Madhya Pradesh High Court
Bharat Singh vs The State Of Madhya Pradesh on 16 January, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 16th OF JANUARY, 2023
MISC. PETITION No. 1117 of 2021
BETWEEN:-
1. BHARAT SINGH
S/O SHRI DEVI SINGH RAJPUT
R/O. VILLAGE TILAWAD, TEHSIL TARANA
DISTRICT UJJAIN (MADHYA PRADESH)
2. SUJANSINGH
S/O SHRI ARJUNSINGH SAUNDHIYA
R/O. VILLAGE POPALPURA, TEH. SUSNER
DIST.:AGAR MALWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMIT RAJ, LEARNED COUNSEL FOR THE
PETITIONERS)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY
REVENUE DEPARTMENT,
VALLABH BHOPAL,
BHOPAL (MADHYA PRADESH)
2. THE COLLECTOR,
AGAR MALWA
DIST.:AGAR MALWA. (MADHYA PRADESH)
3. SUB DIVISIONAL OFFICER,
SUSNER, NALKHEDA
DISTT. AGAR MALWA
(MADHYA PRADESH)
4. POLICE STATION SUSNER THROUGH ITS
SATAION HOUSE OFFICER SUSNER DISTT.
AGAR MALWA (MADHYA PRADESH)
.....RESPONDENTS
2
(BY SHRI S.R. SAXENA, LEARNED DY. ADVOCATE GENERAL)
................................................................................................
...
This petition coming on for admission this day, the court
passed the following:
ORDER
1] The petitioner has filed this petition against order dated
02.02.2021 passed by Additional Commissioner, Ujjain Division,
whereby the petitioner's appeal against the order dated 09.03.2020
passed by Sub-Divisional Officer, District Agar Malwa has been
rejected holding that before purchasing the property in question,
the permission under Section 165(7-b) of M.P. Land Revenue
Code, 1959 (hereinafter referred to as MPLRC, 1959) ought to
have been obtained by the petitioner.
2] Counsel for the petitioner has submitted that admittedly, the
land bearing survey No.2003/1 admeasuring 0.399 Hectare was
added in the account of Bapulal as per the revenue book circular,
and in the year 1976 itself Rin Pustika was prepared in the name of
Bapulal and Bhumiswami rights were also conferred on him. In the
year 2013 the names of successors were recorded in the revenue
record and the petitioners purchased the aforesaid land from the
successors of Bapulal vide registered sale deed dated 25.07.2017
and 31.05.2019 and subsequently the name of the petitioner was
also mutated in the revenue record under Section 110 of MPLRC,
1959 on 11.08.2017 and 31.05.2019 respectively, and the name of
the successors of Bapulal was deleted. Thereafter on 11.11.2019
the respondent no.4 has filed an appeal against the order of
mutation dated 11.08.2017 and 31.05.2019 passed by SDO that the
land was wrongly granted to Bapulal on 22.01.1976 and the SDO
vide its order dated 09.03.2020 has held that the mutation
proceedings in favour of Bapulal on 22.01.1976 were erroneous
and directed that the name of respondent no.4 be recorded in the
record of rights. The aforesaid order has been affirmed by
Commissioner in the impugned order dated 02.02.2021 in the
second appeal.
3] Counsel for the petitioners has submitted that the aforesaid
disputed involved in the case regarding applicability of Section
165(7-b) of MPLRC, 1959 has already been tackled by co-ordinate
Bench of this Court in the case of Adhunik Grih Nirman Sahkari
Samiti Maryadit vs. State of M.P. & Another reported in 2013
Revenue Nirnay 8 whereby this Court has opined that Section
165(7-b) cannot be applied retrospectively. Counsel has also
relied upon another judgment of the co-ordinate Bench of this
Court delivered by Justice Shri J.K. Maheshwari, as his Lordship
then was W.P. No.17127/2016 and other connected petitions, the
relevant paras of the same reads as under:-
"13. Thereafter, referring the provisions of
Madhya Pradesh Land Revenue Code and the
judgments of Hon'ble the Supreme Court so
also the provisions of the statutory
interpretation, this Court in Adhunik Grih
Nirman Sahkari Samiti Maryadit (supra)has
observed as:-
"28.There is no mention in Section 165 (7-
b) of the Code of 1959 to the effect that it
would apply retrospectively. It is clear from
the provisions of the section that it takes
away the vested rights acquired by a
Bhumiswami and it creates a new
obligation or imposes a new duty in regard
to taking prior permission from the
Collector in the event of sale of the land,
hence, the section could not be presumed to
be retrospective in operation. The rights,
which were granted to the original lease
holders namely Mukhtyar Singh, Saheb
Singh and Vijay Singh prior to 1980 as
Bhumiswami could not be taken away by
the provisions of the aforesaid Code. A
Bhumiswami had a vested right to sell the
land and their rights are unfettered and
unaffected by introduction of
Section 165 (7-b) of the Code of 1959. The same
position is in regard to Section 158 (3) of the Code
of 1959 because it was introduced by way of
amendment dated 28.10.1992."
"14. In view of the aforesaid, it can safely
have been declared Bhumiswami as per order
of the Collector dated 2.9.1963 and the
provision of Section 165 (7-b) of MPLR
Code have been brought by the Act No.15 in
the year 1980 and subsequently by the Act
No.17 in the year 1992 on introducing the
provision of Section 158(3) of MPLR Code,
therefore, those provisions would not attract
after declaring the respondent Nos.1 to 26 as
Bhumiswami and they are not supposed to
take permission to sell the land to which they
have been declared as Bhumiswami of the
land for which the lease was initially granted
in their favour. In such circumstances, the
order passed by the Collector refusing to
grant permission to sell the land in a case in
which the respondents were not supposed to
comply the requirement is non est and if such
an order is set aside by the Board of Revenue,
the plea taken by the State Government in the
petition regarding nonobservance of maxim
audi alteram partem is of no substance,
therefore, such plea is hereby repelled. Thus,
the question posed in Writ Petition
No.17127/2016 is answered in favour of
respondents."
(emphasis supplied)
4] Thus it is submitted that the impugned order be set aside and
the order of mutation passed in favour of the petitioner be
reinstated.
5] Counsel for the respondent/State on the other hand opposed
the prayer and submitted that against the order passed by this Court
in Adhunik Grih Nirman Sahkari Samiti Maryadit (supra) a writ
appeal has already been filed before the Division Bench in the year
2013 and the same is still pending and admittedly there is no stay
in operation in the said SLP.
6] On due consideration of the aforesaid submissions, as also
the aforesaid judgments rendered by co-ordinate Benches of this
Court, and on perusal of the documents available on record,
considering the fact that as the predecessor in title of the petitioner
was given Bhumiswami rights in the year 1975, i.e., prior to 1980,
the bar u/s.165(7) of MPLRC, 1959 would not be applicable and
the permission of the Collector was not required. Thus, this Court
has no hesitation to hold that the impugned orders cannot be
sustained on the annals of the aforesaid judgments rendered by this
Court, and accordingly, the orders dated 02.02.2021 (P/1) and
09.03.2020 (P/2) are hereby set aside and the orders of mutation
dated 11.08.2017 and 31.05.2019 are restored.
7] With the aforesaid directions the petition stands allowed and
disposed of.
Certified copy, as per Rules.
(SUBODH ABHYANKAR)
JUDGE
sumathi
Digitally signed by SUMATHI JAGADEESAN
SUMATHI
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JAGADEESAN
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,
serialNumber=28E58B6FE482FD4DF2469FAAFF13E836178C3C8
1533BF4D0F8641FFAB3DD337B, cn=SUMATHI JAGADEESAN
Date: 2023.01.20 16:29:05 +05'30'
