Madhya Pradesh High Court
Smt. Kamlesh Patel vs State Of Madhya Pradesh on 6 February, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 6 th OF FEBRUARY, 2025
WRIT PETITION No. 1762 of 2022
SMT. KAMLESH PATEL AND OTHERS
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Naman Yadav - Advocate for petitioners.
Shri Pramod Pandey - Government Advocate for the State.
ORDER
Petitioners have filed this petition under Articles 226 and 227 of the
Constitution of India challenging orders dated 28.09.2021, 14.12.2017 and
08.08.2012 passed by Board of Revenue, Gwalior (Madhya Pradesh).
2. Petitioners are owners of land situated in village Budhwada District
Hoshangabad having survey No.4 measuring 3.91 acres. Said land was
purchased from respondent No.4 by registered sale deed dated 08.06.2000
and 13.03.2000. Thereafter, name of petitioners was also mutated in revenue
records by order of Tahsildar. Tahsildar has forwarded the case before SDO
for declaring entries to be null & void . Show cause notice was issued to the
petitioners that land in question is purchased in contravention of Section 165
(B) of the M.P. Land Revenue Code. Collector in its order dated 04.03.2004
in Case No.59-A-39/2001-02 held that person who is holding land from the
State Government under section 158(3) as Bhu-swami does have any rights
to transfer the said land in contravention of provision under section 165(7)B
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of the M.P. Land Revenue Code. Before transferring land, permission is to
be sought from the State Government. Land in question was given on lease
to one Mulla S/o Punna. Seller did not seek permission for transferring the
land under aforesaid Provision of law, therefore, sale was set aside. Sale
deed in favour of petitioners was declared to be null and void and orders
were passed to correct the revenue records. Petitioners challenged the said
order before Upper Commissioner Bhopal Hoshangabad in appeal. Appeal
was dismissed vide order 30.07.2005. Second appeal was preferred before
Board of Revenue in Appeal No.2229-PBR/2005. Board of Revenue Gwalior
considering facts of case dismissed the same vide order dated 08.08.2012.
Petitioners preferred review before Board of Revenue, Gwalior which was
also dismissed on 14.12.2017. Revision filed against said order dated
14.12.2017 was also dismissed vide order dated 28.09.2021.
3. Learned counsel appearing for petitioners submitted that land was
given in lease by the State Government to one Mulla S/o Punna. Said holder
of land sold the same to one Yasin Kumar by registered sale deed dated
24.04.1986. Land was subjected to further transactions. Finally, petitioners
purchased the land by registered sale deed dated 08.08.2000 registered on
10.10.2000. After mutation of name of petitioners, Collector had declared
sale deed to be void. It is submitted that Appellate Authority i.e. Board of
Revenue in review and revision committed an error of law in upholding the
order of Collector. It is submitted that Board of Revenue in similar
circumstances has allowed Appeal No.1544-PBR/2005 vide its order dated
28.09.2006 (Annexure P-4) holding that no permission for Collector is
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required for sale of land after ten years. Contradictory orders have been
passed by the Board of Revenue. It is also argued that respondents failed to
consider Provision of section 165 (7)(B) of the M.P. Land Revenue Code,
1959. Said Provisions are not attracted in the case. Land in question has been
transferred for three times before petitioners purchased the land in question.
Petitioners did not purchase the land from a person who was holding it from
the State Government. Said facts have been overlooked and previous sale
deed has also not been cancelled. In sale deed dated 24.04.1986, it has
specifically been mentioned that Provision of section 165(B) of the M.P.
Land Revenue Code has been complied with.
4. Learned counsel for petitioners also placed reliance on the judgment
passed by the Division Bench in case of State of M.P. and Anothers Vs.
Adhunik Grih Nirman Sahakari Samiti Mydt, Gwalior reported in 2024 (1)
RN 363, wherein it has been held that Bhu-swami rights accrued to lease
holder prior to addition of sub-section 7-B in Section 165 and in Section
158(3). Such provisions will not operate retrospectively. It is further held that
land has changed in hands several times and about after period of 40 years,
impugned order could not have been passed and order is bad in law.
5. It is submitted that earlier Court has disposed off Writ Petition vide
order dated 03/10/2024 directing petitioners to produce permission, which is
said to have been mentioned in the sale-deed dated 24/04/1986, but
petitioners had purchased the land later on and were not in possession of
aforesaid permission. Records being very old is not available. Petitioners on
question of law and on aforesaid facts filed a Review Petition bearing
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No.1276/2024, which was allowed and order dated 05/11/2024 was recalled
and case was listed for hearing on merits.
6. On basis of aforesaid submission, counsel appearing for petitioners
made a prayer for allowing the writ petition and setting aside the impugned
orders.
7. Learned Government Advocate appearing for the State submitted
that land has been sold without prior permission of Competent Authority and
violation of Provision of section 165(7-b) and Collector has rightly cancelled
the mutation of suit land. It is submitted that there is no illegality and
perversity in the impugned orders. It is also informed to Court that previous
survey number has been changed to new survey no. i.e. 5/1, 5/2 and 8 of
village Budhwada District Narmadapuram and name of State Government
has been mutated over this Khasra number in the year 2024-25. It is
submitted that there is no substance in writ petition filed by petitioners.
Erstwhile seller has not taken any permission to sale the land as is required
under Section 165 (7-b) of MPLRC and Collector has power to declare the
sale to be null and void under Section 158(3) of MPLRC. Orders passed by
Revenue Authority are in accordance with law and same deserves to be
affirmed.
8. Heard counsel for the parties.
9. Collector vide its impugned order dated 04.03.2004 has cancelled
the lease of land granted in favour of Mulla S/o Punna and also set aside
mutation orders and directed Tahsildar to make entries in name of the State
Government. Collector has not passed any order on registered sale deed
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which was executed by holder of land in favour of various purchasers.
Registered sale deed which created rights in favour of petitioners was not
declared to be null and void by Collector. Order of Collector has been upheld
upto Board of Revenue in appeal, review and revision. Question before this
Court is whether Collector has acted in accordance with law in exercising its
power to cancel the lease and mutation orders. Petitioners have made
averment in writ petition that Bhu-swami rights were granted to respondent
No.4 on 25.11.1964 and same has been transferred by holder of land from
the State Government vide registered sale deed dated 24.04.1986 after period
of about 21 years. Collector or other Revenue Authorities in its order has
failed to mention the date when Bhu-swami rights accrued to erstwhile
seller. Petitioners have not mentioned in this petition that rights accrued to
him on 25.11.1964 by grant from Government. Said facts have not been
denied by respondents in their reply. Section 165(7-b) was introduced for the
first time in Madhya Pradesh Land Revenue Code, 1959 by Madhya Pradesh
Act by 15.08.1980 thereafter, further amendment was made in the said Act in
1992. Erstwhile owner become Bhu-swami by virtue of section 158 of the
M.P. Land Revenue Board, 1959 in the year 1964. Provision of section
165(7-b) was introduced in Madhya Pradesh Land Revenue Code in year
1980 by M.P. Act 15 of 1980. Since petitioners were vested with rights of
Bhu-swami in year 1964 therefore, by subsequent amendment which was
introduced in Madhya Pradesh Land Revenue Code 1959, rights of Bhu-
swami cannot curtail by asking him to get permission from the State
Government to sell the land. Provision of section 165(7-b) which is
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introduced in Madhya Pradesh Land Revenue Code 1959, will operate
prospectively and will not have any operation retrospectively.
10. Collector as well as other Appellate Authorities of Revenue
Department failed to mention the date of accrual of Bhu-swami rights on
respondent No.4. This may have been done intentionally or unintentionally
to take advantage of Section 165(7-b) of M.P. Land Revenue Code to cancel
the lease which has been granted in favour of respondent No.4. Said
provision cannot be made operational retrospectively and a Bhu-swami on
whom Bhu-swami rights has accrued before 1980 cannot be subjected to said
Provisions of Law to adversely affects his right.
11. In view of same, Writ Petition is allowed. Impugned orders dated
28.09.2021, 14.12.2017, 08.08.2012, 30.07.2005 and 04.03.2004 are set
aside. Revenue Authorities are directed to make entries in revenue records as
per registered sale deed executed in favour of petitioners.
12. With the aforesaid, petition is disposed off.
(VISHAL DHAGAT)
JUDGE
pn/as
