Madhya Pradesh High Court
Smt. Anju Thakur vs General Public/State Of Madhya Pradesh on 18 November, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
1 WP-15190-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 15190 of 2015
SMT. ANJU THAKUR AND OTHERS
Versus
GENERAL PUBLIC/STATE OF MADHYA PRADESH
Appearance:
Shri Sanjay Ram Tamrakar Senior Advocate with Shri Ankit Chopra and Shri
Abhay Kesharwani Advocates for the petitioners.
Shri Hitendra Singh Government Advocate for the respondent-State .
(O R D E R)
(Reserved on : 11/09/2025)
(Pronounced on : 18/11/2025)
By way of this petition challenge is made to order Annexure P/31
dated 24.2.2015 passed by the Board of Revenue whereby the Board of
Revenue has rejected the revision of petitioners against the order passed by
Commissioner, Narmadapuram Division, Narmadapuram (Hoshangabad).
The Commissioner vide order Annexure P/29 had confirmed the order of
Additional Collector dated 19.06.2013 (Annexure P/28) whereby the order of
Sub-Divisional Officer dated 07.06.2012 (Annexure P/27) had been
confirmed. By the original order Annexure P/27, the Sub-Divisional Officer
had refused to correct the entries in revenue record and ultimately after
repeated rounds of appeals and revision the said order has been confirmed by
Annexure P/31 dated 09.07.2015 by the Board of Revenue against which the
petitioners are now in the present petition.
2. Even this petition is being heard after somewhat chequered
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
2 WP-15190-2015
history, inasmuch as the present petition was earlier dismissed on merits vide
order dated 31.10.2017, against which, Review Petition No. 1356/2017 was
filed, that was allowed vide order dated 18.1.2018, and in review itself, the
writ petition was allowed. Later, the State filed W.A. No. 1310/2022, that
was decided vide order dated 20.1.2023, whereby the Division Bench set-
aside the order passed in review, and restored the review for fresh hearing.
Thereafter, review was heard again and vide order dated 14.7.2023, the
review was allowed, to the extent of restoring this writ petition for hearing
afresh. Now in this backdrop, the present writ petition is being heard afresh
on merits.
3. Counsel for the petitioners has argued that the Board of Revenue
has wrongly given the reason that the questioned entry "Fauji Padav" which
implies the land being reserved for Indian Army for putting up their camps
etc. and since the application before the Sub-Divisional Officer was filed
without impleading Ministry of Defence, Government of India, therefore, the
orders passed by the subordinate revenue authorities/ courts cannot be
interfered with.
4. The counsel for petitioners argued that the petitioners are either
the natural successors or the successors-in-title being subsequent purchasers
of plaintiffs in Civil Suit No. 55-A/1991, which was decreed vide judgment
and decree dated 15.02.1993. The petitioners were held title holders of the
questioned land and an order of the Sub Divisional Officer dated 30.08.1991
was declared null and void. The Government of M.P. and its functionaries
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
3 WP-15190-2015
were restrained from interfering in possession of the plaintiffs in the suit
land. Most importantly the entry of "Fauji Padav" on the questioned land was
declared null and void and illegal.
5. It is contended that the said suit was filed against the State of
M.P. and Municipal Council, Seoni Malwa, District Hoshangabad. After
some time, the State of Madhya Pradesh filed another Civil Suit being No.
44-A/1996 for declaring the judgment and decree Annexure P/1 null and void
as against the interest of the State. The said suit has been rejected as abated
vide order Annexure P/3 dated 26 th October 2005 against which appeal was
filed by the State Government before the District Court which was rejected
by order Annexure P/4 said order was challenged by the State in W.P.
No.3918/2011 which was dismissed on 27.07.2011 granting liberty to the
State to file civil revision and when civil revision No. 480 of 2011 was filed
by the State the same was withdrawn by the State on 26.03.2011 vide order
Annexure P/24 with liberty to file writ petition. However, no writ petition
was filed and the State then shelved the matter. Therefore the judgment and
decree Annexure P/1 has attained finality and the challenge to the same has
also been put to rest.
6. It is further contended that in terms of the aforesaid judgment
and decree (Annexure P/1), mutation on various parcels of the land was
carried out vide orders Annexure P/5, P/6, P/7 and P/8. However on some
remaining parcels of the land, the entry continues to exist and therefore the
petitioners filed an application under sections 242 and 234 of MPLRC for
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
4 WP-15190-2015
deletion of such entries.
7. The said application continued to remain pending for a long time
though the same was filed in the year 2010 and ultimately the said
application was rejected by the Sub Divisional Officer vide order Annexure
P/26 which has now been confirmed vide Annexure P/31 after some rounds
of appeals, etc.
8. The counsel for the petitioner further pointed out that in the
intervening period the Government of India had also filed a civil suit against
the petitioners as well as the State Govt., which was dismissed on 19.07.2013
and for restoration of the said suit an application under Order 9 Rule 9 CPC
was filed by the Union of India, which was also rejected vide order dated
13.07.2015 passed in MJC No. 14/2014 by the 1st Additional Sessions
Judge, Hoshangabad. Thereafter, the Union of India did not further agitate
the matter before any Court or forum and therefore the rejection of suit of the
Union of India having been made and application under Order 9 Rule 9
having been dismissed therefore, fresh suit of Union of India is also not
maintainable and issue stands settled against Union of India also, unless the
Union of India at any subsequent stage succeeds in restoring the suit.
Therefore, it is contended that the judgment and decree Annexure P/1 has
attained finality and the suit filed by the State Government for setting aside
the said judgment and decree has been rejected and no appeal or revision was
filed against the judgment and decree Annexure P/1. Therefore, the reasons
assigned by the Board of Revenue in the order Annexure P/31 that the Union
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
5 WP-15190-2015
of India seems to have some interest in the matter holds no water, moreso,
when the Union of India did not file any objection to the application of the
petitioners for deletion of entry of "Fauji Padav" and its suit also having
suffered rejection. Therefore it is argued that the writ petition be allowed and
the order of Board of Revenue be set-aside.
9. Per contra, it is contended by counsel for the State that as per
Section 257 (f) of MP Land Revenue Code, the suit having been filed in
respect of entries in revenue record which are in favor of the State
Government, therefore the omission or deletion or amendment of such
entries can only be made by the revenue authorities because exclusive
jurisdiction is conferred on revenue courts by Section 257 in respect of
certain matters and the present matter is covered under Section 257 (f)
therefore the decree Annexure P/1 having been passed in a suit which was
entertained beyond its jurisdiction by the civil court, the judgment and decree
is nullity. Reliance is placed on judgment of the Hon'ble Supreme Court in
the case of Sarup Singh v. Union of India, (2011) 11 SCC 198 and Mohd.
Murtiza Khan Vs. State of M.P., 1966 MPLJ 933 , to contend that the
judgment and decree Annexure P/1 is nullity against the State.
10. It is further argued that as per Article 136 of Limitation Act
1963, for execution of any degree and outer limitation period of 12 years has
been laid down whereas the present application was filed in the year 2010
before the SDO which was after 17 years of judgment and decree Annexure
P/1 and therefore, the SDO could not have entertained the application and
Board of Revenue has erred in confirming the said order.
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
6 WP-15190-2015
11. Heard rival parties at length.
12. The case of the petitioner is plain and simple, that there is a
declaratory decree and decree of perpetual injunction in its favour, therefore,
the questioned entry should be deleted from the revenue records. The decree
Annexure P-1 is summarised as under :-
a. Entry of "Fauji Padav" in lands contained in survey No.
24/93,25/1,25/2, situated at Village Burhanpur, Tehsil Seoni
Malwa, is null and ineffective.
b. Plaintiffs are Bhumiswamis and cultivators of land in in survey
No. 24/93,25/1,25/2, situated at Village Burhanpur, and the order
of Sub-Divisional Officer dated 30.8.1991 is declared null and
void.
c. The defendants being State Government employees, shall not
cause any interference in possession of plaintiffs in suit lands.
d. Defendants shall bear their own costs and costs of the
plaintiffs.
13. It is not disputed that the State has already complied with the
decree in terms of insertion of names of the plaintiffs/successors in the
revenue records, but the entry of "Fauji Padav" in various khasras has not
been deleted, though in some, the same has been deleted.
14. So far as the objection of the State in the matter of decree being
nullity in terms of Section 257 (f) MPLRC is concerned, whereby the suit is
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
7 WP-15190-2015
stated to be barred by law, the relevant provision is as under :-
"257. Exclusive jurisdiction of revenue authorities. -
Except as otherwise provided in this Code, or in any other enactment for the
time being in force, no Civil Court shall entertain any suit instituted or
application made to obtain a decision or order on any matter which the State
Government, the Board, or any Revenue Officer is by this Code,
empowered to determine, decide or dispose of, and in particular and without
prejudice to the generality of this provision, no Civil Court shall exercise
jurisdiction over any of the following matters :-
(a) to (e) **********
(f) any claim against the State Government to have any entry made in any
land records or to have any such entry omitted or amended."
15. The suit was a suit for declaration and injunction also, and not
for mere deletion of entry. The Revenue Courts do not have any jurisdiction
to pass a decree for declaration and injunction. In the case of Ramgopal vs.
Chetu, AIR 1976 MP 160 (FB) , Hon'ble full Bench of this Court has held as
under:-
"10. Determination of the question of title is the province of the Civil Court
and unless there is any express provision to the contrary, exclusion of the
jurisdiction of the Civil Court cannot be assumed or implied, AIR 1966 SC
1718."
16. In the case of Rohini Prasad & Ors. vs. Kasturchand & Anr.
(2000) 3 SCC 668 and Hukum Singh (dead) by LRs & Ors. vs. State of MP
(2005) 10 SCC 12; the Hon'ble Supreme Court has after taking into
consideration the law laid down by full Bench of this Court in the case of
Ramgopal vs. Chetu (supra) , held that the suit for declaration of title and
permanent injunction or for restoration of possession is maintainable before
Civil Court only.
17. In the present case, the suit was maintainable for another reason,
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
8 WP-15190-2015
i.e. Section 57 (3) of the M.P. Land Revenue Code. Section 57 is as under :-
57. State ownership in all lands.
(1) All lands belong to the State Government and it is hereby declared
that all such lands, including standing and flowing water, mines, quarries,
minerals and forests reserved or not, and all rights in the sub-soil of any land
are the property of the State Government :
[Provided that nothing in this section shall, save as otherwise provided
in this Code, be deemed to affect any rights of any person subsisting at the
coming into force of this Code in any such property.]
(2) Where a dispute arises between the State Government and any
person in recpect of any right under sub-section (1) such dispute shall be
decided by the Sub-Divisional Officer.
(3)Any person aggrieved by any order passed under sub-section (2)
may institute a civil suit to contest the validity of the order within a period of
one year from the date of such order.
(3-a) xx xx xx
It is pertinent to mention here that Sub-section (2) was amended from
time to time and has been deleted in 2018. Subsection (3) has been deleted in
2011. The position above is as was existing in 1991 when suit was filed.
18. As the plaintiffs challenged the order of SDO also whereby he
had refused to correct the revenue entries, therefore, the suit was
maintainable even in view of section 57(3), as it then stood, even if
declaration and injunction had not been sought. Hence, the objection as to
maintainability of suit and decree being nullity is over-ruled.
19. So far as the issue of limitation is concerned, the decree was
passed on 15.2.1993 and the application for correction was filed in the year
2010. The petitioners have not filed an application for "execution" of decree,
but simplicitor application for correction of revenue entry in accordance with
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
9 WP-15190-2015
the decree of Civil Court, that the State is bound to comply.
20. There is no limitation prescribed under MPLRC to move an
application for mutation or for correction of revenue entry. If two limitations
are applicable, then the larger one has to be given effect to. Since MPLRC
does not at all have any time limit or limitation for correction of revenue
records, then the State cannot raise the plea of Article 136 of the Limitation
Act to contend that the application for correction could not be filed beyond
12 years. A decree of title is for perpetuity and any revenue entry that may
cloud the title, has to be removed, irrespective of the limitation for execution
of decree.
21. Now coming to the position that what order can be passed in the
matter.
22. When this Court has dug deeper into the matter, it is found that
even there was no abatement at all, and in all these years since 2005 when
the suit of the State was rejected as abated, the State did not even care to
examine whether its suit had really abated or not.
23. The abatement was ordered by the trial Court on account of
death of three defendants, i.e. defendants No. 2-Hanuman, No.3-Jagdish and
No.6-Balraj. All these were plaintiffs in the decree that was sought to be
declared null and void by the State in its suit. These three were sons of
deceased Narayan Prasad, who was projected to be the person from whom
they succeeded title as sons. Once other successors of Narayan Prasad i.e. his
other son Shambhu Prsad was on record, and wife and sons of another son,
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
10 WP-15190-2015
Rajendra were on record, then it is clear that there was co-ownership and the
estate of Narayan Prasad, the original owner through whom all had been
claiming, was represented.
24. The State was plaintiff and it is settled that limitation under
Order 22 Rule-4 shall start from date of intimation given by the
defendants/their counsel under order 22 rule 10-A CPC. In Perumon
Bhagvathy Devaswom v. Bhargavi Amma , (2008) 8 SCC 321 the Hon'ble
Supreme Court held as under :-
17. The second circumstance is whether the counsel for the deceased
respondent or the legal representative of the deceased respondent notified the
court about the death and whether the court gave notice of such death to the
appellant. Rule 10-A of Order 22 casts a duty on the counsel for the
respondent to inform the court about the death of such respondent whenever he
comes to know about it. When the death is reported and recorded in the order-
sheet/proceedings and the appellant is notified, the appellant has knowledge of
the death and there is a duty on the part of the appellant to take steps to bring
the legal representative of the deceased on record, in place of the deceased.
The need for diligence commences from the date of such knowledge. If the
appellant pleads ignorance even after the court notifies him about the death of
the respondent that may be an indication of negligence or want of diligence.
25. In a specific case where the State was the contestant and death
of private litigant took place, the Hon'ble Supreme Court in State of M.P.
Vs. S.S. Akolkar 1996 (2) SCC 568 held as under :-
7. It is settled law that the consideration for condonation of delay under
Section 5 of the Limitation Act and setting aside of the abatement under Order
22 are entirely distinct and different. The court always liberally considers the
latter, though in some case, the court may refuse to condone the delay under
Section 5 in filing the appeals. After the appeal has been filed and is pending,
Government is not expected to keep watch whether the contesting respondent
is alive or has passed away. After the matter was brought to the notice of the
counsel for the State, steps were taken even thereafter; after due verification
belated application came to be filed. It is true that Section 5 of the Limitation
Act would be applicable and delay is required to be explained. The delay in
official business requires its broach and approach from public justice
perspective.
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
11 WP-15190-2015
8. Under these circumstances, we are of the opinion that the High Court was
not right in refusing to set aside the abatement and to condone the delay in
filing of the petition to bring the legal representatives on record.
9. The delay is condoned. The abatement is set aside and the legal
representatives are brought on record. The High Court is requested to dispose
of the appeal as expeditiously as possible within two months from the date of
the receipt of the order as this is a very old appeal.
26. Juxtaposing with aforesaid legal position, the dates of intimation
given by counsel for defendants before the Civil Court in State's suit and
dates of filing applications under Order 22 Rule 4 are as under :-
Date of intimation Date of filing application
Defdt. No.2 (Hanuman) 12.11.2003 04.2.2004
No. 3 (Jagdish) 29.3.2000 31.1.2001
No.6 (Balraj) 25.9.2002 23.10.2002
From the above chart, it is clear that in case of defendants No. 2 and 6,
the application under Order 22 Rule-4 was filed within 90 days of
intimation, and there was no abatement at all, and the trial Court and
Appellate Court have acted with material illegality in treating the suit as
abated against these defendants.
27. So far as Defendant No. 3 is concerned, in his case, there was
some delay in filing the application. No doubt, if there was abatement, then
the State was bound to get it set aside. However, it is to be seen whether
there was any abatement even as to Defendant No.3 at all. In the suit filed by
the State, prayer was made to declare the judgement and decree annexure P-1
set aside, that was obtained by the defendants in the suit filed by the State,
and in that suit filed by the defendants, the deceased defendants No. 2, 3 and
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
12 WP-15190-2015
6 were plaintiffs No. 2, 3 and 6, and all had projected that the original
predecessor of all of them was their father, Narayan Prasad, who had got
interest in the suit land, and they have succeeded in his shoes by law of
succession. All sons and widow of Narayan Prasad were plaintiffs therein.
The facts of this case are exactly as were in the case of State of
A.P. v. Pratap Karan, (2016) 2 SCC 82, wherein it was held that once all the
legal heirs of a person file a joint suit for rectification of revenue record on
the ground that after death of their predecessor they have got right and title
being legal heirs, then upon death of one of them, the case will not abate. The
Hon'ble Supreme Court held as under :-
"40. In the instant case, the plaintiffs joined together and filed the suit for
rectification of the revenue record by incorporating their names as the owners
and possessors in respect of the suit land on the ground inter alia that after the
death of their predecessor-in-title, who was admittedly the pattadar and khatadar,
the plaintiffs succeeded the estate as sharers being the sons of khatadar.
Indisputably, therefore, all the plaintiffs had equal shares in the suit property left
by their predecessors. Hence, in the event of death of any of the plaintiffs, the
estate is fully and substantially represented by the other sharers as owners of the
suit property. Therefore, by reason of non-substitution of the legal
representative(s) of the deceased plaintiffs, who died during the pendency of the
appeal in the High Court, entire appeal shall not stand abated. Remaining sharers,
having definite shares in the estate of the deceased, shall be entitled to proceed
with the appeal without the appeal having been abated. We, therefore, do not
find any reason to agree with the submission made by the learned counsel
appearing for the appellants."
28. Therefore, it is clear that no abatement of the suit of the State ever
took place. This is a petition under Article 227 of the Constitution of India.
This Court cannot shut its eyes as a supervisory Court towards a material
illegality committed by the Trial Court as well as by the Appellate Court in
rejecting the suit of the State Government as abated by passing orders
Annexure P-3 and P-4. Therefore, exercising suo-motu powers, the said suit
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
13 WP-15190-2015
(RCSA 44/1996, in the Court of Civil Judge Class-II, Seoni Malwa, Distt.
Narmadapuram) is restored to its file. As there was no abatement of
defendants No. 2 and 6, the trial Court shall permit the names of their legal
heirs to be incorporated as defendants. In absence to challenge to orders
Annexure P-3 and P-4 by the State, this Court cannot interfere to the extent
of defendant No.3, against whom application was filed beyond 90 days.
However, the effect of the abatement as against defendant No.3 shall be that
the said suit shall proceed against remaining sharers/legal heirs of original
person-Narayan Prasad. Only to the extent of 1/7 share of defendant No.3,
the said suit shall stand abated.
29. It is really a very sorry state of affairs, that in a matter involving
valuable land of Burhanpur City, the State has virtually abdicated all its
responsibility as State to save the lands on which it claims ownership as
against a private person. This is happening when the State has offices of
Collectors, Sub-Divisional Officers, Tehsildars, Naib Tehsildars, and a vast
cadre of Revenue Inspectors and Patwaris. It appears that there has been a
failure of the State as a machinery and its entire system and machinery. The
matter was hotly objected by the State Counsel before this Court, knowing
fully well that in presence of a decree by the Civil Court, mutation/correction
in revenue record is a necessary consequence. It was only a lip-service only
to make it believe that the State has contested the matter and lateron to
project that since the High Court has directed mutation, therefore, nothing
much can be done now. This Court would be the last one to let the
unscrupulous State functionaries get away with such type of collusive and
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
14 WP-15190-2015
elusive practices.
30. In this particular case it is really unfortunate that initially an ex-
parte decree was passed, and then when a suit was filed to set aside the ex-
parte decree/to declare it as nullity against the State, firstly, it was allowed to
be dismissed as abated. Then an appeal was filed that was rejected by the
Additional District Judge on 23.1.2009 vide Annexure P-4. Against that, first
a writ petition was filed that was withdrawn by order Annexure P-23 with
liberty to file a Revision, and when Revision was filed, it was withdrawn
vide order Annexure P-24 with liberty to file a writ petition.
31. It is really surprising that the office of Advocate General did not
know whether Civil Revision or Writ Petition was to be filed against order
of Appellate Court, and in ignorance of the remedy, the order went
unchallenged. It is a serious matter where the Collector of the District,
despite lapse of 11 years from 26.3.2014 (when Civil Revision was
withdrawn), till date, has not been able to instruct the office of Advocate
General to challenge the order in appropriate proceedings. This casts serious
doubts over the efficiency and competence of the State to protect the
properties, that it projects as its own, vis-à-vis the private persons. Therefore,
this Court intends to issue certain general directions in the matter.
32. If it was a lapse of some officer as OIC on behalf of the State, then
the first thing that must have been done after getting knowledge of the filing
of this petition, was to have challenged the order of Appellate Court in some
appropriate proceedings and have taken action against the then OIC.
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
15 WP-15190-2015
However, the State has conveniently not challenged the decree of the Civil
Court and tried to persuade this Court to hold that mutation cannot be made
even in presence of decree of the Civil Court. The action and stand of the
State in this matter is an utter joke on the system and on the interests of the
State.
33. In an egalitarian society and a State that strives to build and
maintain a egalitarian society, the State holds natural resources in public
trust. It is a trustee for the general masses, for those who had been deprived
of such natural resources, and to ensure their proper distribution and protect
the resources from depletion and destruction. The State holds such resources
in trust for the deprived masses, and does not hold those to breach the trust
and allow the resources to be wasted. Land is a very limited resource, and its
availability is limited, restricted and certain. Nothing more requires to be
explored or discovered. Therefore, a huge race ensues to grab the land, which
is the most scarce resource on Earth, being a part of Earth itself. The State
holds lands for the benefit of landless and the voiceless, who have been
deprived of land ownership since time immemorial, or for common good of
the community and the nation. In either way, it holds land for trust on behalf
of common, voiceless and vulnerable citizen(s).
34. In the "Public Trust Doctrine", the State holds the resources in
Trust for the common citizen, and that too, the deprived citizen. The
application of the doctrine results in imposition of a check upon
governmental authorities who seek to divest State control over such natural
resources in favour of private interests. Though the Doctrine is of vintage
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
16 WP-15190-2015
origin from Roman Law, and was being applied in modern times in some
parts of the World- more particularly in United States, it is only recently that
the doctrine has been applied in India. For the first time, it was applied in the
case of M.C. Mehta Vs. Kamal Nath, 1997 (1) SCC 388 in the following
manner :-
"24. The ancient Roman Empire developed a legal theory known as the
"Doctrine of the Public Trust". It was founded on the ideas that certain common
properties such as rivers, seashore, forests and the air were held by Government in
trusteeship for the free and unimpeded use of the general public. Our
contemporary concern about "the environment" bear a very close conceptual
relationship to this legal doctrine. Under the Roman law these resources were
either owned by no one (res nullious) or by every one in common (res
communious). Under the English common law, however, the Sovereign could
own these resources but the ownership was limited in nature, the Crown could not
grant these properties to private owners if the effect was to interfere with the
public interests in navigation or fishing. Resources that were suitable for these
uses were deemed to be held in trust by the Crown for the benefit of the public.
Joseph L. Sax, Professor of Law, University of Michigan -- proponent of the
Modern Public Trust Doctrine -- in an erudite article "Public Trust Doctrine in
Natural Resource Law : Effective Judicial Intervention", Michigan Law Review,
Vol. 68, Part 1 p. 473, has given the historical background of the Public Trust
Doctrine as under:
"The source of modern public trust law is found in a concept that received
much attention in Roman and English law -- the nature of property rights in
rivers, the sea, and the seashore. That history has been given considerable
attention in the legal literature, need not be repeated in detail here. But two
points should be emphasized. First, certain interests, such as navigation and
fishing, were sought to be preserved for the benefit of the public; accordingly,
property used for those purposes was distinguished from general public
property which the sovereign could routinely grant to private owners. Second,
while it was understood that in certain common properties -- such as the
seashore, highways, and running water -- 'perpetual use was dedicated to the
public', it has never been clear whether the public had an enforceable right to
prevent infringement of those interests. Although the State apparently did
protect public uses, no evidence is available that public rights could be legally
asserted against a recalcitrant government."
25. The Public Trust Doctrine primarily rests on the principle that certain
resources like air, sea, waters and the forests have such a great importance to the
people as a whole that it would be wholly unjustified to make them a subject of
private ownership. The said resources being a gift of nature, they should be made
freely available to everyone irrespective of the status in life. The doctrine enjoins
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
17 WP-15190-2015
upon the Government to protect the resources for the enjoyment of the general
public rather than to permit their use for private ownership or commercial
purposes. According to Professor Sax the Public Trust Doctrine imposes the
following restrictions on governmental authority:
"Three types of restrictions on governmental authority are often thought to
be imposed by the public trust : first, the property subject to the trust must not
only be used for a public purpose, but it must be held available for use by the
general public; second, the property may not be sold, even for a fair cash
equivalent; and third the property must be maintained for particular types of
uses."
34. Our legal system -- based on English common law -- includes the public
trust doctrine as part of its jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use and enjoyment. Public at large
is the beneficiary of the sea-shore, running waters, airs, forests and ecologically
fragile lands. The State as a trustee is under a legal duty to protect the natural
resources. These resources meant for public use cannot be converted into private
ownership
35. We are fully aware that the issues presented in this case illustrate the
classic struggle between those members of the public who would preserve our
rivers, forests, parks and open lands in their pristine purity and those charged with
administrative responsibilities who, under the pressures of the changing needs of
an increasingly complex society, find it necessary to encroach to some extent upon
open lands heretofore considered inviolate to change. The resolution of this
conflict in any given case is for the legislature and not the courts. If there is a law
made by Parliament or the State Legislatures the courts can serve as an instrument
of determining legislative intent in the exercise of its powers of judicial review
under the Constitution. But in the absence of any legislation, the executive acting
under the doctrine of public trust cannot abdicate the natural resources and convert
them into private ownership, or for commercial use. The aesthetic use and the
pristine glory of the natural resources, the environment and the ecosystems of our
country cannot be permitted to be eroded for private, commercial or any other use
unless the courts find it necessary, in good faith, for the public good and in public
interest to encroach upon the said resources.."
35. It is no doubt correct that the public trust doctrine under the
English common law extended only to certain traditional uses such as
navigation, commerce and fishing. But the American Courts in recent cases
have expanded the concept of the public trust doctrine. The observations of
the Supreme Court of California in Mono Lake case [33 Cal 3d 419] clearly
show the judicial concern in protecting all ecologically important lands, for
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
18 WP-15190-2015
example fresh water, wetlands or riparian forests. The Courts in United
States are finally beginning to adopt this reasoning and are expanding the
public trust to encompass new types of lands and waters.
36. Our legal system which is based on English common law includes
the public trust doctrine as part of its jurisprudence. The State is the trustee
of all natural resources which are by nature meant for public use and
enjoyment. Public at large is the beneficiary of the sea-shore, running waters,
airs, forests and ecologically fragile lands. The State as a trustee is under a
legal duty to protect the natural resources. These resources meant for public
use cannot be converted into private ownership.
37. In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu , (1999) 6 SCC
464, the Hon'ble Supreme Court further expanded the operation of the
doctrine in case of a land of public use being handed over to a builder for
construction of shopping complex. The Court held as under :-
51. In the treatise Environmental Law and Policy: Nature, Law, and Society by
Plater Abrams Goldfarb (American Casebook Series, 1992) under the Chapter on
Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of
the Public Trust Doctrine) it has been noticed that "long ago there developed in
the law of the Roman Empire a legal theory known as the 'doctrine of the public
trust' ". In America public trust doctrine was applied to public properties, such as
shore lands and parks. As to how that doctrine works it was stated:
"The scattered evidence, taken together, suggests that the idea of a public
trusteeship rests upon three related principles. First, that certain interests 'like the
air and the sea' have such importance to the citizenry as a whole that it would be
unwise to make them the subject of private ownership. Second, that they partake
so much of the bounty of nature, rather than of individual enterprise, that they
should be made freely available to the entire citizenry without regard to
economic status. And, finally, that it is the principal purpose of a Government to
promote the interests of the general public rather than to redistribute public goods
from broad public uses to restricted private benefit...."
With reference to a decision in Illinois Central Railroad Co. v. Illinois [146 US
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
19 WP-15190-2015
387 : 36 L Ed 1018 (1892)] it was stated that
"the Court articulated in that case the principle that has become the central
substantive thought in public trust litigation. When a State holds a resource
which is available for the free use of the general public, a court will look with
considerable scepticism upon any governmental conduct which is calculated
either to reallocate the resource to more restricted uses or to subject public uses to
the self-interest of private parties".
This public trust doctrine in our country, it would appear, has grown from Article
21 of the Constitution.
52. Thus by allowing construction of underground shopping complex in the park
the Mahapalika has violated not only Section 114 of the Act but also the public
trust doctrine.
58. To repeat, the agreement is completely one-sided favouring the builder. A
land of immense value has been handed over to it to construct an underground
shopping complex in violation of the public trust doctrine and the Master Plan for
the city of Lucknow. The Mahapalika has no right to step in even if there is any
violation by the builder of the terms of the agreement or otherwise. The
Mahapalika, though considered to be the owner of the land, is completely ousted
and divested of the land for a period which is not definite and which depends
wholly on the discretion of the builder. .............................."
38. Most recently, a 3-judge Bench of the Hon'ble Supreme Court
again applied the doctrine in the following manner in the case of T.N.
Godavarman Thirumulpad, In re v. Union of India, (2022) 10 SCC 544 in the
following manner :
34. This Court has highlighted the public trust doctrine in M.C. Mehta v. Kamal
Nath [M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388] and opined that the public
trust doctrine is part of the law of land. In para 25 of the said judgment, as
reported, this doctrine has been explained with reference to writings of Joseph L.
Sax, Professor of Law, University of Michigan, the proponent of Modern Public
Trust Doctrine : (SCC pp. 407-408)
"25. The public trust doctrine primarily rests on the principle that certain
resources like air, sea, waters and the forests have such a great importance to the
people as a whole that it would be wholly unjustified to make them a subject of
private ownership. The said resources being a gift of nature, they should be made
freely available to everyone irrespective of the status in life. The doctrine enjoins
upon the Government to protect the resources for the enjoyment of the general
public rather than to permit their use for private ownership or commercial
purposes. According to Professor Sax, the public trust doctrine imposes the
following restrictions on governmental authority:
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
20 WP-15190-2015
'Three types of restrictions on governmental authority are often thought to be
imposed by the public trust : first, the property subject to the trust must not only
be used for a public purpose, but it must be held available for use by the general
public; second, the property may not be sold, even for a fair cash equivalent; and
third the property must be maintained for particular types of uses. "
39. The said doctrine applies to all resources that are held by the
State in trust for the common citizen, and land is one of such resources. The
State has been entrusted with that property by the citizens, and it holds it in
trust for them. State is not a living being. It acts through its
functionaries/public servants, who become the heart and life of the State, and
fulfill the obligations of the State for preserving the property held in Trust
for the Public. Section 405 IPC, defines Criminal Breach of Trust, while
Section 409 contains special provisions of some specified Trustees, including
Public Servants. Section 405 is as under :-
405. Criminal breach of trust.--
Whoever, being in any manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to his own use that
property, or dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is to be discharged, or
of any legal contract, express or implied, which he has made touching the
discharge of such trust, or wilfully suffers any other person so to do, commits
"criminal breach of trust".
40. Section 409 contains punishment when offence is committed by
some specified persons, including Public Servants, while 406 provided
punishment when offence is committed by others, not in specified category
under Section 409.
41. Similarly, Section 316 of BNS 2023 has similar provisions by
carving out one comprehensive provision encompassing all cases of Criminal
Breaches of Trust.
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
21 WP-15190-2015
42. It would be a different matter, where the State contests a case
involving Government land, and then loses on merits after contest. However,
where the State gives a walk-over by remaining ex-parte despite service, and
then even ignoring to challenge the ex-parte decree forever or making
challenge after many years, it is certainly a case of breach of Trust, and
infact, a criminal breach of Trust. Such instances of State being proceeded
ex-parte as happened in the present case in the suit filed by the petitioners, is
nothing but sheer abdication of its role by the State. The State has a vast
Army of Government Pleaders in the Court, and Patwaris, Revenue
Inspectors, Naib Tehsildars and Tehsildars, SDOs, Deputy Collectors,
Superintendent of Land Records, etc. in the District, and all this staff in the
District is headed by the Collector. If only one person is given the task of
monitoring the suits involving Government Lands, then valuable lands could
be saved, or atleast a timely appeal/any other challenge of ex-parte decree
would be possible. However, it appears that willfully no monitoring takes
place, and no one takes responsibility for such ex-parte decrees against the
State.
43. The laxity in monitoring is of such a degree, that despite this
mammoth staff in every District, the State gets proceeded ex-parte in suits
involving lands that are recorded as Government lands since prior to
enforcement of MPLR Code, or even prior to independence. It is common
knowledge that private Banks and finance companies or other corporate
entities monitor thousands of their cases by a team of handful employees
sitting in a State office, or even a single office in the entire country, and they
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
22 WP-15190-2015
are rarely proceeded ex-parte. However, the State has not woken up to
reality, and with its vast human resources cannot ensure even timely
attendance in the Civil Courts, for the valuable land, that is a limited
resource, and which the State holds in Trust for the common man, who is
voiceless, faceless and powerless. The manner in which lands worth
hundreds or thousands of crores are being wasted, requires some remedial
action.
44. This gross negligence can be gauged from the very fact that in
each Principal District Judge or District Judge's Court who is also vested
with powers of Sessions/Additional Sessions Court, there is invariably a
Government Pleader or Assistant Government Pleader (GP/AGP) to plead
Criminal cases for the State, who is appointed by the Law Department on
fixed term. Apart from that, in each Civil Judge's Court vested with Judicial
Magistrate's powers, there is an Assistant District Prosecution Officer
(ADPO), who is also for Criminal cases, appointed by the Home Department.
Despite the Government counsel being available in each Civil Judge's Court
and each District Judge's Court throughout the State, the Government is
declared ex-parte in each Civil case. Despite availability of a counsel in each
Court (though for criminal matters), but in nearly all suits involving
Government land, some of which may be valued in hundreds or thousands of
crores, the Government is being proceeded ex-parte despite service. This is
nothing, but lack of willingness on part of the State. Not that it lacks
resources, it only lacks willingness, and is only too willing to abdicate its
duties as a "State", in hands of a handful, to grab and squander valuable
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
23 WP-15190-2015
lands.
45. This Court cannot sermonize the State that in what manner, it will
ensure that the cases do not get ex-parte against the State. One of the ways
could be to first prepare a list of suits and to monitor on monthly basis,
atleast from the CMIS website of the District Court concerned, if not more.
Second option could be to ask the GP/AGP/ADPO posted in each Court to
send email directly to the Collector, immediately on a suit being filed in the
Court concerned where he is posted, informing him about pendency of such
a suit. Thereafter the Collector may take steps for defending the suit. There
may be other hundreds of ways. The State is having a mammoth team of
technical experts and policy makers to find out the best way. It is high time a
policy should be framed fixing criminal liability. The State only lacks
willingness and accountability, forcing this Court to step in, to save
Government land from being squandered and wasted.
46. Therefore, this Court, by invoking Public Trust Doctrine, directs
that the State should frame a specific policy to defend suits involving
Government interest in lands, and to put in place a mechanism to challenge
final decrees, including ex-parte decrees. This policy should encompass a
criminal liability of Breach of Trust for that public servant on whose fault
the ex-parte decree was passed and/or remained unchallenged. Every
common citizen shall have a right to complain breach of this policy. Let this
policy be framed within six months.
47. Till such a policy is framed, with a view to protect the interest of
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
24 WP-15190-2015
common citizen and to save the Government lands being wasted and
squandered, it is directed that henceforth, in any case an ex-parte decree
involving Government Land, passed after date of this order, remains
unchallenged in any manner for three months (90 days) from it being passed,
then after passing of 90th day from decree, any member of the public shall be
at liberty to prosecute u/s 316(5) BNS 2023 (old Section 409 IPC), after
obtaining sanction for prosecution, the then Collector(s) of the District who
was/were posted at the time when such ex-parte decree was passed till
passing of 90th day, and the concerned Government shall be under obligation
to deal with the question of sanction for prosecution of such person within 60
days of such request being received. This will be applicable only to those
lands where on the date of institution of the suit, there is revenue entry in
name of State, and such entry is sought to be deleted/changed by seeking any
declaration against the State, or any declaration against State in matter of
ownership of land is sought. However, in those cases where the lis is
between private parties and State is formal party, the matter would be
reported to the Collector, who shall take a decision, whether to defend the
suit, or not.
48. Therefore, the present petition is disposed of with the following
directions :-
a. The impugned orders are set aside, and the respondents are
directed to correct the revenue entries and mutate the names of the
decree holders/their successors in the Revenue Record in proper
manner, by giving effect to the decree.
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
25 WP-15190-2015
b. In the suit of the State that has been brought to life by this
order, the parties shall appear before the Trial Court on 08.12.2025.
The State shall be at liberty to seek temporary injunction in the said
suit.
c. The suit of the State shall stand abated against the defendant
No.3 only, but shall continue against other defendants in the
manner held by the Hon'ble Apex Court in the case of Pratap Karan
(supra).
d. In case the suit of the State is decided in its favour, then the
Revenue entries shall be liable to be altered in favour of the State.
49. Invoking Public Trust Doctrine, this Court further directs as under
:-
i. State should frame a policy to defend suits involving
Government interest in lands, and to put in place a mechanism to
challenge final decrees, including ex-parte decrees. This policy
should encompass a criminal liability of Breach of Trust for that
public servant for whose fault/default the ex-parte decree was
passed and/or remained unchallenged. Every common citizen shall
have a right to complain breach of this policy. Let this policy be
framed within six months.
ii. Till this policy is framed, henceforth, in any case an ex-
parte decree involving Government Land, passed after date of this
order, remains unchallenged for an outer limit of 90 days from it
being passed, then after passing of 90th day from such ex-parte
decree, any member of the public shall be at liberty to institute
proceedings to prosecute u/s 316(5) BNS 2023 (corresponding to
section 409 IPC), after obtaining sanction for prosecution, the then
Collector(s) of the District who was/were posted at the time when
such ex-parte decree was passed till passing of 90 th day. The
concerned Government shall be under obligation to deal with the
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
26 WP-15190-2015
question of sanction for prosecution of such person within 60 days
of such request being received. Challenge to the ex-parte decree
for the purpose of this paragraph may be by filing regular appeal,
or an application for setting aside ex-parte decree under Order 9
Rule 13 CPC.
iii. Paragraph (ii) above would be applicable only to those
lands where on the date of institution of the suit, there exists
revenue entry in name of State, and such entry is sought to be
deleted/changed by seeking any declaration against the State, or
any declaration against State in matter of ownership of land is
sought.
iv. State is always at liberty to take a decision in every case,
whether to make challenge to ex-parte decree, or not. This Court
cannot interfere in this discretion of the State, and therefore, if the
Collector or any other superior authority takes a conscious
decision in writing not to challenge the ex-parte decree for any
reason recorded in writing, then para (ii) above shall not apply.
v. In those cases where the lis is between private parties and
State is only a formal party, the Collector shall be at liberty to take
a decision, whether to defend the suit, or not. If the Collector takes
a decision not to defend such suit, then para (ii) above shall not
apply even if ex-parte decree is passed later.
vi. Paragraph (ii) above shall be applicable only prospectively
for the ex-parte decrees passed after date of delivery of this order.
If the State loses the suit after contest, para (ii) above shall not be
applicable at all.
vii. Upon framing a policy incorporating criminal liability, by
the State in terms of para (i) above, para (ii) to (vi) above shall
cease to apply. However, the prosecutions that may be initiated
under these clauses (ii) to (vi) shall be continued.
NEUTRAL CITATION NO. 2025:MPHC-JBP:58866
27 WP-15190-2015
50. No order as to costs.
(VIVEK JAIN)
JUDGE
MISHRA
