Madhya Pradesh High Court
Nannu Lal vs The State Of Madhya Pradesh on 21 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P.No.31125/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 21st OF MAY, 2024
WRIT PETITION No. 31125 of 2023
BETWEEN:-
NANNU LAL S/O LATE SHRI MOHAR
SINGH PAL, AGED ABOUT 18 YEARS,
OCCUPATION: CULTIVATOR R/O
VILLAGE MENDORI, TEHSIL HUJUR,
DISTRICT BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SMT.SMITA VARMA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH SECRETARY REVENUE
DEPARTMENT VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. ADDITIONAL COMMISSIONER,
DIVISION BHOPAL DISTRICT
BHOPAL (MADHYA PRADESH)
3. COLLECTOR BHOPAL BHOPAL
DISTRICT BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SMT.SWATI ASEEM GEORGE - DEPUTY GOVERNMENT
ADVOCATE)
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
This petition under Article 226 of Constitution of India has
been filed seeking the following reliefs :-
"7.1 To call for the entire records pertaining to
matter of the present petitioner for kind perusal of
this Hon'ble Court.
7.2 To set aside and to quash order dated
05/12/2023 (Annx. P/1) as illegal and to quash
order dated 20/03/2017 (Annx.P/2) passed by
respondent no. 3.
7.3 To direct the respondents to issue patta in the
favour of the petitioner.
7.4 To issue Writ of certiorari and mandamus
against the respondents.
7.5 Any other relief/order/direction which this
Hon'ble Court deems fit and proper may also be
given to the petitioner along with the cost of
petition, in the interest of justice."
2. It is submitted by counsel for petitioner that the petitioner is in
possession of land bearing Khasra Nos.251, 252, 253 and 307 (Old
Nos.154/1 and 154/2). It was claimed by the petitioner that petitioner
is in occupation of the said government land since 1970 and is
carrying out the agricultural activities. The petitioner has planted
many trees and made it cultivated and has also reserved some part of
it for construction of Shiv Temple and Gaushala as well as other
easementary rights.
3. The petitioner filed an application before the Collector for
allotment of Patta in respect of the said land. Since the Collector did
not decide the said application, therefore, the petitioner filed Writ
Petition No.1972/2016 and this Court by order dated 18.2.2016
directed the Collector, Bhopal to decide the application as
expeditiously as possible preferably within a period of 2 months
from the date of receipt of the certified copy of the order. Thereafter
vide order dated 20.3.2017 the Collector, Bhopal erroneously
dismissed the application filed by the petitioner. The petitioner filed
an appeal and the Commissioner, Bhopal issued notice to the
petitioner and fixed for hearing on 8.8.2023. However, the
Commissioner, Bhopal without any notice to the petitioner preponed
the proceedings and dismissed the appeal by order dated 31.5.2023.
The petitioner immediately filed a writ petition before this Court,
which was registered as Writ Petition No.21731/2023. The
Coordinate Bench of this Court by order dated 25.10.2023 set aside
the order passed by the Commissioner, Bhopal Division, Bhopal and
also imposed a cost of Rs.25,000/- on Additional Commissioner,
Bhopal Division, Bhopal for passing an ante-dated order and
remanded the matter back to the Additional Commissioner to issue
fresh notices to the concerned parties and to hear the appeal on its
own merits and to decide the same on or before 8.12.2023. It is
submitted that the cost of Rs.25,000/- was imposed by the
Coordinate Bench on its own and the petitioner never prayed for the
same. However, the Additional Commissioner, Bhopal Division,
Bhopal felt aggrieved by the imposition of cost of Rs.25,000/- and
openly threw a challenge that now she will ensure that the petitioner
is ousted from the land in dispute and accordingly by order dated
5.12.2023 passed in Case No.654/Appeal/2023-24 not only
dismissed the appeal filed against the order passed by the Collector
but also directed the authorities to immediately initiate the
proceedings under section 248 of MPLR Code.
4. It is submitted by counsel for petitioner that in fact the
respondents have rejected the application by treating the land in
dispute as a Charnoi land but in fact it is an Abadi land. It is further
submitted that the petitioner is a landless person and therefore, the
respondents should have considered the application sympathetically.
5. Considered the submissions made by counsel for petitioner.
MALAFIDE
6. The counsel for petitioner started the arguments by alleging
against the Additional Commissioner, Bhopal Division, Bhopal that
since she was annoyed with the imposition of cost of Rs.25,000/-,
therefore, she has passed the order out of malafide.
7. Considered the submissions made by the counsel for petitioner
with regard to the malafide attributed to the Additional
Commissioner.
8. It is well established principle of law that whenever bias or
malafide is alleged against an authority, then such authority should
be impleaded as a party in its personal capacity. In absence of the
necessary party, the Court cannot consider the allegations of bias or
malafide.
9. The Supreme Court in the case of State of Bihar and Another
Vs. P.P. Sharma, reported in 1992 Supp (1) Supreme Court Cases
222 has held as under:-
55. It is a settled law that the person against whom mala
fides or bias was imputed should be impleaded eo nomine
as a party respondent to the proceedings and given an
opportunity to meet those allegations. In his/her absence no
enquiry into those allegations would be made. Otherwise it
itself is violative of the principles of natural justice as it
amounts to condemning a person without an opportunity.
Admittedly, both R.K. Singh and G.N. Sharma were not
impleaded. On this ground alone the High Court should
have stopped enquiry into the allegation of mala fides or
bias alleged against them.......
10. The Supreme Court in the case of Federation of Railway
Officers Association Vs. Union of India reported in AIR 2003 SC
1344 has held as under :-
20......Allegations regarding mala fides cannot be vaguely
made and it must be specified and clear. In this context, the
concerned Minister who is stated to be involved in the
formation of new Zone at Hazipur is not made a party who
can meet the allegations.
11. The Supreme Court in the case of J.N. Banavalikar Vs.
Municipal Corporation of Delhi, reported in AIR 1996 SC 326 has
held as under:
21......Further, in the absence of impleadment of the junior
doctor who is alleged to have been favoured by the course
of action leading to removal of the appellant and the person
who had allegedly passed mala fide order in order to favour
such junior doctor, any contention of mala fide action in
fact i.e. malice in fact should not be countenanced by the
Court.
12. The Supreme Court in the case of A.I.S.B. Officers
Federation and others Vs. Union of India and others, reported in
JT 1996 (8) S.C. 550 in para 23, has said where a person, who has
passed the order and against whom the plea of mala fide has been
taken has not been impleaded, the petitioner cannot be allowed to
raise the allegations of mala fide. The relevant observation of the
Apex Court are reproduced as under: -
"The person against whom mala fides are alleged must be
made a party to the proceeding. Board of Directors of the
Bank sought to favour respondents 4 and 5 and, therefore,
agreed to the proposal put before it. Neither the Chairman
nor the Directors, who were present in the said meeting,
have been impleaded as respondents. This being so the
petitioners cannot be allowed to raise the allegations of
mala fide, which allegations, in fact, are without merit."
(Emphasis Added) this Court is of the considered opinion,
that the submissions made by the Counsel for the
Petitioner, that the impugned order has been passed on
vague grounds resulting in denial of opportunity to the
petitioner to rebut the same is misconceived.
13. The Supreme Court in the case of Om Prakash Chautala v.
Kanwar Bhan, reported in (2014) 5 SCC 417 has held as under :-
7. As has been indicated earlier, the appellant was not a
party to the proceeding. It is manifest that the learned
Single Judge has made certain disparaging remarks against
the appellant and, in fact, he has been also visited with
certain adverse consequences. The submission of Mr P.P.
Rao, learned Senior Counsel, is that the observations and
the directions are wholly unsustainable when the appellant
was not impleaded as a party to the proceeding and further
they are totally unwarranted for the adjudication of the
controversy that travelled to the Court.
8. In State of Bihar v. P.P. Sharma this Court has laid down
that the person against whom mala fides or bias is imputed
should be impleaded as a party-respondent to the
proceeding and be given an opportunity to meet the
allegations. In his absence no enquiry into the allegations
should be made, for such an enquiry would tantamount to
violative of the principles of natural justice as it amounts to
condemning a person without affording an opportunity of
hearing.
9. In Testa Setalvad v. State of Gujarat the High Court had
made certain caustic observations casting serious
aspersions on the appellants therein, though they were not
parties before the High Court. Verifying the record that the
appellants therein were not parties before the High Court,
this Court observed: (SCC p. 92, para 7)
"7. ... It is beyond comprehension as to how the
learned Judges in the High Court could afford to
overlook such a basic and vitally essential tenet of the
'rule of law', that no one should be condemned
unheard, and risk themselves to be criticised for
injudicious approach and/or render their decisions
vulnerable for challenge on account of violating
judicial norms and ethics."
And again: (SCC p. 92, para 7)
"7. ... Time and again this Court has deprecated
the practice of making observations in judgments,
unless the persons in respect of whom comments
and criticisms were being made were parties to
the proceedings, and further were granted an
opportunity of having their say in the matter,
unmindful of the serious repercussions they may
entail on such persons."
10. In State of W.B. v. Babu Chakraborthy the principle
was reiterated by stating that the High Court was not
justified and correct in passing observations and strictures
against Appellants 2 and 3 therein without affording an
opportunity of being heard.
11. In Dilip Kumar Deka v. State of Assam, after referring
to the authorities in State of U.P. v. Mohd. Naim, Jage Ram
v. Hans Raj Midha, R.K. Lakshmanan v. A.K. Srinivasan
and Niranjan Patnaik v. Sashibhusan Kar, this Court
opined thus: (Dilip Kumar Deka case, SCC pp. 238-39,
para 7)
"7. We are surprised to find that in spite of the
above catena of decisions of this Court, the learned
Judge did not, before making the remarks, give any
opportunity to the appellants, who were admittedly
not parties to the revision petition, to defend
themselves. It cannot be gainsaid that the nature of
remarks the learned Judge has made, has cast a
serious aspersion on the appellants affecting their
character and reputation and may, ultimately affect
their career also. Condemnation of the appellants
without giving them an opportunity of being heard
was a complete negation of the fundamental
principle of natural justice."
14. The petitioner has not impleaded the Additional
Commissioner, Bhopal Division, Bhopal in her personal capacity.
Therefore, the allegations of malafides against the Additional
Commissioner, Bhopal Division, Bhopal cannot be considered at all.
15. Thus, the allegations of malafide against the Additional
Commissioner, Bhopal Division, Bhopal are hereby rejected.
Whether the petitioner has filed this petition by
suppressing some material facts or not?
16. After arguing the matter at length, the counsel for petitioner
prayed for pass over of the case to answer certain queries raised by
this Court. Accordingly, this case was once again taken up at 4:30.
17. In the second round of arguments, it was submitted by counsel
for petitioner that earlier the petitioner had also filed Writ Petition
No.1972/2016 seeking a direction to the Collector to decide the
application filed for grant of Patta. It was also submitted that the
petitioner is in possession of the property in dispute since 1970 and,
therefore, he has perfected his title by way of adverse possession.
18. In the first round of submissions, this Court had repeatedly
suggested the counsel for petitioner that since this is not a
proceeding arising out of the civil suit, therefore, whether the
petitioner has perfected his title by way of adverse possession or not,
cannot be considered but for the reasons best known to the counsel
for petitioner she did not disclose any other fact with regard to the
civil litigation. However, in the second round of submissions it was
fairly conceded by counsel for the petitioner that the petitioner had
filed a civil suit for declaration of his title, which was dismissed.
19. Under these circumstances, this Court called the record of Writ
Petition No.1972/2016.
20. In Writ Petition No.1972/2016 the petitioner was being
represented by the same counsel. The petitioner had filed a copy of
the judgment passed by a Coordinate Bench of this Court in Second
Appeal No.1338/2010 arising out of the judgment and decree dated
16.11.2010 passed by 5th Additional District Judge, Jabalpur in RCA
No.115-A/2010; thereby affirming the judgment dated 22.6.2010
passed by 8th Civil Judge, Class-II, Bhopal in Civil Suit No.130-
A/2010.
21. From the order dated 6.1.2016 passed by a Coordinate Bench
of this Court in Second Appeal No.1338/2010, which was filed by
the petitioner, it appeared that the petitioner had also filed a Civil
Suit No.70-A/2002 for declaration of his title and permanent
injunction. The said civil suit was dismissed by the First Additional
Civil Judge, Class-I, Bhopal by order dated 11.1.2005 against which
the Civil Appeal No.534/2005 before the 5th Additional District
Judge, Bhopal was dismissed by a judgment and decree dated
2.3.2005 and Second Appeal No.458/2007 was also affirmed by this
Court vide order dated 24.11.2009. Thereafter, once again the
petitioner filed a suit for the similar relief, which was registered as
Civil suit No.130-A/2010 and ultimately, the second appeal arising
out of the subsequent suit was dismissed by order dated 6.1.2016 by
holding that the second suit is barred by the principle of res-judicata.
22. Therefore, it is clear that the petitioner is desperately trying to
protect his possession by unnecessarily filing civil suits.
23. Furthermore, all the aspects with regard to the filing of the
civil suit have been suppressed in the writ petition but since the said
fact was disclosed by the counsel for petitioner in the second round
of the submissions, therefore, no action with regard to suppression of
fact is being taken against the petitioner.
24. However, one thing is clear that once the civil suit filed by the
petitioner for declaration of his title and permanent injunction has
already been dismissed twice, which has been affirmed twice by this
Court in different second appeals, then the petitioner should not have
argued that he has perfected his title by way of adverse possession as
he is in possession from the year 1970. Thus, the petition suffers
from material facts.
Whether the land in dispute is a Charnoi land or it is an
Abadi land?
25. In the first round of submission, it was submitted by counsel
for petitioner that the land in dispute is an Abadi land and the
respondents have wrongly held that the land in dispute is a Charnoi
land.
26. Considered the submissions made by counsel for the
petitioner.
27. The petitioner had filed an application for grant of Patta of 5
acres of land. If the contention of the petitioner that the land in
dispute is an Abadi Land then the next question would arise as to
whether the petitioner can cultivate the said land and can construct
temple or not?
28. Section 2(a) of MPLR Code defines Abadi, which reads as
under :-
"(a) "abadi" means the area reserved from
time to time in a village in a nonurban area for
the residence of the inhabitants thereof or for
purposes 14 ancillary thereto, and any other
local equivalent of this expression such as
"village site" or "gaonsthan" shall also be
construed accordingly;"
29. Thus, it is clear that Abadi land can be utilized only for the
residential purposes of the villagers and it cannot be cultivated at all.
Furthermore, a person would be entitled for a small piece of land for
constructing a house but the petitioner had sought a Patta of 5 acres.
30. When the counsel for petitioner was confronted with the extent
of land in respect of which the petitioner had sought Patta as well as
the definition of Abadi, then the counsel for petitioner also expressed
her surprise that how the petitioner can ask for Patta of 5 acres of
Abadi land. Therefore, she sought time to seek instructions and made
further submission in the second round of submissions.
31. In the second round of submission, it was submitted by
counsel for petitioner that in fact the land in dispute is not an Abadi
land but it is government agricultural land.
32. Accordingly, the counsel for the petitioner was directed to
explain as to whether the agricultural activities are also conducted by
the government so that the government land can be recorded as an
agricultural land. However, it was submitted by counsel for
petitioner that since the petitioner is in possession of the land in
dispute and he has made it cultivable, therefore, it is not a Charnoi
land and it is an agricultural land.
33. Therefore, such submission made by counsel for the petitioner
cannot be accepted.
34. The authorities below have specifically given a finding that the
land in dispute is a Charnoi land. Undisputedly, the land in dispute is
a government land over which the petitioner is claiming his
possession. A government land is never recorded as an agricultural
land because government never carries out the agricultural activities.
35. Therefore, the submission made by the counsel for petitioner
that it is an agricultural land belonging to the State, is misconceived.
In view of the fact that the land in dispute is a Charnoi land, the
authorities below did not commit any mistake by rejecting the
application for grant of Patta.
36. It is further submitted that in view of section 181 of MPLR
Code since the petitioner is in illegal possession of the government
land, therefore, he would acquire the status of a government lessee
and as per the provisions of section 181 of MPLR Cod the petitioner
would acquire the Bhumiswami rights will be occupancy tenant. Both
the submissions made by counsel for petitioner are misconceived. It
is the submission of the petitioner that the petitioner is in possession
from the year 1970 and not from the day when the MPLR Code
came into force i.e year 1959. Since the petitioner has not been
granted any lease, therefore, he cannot be treated as a government
lessee.
Whther the direction to initiate proceedings under section
248 of MPLR Code have been given by the Additional
Commssioner by acceding her jurisidciton or not?
37. It was repeatedly submitted by counsel for petitioner that since
the Additional Commissioner, Bhopal Division, Bhopal was
aggrieved by the imposition of Rs.25,000/- by a Coordinate Bench of
this Court, therefore, she has decided to ousted the petitioner from
the land in dispute.
38. As already held in absence of impleadment of Additional
Commissioner, Bhopal Division, Bhopal in her personal capacity,
the allegations of malafide cannot be considered.
39. However, one thing is clear that the petitioner has lost two
civil suits and there is a specific declaration that the petitioner is not
the owner of the land in dispute and he is not entitled for permanent
injunction.
40. Section 32 of MPLR Code reads as under :-
"32. Inherent power of Revenue Courts.-
Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Revenue
Court to make such orders as may be necessary for
the ends of justice or to prevent the abuse of the
process of the Court."
41. Therefore, it is clear that in order to do complete justice, the
revenue Courts can pass the orders, which are just and proper under
the facts and circumstances of the case. One there is already a
declaration by the civil court twice that the petitioner is not the
owner of the property in dispute and he is not entitled for permanent
injunction, then the Additional Commissioner, Bhopal Division,
Bhopal did not commit any mistake by directing for initiation of
proceedings under section 248 of MPLR Code for eviction of the
petitioner.
42. Even otherwise, the counsel for petitioner could not point out
any legal right to retain the possession even after the declaration of
title by the civil court as well as after dismissal of the application for
grant of Patta.
43. Even the counsel for the petitioner could not point out any
circular or any provision of law, which authorizes an encroacher to
retain the possession merely on the ground that an application for
grant of Patta is pending.
44. Be that whatever it may be.
45. Once the petitioner has already lost his case from the civil
court, then he has no legal or moral right to retain possession and in
spite of dismissal of the second appeal in the year 2016, the
petitioner has successfully retained the possession of the land in
dispute for the next long 8 years.
46. Under these circumstances, this Court is of the considered
opinion that Additional Commissioner, Bhopal Division, Bhopal did
not commit any mistake by directing the authorities to initiate the
proceedings under section 248 of MPLR Code. However, the
Additional Commissioner, Bhopal Division, Bhopal was not aware
of the fact that two civil suits filed by the petitioner have already
been dismissed.
47. Under these circumstances, the order passed by the Additional
Commissioner, Bhopal Division, Bhopal requires a slight
modification and accordingly, it is directed that the Tahsildar, Huzur,
District Bhopal shall immediately initiate the proceedings under
section 248 of MPLR Code and shall positively decide the same
within a period of 2 months from today. The Tahsildar, Huzur,
District Bhopal is directed to serve the petitioner by Humdust notice.
48. Even if the petitioner claims that in his place some other
family members is in possession but that shall not be taken note of
because it is the petitioner, who is fighting for grant of Patta and
now he cannot take a somersault.
49. The Collector, Bhopal is directed to ensure the progress in the
proceedings under section 248 of MPLR Code. The Tahsildar,
Huzur, District Bhopal or the competent authority is directed to
proceed on day to day basis. The Tahsildar shall submit his report
before the Registrar of this Court on or before 1.8.2024 with regard
to the steps taken by him.
50. The Registry is directed to immediately send a copy of this
order to Additional Commissioner, Bhopal Division, Bhopal,
Collector, Bhopal as well as Tahsildar, Huzur, District Bhopal for
necessary action and compliance.
51. With aforesaid observations, the petition is dismissed.
(G.S.AHLUWALIA)
JUDGE
TG/-
TRUPTI GUNJAL
2024.05.22 18:40:05
+05'30'
