Bharti Yogi vs Dheeraj Barod

The petitioner has filed the present writ petition under Article 227 of the Constitution of India challenging the orders dated 29/11/1996 passed by respondent No.4, 16/03/2001 passed by respondent No.3 and 13/11/2002 passed by respondent No.2.

Brief facts of the case are that the Government land bearing Khasra No.60/4 having area of 5.91 acre situated at Village Soyat, Patwari Halka No.38, Tahsil Seoni Malwa, Distt. Hoshangabad. Since 1963-64 one Ram Singh who is father of the petitioner was in continuous possession of the said land. Prior to 2nd October, 1984, the petitioner has came into possession of the said land. In the year 1995 Tahsildar had allotted the said land to one Ram Singh Mehra who was the

Kotwar of Kalyakhedi on Patta. He tried to dispossess the petitioner. The petitioner, therefore, filed civil suit No.1- A/1995 before the Civil Judge Class-II, Seoni Malwa for permanent injunction and declaration. During pendency of the said civil suit, Ram Prasad died and, therefore, his legal representatives were brought on record. The trial Court after hearing the parties passed the judgment and decree dated 17/07/1996 thereby granting a decree of permanent injunction in favour of the petitioner and the petitioner was directed for filing an appropriate application under M.P. Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Ukpbandh) Adhiniyam, 1984 (herein after referred to as ''the Act''). The judgment and decree passed by the Civil Court was not challenged by either of the parties, therefore, it became final. In pursuance of the direction issued by Civil Court, the petitioner had filed an application on 09/09/1996 before respondent No.4 for conferring the Bhoomiswami right. Upon receiving the said application, Tahsildar had invited objection by publishing a notice, however, none of the objections had been received by the Tahsildar. Thereafter the

Tahsildar passed an order dated 29/11/1996 thereby dismissing the application submitted by the petitioner on the ground that the aforesaid land is reserved by the State Government for specific purpose, therefore, the petitioner is not entitled for Bhoomiswami right on the aforesaid land. Against the said order, the petitioner preferred a revision before respondent No.2 i.e. Commissioner but the same had been dismissed vide order dated 16/03/2001. Being aggrieved by the order passed by Commissioner, the petitioner has preferred a revision before the Board of Revenue. The Board of Revenue vide order dated 13/11/2002 has dismissed the said revision. Being aggrieved by these orders, the petitioner has filed the present writ petition.

Learned counsel for the petitioner argued that the orders passed by the authorities are illegal and arbitrary. He submits that father of the petitioner was in possession of the said land since 1963-64 and after death of his father, the petitioner is in possession of the said land and cultivating the same. He submitted that prior to 2nd October, 1984, the petitioner came in possession of the said land and, therefore,

the petitioner is entitled for Bhoomiswami right as per Section 3 of the Act. The authorities had failed to consider that Civil Court has already granted a decree for permanent injunction in favour of the petitioner. He further submitted that so far as allotment of Patta in favour of late Ram Prasad by respondent No.4 is concerned, the same came to an end because late Ram Prasad had not cultivated the said land for a period of five years after allotment of the land, therefore, the said land again vested in favour of the State Government. He further argued that Tahsildar has invited objections after submitting an application bythe petitioner and as no objection has been received by the Tahsildar, the Tahsildar should have allowed the application preferred by the petitioner. He also submitted that from the revenue record, it is not established that the land in question is reserved by the State for any specific purpose. He further argued that the order passed by the Tahsildar on the ground that the land was allotted to Ram Prasad is incorrect as Ram Prasad was the Kotwar of Village Kalyakhedi and not the Kotwar of Village Soyat, therefore, the Patta is illegal. In view of aforesaid arguments, he submitted that while allowing this writ petition, the impugned

orders passed by the authorities may be set aside.

The respondents have filed their reply and in the reply the respondents have raised a preliminary objection that the writ petition filed by the petitioner is highly belated. The respondents have stated that the impugned orders have been passed way back in the year 1996 to 2002 and the present writ petition has been filed in the month of July, 2010. Thus, there is almost a delay of about nine years in filing this writ petition. It has further been stated that the petitioner has failed to explain the delay in filing the present writ petition. The respondents have stated that in pursuance of the judgment and decree passed by the trial Court, the petitioner has filed an application on 09/09/1996 before the Tahsildar and the Tahsildar after considering the entire facts and circumstances of the case, dismissed the said application of the petitioner on the ground that the same is recorded in the name of State Government for specific purpose giving same to the servant under the Act. Against the said order, the petitioner filed a revision before the Commissioner and thereafter Board of Revenue and the same have been dismissed. The Commissioner, in its order, has given a

categorical finding that in Khasra entry of the year 1984-85 to 1988-89 filed by the petitioner, the said land is recorded in the name of Ram Prasad Kesharya Mehar (Gram Naukar/Kotwar) and in the Kaifiyat Coloumn No.12, the name of petitioner is mentioned as illegal encroacher/occupier, therefore, there is no illegality in the order passed by the Tahsildar. The land was already given to Gram Naukar and from Khashra entry of the year 1988-89 column Nos. 14, 16, 18 & 20, it is clear that the petitioner has forcibly encroached upon the said land. The respondents have further submitted that one Rewa Ram, S/o late Ram Prasad Kesharya Mehar moved an application for removing the illegal encroachment of the petitioner from the land in question and on the aforesaid application, proceedings were initiated and notices were issued to the petitioner by the Tahsildar. The petitioner appeared before the Tahsildar and submitted his written objection. After hearing parties, the Tahsildar found that the said land was allotted to Ram Prasad, therefore, directed that the petitioner be evicted from the said land. In view of aforesaid submissions, learned Panel Lawyer for the respondents submitted that the writ petition has no

force and the same may be dismissed.

I have heard learned counsel for the parties and perused the impugned orders as well as record. The land bearing Khasra No.60/4 having area 5.91 acre situated at Village Soyat, Tahsil Seoni Malwa, Distt. Hoshangabad was given by the Tahsildar to one Ram Singh Mehra, Gram Kotwar as Sewa Bhumi. Being aggrieved by the aforesaid order, the petitioner filed a civil suit for permanent injunction as well as declaration as per the provisions of the Act. During pendency of the said civil suit, Ram Prasad died, therefore, his legal representatives were brought on record. The Civil Court after recording the statement of the witnesses and framing issues had partly decreed the suit of the petitioner by granting a decree of permanent injunction in favour of the petitioner and he was directed to file an application under the Act before the competent authority for Bhoomiswami right. In pursuance of the direction issued by the Civil Court, the petitioner had filed an application on 09/09/1996 before the Tahsildar. The Tahsildar after considering the entire facts and circumstances of the case, dismissed the application of the petitioner on the ground that the said land was recorded in the name of State

Government for specific purpose giving the same to the servant under the Act. Section -3 of the Act provides for conferral of Bhoomiswami rights to the agricultural labourer. As per the said section, all unoccupied land in a village in possession of an agricultural labourer on the 2nd October, 1984 shall be held by such person as from the said date in Bhoomiswami rights and he shall be a Bhoomiswami of the said land for all purposes of the Code and any other enactment for the time being in force. It has been established from the said section that the said section does not apply in the case when the land is reserved by the Central or State Government for a specific purpose. In the present case, from perusal of the revenue entries, it reveals that the land has been reserved by the State Government for specific purpose i.e. giving to servant (Gram Naukar/Kotwar) and on this ground, the Tahsildar had dismissed the application of the petitioner. Against the said order, the petitioner has preferred an appeal before the Commissioner and then revision before the Board of Revenue. The Commissioner has observed that in the Khasra entiry of the year 1984-85 to 1988-89, the land in question is recorded in the name of Ram Prasad Kesharya

Mehar (Gram Naukar/Kotwar) and the name of the petitioner is mentioned as illegal encroacher or occupier in the Kaifiyat Column No.12. Thus, the petitioner is in occupation of the said land as encroacher or occupier. It is also to be noted here that the Tahsildar has undertaken a proceeding of eviction against the petitioner and the order of eviction has also been passed against the petitioner. Thus, as the land in question has been reserved by the State Government for specific purpose, the authorities have rightly rejected the application preferred by the petitioner. It has also been observed that the impugned orders passed by the Board of Revenue in the year 2002 and the petitioner has filed the present writ petition in the year 2010 without giving proper explanation for delay. The petitioner has stated that after the judgment and decree passed by the Civil Court, there is recurring cause of action and, therefore, there is no delay in filing the writ petition. It is pertinent to mention here that the Civil Court has passed the judgment and decree in the year 1996 thereafter the petitioner immediately filed an application before the Tahsildar under Section 3 of the Act and thereafter the Board of Revenue passed an order in the year 2002, however, the

petitioner has failed to give any reason for delay after passing of the order by the Board of Revenue. Thus, the writ petition also suffers from delay and latches. I do not find any reason to interfere into the impugned orders.

Accordingly, the writ petition is dismissed without any order as to cost.