Madhya Pradesh High Court
Gurvinder Singh Bhatia vs The State Of Madhya Pradesh on 6 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
W.A. No. 1627 of 2018
W.A. No. 255 of 2022
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 06th MAY, 2024
WRIT APPEAL No. 1627 of 2018
BETWEEN:-
AMBRISH S/O LATE GOPILAL KELA OCCUPATION: BUSINESS 5,
1.
GULMOHAR EXTN. INDORE (MADHYA PRADESH)
SMT. PREETI W/O AMBRISH KELA OCCUPATION: BUSINESS 5,
2.
GULMOHAR EXTN. INDORE (MADHYA PRADESH)
.....APPELLANTS
(SHRI ABHINAV MALHOTRA - ADVOCATE FOR THE APPELLANTS)
AND
THE STATE OF MADHYA PRADESH SECRETARY VALLABH
1.
BHAWAN BHOPAL (MADHYA PRADESH)
COMPETENT AUTHORITY URBAN LAND CEILING
2.
COLLECTORATE , INDORE (MADHYA PRADESH)
.....RESPONDENTS
( SHRI ANIKET NAIK - DY. GOVT. ADVOCATE FOR THE
RESPONDENT/STATE)
WRIT APPEAL No. 255 of 2022
BETWEEN:-
GURVINDER SINGH BHATIA S/O KRIPAL SINGH BHATIA, AGED
ABOUT 69 YEARS, OCCUPATION: BUSINESS BCC HOUSE, 8/5,
1.
MANORAMAGANJ, NAVRATANBAGH MAIN ROAD (MADHYA
PRADESH)
2
W.A. No. 1627 of 2018
W.A. No. 255 of 2022
SURINDER SINGH BHATIA S/O KRIPAL SINGHM BHATIA, AGED
ABOUT 61 YEARS, OCCUPATION: BUSINESS "BCC HOUSE", 8/5,
2.
MANORMAGANJ, NAVRATANBAGH MAIN ROAD (MADHYA
PRADESH)
MRS. GURVINDER KAUR BHATIA W/O SURINDER SINGH BHATIA,
AGED ABOUT 58 YEARS, OCCUPATION: BUSINESS "BCC HOUSE",
3.
8/5, MANORMAGANJ, NAVRATANBAGH MAIN ROAD (MADHYA
PRADESH)
MRS. VEENA BHATIA W/O GURVINDER SINGH BHATIA, AGED
ABOUT 58 YEARS, OCCUPATION: BUSINESS "BCC HOUSE", 8/5,
4.
MANORMAGANJ, NAVRATANBAGH MAIN ROAD (MADHYA
PRADESH)
.....APPELLANTS
(SHRI ABHINAV MALHOTRA - ADVOCATE FOR THE APPELLANTS.)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1.
MANTRALAYA, VALLABH BHAWAN (MADHYA PRADESH)
COMPETENT AUTHORITY URBAN LAND CEILING
2.
COLLECTORATE, INDORE (MADHYA PRADESH)
.....RESPONDENTS
( SHRI ANIKET NAIK - DY. GOVT. ADVOCATE FOR THE
RESPONDENT/STATE)
-------------------------------------------------------------------------------------------------------------------------------------
Reserved on : 08.02.2024
Pronounced on : 06.05.2024
------------------------------------------------------------------------------------
These appeals having been heard and reserved for order
coming on for pronouncement this day, Hon'ble Shri Justice S.A.
DHARMADHIKARI pronounced the following
ORDER
Matter is heard finally with the consent of parties.
Heard on I.A. No. 1964/2022, an application seeking grant of
leave to file appeal under Section 2(1) of the Madhya Pradesh Uccha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against
the final order dated 08.03.2018 passed in W.P. 9293/2010. The said
I.A. Has been filed by the appellant in W.A. No. 255/2022.
Regard being had to the similitude of the controversy involved
in the aforesaid appeals, they have been heard analogously and
disposed of by this singular order. Both W.A. No. 1627/2018 and
W.A. No. 255/2022 are heard analogously and disposed off by this
common order.
This intra court appeal under Section 2(1) of the Madhya
Pradesh Uccha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam,
2005 assails the order dated 08.03.2018 passed in W.P. No. 9293/2010
whereby the learned Single Judge is dismissed the writ petition as
well as the review petition.
Brief facts of the case are that the appellant had filed a writ
petition seeking quashing of proceedings in respect of land bearing
Survey No. 1307/2 admeasuring 0.395 hectares(14000 sq. ft) land
situated at Village Khajrana Teh & Distt. Indore. Earlier, the aforesaid
land was owned by one Mr. Devikrishna S/o Saligram. Since the year
1972-73, Shri Parmanand, Puranlal and Bharatlal were in possession
and had legally acquired ownership rights and recognizing such
ownership rights by the order passed by the competent authority.
Thereafter, their names were duly mutated in the revenue records in
the year 1978. Shri Parmanand & others applied for diversion of the
aforesaid land for residential purposes which was allowed vide order
dated 14.03.1983. The land owner Shri Parmanand & others had filed
necessary statements u/S 6 of the Urban Land (Ceiling and
Regulation) Act, 1976[referred to as "the Act of 1976"] and a case was
registered as Case No. 149/P-90/C-1/8283, in which after due inquiry,
the respondent no.2 had passed an order holding that the land in
question does not fall within the ambit of provisions of the Act of
1976. On 24.10.1986, Shri Parmanand and others obtained permission
for construction from Indore Municipal Corporation. Thereafter, the
land owners Shri Parmanand and others sold the aforesaid land in
question to Shri Yeshwant Sankla vide registered sale deed dated
05.11.1988. Shri Sankhla sold the land in question to Mrs. Girija
Agrawal vide registered sale deed dated 12.10.1992 who had also
obtained permission for construction from the Indore Municipal
Corporation on 20.11.1993. Thereafter, Mrs. Girija Agrawal sold a
part of land i.e. 2945.375 sq.ft. with pakka shed to one Kushiram vide
registered sale deed dated 15.05.2000 and had sold the other part of
the land i.e. 7890.75 sq. ft by registered sale deed dated 05.04.2004 to
the appellants. The appellants herein obtained permission for
construction from the Indore Municipal Corporation dated 19.04.2007.
A total area of Survey no. 1307 admeasuring 42,000 sq ft. which stood
divided in three different parts. Out of the aforesaid total land,
14,000/- sq.ft is owned by the appellant. Another 14,000 sq. ft. was
owned by one Mrs Monika Sankhla and another 14000 sq ft of the
land is owned by Gurvindar Bhatia. The aforesaid land was shown to
be affected by ceiling proceedings in the revenue records. The
respondent no.2 declared the aforesaid land as surplus in reopened
proceedings Case No. 391/A-90/C-1 and consequently, in the revenue
records, since the action of respondent no.2 was an illegal, inoperative
and without jurisdiction. Therefore W.P. No. 9293/2010 was filed.
The appellant in this case had also purchased land
admeasuring 14,320 sq.ft. Some part of the aforesaid land bearing
Survey No. 1307/2 situated at Village Khajrana Teh and Distt. Indore
was purchased vide registered sale deeds dated 08.01.1997,
09.01.1997, 10.01.1997 and 14.01.1997. At the time of purchase, the
said land was not the subject matter of any proceedings under the Act
of 1976 nor were the appellants informed by the predecessors-in-
interest regarding any defect in their title. Thus, they have parted with
adequate sale consideration. The appellant became bonafide owner of
the land in question with adequate title. On 30.01.1998, the land in
question was declared to be surplus land under the provisions of the
Act of 1976 based on the statements filed by one Devkrishna under
Section 6 of the Act of 1976. Accordingly, entries in the revenue
records were modified. The appellant came to know that proceedings
initiated under the Act bearing Case No. 391/A-90/C-1 was subjected
to challenge before this Court in W.P. No. 9293/2010 in respect of
another part of the same land. Since the appellants were also aggrieved
by the same ceiling proceedings, they preferred an application I.A. No.
1272/2014 seeking permission to intervene in the writ petition No.
9293/2010. Learned Single Judge allowed the application vide order
dated 18.03.2014 and resultantly, appellant herein has joined as
intervenor in the writ petition. The learned Single Judge dismissed the
writ petition on the ground that third party purchasing the property
after issuance of notice u/S 3 of the Act of 1976 does not have any
locus to challenge the ceiling proceedings when considering the matter
on merits. Thereafter, the review petition was preferred against the
order dated 08.03.2018 which was also dismissed on 20.08.2018.
4. After review petition was dismissed, the appellants
preferred a writ appeal challenging the order dated 08.03.2018 which
was registered as W.A. No. 1627/2018. The appellant joined as
intervenor in the said writ appeal vide order dated 12.07.2019.
Subsequenly, the appellants filed application seeking leave of Court
to withdraw the intervention filed in writ appeal so as to challenge the
impugned judgment/final order dated 08.03.2018 independently. As a
result, instant intra Court appeal has been filed.
The Survey No. 1307 that is the subject land stretched across
an area of 42,000 sq.ft of land, which stands divided in three different
parts as per the flowchart given below:
Land bearing Survey No. 1307
admeasuring a total area of 42,000 sq ft
is divided into three parts
An area of 14000 sq. ft bearing The remaining area of around
An area of 14320 sq.ft.
Survey No. 1307/02 is owned by 14000 sq.ft. Bearing Survey
Forming part of land bearing
the appellants i.e. Mr. Ambrish No. 1307 is owned by one Ms.
Survey No. 1307/2 is owned
Kela and Mrs. Preeti Kela. Monia Sankhla
by the appellants herein.
5. The subject land and other parcels of land owned and
possessed by the Kelas and Mrs. Monika Sankhla as stated in the flow
chart above were originally owned by one Mr. Devkrishna who had
given the whole parcel of land including the subject land on lease to
Parmanand, Puranmal and Bharatlal S/o Shri Jasanmal (referred to as
'Parmanand and Ors' hereinafter) for cultivation purposes in lieu of
share in such produce. Since 1972, the subject land remained in
possession of Parmanand and Ors. in their capacity as 'Marusi
Kashtkar' i.e. permanent cultivator and thus Parmanand & Ors.
Acquired bhoomiswami rights in the subject land on the strength of
Section 190 of the Madhya Pradesh Land Revenue Code,
1950(referred to as 'The Code" hereainfter).
6. As per Section 169(1) of the Code, if any person is in
possession of a leasehold land for a continuous period of 5 years in
contravention to Section 168(1) of the Code, then such person
becomes the occupancy tenant in respect of such land. Further, a
conjoint reading of Section 190 with Section 168 and 169 of the Code
would show that 'bhumiswami' rights accrued to a person who has
been occupancy tenant of a land from the commencement of next
agricultural year by operation of Section 190 of the Code which reads
as follows:
190. Conferral of bhumiswami rights on occupancy tenants. --
[(1) Where a bhumiswami whose land is held by an occupancy
tenant belonging to any of the categories specified in sub-section
(1) of Section 185 except in items (a) and (b) of clause (i) thereof
fails to make an application under sub-section (1) of Section 189
within the period laid down therein, the rights of a bhumiswami
shall accrue to the occupancy tenant in respect of the land held
by him from such bhumiswami with effect from the
commencement of the agricultural year next following the expiry
of the aforesaid period.] (2) Where an application is made by a
bhumiswami in accordance with the provision of sub-section (1)
of Section 189, the rights of a bhumiswami shall accrue to the
occupancy tenant in respect of the land remaining with him after
resumption if any allowed to the bhumiswami with effect from
the commencement of the agricultural year next following the
date on which the application is finally disposed of. [(2-A)
Where the land of a bhumiswami is held by an occupancy tenant
other than an occupancy tenant referred to in sub-section (1),
the rights of a bhumiswami shall accrue to the occupancy tenant
in respect of such land -- (a) in the case of occupancy tenants of
the categories specified in items (a) and (b) of clause (i) of sub-
section (1) of Section 185, with effect from the commencement of
the agricultural year next following the commencement of the
Principal Act; 115 (b) in any other case, with effect from the
commencement of the agricultural year next, following the date
on which the rights of an occupancy tenant accrue to such
tenant.] (3) Where the rights of a bhumiswami accrue to an
occupancy tenant under sub-section (1), l[sub-section (2) or sub-
section (2-A)] such occupancy tenant shall be liable to pay to his
bhumiswami compensation equal to fifteen times the land
revenue payable in respect of the land in five equal annual
instalments, each instalment, being payable on the date on
which the rent payable under Section 188 for the corresponding
year falls due, and if default is made in payment, it shall be
recoverable as an arrear of land revenue Provided that if from
any cause the land revenue is suspended or remitted in whole or
in part in any area in any year, the annual instalment of
compensation payable by an occupancy tenant holding land in
such area in respect of that year shall be suspended and shall
become payable one year after the last of the remaining
instalments. (4) Any occupancy 'tenant may at his option pay the
entire amount of compensation in a lump sum and where an
occupancy tenant exercise this option, he shall be entitled to a
rebate at the rate of ten per cent. (5) The amount of
compensation, whether paid in lump sum or in annual
instalments, shall be deposited in such manner and form as may
be prescribed by the occupancy tenant with the [Tahsildar], for
payment to the bhumiswami. (6) Where the rights of a
bhumiswami in any land accrue to an occupancy tenant under
this section, he shall he liable to pay the land revenue payable
by the bhumiswami in respect of such land with effect from the
date of accrual of such rights."
7. Upon applying the said provisions to the present case, it
can be seen that Parmanand & Ors became bhumiswami rights in
favour of Parmanand & Ors. was automatic by operation of law and no
order/recognition from any authority as such is required in this regard.
8. Thereafter, Parmanand & Ors. obtained diversion
permission from the Revenue Authorities for residential purpose and
the same was granted in their favour by way of order dated 19.07.1982
passed in Revenue Case No. 42/A-2/81-82.
9. Learned counsel for appellants while addressing this Court
on I.A. No. 1964/2022 submitted that appellants have preferred this
intra Court appeal being aggrieved by the final order passed by the
learned Single Judge in W.P. No. 9293/2010 which was filed by the
appellants in connected appeal i.e. W.A. No. 1627/2018 against the
proceedings initiated under Urban Land Ceiling Act, 1976 in respect
of land bearing Survey No. 1307/2 situated at Village Khajrana.
10. It is further submitted that appellants in W.A. No.
255/2022 had also purchased a parcel of the same land bearing Survey
No. 1307/2 and being aggrieved by the same ceiling proceedings , they
have initially sought permission to intervene in the writ petition which
was later on allowed and appellants have been permitted to intervene
in the writ petition. However, vide order dated 08.03.2018, the learned
Single Judge has dismissed the petition on the ground of
maintainability. Thereafter, W.A. No. 1627/2018 was filed by Ambrish
Kela and Preeti Kela in which appellant has filed an application for
intervention. However, later on sought leave to withdraw the same and
challenge the impugned order in the instant W.A. No. 255/2022.
11. It is further submitted that since appellant in W.A. No.
255/2022 are also adversely affected by the order dated 08.03.2018,
and therefore, appellants be also allowed to lay an independent
challenge to the final order by way of accompanying the W.A. No.
1627/2018. In support of his contention, learned counsel for the
appellant has placed reliance on the judgment passed by co-ordinate
Bench of this Court in the case of Rajawat Vs. Dashrath Singh
Gujjar reported in (2011) 4 MPLJ 547 which was affirmed by the
Apex Court in the case of Smt. Jatan Kumar Golcha Vs. Golcha
Properties P. Ltd. reported in (1970) 3 SCC 573, wherein it was held
that an aggrieved person can prefer a writ appeal even though he may
not be the main petitioner in the writ petition.
12. Since, appellant's rights have also been prejudiced by the
impugned order dated 08.03.2018, therefore, leave deserves to be
allowed.
13. Adverting to the merits of the petition, learned counsel for
the petitioner has raised various grounds which are enumerated below:
(A) Acquiring of 'bhumiswami' rights in the subject land in the
year 1974-75 by virtue of Section 168 and 169 of the Code by
Parmanand & Ors.
(i) Learned counsel contended that the subject land was given
on lease by erstwhile owner Devkrishna to parmanand & Ors. in the
year 1972 for the purpose of cultivation as 'Shikmi Kashtkar'. The
lease continued for a period of more than on year as Parmanand & Ors.
retained possession of the subject land in contravention to Section 168
of the Code. As such, by virtue of Section 169 of the Code, Parmanand
& Ors. became the occupancy tenant.
Relevant Excerpts of Section 168 & 169 of the Code are reproduced
herein below for convenience and ready reference:
168. Leases.-- (1) 3[Except in cases provided for in sub-
section (2), no bhumiswami shall lease any land comprised
in his holding for more than one year during any
consecutive period of three years
169. Unauthorised lease etc.--If a bhumiswami (i) leases
out for any period any land comprised in his holding in
contravention of Section 168; or (ii) by an arrangement
which is not a lease under sub-section (1) of Section 168
allows any person to cultivate any land comprised in his
holding otherwise than as his hired labour and under that
arrangement such person is allowed to be in possession of
such land for a period exceeding two years without being
evicted in accordance with Section 250; the rights of an
occupancy tenant shall, -- (a) in the case of (i) above,
thereupon accrue to the lessee in such land; and 97 (b) in
the case of (ii) above, on the expiration of a period of two
years from the date of possession, accrue to such person in
that land Provided that nothing in this section shall apply
to a land comprised in the holding of a bhumiswami
belonging to a tribe which has been declared to be an
aboriginal tribe under sub-section (6) of Section 165 and
which is leased out by him or in respect of which he has
made an arrangement as aforesaid, as the case may be.]
(ii) It is further contended that Section 190 of the Code
provides that in case, land is held by an occupancy tenant then rights
of bhumiswami accrue to such tenant on and from the commencement
of next agricultural year following the date on which the rights of an
occupancy tenant accrued. In the present case, Parmanand & Ors. were
in possession of the subject land from 1972 onwards. Hence, the rights
of bhumiswami accrued to Parmanand and Ors. in the year 1974-75.
(iii) Relevant excerpts of Section 190 of the Code are
reproduced below for convenience and ready reference:
190.
....................................................
[(2-A) Where the land of a bhumiswami is held by an
occupancy tenant other than an occupancy tenant referred
to in sub-section (1), the rights of a bhumiswami shall
accrue to the occupancy tenant in respect of such land --
(a) in the case of occupancy tenants of the categories
specified in items (a) and (b) of clause (i) of sub-section (1)
of Section 185, with effect from the commencement of the
agricultural year next following the commencement of the
Principal Act; 115 (b) in any other case, with effect from
the commencement of the agricultural year next, following
the date on which the rights of an occupancy tenant accrue
to such tenant.] "
(iv) As regards the objection raised by the respondent that
conferral of bhumiswami rights require a declaration by a civil court of
competent jurisdiction, it is humbly submitted that the same is
incorrect and false. It is settled law that conferral of bhumiswami
rights by virtue of Sections 168, 169 and 190 of the Code is automatic
and there is no need for express recognition of the same by any
authority or Court of law.
'....... The conferral of rights of occupancy tenant under
Section 169 of the Code are automatic, the moment there is
contravention of Section 168(1). In other words, the
moment a lease spills over one year during a period of
three consecutive years, the right of occupancy is conferred
on the lessee. The appellant becomes an occupancy tenant
and consequently, a Bhumiswami under Section 190(2A) of
the Code much before 1-1-71, even if the finding of the
Lower Appellate Court be kept intact.'
(v) To bolster his submissions, learned counsel for the
appellants has pressed into service various judgments of this Court.
Kashiram Vs. State of Madhya Pradesh and Others reported in
(1996) SCC Online MP 102
Jagdish Prasad Vs. Chandrabha reported in 1972 MPLJ SN 73
Badri Bai Vs. Daulatram & Ors. [Second Appeal No. 252/2001 and
254/2001]
[Civil Appeals No. 5A and 9 of 2000. D/d 28.04.2010]
(vi) Learned counsel for the appellants contended that the said
rights were expressly recognized by the Revenue Authorities of the
respondents as is evident from the Khasra records, mutation order,
ordersheets in the earlier ceiling proceedings and the affidavit
furnished by Devakrishna. It is pertinent to mention that respondents
in their additional reply have categorically accepted/admitted such
conferral bhumiswami rights in favour of the predecessors of the
appellants i.e. the present appellants i.e. Parmanand & Ors. Way back
in 1974-75. Relevant excerpts in this regard are reproduced below for
convenience and ready reference:
''11,12 - इस चरण ममें ययाचचकयाकरयार्ता दयारया पप&21 खसरया
पयापांचसयालया वरर्ता 79 -80 ककी प्रचर प्रसरस्तुर कर परमयाननन्द कया नयाम
अपांककर हहोनने कने कथन कररने हस्तुए रहसपल नययाययालय ममें म.प्र. भभ-
रयाजसव सपांकहरया, 1959 ककी धयारया 109-110 एवपां 190 कने अनररर्तार
प्रकरण प्रचचलर रहनने रथया वरर्ता 74-75 सने चनरनरर प्रशनयाधपन
भभचम पर अपनया कबजया रहसपल नययाययालय दयारया सवपकयार करनने
कने कयारण उकर प्रशनयाधपन भभचम रयाजसव ररकयारर्ता ममें परमयाननन्द
आकन्द कने नयाम अपांककर हहोनने समम्बनधप ककयने रयने कथन सवपकयार
हहै। ककनरस्तु इस समम्बनध ममें सपषष्ट ककयया जयारया हहै कक रहसपल
नययाययालय दयारया पयाररर आन्दनेशयानस्तुसयार ककी रई नयामयानररण ककी
कयायर्तावयाहही नरर भभचम सपमया अचधचनयम, 1976 कने रहर ककी रई
अचरशनेर भभचम ककी कयायर्तावयाहही कहो प्रभयाववर नहहीपां करनेरप।''
(vii) Hence, the bhumiswami rights of Parmanad & Ors stood
fortified in the subject land before the commencement of the Act of
1976 i.e. on 09.09.1976. Therefore, the objection of the respondent
that since Parmanand & Ors. were not owners in revenue records,
ceiling proceedings were initiated against Devkrishna is absolutely
farcical and is liable to be rejected.
(B) Parallel/double proceedings reopened after 12 years in respect
of the same land cannot be permitted under the law when the
Subject land was adjudged to be non-surplus in the ceiling
proceedings initiated against Parmanand & Ors.
(i) The writ Court failed to consider that Parmanand & Ors
had filed their return under Section 6 of the Act of 1976 in the year
1983 and had shown the subject land as their own. The ceiling
proceedings in case of Parmanand & Ors were registered as 149/P,
90/C-1/82-83 and vide an order dated 27.06.1984, the respondent no.2
held that subject land does not fall within the ambit of the Act of 1976.
The said order was never challenged by the respondent/State nor set
aside by any Court and the same has attained finality.
(ii) The competent authority under the Act of 1976 vide final
order dated 27.01.1992 passed in Case No. 76/A-90/C-1/89-90 had
also held that the subject land belong to Parmanand & Ors and the
same was excluded from the owernship of Devkrishna. However, the
Officers/authorities of the State illegally and without jurisdiction
reopened proceedings under the Act of 1976 against Devkrishna in the
year 1996 i.e. after a period of 12 years from the passing of order dated
27.06.1984 under a completely false pretext, which was not
permissible in law as the competent authority had become functus
officio.
(iii) It is further submitted that respondent being a welfare
'State' is expected to act fairly and not in a manner which is arbitrary
and violative of rights guaranteed to an individual under the
Constitution of India. However, the conduct of the respondent in
initiating parallel/double proceedings on the same subject matter
without notice to the parties concerned i.e. Parmanand & Ors. and
without challenging the previous order which had attained finality is
manifestly arbitrary and falls foul of Article 14 of the Constitution of
India.
(iv) The Respondent also failed to bear in mind that the Act
of 1976 being an ex-proprietary legislation like land acquisition Act,
even if intended to achieve social public interest, has to be construed
strictly , in as much as it deals with the right of the owner to have his
property. Therefore, the State is required to strike a proper balance
between the right of property of an individual citizen and the
collective needs of the society for which such laws are made.
(v) In support of his above contention, learned counsel for the
appellants has relied upon the judgments which are as follows:
M/s Kewal Court Pvt. Ltd. And Anr. Vs. The State of West Bengal
and Ors.
Gautamprasad K. Tripathi Vs. State of Gujarat reported in 2014
SCC Online Guj 3680.
(C) No objection/challenge was made when amendment to
pleadings was allowed by this Court.
(i) In this regard, learned counsel for the appellants submitted
that Parmanand & Ors. Became bhumiswami by virtue of Section 168,
169 and 190 of the Code and as evident from the documents placed on
record by the appellants, however, due to slip of mind while drafting
the petition, it was incorrectly stated in para 5.1 that Devkrishna sold
the land in question in the year 1972-73 to Parmanand & Ors. When in
fact Parmanad & Ors. had acquired title to the subject land as a
statutory consequence of the lease made by Devkrishna.
(ii) To rectify the typographical error, the appellants had filed
I.A. No. 2699/2023 to amend the petition which was allowed in the
absence of any objection by the respondents.
(iii) It is further submitted that the case of the appellants have
been consistent and the respondent cannot at such belated stage merely
by oral arguments raise such objection after amendment being allowed
by this Court.
(iv) Relevant extracts of the rejoinder filed by the appellants
in W.A. No. 1627/2018 are reproduced below for convenience and
ready reference:
''(11) यह कक, परमयाननन्द, पभरणमल, भररलयाल वपरया
जसनमल कया नयाम रयाजसव ररकयारर्ता ममें वरर्ता 77-78 ममें न्दजर्ता हहो
चस्तुकया थया। खसरने ककी प्रचर प्रन्दशर्ता पप - 21 ररजयाइनरर कने सयाथ
प्रन्दशर्ता पप - 21 कने रूप ममें सपांलगन ककी जया रहही हहै।
(12) यह कक, परमयाननन्द, पभरणमल, भररलयाल वपरया
जसनमल ववरूद्ध न्दनेवककृषण वपरया सयाचलररयाम कया प्रकरण
रहसपल नययाययालय ममें चलया थया जजसकया नयामयानररण आन्दनेश
18.07.1978 ममें हस्तुआ ककी प्रचर ररजयाईनरर प्रन्दशर्ता पप - 22 कने
सयाथ प्रन्दशर्ता पप - 22 कने रूप ममें सपांलगन ककी जया रहही हहै।
(13) यह कक, मभल भभ-धयारक न्दनेवककृषण वपरया सयाचलररयाम दयारया
एक शपथ-पत्र ररसपहोनरनेनष्ट कपां. 2 कने समक्ष कन्दनयापांक 11/11।
1983 कहो प्रसरस्तुर ककयया रयया थया। इस शपथ-पत्र ममें न्दव
स्तु ककृषण
दयारया सपषष्ट रूप सने यह कथन
ककयने थने कक ''मनेरने दयारया अचधचनयम
1976 कने अनररर्तार वववरणप कन्दनयापांक 16-05-1977 कहो प्रसरस्तुर
ककी रई थप उसममें ममैंनने 1307 / 2 क्षनेत्रफल 0-395 हनेकष्टर
न्दशयार्तायप रई हहै।
उकर जयानकयारही मनेरने दयारया, पष्टवयारही दयारया जयानकयारही प्रयापर
कने अनस्तुसयार न्दही रई थप, जम्बकक सवर्वें क- 1307-2 क्षनेत्रफल 0-
395 हनेकष्टर भभचम कहो परमयाननन्द, पभरणलयाल, भररलयाल वपरया
जसनमल कने आचधपतय कबजने ककी भभचम कहो भप ममैंनने अपनप
भभचम समझ कर न्दशयार्तायप रई थप। जम्बकक सवर्वे नपांम्बर 1207/2
ककी भभचम आचधपतय एवपां कबजने ममें सन न 74-75 सने परमयाननन्द,
पभरणलयाल, भररलयाल वपरया जसनमल कया हही हहै व रयाजसव
प्रकरण क. 2 अ - 46 /77-78 कन्दनयापांक 18/7/1977 कहो
धयारया 109, 110, 190 मधयप्रन्दनेश भभ- रयाजसव सपांकहरया 1969 कने
अनररर्तार मनेरया नयाम भभ-रयाजसव सपांकहरया 1969 कने अनररर्तार मनेरया
नयाम भभ-अचभलनेख ररकयारर्ता ममें कम ककयया रयया हहै।
प्रन्दशर्ता पप - 23 शपथ-पत्र ककी छयायया प्रचर ररजयाईनरर कने सयाथ
प्रन्दशर्ता पप - 23 कने रूप ममें सपांलगन ककी जया रहही हहै।''
(v) Learned counsel further submitted that in view of the
provisions of Repeal Act of 1999, only factum of taking over of legal
and actual possession ought to have been considered by the Court - a
mere paper panchanama would not suffice.
(vi) Section 4 of the Urban Land (Ceiling and Regulation)
Repeal Act, 1999 (referred to as 'Repeal Act' hereinafter) clearly
provides that if actual physical possession of excess vacant land has
not been taken by the competent authority, the ceiling proceedings
would abate meaning thereby that any person who is in possession of
the property under proceedings, as a valid transferee has the right to
claim relief on the basis of mandatory provision of the Repeal Act.
However, learned Writ Court failed to consider that in the present case
there existed a construction on the subject land and as such, the
possession could have been taken only in two ways i.e. either by
actually dispossessing the occupier or by demolishing the existing
construction. Admittedly, in the present case, neither the occupiers
were dispossessed nor the existing construction was demolished.
Therefore, the panchnama - a mere paper panchanama could not have
conferred any right in favour of the State Government.
(vii) Learned writ Court has further failed to consider that for
ensuring compliance of mandatory provision of the repealing Act, it is
necessary to not only issue a 30 days' notice to the holder/owner but
also to the occupier of the subject land. Admittedly, no such notice
was ever given to the occupiers who were in possession of the subject
land as well as the house constructed therein. Accordingly, the
possession panchnama in the present case was not only illegal but was
merely a paper panchnama prepared solely to by-pass the mandatory
provisions of the Repealing Act. On this sole ground, the ceiling
proceedings are required to be quashed and set aside.
(viii) Learned counsel for the appellant submitted that in view
of the above discussion, it is crystal clear that the subject land was
under the ownership and possession of Parmanand and Ors. and not
Devkrishna. Hence, the reopening/initiation of parallel proceedings on
the same subject land is illegal.
14. Per contra, learned counsel for the respondent vehemently
opposed the prayer and submitted that W.A. No. 255/2022 filed by
Gurvinder Singh Bhatia is not maintainable, since he was not a party
to the writ petition and has approached this Court directly and even
not challenged the relief for quashment of proceedings, therefore the
proceedings stood abated. Grant of leave to file appeal would not
make the same maintainable without considering the period of
limitation.
15. He further submitted that appellant in W.A. No. 255/2022 had
purchased the land after the notification of Section 10(3) of the Act of
1976. He further submitted that appellant had never sought relief for
quashment of ceiling proceedings in the writ petition and now the
appellant is seeking the relief in the writ appeal. Even otherwise,
grant of leave does not give absolute right to the appellant to file writ
appeal since procedural proprietory requires to prefer a writ petition
and then only right accrues to the appellant to come before this Court
in intra Court appeal against the order passed in the writ petition as
there is no direct order against the appellant affecting his rights.
16. Learned counsel for the State further by raising the plea of
estoppel submitted that appellant has taken different grounds in the
intervention application filed in the writ petition and has made
different pleadings in the writ appeal.
17. On all these grounds, I.A. No. 1964/2022 deserves to be
dismissed and consequent thereupon, the writ appeal is also liable to
be dismissed.
18. Heard, learned counsel for the parties and perused the record.
19. Before dwelling upon merits of the case, this Court proceeds
to decide I.A. No. 1964/2022.
20. Question is whether a person who is not a party before the
learned single Judge can maintain a Writ Appeal or not ?
21. In this context, the judgment rendered by the Apex Court in
the case of V.N. Krishna Murthy and Another Vs. Ravikumar and
Others reported in (2020) 9 SCC 501 is worthy of reference. Relevant
paras 15 to 20 are reproduced below for convenience and ready
reference:
"15. Section 96 and 100 of the Code of Civil Procedure provide
for preferring an appeal from any original decree or from decree
in appeal respectively. The aforesaid provisions do not
enumerate the categories of persons who can file an
appeal. However, it is a settled legal proposition that a stranger
cannot be permitted to file an appeal in any proceedings unless
he satisfies the Court that he falls with the category of aggrieved
persons. It is only where a judgment and decree prejudicially
affects a person who is not party to the proceedings, he can
prefer an appeal with the leave of the Appellate Court. Reference
be made to the observation of this Court in Smt. Jatan Kumar
Golcha Vs. Golcha Properties Private Ltd.1:-
"It is well settled that a person who is not a party to the
suit may prefer an appeal with the leave of the
Appellate Court and such leave should be granted if he
would be prejudicially affected by the Judgment."
16. This Court in State of Punjab & Ors. Vs. Amar Singh &
Anr.2 while dealing with the maintainability of appeal by a
person who is not party to a suit has observed thus :-
"Firstly, there is a catena of authorities which, following
the dictum of Lindley, L.J., in re Securities Insurance Co.,
[(1894) 2 Ch 410] have laid down the rule that a person
who is not a party to a decree or order may with the leave
of the Court, prefer an appeal from such decree or order
if he is either bound by the order or is aggrieved by it or
is prejudicially affected by it."
17. In Baldev Singh Vs. Surinder Mohan Sharma and Ors 3., this
Court held that an appeal under Section 96 of the Civil
Procedure Code, would be maintainable only at the instance of a
person aggrieved by and dissatisfied with the judgment and
decree. While dealing with the concept of person aggrieved, it
was observed in paragraph 15 as under:-
"A person aggrieved to file an appeal must be one whose
right is affected by reason of the judgment and decree
sought to be impugned."
18. In A. Subash Babu Vs. State of A.P. and Anr.4, this Court
held as under:-
"The expression 'aggrieved person' denotes an elastic and
an elusive concept. It cannot be confined that the bounds of
a rigid, exact and comprehensive definition. Its scope and
meaning depends on diverse, variable factors such as the
content and intent of the statute of which contravention is
alleged, the specific circumstances of the case, the nature
and extent of the complainant's interest and the nature and
extent of the prejudice or injuries suffered by him."
19. The expression 'person aggrieved' does not include a person
who suffers from a psychological or an imaginary injury; a
person aggrieved must, therefore, necessarily be one, whose
right or interest has been adversely affected or jeopardized
(vide Shanti Kumar R. Canji Vs. Home Insurance Co. of New
York 5 and State of Rajasthan & Ors. Vs. Union of India &
Ors.6).
20. In Srimathi K. Ponnalagu Ammani Vs. The State Of
Madras represented by the Secretary to the Revenue Department,
Madras and Ors .7, this Court laid down the test to find out when
it would be proper to grant leave to appeal to a person not a
party to a proceeding against the decree or judgment passed in
such proceedings in following words:-
"Now, what is the test to find out when it would be proper to
grant leave to appeal to a person not a party to a proceeding
against the decree or judgment in such proceedings? We think
it would be improper to grant leave to appeal to every person
who may in some remote or indirect way be prejudicially
affected by a decree or judgment. We think that ordinarily leave
to appeal should be granted to persons who, though not parties
to the proceedings, would be bound by the decree or judgment
in that proceeding and who would be precluded from attacking
its correctness in other proceedings."
22. In light of above discussion, we would examine whether the
order passed by the learned single Judge prejudicially affects the right
of the appellants or not.
23. A person may not be a party to the decree or order but he may
with leave prefer an appeal from such decree or order if he is either
bound by the order or decree or is aggrieved by it or is prejudicially
affected by it. In every case, considering its specific facts and
circumstances , the court may decide in its discretion whether in such a
case, leave is to be granted or not, though no hard and fast rule can
be laid down in the matter as each case depends on its own facts.
24. The words 'person aggrieved' do not really mean a man who is
disappointed of a benefit which he might have received if some other
order had been made. A 'person aggrieved' must be a man who has
suffered a legal grievance, a man against whom a decision has been
pronounced which has wrongfully deprived him of something or
wrongfully refused him something, or wrongfully affected his title to
something.
25. In legal acceptation a party or person is aggrieved by a
judgment, decree, or order, so as to be entitled to appeal whenever it
operates prejudicially and directly upon his property or pecuniary
rights or interests, or upon his personal rights and only when it has
such effect.
26. In the present case, we are satisfied that the appellant has the
legitimate right to ventilate his grievance that the appellant's right are
adversely affected after the land in question as the same was declared
as surplus land on 30.01.1998. and the same stood vested in favour of
the State Government. Therefore, the expression 'person aggrieved'
has to be given an extended meaning and specially in the present
context, we are of the opinion that the appellant is a person aggrieved
as he being the owner of one of the parcels of land bearing Survey
No. 1307/2 has a right to challenge the ceiling proceedings as was
challenged by the other land owner i.e. the petitioner in the writ
petition and appellant in W.A. No. 1627/2018. Thus, in our view, the
appellant is an aggrieved person and we accordingly overrule the
objection of the respondent/State as regards maintainability of the
appeal by the appellant even in the absence of appellant being a party
to the order challenged in the writ appeal.
27. Accordingly, I.A. No. 1964/2022 is allowed and appellant is
permitted to prosecute this appeal, though he was not a party in the
writ petition before the learned Single Judge.
28. Coming to the merits of the case, following are the key points of
consideration:
(A) Taking over of possession
(i) The learned writ Court failed to consider that even the
alleged panchnama, it has been clearly noted that the land is not
vacant in nature and there exists a residential construction on the land
in question. Hence, possession could have been taken only in two
ways, first, by actually dispossessing the occupier or secondly, by
demolishing the existing residential structures. Admittedly, in the
present case, neither the occupier were dispossessed nor the existing
residential structures were demolished. As such, it is clear that by way
of the alleged panchnama, only paper possession of the land in
question was taken over by the competent authority. Notably, in
innumerable cases, the Apex Court and various High Courts have
unanimously held that in cases were paper panchnamas are prepared
without taking over actual physical possession of the disputed land, no
rights shall accrue in favour of the State over such land and the ceiling
proceedings shall stand abated. [See:State of Uttar Pradesh v.
Hariram reported in (2013) 4 SCC 280, Para 42 & Gajanand
Kamlya Patil Vs. Additional Collector and Competent Authority
(ULC) and Ors. reported in (2014) 12 SCC 523 Para 12].
(ii) In the case in hand, no notice u/S 10(5) of the Act of
1976 was ever served to the person/persons who was/were in
possession of the land in question and also the provisions relating to
the mandatory notice period of 30 days were not complied with by the
respondent no.2. Under such circumstances, it is apparent that actual
possession of the land was not taken over by the respondent no.2 and
in the absence of taking over of actual possession, the ceiling
proceedings are liable to be quashed in terms of the Repeal Act.
(iii) This Court is supported in its view by the judgment
passed by the Apex Court in the case of Banda Development
Authority Vs. Moti Lal Agarwal and Others reported in (2011) 5
SCC 394.
Relevant Paras are reproduced below for ready reference
and convenience:
"What should be the mode of taking possession of the land
acquired under the Act? This question was considered in
Balwant Narayan Bhagde v. M.D. Bhagwat (1976) 1 SCC
700. Untwalia, J. referred to the provisions contained in
Order XXI Rules 35, 36, 95 and 96 of the Code of Civil
Procedure, decisions of different High Courts and opined
that even the delivery of so called "symbolical" possession is
delivery of "actual"possession of the right, title and interest
of the judgment-debtor. Untwalia,J.further observed that if
the property is land over which there is no building or
structure, then delivery of possession over the judgment-
debtor's property becomes complete and effective against
him the moment the delivery is effected by going upon the
land. The Learned Judge went on to say:
"When a public notice is published at a convenient
place or near the land to be taken stating that the
Government intends to take possession of the land,
then ordinarily and generally there should be no
question of resisting or impeding the taking of
possession. Delivery or giving of possession by the
owner or the occupant of the land is not
required. The Collector can enforce the surrender of
the land to himself under Section 47 of the Act if
impeded in taking possession. On publication of the
notice under Section 9(1) claims to compensation
for all interests in the land has to be made; be it the
interest of the owner or of a person entitled to the
occupation of the land. On the taking of possession
of the land under Section 16 or 17 (1) it vests
absolutely in the Government free from all
incumbrances. It is, therefore, clear that taking of
possession within the meaning of Section 16 or 17
(1) means taking of possession on the spot. It is
neither a possession on paper nor a "symbolical"
possession as generally understood in civil law. But
the question is what is the mode of taking
possession? The Act is silent on the point. Unless
possession is taken by the written agreement of the
party concerned the mode of taking possession
obviously would be for the authority to go upon the
land and to do some act which would indicate that
the authority has taken possession of the land. It
may be in the form of a declaration by beat of drum
or otherwise or by hanging a written declaration on
the spot that the authority has taken possession of
the land. The presence of the owner or the occupant
of the land to effectuate the taking of possession is
not necessary. No further notice beyond that under
Section 9(1) of the Act is required. When possession
has been taken, the owner or the occupant of the
land is dispossessed. Once possession has been
taken the land vests in the Government."
(iv) The learned Writ Court failed to consider the effect of the
Repeal Act which clearly provides that even if a land has been
declared as excess vacant land/surplus land, but no possession has
been taken by the competent authority in accordance with law, such
proceedings shall invariably stand lapsed. As such, it is the duty of the
writ Court to determine whether actual physical possession of the land
in question was ever taken over by the respondent no.2 by complying
with the provisions of Section 10(5) and 10(6) of the Act of 1976.
(B) Panchnama drawn at the time of taking of possession
(i) The proceedings stood abated on 17.02.2002 by virtue of the
repeal act as the actual possession of the land in question was never
taken by the authorities and that the panchnama dated 23.06.1999 is
only a worthless paper exercise and is sham and void. It mentions that
the houses/structures were standing on the land in question, but no
actual possession was taken thereof in the manner provided by law. No
notice under Section 10(5) of the Act of 1976 was issued to the
persons who were in actual possession of the land in question and the
structures standing thereon that day. The issuance of notice to the
original bhumiswami who had no right, title or interest left in the land
in question was meaningless and was in gross violence of the
mandatory requirements of law. Moreover, the entire exercise was
made by three Government officials without ensuring or even
attempting to procure the presence of two independent witnesses as
required by law and the panchnama is virtually a panchnama without
panchas and a mere paper work.
(ii) The judgment rendered by Apex Court in the case of Banda
Development Authority(supra) is worthy of reference wherein the
Court has held that preparing a Panchnama is sufficient to take
possession and has laid down the following principles:
"37. The principles which can be culled out from the
above noted judgments are:
i) No hard-and-fast rule can be laid down as to what
act would constitute taking of possession of the
acquired land.
(ii) If the acquired land is vacant, the act of the State
authority concerned to go to the spot and prepare a
panchnama will ordinarily be treated as sufficient to
constitute taking of possession.
(iii) If crop is standing on the acquired land or
building/structure exists, mere going on the spot by the
authority concerned will, by itself, be not sufficient for
taking possession. Ordinarily, in such cases, the
authority concerned will have to give notice to the
occupier of the building/structure or the person who
has cultivated the land and take possession in the
presence of independent witnesses and get their
signatures on the panchnama. Of course, refusal of the
owner of the land or building/structure may not lead to
an inference that the possession of the acquired land
has not been taken.
(iv) If the acquisition is of a large tract of land, it may
not be possible for the acquiring/designated authority
to take physical possession of each and every parcel of
the land and it will be sufficient that symbolic
possession is taken by preparing appropriate document
in the presence of independent witnesses and getting
their signatures on such document.
(v) If beneficiary of the acquisition is an
agency/instrumentality of the State and 80% of the
total compensation is deposited in terms of Section
17(3-A) and substantial portion of the acquired land
has been utilised in furtherance of the particular public
purpose, then the court may reasonably presume that
possession of the acquired land has been taken."
(iii) In the case of Balmokand Khatri Educational and
Industrial Trust, Amritsar v. State of Punjab & Ors reported
in (1996) 4 SCC 212, the Court ruled that under compulsory
acquisition it is difficult to take physical possession of land. The
normal mode of taking possession is by way of drafting the
Panchnama in the presence of Panchas and observed thus:
"4. It is seen that the entire gamut of the acquisition
proceedings stood completed by 17-4-1976 by which
date possession of the land had been taken. No doubt,
Shri Parekh has contended that the appellant still
retained their possession. It is now well-settled legal
position that it is difficult to take physical possession of
the land under compulsory acquisition. The normal
mode of taking possession is drafting the panchnama in
the presence of panchas and taking possession and
giving delivery to the beneficiaries is the accepted
mode of taking possession of the land. Subsequent
thereto, the retention of possession would tantamount
only to illegal or unlawful possession."
29. On the basis of aforesaid discussion on these key issues, this
Court conclude that learned Writ Court further failed to consider that
the governing law mandates taking over of actual possession of the
land in question by complying with the mandatory statutory provisions
of Section 10(5) of the Act of 1976 which inter-alia provides that a 30
days' notice should be given not only to the actual owner of the land,
but also to the occupier. In the present case, no such notice was ever
served to the occupiers who were admittedly in possession of the land
as well as house constructed thereon. Thus, for want of compliance of
the mandatory provisions of law, the said panchnama ought not to be
allowed to invade the rights of the appellants herein.
30. Further, the Repeal Act clearly provides that if the actual
physical possession of the excess vacant land has not been taken by
the competent authority, the proceedings would abate.
31. Even otherwise, it is settled position of law that an expropriatory
legislation must be strictly construed. The legislation in the present
case are indisputedly expropriatory in nature and, therefore, for want
of compliance of the mandatory provisions as contained in Section
10(2) of the Repeal Act, vesting of land in favour of the State are
liable to be set aside and all actions taken pursuant thereto also
deserves be quashed.
32. This Court further conclude that the learned Writ Court has not
taken into account that Devkrishna himself had filed an affidavit on
11.11.1983 for excluding the land in question from the ceiling
proceedings, as the land in question stood transferred in favour of
Parmanand & Ors.
33. It is an undisputed position of the present case that the
respondent no.2 in Case No. 149/P-90/C-1/82-83, by way of an order
dated 27.06.1984 has held that the land in question does not fall within
the ambit of the Act and the land was declared to be free from ceiling
limits. Relying upon this order, the land was subsequently purchased
by successor in interest of Parmanad and ors. and eventually by the
appellants in 1997. The order dated 27.06.1984 has neither been set
aside nor modified by any competent Court of law. Under such
circumstances, the land could not have been declared as surplus by
way of the impugned proceedings.
34. The Writ Court further failed to consider that unlike the
appellants in W.A. No. 1627/2018, the appellants in W.A. No.
255/2022 had acquired right, title and interest in the land in question
much before passing of the Order under Section 10(3) of the Act of
1976 on 09.04.1999. Therefore, without considering the case of the
appellants, the impugned final judgment/final order dated 08.03.2018
was wrongly passed and the appellants in W.A. No. 255/2022 are also
entitled for the relief as sought for by the appellants in W.A. No.
1627/2018.
35. In view of the aforesaid discussion and in the light of the
judgments rendered by the Apex Court discussed above, we conclude
that ceiling proceedings have not been carried out as per the relevant
provisions of law. In the result, the order passed by learned Single
Judge in W.P. No. 9293/2010 dated 08.03.2018 as well as the
proceedings in case No. 391/A-90/C-1 passed by the respondent no.2
are hereby set aside.
36. W.A. No. 1627/2018 and W.A. No. 255/2022 are allowed. State
is directed to update the revenue entries in the revenue records by
recording the name of appellants in the light of this order. No order as
to cost.
37. Let a copy of this order be placed in the record of W.A. No.
255/2022.
(S.A. Dharmadhikari) (Devnarayan Mishra)
Judge Judge
sh/-
SEHA Digitally signed by SEHAR
HASEEN
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
R
INDORE, ou=BENCH AT
INDORE,
2.5.4.20=900ec6fc757798eaeb
3df7a32860bd3298415a4d1c2
d91436213f2568c8f27da,
HASEE
postalCode=452001,
st=Madhya Pradesh,
serialNumber=E7DBBA955B26
2C04B8413251CE7FB6F0B7DB
A610C57F1559C08BF6C6F5DD
N
40D4, cn=SEHAR HASEEN
Date: 2024.05.07 14:37:46
+05'30'
