

Who is in possession of the land in dispute, shall be considered at later part of this order.

''Patta'' in respect of the Government land is granted under the Revenue Book Circular to a landless person, so that he can earn his livelihood.

In view of Section 158(3) of the MP Land Revenue Code, a ''Patta'' is granted to a landless person for his survival, therefore, he is governed by the mandatory provisions of Section 165(7-b) of the MP Land Revenue Code. The grant of ''Patta"' is not by way of right, but it is by way of assistance by the Government, so that the landless persons who have no source of income, can earn their livelihood by cultivating the land. Therefore, the lessee is under obligation to fulfil the liabilities of lessee and since the Government ''Patta'' is granted for his livelihood, therefore, the sale of the same without permission of the Collector has been prohibited under Section 165(7-b) of the MP land Revenue Code.

The Chhattisgarh High Court in the case of Smt. Vijayben Patel (supra), has held that the negative words which have been used, are indicative of the intention of the Legislature that the provision is mandatory in nature.

Thus, where the statutory prohibition has been created thereby restraining the sale of the Government land, then it has to be followed in its strict sense because the said provision has been made in order to protect the poor and innocent landless persons from the clutches of the unscrupulous persons.

In the present case, it is an admitted position that the petitioners have never challenged the sale deed dated 07/07/2005 alleging any fraud by Smt. Vidhyadevi. The petitioners are resisting the claim of the respondents No.1 and 2 for getting their names muted only on the ground that since the sale deed was executed in violation of the provisions of Section 165(7-b) of the MP Land Revenue Code, therefore, the sale deed is void.

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Section 111 of the Transfer of Property Act reads as under:-

''111. Determination of lease.--A lease of immoveable property determines--

(a) by efflux of the time limited thereby;

(b) where such time is limited conditionally on the happening of some event--by the happening of such event;

(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event;

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;

(f) by implied surrender;

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re- enter [* * *]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease;

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.'' The plain reading of above Section would clearly indicate that if a lessee has impliedly surrendered the lease, then the lease granted in his favour, shall stand determined. ''Patta'' of the Government land was given to the petitioners for

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their survival and earning livelihood and once, they had decided to part away the Government land by alienating the same to Smt. Vidhyadevi after receiving the consideration amount, then it is clear that the petitioners are not in need of any Government land for their survival. Once the need of the lessee is over, he/they have decided to alienate the Government land, then it can be safely said that the lessee has impliedly surrendered the lease and, therefore, the lease granted in favour of the petitioners shall stand determined under Section 111 of the Transfer of Property Act. Under these circumstances, the petitioner were under obligation to return the land back to the State Government, so that the State Government may utilize the same or further allot the same to other landless and needy persons. Once the need of the petitioners is over and once they had decided to impliedly surrender the lease by alienating the land to private persons without obtaining prior permission of the Collector, then they are not entitled to continue in possession of land given by the Government on lease.

16. Section 165 (7-b) of M.P.L.R. Code does not take away the

substantial rights of the Bhumiswami to enjoy the land. But it merely

imposes a restriction on sale of such land except with the permission

of the Collector.

17. The right of property is a Constitutional Right under Article

300-A of Constitution of India. The lessee who is granted

Bhumiswami Rights has absolute right to enjoy the fruits of the

property. As per the Revenue Book Circular, only a landless person is

entitled for Govt. Lease. Therefore, the solitary purpose of granting

THE HIGH COURT OF MADHYA PRADESH WP No.5788/2017 Badshah Barela (deleted) through LRs & Anr. vs. State of M.P. & Ors.

Govt. Lease to a Landless person is to provide source of livelihood so

that a landless person, who is otherwise not in a position to purchase

the land can earn his livelihood by carrying on agricultural activities.

Thus, the grant of Govt. Lease is a beneficial provision for the

survival of a person. The same cannot be used for earning profits by

alienating the same. Thus, in order to put a check on unscrupulous

transactions of Govt. Land, a reasonable restriction has been put

under Section 165(7-b) of M.P.L.R. Code, thereby providing that no

land would be alienated without the permission of the Collector. This

provision doesnot in any manner take away the unfettered right of a

Bhumiswami to enjoy the property, but it merely provides a check on

alienation. A Bhumiswami has an unfettered right to enjoy the

agricultural land for carrying on agricultural activities, but as the land

originally belongs to the State and was granted on lease, with a

solitary intention to provide source of livelihood, and if the lessee

who subsequently acquires the rights of Bhumiswami, is no more in

need of such land, then he must surrender the same, so that it can be

granted on lease to other landless persons. Therefore, Section 165(7-

b) of M.P.L.R. Code, in any manner doesnot infringe upon the

substantive right of a Bhumiswami to enjoy the property without

there being any restrictions, however, the additional check of

THE HIGH COURT OF MADHYA PRADESH WP No.5788/2017 Badshah Barela (deleted) through LRs & Anr. vs. State of M.P. & Ors.

obtaining prior permission from the Collector before alienation of the

same, is in conformity with the reasons and objects behind the

allotment of Govt. Land on lease. Accordingly, it doesnot infringe the

substantive rights of a Bhumiswami in any manner. Therefore,

Section 165(7-b) of M.P.L.R. Code, is applicable to all the

transactions which takes place after its insertion irrespective of the

fact whether Govt. Lease was granted or even Bhumiswami rights

were conferred on Govt. Lessee, prior to it.

Whether the suo motu power of revision was exercised

within a reasonable time or not?

18. It is contended by the counsel for the petitioners that the order

under review was passed by Naib Tahsildar on 18.07.1960, whereas

suo motu power of revision was exercised in the year 2007 i.e. after

about 47 years. It is submitted that therefore the authorities could not

have exercised their suo motu power of revision as by no stretch of

imagination it can be said that the suo motu power of revision was

exercised within a reasonable period of time.

19. Considered the submissions made by the counsel for the

petitioners.

20. The Full Bench of this Court in the case of Ranveer Singh

(Supra) has held that the suo motu power can be exercised within a

THE HIGH COURT OF MADHYA PRADESH WP No.5788/2017 Badshah Barela (deleted) through LRs & Anr. vs. State of M.P. & Ors.

period of 180 days from the date of knowledge of illegality or

impropriety or irregularity. The suo motu power of revision was

exercised on account of fact that the petitioner No.1 had illegally

transferred some part of land forming part of survey No. 9/26 to the

petitioner No.2. It is not the case of the petitioners that even after the

discovering the illegal transaction, the respondents were sitting tight

over on the matter. As soon as the fact came to the knowledge of

respondents that the petitioner No.1 has transferred the land in

violation of provisions of Section 165 of MPLR Code, immediately

proceedings were initiated for review of order of mutation passed in

favour of petitioner No.2 and after setting aside the order of mutation,

the proceedings were initiated for suo motu revision against the order

dated 18.07.1960 as the petitioner No.1 had violated the same by

transferring a part of land to petitioner No.2.

21. It is not the case of the respondents that the order dated

18.7.1960 was passed contrary to law. It is the case of the respondents

that petitioner No.1 by alienating some part of survey No.9/26

without seeking permission of the Collector has violated the terms

and conditions of order dated 18.07.1960, therefore, the period of

limitation would not start running from the date of passing of order

dated 18.7.1960, but the period of limitation would start running from

THE HIGH COURT OF MADHYA PRADESH WP No.5788/2017 Badshah Barela (deleted) through LRs & Anr. vs. State of M.P. & Ors.

the date of discovery of illegal act of petitioner No.1. Accordingly,

this Court is of the considered opinion that the petitioners have failed

to make out a case that the respondents have not exercised their suo

motu power of revision within a reasonable period from the discovery

of fraud or illegality or the action of petitioner No.1 in alienating the

property without taking permission from the Collector. Further, the

Government lease is granted to the land-less person, so that they can

earn their livelihood by carrying out agricultural activities. If the

Government lessee is not in need of land, then he should return the

land to the Government, so that it can be distributed to the other

landless persons or he must alienate the same only after taking

permission from the Collector.

Whether any substantive right has been created in favour of

petitioner No.2 on account of constructions of buildings or park

etc.?

22. This Court has already held that order dated 22.02.2007 passed

by Naib Tahsildar against the petitioner No.2 by which mutation order

passed in his favour was reviewed and was set aside was never

challenged by petitioner No.2 and it has attained finality. If the

petitioner No.2 in spite of knowing the fact that his name is no more

in the revenue records, developed a land then it was done at his own

THE HIGH COURT OF MADHYA PRADESH WP No.5788/2017 Badshah Barela (deleted) through LRs & Anr. vs. State of M.P. & Ors.

risk. The petitioner No.2 cannot take advantage of his own wrong.

23. Under these circumstances, it cannot be said that merely

because the petitioners have now constructed certain buildings or

park etc. on the land in dispute, therefore he would suffer irreparable

loss.

24. No other arguments are advanced by the counsel for the parties.

25. In view of discussions above, this Court is of the considered

opinion that no case is made out warranting interference.

26. The petition fails and is hereby dismissed.

                                                               (G.S. Ahluwalia)
(alok)                                                              Judge



ALOK KUMAR
2021.08.11 20:09:01 +05'30'