Chandrika Prasad Sahu vs State of M.P. and Others

Rajendra Menon, J.—As common questions of law and facts are involved in these four writ petitions, all these petitions are being heard and disposed of by this common order.

For the sake of convenience, documents and material available in Writ Petition No. 8454/2009 are being referred in this order.

In all these petitions, challenge made by the petitioners are to orders passed by the Collector, Commissioner and the Board of Revenue exercising suo motu powers of revision u/s 50 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as ''Code''), and setting aside allocation of land made in favour of each of the petitioners. Orders passed and the reasons are common in all the cases.

It is the case of the petitioner, in Writ Petition No.8454/2009, that he alongwith his family was displaced when Rehand Dam was constructed, as a result he settled in Tehsil Waidhan, presently in District Singrauli, previously in District Sidhi. After settling down in Waidhan, it is the case of the petitioner that he applied to the Naib Tehsildar, Singrauli for grant of patta over the land in question. The Naib Tehsildar conducted proceedings as provided under the Code, all the procedural formalities with regard to publication of advertisement, public notice, inviting objections etc were completed and finally vide order-dated 9.1.1976 - Annexure P/1, patta was granted to the petitioner. In Writ Petition No.9891/2009, patta was granted vide Annexure P/1 dated 28.11.1978. In Writ Petition No.9890, patta was granted vide Annexure P/1 dated 9.1.1976. In Writ Petition No.8807/2009, patta was granted vide Annexure P/1 dated 28.11.1978. In all the four cases it is said that the patta was granted on similar consideration and after following the same procedure. According to the petitioners, their name was entered in the revenue records and Khasra entries in this regard are filed vide Annexure P/2, showing recording of petitioner''s name in the Khasra i.e.....land records, for the period 1976-77 to 1980-81.

It is the case of the petitioners that ever since 1976/1978 they are in possession of the land as per allotment made vide Annexure P/1, issued on the dates as mentioned in paragraph 4, hereinabove.

In the year 2000, the State Government took a policy decision for establishing a Ultra Mega Power Project in District Singrauli. The Project was known as ''Sasan Ultra Mega Power Project'' and the same was to be executed by respondent No.5 M/s Sasan Power Limited and for the said purpose proceedings for land acquisition were initiated. However, while these proceedings for acquisition were going on, after a period of 22 years of granting patta to the petitioners, it is stated that Additional Collector, Waidhan issued a show cause notice to each of the petitioner on 22.10.2007 vide Annexure P/4, and pointed out to them that the patta was granted illegally, without following due process and, therefore, the notice issued was as to why the patta granted be not cancelled. It is the case of the petitioners that show cause notice were issued to nine persons similarly including one Shri Chutkau. On receipt of the show-cause notice - Annexures P/3 and P/4, petitioners submitted reply - Annexure P/5. Without considering the reply and without taking note of the averments made by them vide Annexure P/6 dated 28.4.2008, passed separately in each case, the Collector Waidhan cancelled the patta granted to the petitioner. Petitioner preferred revision before the Additional Commissioner, Rewa Division vide Annexure P/7. This was also dismissed by the Additional Commissioner vide order-dated 7.8.2008 - Annexure P/9. Petitioner preferred further revision before the Board of Revenue vide Annexure P/10, and the same having dismissed vide Annexure P/12 on 30.7.2009, petitioners are before this Court assailing the orders passed by the revenue authorities cancelling the patta granted to the petitioners.

Shri Anshuman Singh, learned counsel for the petitioners, emphasized that the show-cause notice - Annexure P/4 was issued to the petitioners on the basis of the communication made vide Annexure P/3 indicating irregularities in nine cases. In the notices issued, four irregularities were pointed out. All these irregularities pertain to non-following of procedure contemplated under the Code with regard to calling of objection, issuing advertisement, public notice, non-consideration of utility of the land, non-consideration of the fact as to whether forest land can be allocated or not etc, however in the show cause notice no allegation of fraud in obtaining the patta was made against the petitioners. Even though finding illegality to have been committed, the Collector and the Commissioner cancelled the patta of the petitioners, the Board of Revenue while assessing the matter in revision found that apart from the irregularities certain fraud is committed by the petitioners in the matter of producing false and fabricated documents with regard to allocation and, therefore, the Board of Revenue has rejected the revision.

It is the case of the petitioners that once patta was granted in the year 1976/1978, the powers of suo motu revision u/s 50 of the Code could not be exercised by the authorities concerned after such an inordinate period of time. Accordingly, it is stated that the Collector and the Commissioner committed error in exercising the powers of suo motu revision after such a long period of time and to overcome the aforesaid legal objection raised by the petitioner, which was to be upheld in view of various judgments of the Supreme Court and this Court, it is stated that the Board of Revenue introduced a new concept of fraud into the matter only to frustrate the objection of the petitioner with regard to delay in exercising the powers of suo motu revision. Accordingly, the submissions made by Shri Anshuman Singh was two folded:

(a) His first contention was that the power of suo motu revision could not be exercised after a period of more than 20 years and in view of various judgments cited by him, including judgment of the Full Bench of this Court, it is stated that in view of the delay the action taken is illegal; and,

(b) The second limb of his argument was that when the powers of suo motu revision was exercised only on the ground of irregularity followed in the procedure for allotment and when the said power could not be exercised after such a long period of time, the concept of fraud was introduced by the Board of Revenue, the same is illegal, as no opportunity of hearing to explain the fraud alleged is given to the petitioner.

It is emphasized that in the show cause notice there was no allegation of fraud and in the absence of charging the petitioner with having committed fraud for obtaining the patta and without conducting an appropriate enquiry into the so called fraud cancellation of patta on the ground of fraud is said to be illegal.

Apart from the aforesaid two submissions it was pointed out that in the case of Shri Chutkau against whom also similar allegation was raised, Commissioner Rewa Division has allowed his revision vide order-dated 24.1.2008 - Annexure P/8 and finding that the power of suo motu revision cannot be exercised after such a long period of time, in his case the entire action is quashed. It is stated that similar benefit is denied to the petitioners without any justification.

Inviting my attention to the following judgments Shri Anshuman Singh tried to bring home his arguments. The judgments cited are: The State of Gujarat Vs. Patil Raghav Natha and Others, - to point out that the powers of suo motu revision should be exercised within a reasonable time and not thereafter. For the same proposition the following judgments were also cited to emphasize that after a period of more than 20 years, the powers of suo motu revision cannot be exercised. Smt. Ushadevi and Others Vs. State of Madhya Pradesh and Others, Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, ; Sitaram Vs. State of M.P. and Others, State of Madhya Pradesh and Others Vs. Harcharan Singh, ; and, Ram Bharosi Sharma Vs. State of M.P. and Others,

That apart, pointing out that if fraud was the allegation for cancelling the patta, then the petitioners should have been charged for the same and then only action could be taken after enquiry as the same is not done, the action is illegal. In support, the following judgments are relied upon: Sur Enamel and Stamping Works (P) Ltd. Vs. Their Workmen, ; The State of Punjab and Others Vs. Bakhtawar Singh and Others, and, Haryana v. Om Prakash

Respondents represented by Shri Brian D''Silva, learned Senior Advocate, and Shri S.S. Bisen, learned Government Advocate, have refuted the aforesaid and point out that the petitioners have committed a fraud in the matter of getting the land allotted in their name and on the basis of false and fabricated documents pertaining to mutation in their name are claiming the benefit. It is stated that the petitioners if they were granted the patta in the year 1976, should have got the land mutated in their name within a reasonable point of time. Referring to the documents filed by the petitioner i.e... Annexure R/5/3, the application for mutation, Shri Brian D''Silva, learned Senior Advocate, argues that it is not known as to why the petitioner submitted the application for mutation only on 17.3.2006 when the land was already allocated to him in the year 1976. Infact it is the case of the respondents that land was never allotted to the petitioners and the allocation order - Annexure P/1 is a fabricated document. Taking me through the findings recorded by the Board of Revenue, learned counsel for the respondents argued that the petitioners have based their claim on the revenue entries for the year 1976-77 to 1980-81. On enquiry and on communication received from the Dy. Collector, Singrauli it was found that in the revenue records from 1987-88 to 2000-2001, in Column No.3, the land is shown in the name of Government of Madhya Pradesh and when the petitioners produced the land records for the period 1976-77 to 1980-81, the Dy. Collector is said to have verified the records and after verification it is found that certified copies of the revenue records produced by the petitioners for this period are false and fabricated documents, even the Chief Copyist and the Section Writer have given statement that the certified copies were never issued by them. Referring to the findings recorded in paragraph 6 and 7 by the Board of Revenue in the impugned order, learned counsel emphasized that as the claim made by the petitioners was based on a fraud committed, the Board of Revenue has rightly refused to interfere in the matter and in rejecting the claim of the petitioners it is argued that the authorities have not committed any error.

I have heard learned counsel for the parties and perused the records.

As far as the question of exercising the powers of suo motu revision and the principles laid down in various judgments relied upon by Shri Anshuman Singh is concerned, the said question is considered and decided by a Full Bench of this Court recently in the case of Ranveer Singh and Others Vs. State of M.P., , and after taking note of the various principles, it is held that powers of suo motu revision cannot be exercised after a considerable period of time, but if it is found that fraud has been committed in the matter of allocation of land or obtaining the benefit, it is held that the powers of suo motu revision can be exercised without any limitation being imposed. Finally, it is held that the power of suo motu revision has to be exercised within a period of 180 days from the date of knowledge of illegality or impropriety. That being so, I am of the considered view that under normal circumstances the powers of suo motu revision could not be exercised after such an inordinate period of time, but if fraud is seen to have been committed in the matter of obtaining the patta or showing the land to be in ownership of a particular person, the aforesaid restriction of limitation or action to be taken within areasonable time will not arise. Even though in the show cause notice issued to the petitioner vide Annexure P/4 and in the consequential orders passed by the Collector and the Commissioner, there is no finding recorded with regard to any fraud being committed by the petitioner, but when the matter travelled to the Board of Revenue, records indicate that the Board of Revenue considered the entire aspects in detail and found that petitioners have produced certified copies of the land records for the period 1976-77 to 1980-81 and in Column No.3 of these documents the name of the petitioner was recorded as owner. However, the Government Advocate produced the land records for the period 1987-88 to 2000-2001, and in Column No.3 of these record, the State Government was shown as owner. As some confusion has arisen with regard to the entry made, the matter was inquired into and the Dy. Collector Singrauli issued a letter after enquiry on 10.7.2009 and it was indicated in this report that the certified copies of the revenue records for the period 1976-77 to 1980-81 filed by the petitioner before the Board of Revenue are fabricated and fraudulent documents and this report was submitted on the basis of the statement of the head copyist and the section writer, who denied their signatures and issuance of such a certified copy.

It was also tried to be established before the Board of Revenue that even the orders-dated 9.1.1976, 28.11.78, 9.1.1976 and 28.11.1976 i.e... Annexure P/1 in all the petitions respectively, on the basis of which the petitioners claim allotment made was said to be a false document. On prima facie assessment of the same and for the reasons indicated in para 6 of the order, the Board of Revenue has found that even the orders-dated 9.1.1976, 28.11.78, 9.1.1976 and 28.11.1976 i.e... Annexure P/1 in all the petitions respectively, are fabricated and false documents and it cannot be relied upon. Finding recorded is that the document appears to be a false and fabricated document. Infact the finding recorded by the Board of Revenue is that in none of the revenue records name of the petitioner is shown in Column No.3 as owner. Instead, in all the revenue records even now in Column No.3 MP Government is shown as owner of the land. Under such circumstances, it is held by the Board of Revenue that the petitioners'' are trying to claim their ownership over the land on the basis of false and fabricated documents, which cannot be permitted. Once such a finding is recorded, the question before this Court exercising jurisdiction in a writ petition under Article 226 of the Constitution would be as to whether on the ground of delay in exercising powers of suo motu revision, the fraud if actually committed can be precipitated and a relief granted to the petitioner. At the same time the finding of fraud recorded by the Board of Revenue is a prima facie assessment made by it without conducting any proper enquiry into the matter and without giving proper opportunity to the petitioner to give their say in the matter.

The judgments relied upon by Shri Anshuman Singh do say that action on charges of fraud can not be taken without proper enquiry and to that extent Shri Anshuman Singh may be right in contending that the fraud alleged against the petitioner by the Board of Revenue is not only illegal as it is recorded without grant of opportunity of defence/explanation to the petitioners. Shri Anshuman Singh may be correct in so asserting, but once the allegations of fraud are made and certain material available on record, particularly the report of the Dy. Collector dated 10.7.2009 relied upon by the Board of Revenue, indicates that as a prima facie case is made out to draw a presumption of fraud in the matter of allotment of patta then an enquiry into the matter has to be held and this Court does not deem it appropriate to overlook the aforesaid important aspect and grant relief to the petitioner. Instead, interest of justice requires that the allegations of fraud, if any exercised in seeking allocation of patta or mutation etc, should be inquired into and then only action taken.

Keeping in view the aforesaid, it is held by this Court that the exercise of suo motu powers of revision by the respondents in the matter after a period of 21 years has to be assessed and a decision taken after an enquiry into the so-called fraud committed by the petitioner is inquired into. That apart, the question would be as to whether the petitioner''s possession should be protected and execution of the Power Project stayed only because of pendency of the enquiry into the matter.

As far as land acquisition proceedings for establishing the Power Plant is concerned, the same has already been concluded and there is no challenge to the land acquisition. The land acquisition proceedings are in order and even if the relief is to be granted to the petitioner, the same would be only with regard to grant of compensation for acquisition of land. The petitioners cannot claim retaining of possession even if the petitions are allowed in its totality. That being so, interest of justice requires that the petitioner should be directed to hand over possession of the property to respondent No.5 within a reasonable time, so that the project and public interest is not adversely affected, and the enquiry'' into the right of the petitioners should go on as the result of this enquiry would decide the entitlement of the petitioner to receive compensation for the acquisition.

Keeping in view the totality of the facts and circumstances of the case, the following directions are issued:

(a) On the petitioners'' filing a certified copy of this order before the Collector of the District concerned, the Collector shall cause an enquiry into the allegations of fraud said to have been committed by the petitioners, as is indicated in paragraphs 6 and 7 of the order passed by the Board of Revenue vide Annexure P/12 dated 30.7.2009, and after hearing the petitioners and all concerned, conclude the enquiry into the matter within a period of 60 days from the date of appearance of the petitioners.

(b) If on enquiry it is found that the petitioners has committed fraud, the Collector shall be free to cancel the allocation made in favour of the petitioners and in such an event, the petitioners shall not be entitled to any further benefit.

(c) However, on such enquiry it is found that the petitioners were not responsible for any fraud or no fraud is committed and the allocation is only irregular, then in view of the law laid down by the Full Bench in the case of Ranveer Singh (supra), the proceedings for suo motu powers initiated shall be deemed to be quashed and petitioners shall be entitled to benefits for the acquisition in accordance with law.

(d) Till such enquiry is not completed by the Collector, possession of the petitioner shall be protected, but in any case the petitioner shall hand over possession of the land in question free from all encumbrances to respondent No.5 within a period of 60 days from the date of receipt of certified copy of this order, even if the proceedings before the Collector are not concluded within 60 days.

(e) The handing over of possession to respondent No.5 in terms of this order shall be subject to the condition that petitioners are paid all the compensation as per entitlement in case the finding of fraud alleged against them is not established.

With the aforesaid, all the petitions stand allowed and disposed of.