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Judgment
In this third round of litigation, the writ petitioner, who is a organization registered under the M.P. Societies Registrikaran Adhiniyam, 1973, is assailing
the order dated 25.10.2010 (Annexure P/11), passed by the Commissioner, Indore, whereby the matter was re-examined in compliance to the order
dated 25.1.2008, passed by the High Court in Writ Petition No.2474/2001, upon remand and the appeal preferred by the petitioner was dismissed.
Facts which are relevant for disposal of this writ petition are as under :-
The respondent No.2 was the Bhumiswami of various survey numbers, including Survey No.1319 of area 1.36 acres of village Khajrana, Teh. &
Distt. Indore. By registered sale â€" deed dated 15.5.1972, one Sitaram Jhanvar, purchased the above referred Survey No.1319, area 1.36 acres from
the-then Bhumiswami Madhavlal & Devkrishna (respondent No.2 herein) sons of Shaligram, who in turn by another registered sale â€" deed dated
18.11.1972 sold to organization (Friend's Association) through Dr. R.M. Agrawal.
The area of survey No.1319 (1.36 acres) comes within Gram Panchayat and on 27.1.1974, the Sarpanch, sanctioned the map and, thereafter, Dr.
R.M. Agrawal, constructed the building upon the said land. On 29.8.1974, the Naib Tehsildar, passed the order of mutation in favour of Dr. R.M.
Agrawal and ordered the Patwari to enter the name of Dr. R.M. Agrawal on Surevey No.1319 of area 1.36 acres situated at village Khajrana, Teh.
& Distt. Indore. Order dated 29.8.1974 (Annexure P/5) of Naib Tehsildar reads as under :-
According to the petitioner, Survey No.1319, which was owned by M/s. Friend's Association got incorrectly divided in Khasra No.1319/1 in the
hand of Rajesh son of Madhavlal etc and Survey No.1319/2 in the hands of Devkrishna, though both of them had sold their ownership rights and
possession in 1972 itself by registered sale deed dated 18.11.1972. The mutation order dated 29.8.1974, passed by the Nayab Tehsildar for mutation of
entirely land of Survey No.1319 in favour of Dr. R.M. Agrawal was not complied with.Â
The sale deed dated 18.11.1972 was in the name of Dr. R.M. Agrawal and it was got corrected by Civil Suit No.82A/83 and the petitioner â€
Friend's Association was declared title holder and Bhoomi Swami of the said area of survey No.1319 (1.36 acres) with possession. Vide judgment and
decree dated 2.1.1984 an order of mutation was passed and the name of Association was recorded by the Revenue Authority in Case No.715/A-6/91-
92.
As per record Survey No.1319/1 was mutated in the name of Rajesh son of Madhavlal and Survey No. 1319/2 was mutated in the name of
Devkrishna. Rajesh filed his return under Section 6 of the Urban Land (Ceiling & Regulation) Act, 1976, vide case No.88A/90/C-1/81-82 on
15.5.1977 and the respondent No.2 â€" Devkrishna, filed his return in respect of Khasra No.1319/2 vide case No.391/A-90/C-1/76/77 on 15.5.1977.
The original file of Case No.391/A-90/C-1/76-77 was lost by the concerning office and, therefore, on 6.10.1990, Devkrishna, again filed 'Vivrani'
under Section 6 of the Act, 1976 and Case No.76-A/90/C/1/89-90 was registered and the final order was passed on 27.1.1992 in which it was
specifically mentioned by the competent authority that the land situated on Survey No.1319/2, was sold to Dr. R.M. Agrawal, by registered sale deed
dated 15.5.1972 and hence, not considered the land to be Devkrishna. The competent authority did not find any surplus or excess land in possession of
Devkrishna and hence, released all Survey No's involved in the case and closed the proceedings on 27.1.1992. Order dated 27.1.1992, passed in Case
No.76/A-90/C-1/89-90 is relevant, which reads as under :-
After 3 years from the date of order 27.1.1992, the original Case No.391/A-90/C-1/76/77 earlier filed by Devkrishna was located by the competent
authority and the proceedings on this file was re-opened on 10.10.1995. As the respondent No.2 already sold the land in the year 1972 and no vested
interest left in the property and the competent authority had already passed the order in favour of the respondent No.2 â€" Devkrishna on 27.1.1992 in
Case No. 76-A/90/C/1/89-90, releasing all the lands held by him, the respondent No.2 remained absent in Case No.391-A-90/C-1/76-77, which was
reopened on 10.10.1995 and thereafter the order was passed on 23.4.1999. No notice was actually served upon Devkrishna after reopening of the
case and all the proceedings were held ex parte.
The petitioner â€" Friend's Association, timely filed 'Vivrani' under Section 6 of Act Urban Land (Ceiling & Regulation), 1976, before the
competent authority vide Case No.250/B-121(6)/76-77. On 20.9.1999, the competent authority passed an order accepting the ownership and
possession of M/s. Friend's Association and after taking into consideration the entire land of Survey No.1319 and construction there upon workout the
eligibility to hold the land and observed that there was no excess vacant land in possession of the petitioner â€" Friend's Association. The competent
authority vide order dated 20.9.1999 (Annexure P/7) has held as under :-
The petitioner challenged the order dated 23.4.1999 by filing an appeal before the Appellate Authority on 23.3.2000. The said appeal of the
petitioner was dismissed. The petitioner â€" Association challenged the said order by filing Writ Petition No.2265/2000 on 5.12.2000, the learned
writ court disposed of the writ petition of the respondent No.2 bearing W.P.No.1594/2000 and the matter was remitted back to the learned
Commissioner to take into consider all the facts and circumstances of the case and right of the parties. On similar ground, the writ petition of the
petitioner bearing W.P.No.1594 of 2000, was finally disposed of on 11.5.2001 and the matter has been remanded back to the appellate authority to
decide the appeal on merit a fresh.
After remand, the appeal filed by the petitioner was again dismissed on 1.8.2001. He challenged the same by filing writ petition No.2474 of 2001.
The writ petition of the petitioner was finally allowed and disposed of on 25.1.2008 by passing the final order :-
“The petitioner society claims to have purchased the land measuring 1.36 Acres from the then land owners Devkrishna and Sitaram through a
registered sale deed dated November 18, 1972. The name of the petitioner society was duly reflected in the Revenue Record after the sale deed.
The Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as 'Act') came to be enacted by the Indian Parliament and became
operative from the year 1976. Obviously, at the time of enactment of the Act, it was the petitioner-society which was owner of the land in question.
However, it appears that some notices under the Act were issued to the original owners Devkrishna and Sitaram. In pursuance to the said notices,
Devkrishna and Sitaram submitted some returns with regard to the land in question. The land, which by this time had come to be owned by the
petitioner-society, was however declared as surplus. No notice, whatsoever, was ever issued to the petitioner-society nor the petitioner-society was
ever associated with the proceedings for declaration of surplus area.
It appears from the record that Devkrishna, the original owner chose to file an appeal before the Appellate Authority but the said appeal was
dismissed by the Commissioner, Indore, Division Indore, vide an order dated March 23, 2000. the original order as well as the Appellate order were
challenged by Devkrishna by filing a writ petition, being W.P.No.1594/2000, before this Court. The said writ petition filed by the Devkrishna was
allowed by this court vide order dated December 5, 20000 and the matter was remanded back to the Appellate Authority to decide the appeal
afresh.
It further appears from the record that the petitioner â€" society also filed W.P.No.2265/2000 before this court. In view of the order dated December
5, 2000, even the writ petition No.2265/2000 filed by the petitioner â€" society was also disposed of and the matter was remitted to the Appellate
Authority to take into consider all the facts and circumstances of the case and rights of the parties.
Thereafter an order dated August 1, 2001 has been passed by the Appellate Authority, whereby in view of the repeal of the 1976 Act, the appeal filed
by the petitioner â€" society has been dismissed to be not maintainable.
It is in these circumstances that the petitioner â€" society is before this court through the present petition.
At the outset, a preliminary objection was raised by Shri Umesh Gajankush, learned Government counsel, appearing for the official respondents. It has
been contended that the petitioner â€" society was a purchaser from Devkrishna and on remand by this court, the appeal filed by Devkrishna had also
been dismissed by the Appellate Authority vide order dated April 25, 2001. Shri Gajankush, informs the Court that the aforesaid order dated April 25,
2001 had been challenged by Devkrishna by filing a writ petition, being W.P.No.1226/2001 before this court, but the said writ petition had been
dismissed and in these circumstances, the present petition filed by the petitioner â€" society, being a purchaser from Devkrishna, was not maintainable
and was liable to be dismissed.
On the other hand, Shri G.M. Chaphekar, learned Senior counsel for the petitioner â€" society points out that the petitioner â€" society had an
independent right in the land in question, which come into existence even prior to coming into force of the 1976 Act, having purchased the land in
question vide registered sale deed dated November 18, 1972. On that basis, learned Senior counsel points out that as a matter of fact, Devkrishna had
no subsisting right in the land in question at that time of enactment of 1976 Act and consequently had no right to file the appeal challenging declaration
of surplus area nor had any right to file an appeal or writ petition qua the land in question. Shri Chaphekar, maintains that the fact that merely because
Devkrishna had failed in his attempt qua the land in question, cannot bind the petitioner â€" society, in any manner, since the petitioner â€" society
was not claiming any rights under the Act, through Devkrishna. The Court has also been informed by the learned Senior counsel that that order seller
of the land Sitaram, had also filed a return qua the land in question but the competent authority itself had noticed that having sold the land on
November 18, 1972, Sitaram had no subsisting interest in the land. It has also been informed by the learned Senior that two conflicting orders have
come into existence, in as much as, half share of the land, as per Sitaram's share, had been released from the surplus area, whereas Devkrishna's
share, which had been declared as surplus.
In view of the facts and circumstances of the case as pointed out by the learned Senior counsel for the petitioner and also the fact that the sale
deed in question had been executed by the original owners Devkrishna and Sitaram, in favour of the petitioner â€" society on November 18, 1972, it
is apparent that the rights which the petitioner- society is calming in the present petition and also in the proceedings before the Appellate / authority,
are not such rights which have been claimed through Devkrishna, but are independent rights which had accrued to the petitioner â€" society much
prior to coming into force of the Act. Consequently, merely because the Appellate order passed in the case of Devkrishna had been upheld by this
court, when the writ petition filed by Devkrishna had been dismissed, it cannot be suggested that the present petition is not maintainable. The
preliminary objection raised on behalf of the official respondents is thus over ruled.
I have heard the learned counsel for the parties on merits of the controversy.
The appellate authority, while passing the order dated August 1, 2001, has merely held that the appeal filed by the petitioner â€" society had abated on
account of the repeal of the 1976 Act. However, this Court has taken a view in W.P.No.1376/2001 decided on April 30, 2007, (Govind V/s.
Commissioner & Ors.) that the only such land can be deemed to have vested in the State Government possession whereof had been taken after
declaration of surplus area and in such a situation, on repeal of the Act, no further challenge could be raised . But if the possession of the land had
remained with the original land owner, even after the declaration of surplus area, then such a land would not be deemed to have ever vested in the
State Government and in such a situation, the Appellate Authority could not have held that the appeal was not maintainable or had abated.
Keeping in view the law laid down by this Court in the aforesaid judgment and also on perusal of the order dated August 1, 2001, passed by the
Appellate Authority, filed that the factum of possession having ever been taken over from the petitioner â€" society has not been adverted to at all by
the Appellate Authority. No finding has been given as to whether the due procedure had ever been followed for declaration of surplus area of the land
belong to the petitioner â€" society.
Consequently, the present petition is allowed. The order dated August 1, 2001, passed by the Commissioner, Indore Divsion, Indore, is set aside. The
matter is remanded back to the Commissioner for re-determination of the controversy and adjudicate the same on merits thereof.
Parties through their learned counsel are directed to appear before the Commissioner, Indore Division, Indore, on March 10, 2008.â€
The grievance of the petitioner that the competent authority while dealing with the ceiling case never noticed that the petitioner, who is owner of
the Survey No.1319, since 15.5.1972.
Shri A.K. Sethi, learned Senior counsel has submitted that file of Ceiling Case No.391/A-90/C-1/76-77 was misplaced in the office of competent
authority and, therefore, another statement as per the provision of Section 6 of the Act was filed before the competent authority vide Case No.76/A-
90CI/89-90, the same was finally ordered vide order dated 27.1.1992 (Annexure P/7) by the competent authority in favour of the petitioner. These
facts were not considered by the Appellate Authority and erred in law in dismissing the appeal.
Per contra, Shri Vivek Patwa, learned Govt. Advocate for the respondents â€" State has drawn my attention to the impugned order passed by the
Appellate Authority and submitted that the reasoning assigned by the learned Appellate Authority is correct and prayed for dismissal of the petition.
I have heard the learned counsel for the parties and perused the record of the case.
The competent authority vide order dated 20.9.1999 passed in Case No.250/13-121(6)/76/77 has found that owner and Bhoomi Swami of the land
in question is the petitioner â€" association and passed a detailed order vide Annexure P/7. The competent authority took into account the contents of
the case file (Vivrani) of Devkrishna without either obtaining his explanation or summoning the petitioner to show cause in either case, which is
contrary to the principle of natural justice.
As per order dated 25.1.2008, passed by the learned writ court in W.P.No.2474 of 2001, the possession of the land is with the present petitioner
right from the date of execution of registered sale deed dated 15.5.1972. It is also not in dispute that no notices were duly served on the petitioner. It is
also not disputed by the learned Government Advocate that after sale deed of 1972 order of mutation was passed by Nayab Tehsildar, Indore, on
29.8.1974 in favour of the petitioner and ordered to the Patwari to enter the name of Dr. R.M. Agarwal in the revenue records of the land situated at
Survey No.1319 admeasuring 1.36 acres. The entire land of Survey No.1319 was duly mutated and diverted by the SDO â€" Diversion Branch,
Indore in Case No.132/75-76, which was filed much prior to the commencement of Urban Land (Ceiling & Regulation) Act, 1976 by order dated
29.8.1974 in favour of Dr. R.M. Agarwal and the levied land diversion tax thereon with premium was paid. Again a mutation and diversion order was
passed in favour of the petitioner â€" M/s. Friends Association on 12.1.1992 upholding the ownership of petitioner â€" society (Annexures P/6 & P/7).
The petitioner was registered on 3.3.1976. Number of houses are situated on the land belongs to Friends Association. The learned authority did not
consider the fact that the land in question was released and proceedings were closed on 27.1.1992. After reopening the case No.391/A-90/C-1/76-77,
no notice was actually been served upon and all the proceedings were held ex parte. In the earlier order of litigation, the learned writ court has held
that the petitioner â€" society is having independent right and interest in the property by virtue of ownership derived by registered sale deed prior to
commencement of Urban Land (Ceiling & Regulation) Act, 1976 and remanded the matter for redetermination of the controversy and adjudicate the
same. The society cannot be punished for not disclosing the factum of sale by earlier owner Devkrishna in his 'Vivrani'. There is no material on record
to accept the fact that the possession of the property has already been taken over from the petitioner â€" society. There is no document on record as
to how notices were served to the petitioners.
As per original record of Case No.391/A-90/C-1/76-77, there is no material that notice was ever issued to the petitioners, nor there is any material
showing that notice was duly served to the petitioner or his predecessors. On 9.4.1999, Section 10(3) of the 1976 Act, notification was issued.
Thereafter, a notice under Section 10(5) of the Act of 1976 has to be issued to the petitioner, but there is no material that notice has been ever served
to the petitioner. As per original record, there is no acknowledgment or material that notice No.1546 dated 24.4.1999 under Section 10(5) of 1976 Act
was ever served to the petitioner. Unless notice under Section 10(5) is issued and the same is served as per statutory rules, no further proceeding can
be taken since the possession has not been taken the proceedings abate. It is also admitted fact that since the date of sale deed dated 15.11.1972, the
petitioner â€" Association is in possession of the land. It has constructed number of houses in Survey No.1319/2. From the aforesaid, it is admitted
position on record that the notices were duly not served on the petitioner. The original record indicates that when service was not effected by post,
directions were given to serve the notice by affixation on their last known address(s). As per record, the same is not complied with. There is no report,
on the record whether any notice was affixed on the disputed land. Therefore, it cannot be held that notices were ever personally served on the
petitioner. Admittedly members of the petitioner â€" Association were in possession of the property in question since 1972. Their names were mutated
by the Nayab Tehsildar vide order dated 29.8.1974. Thereafter, they constructed house over the land in question and also filed a return under Section
6 vide Case No. 250/B-121/77-76 and on 20.9.1999, final order was passed. In respect of the return filed vide Case No.76-A/90/C1/89-90, an order
was passed by the Competent Authority on 27.1.1992, releasing of land in question, on the ground that land of Survey No.1319/2 was sold on
15.5.1972. From the aforesaid, the original record of the ceiling proceeding was called by this court. As per record, no notice under Section 10(5) was
served. Possession receipt shows that, no possession of the surplus land has been taken from the petitioner.
In view of the above discussion, I hold that possession of the surplus land has not been taken on 23.6.1999 or any time thereafter, with coming into
force the Urban Land (Ceiling & Regulation) Repeal Act, 1999. The proceeding held by the Competent Authority under the Act of 1976 is abated.
The respondents / State in this writ petition has failed to establish that there has been a voluntarily surrendered of vacant land or surrendered or
delivered of forceful possession under sub-Section 5 of Section 10 or forceful de-possession under sub-Section 6 of Section 10 and hence, the learned
writ court is right in holding that the writ petitioner is entitled to get the benefit of Section 4 of the Repeal Act.
In the result, the impugned order dated 25.10.2010 is quashed, the writ petition is allowed and it is declared that with coming into force of the
Urban Land (Ceiling & Regulation) Repeal Act, 1999, the proceedings held by the Competent Authority under the Act of 1976, in relation to the
petitioner's land stood abated.
No costs.