Himanshu Aadya vs The State Of Madhya Pradesh

Heard on IA No.1988/2016, an application for condonation of delay of 411 days in filing the present appeal.

It is submitted that after passing the order by the learned writ Court on 27/11/2014, the appellants obtained certified copy of the same which was received on 03/12/2014, thereafter opinion of the Advocate General Office sought on 10/12/2014 and received on 22/01/2015. The matter was sent to the Higher Authorities to seek requisite sanction/permission and also permission from the Law Department. The permission was not received, therefore, several reminders from 09/03/2015 to 10/09/2015 were sent. Law Department granted permission on 10/09/2015, which was received in the Office of Collector, Indore on 16/09/2015, thereafter OIC was appointed but unfortunately the certified copy which was obtained earlier was tagged with some other file of the case and the Dealing Clerk of the Office of Additional Collector proceeded on leave due to death of his mother. The certified copy could not be traced in the Office and only in the third week of March the copy was traced, immediately thereafter, the present appeal was filed.

The application is supported by affidavit of the OIC.

Considering the reasons for the delay which was caused due to following the administrative procedure, in our view, sufficient cause for the delay is shown by the appellants, therefore, application is allowed. Delay stands condoned.

Also heard finally with the consent of parties.

Being aggrieved by the order of learned writ Court dated 27/11/2014 passed in W.P. No.3236/2014 (O) whereby the learned writ Court keeping in view of the order dated 31/03/1984 passed by the Competent Authority, Urban Land Ceiling, Indore exempting the land in question from the ceiling in case No.106/A-90/C-1/77-78, directed the respondents (appellants herein) to mutate the name of respondent on the land bearing survey No. 999/1 area 0.085 hectare, the appellant has preferred the present intra court appeal.

Facts in brief are that after coming into force the Urban Land Ceiling Act, 1976 (which shall be referred hereinafter as to the "Act, 1976") a notification under Section 10 (1) of the Act, 1976 directing the public to submit detailed particulars of their holdings had been issued on 06.05.1982 and published in official Gazette on 28.05.1982. A ceiling case No.106/A-90/C- 1/77-78 was registered against Mangilal and Jagdish S/o Bondar in respect of land bearing survey No.999/1 area 0.085 hectare situated at village - Khajrana, Indore. They submitted particulars of their holdings. Later, Suresh Agrawal and Vrindawan Patidar filed an objection stating that prior to 1975- 76, the said land was in their possession as Maurusi Kashtkar and they have acquired Bhoomiswami rights under Section 190 of M.P. Land Revenue Code, 1959. Their claim had been acceded by the Tehsildar, Indore. Therefore, they become the owner of the land and that the land should not be treated as land of the original owners Mangilal and Jagdish. The objection was allowed vide order dated 31/03/1984 by the Competent Authority in the said ceiling case. On the other hand, continuing the ceiling proceedings under the Act of 1976, The notification under Section 10 (3) of the Act was published in the official Gazette on 04/07/1997 and Section 10 (3) followed by the notice to the original owners. But they did not surrender the possession, therefore, on 26/05/1998 possession was obtained on the spot by the Authority by preparing a memorandum there and thereafter the land declared vested in the state government free from all encumbrances and mutated in the name of the Government as surplus vacant land.

The petitioner/respondent approached the Government stating that the land belongs to her as the same has been exempted by the Competent Authority vide order dated 31/03/1984 passed in ceiling case No.106/A-90-C-1/77-78, therefore, that was not surplus vacant land of the original owner Mangilal and Jagdish. The appellants declined the prayer of the respondent to mutate the land in her name. Thereafter, She approached the Court and had filed writ petition No.3236/2014. The petition was allowed vide impugned order. Learned writ Court directed the State to mutate the land in the name of the petitioner.

The present appeal has been filed challenging the order of the writ court on the grounds (i) that the present appeal is hopelessly barred by time by about 16 years as the possession was taken by the appellants on 26/05/1998 while the present petition is filed by appellants in the year 2016, therefore, only on this ground alone, the appeal is not maintainable. (ii) that the order dated 31.03.1984 was passed by the competent authority in favour of Suresh Agrawal and not in favour of the petitioner. The petitioner was not eligible to get the benefit of the said order. (iii) The land in question was never recorded in the name of petitioner in the revenue records. In Khasra entry in the year 1998-99 the name of Patidar Chemicals was mentioned in the column No.3 till the year 1997-98 and thereafter name of the State is entered, thus, it is evident that the petitioner never acquired the Bhumiswami rights. (iv) Learned writ Court did not consider order dated 17/04/2006 passed in writ petition No.2305/2000. The said order was never challenged and has attained finality. (v) Learned writ Court did not consider the order passed by Hon''ble Court in review petition No.315/2013 (State of M.P. and others vs. Saraswatibai and others) dated 07/02/2015, it was decided to file SLP before Hon''ble Supreme Court, thus, till then no order could have been passed in the matter. (vi) Further the learned writ Court did not consider the order dated 30/03/2015 passed in W.P. No.1354/2001 (Radheshyam vs. Commissioner Division, Indore) challenging the acquisition proceedings initiated under the provisions of the Act of 1976. The aforesaid petition was allowed by the writ Court vide order dated 14/11/2006 which was challenged by the State in writ appeal No.643/2007 and Division Bench was pleased to allow the appeal vide order dated 30/03/2015. The Court held acquisition proceedings initiated by State under the Act of 1976 was held to be just and proper. It is further submitted that respondent has no legal, statutory, fundamental or constitutional right which has been infringed by the appellants, therefore, decision taken by the appellants could not be interfered with in writ jurisdiction.

In reply the respondent had submitted that while allowing the writ, learned Single Judge observed that after issuing the notification under Section 10 (1) of the Act of 1976, the Competent Authority has passed an order deciding the claim of the interested persons under Section 10 (2) of the Act of 1976 vide order dated 31/03/1984 in favour of the respondent declaring that survey No.999/1 admeasuring 0.085 hectare situated at Village-Khajrana, Indore was not surplus land and was released from the proceedings. Name of the State entered in the revenue record much later of this order in the year 1998-99. Learned Single Judge also observed that when the said land was released under Section 10 (2) of the Act of 1976, there was no reason to entered the name of State as owner of the land.

Respondent have never challenged the order of Competent Authority dated 31/03/1984 declaring the suit land as "Not Surplus". That order attained finality as the same was not challenge this cannot be challenged by the State. The notification under Section 10 (3) of the Act of 1976 was made much later then the order passed by Competent Authority releasing the land from the ceiling on 04/07/1997. In this Gazette notification survey number or the name of respondent has not been mentioned, therefore, there was no reason for the respondent to challenge the said notification as the suit land was already declared as not surplus. Similarly no notice under Section 10 (5) of the Act of 1976 was ever issued to the respondent nor possession was ever taken by the appellants from the respondent. The possession of the respondent till 2013-14 has been shown and Cement Pipe Factory of the respondent is running there. The order dated 31/03/1984 was passed by Competent Authority and therefore, order was well within the knowledge of the Government. The said land was released from the ceiling proceedings, therefore, the same could not be included as surplus land until the order dated 31/03/1984 was successfully challenged by the State.

It is further submitted that the respondent made request to the appellants for correction of the revenue record on 22/12/1998, 05/02/2008, 10/02/2014. Finally the appellants vide letter dated 21/10/2010 rejected his claim stating that the Act of 1976 has been repealed, therefore, further correction cannot be made. It is stated further that it is not a case of the appellants that land was surplus and the same vested in the State Government. Therefore, there is no delay in filing the writ petition by the petitioner. Immediately thereafter the petitioner has presented the petition before the Court. supporting the judgment of the learned writ Court, petitioner has prayed for dismissal of the present appeal.

We have considered the arguments of both the parties and gone through the records produced by both the sides.

Much emphasis have been given by the appellants on the delay in filing the petition. It is argued that the ceiling proceedings were completed in the year 1995 and possession had been taken vide memo dated 26/05/1998 and the present petitioner have come before the Court in the year 2014 i.e. after 16 or 17 years of taking possession. But it is important to note here that the petitioner continuously requested for correction of revenue record and submitted the application for the purpose on 22/02/1998, 05/02/2008 and 10/02/2014 which were remain pending before the appellants itself and the appellants have decided and rejected the prayer of the respondent vide order dated 05/03/2013 (correct year is 2014) Annexure-P/9. The prayer was rejected stating that due to repealing of the Act of 1976 further correction cannot be made. Only this order was challenged by the petitioner, therefore, there does not seem any delay in filing of the petition.

Appellants have invited our attention towards the orders passed in the matter of Saraswatibai and others vs. State of M.P. and another in W.P. No.808/2011 order dated 28/04/2011. In this matter this Court has declined to grant relief to Mangilal as land was declared surplus and vested in Government after following the due process and petitioner did not opted procedure of filing the appeal prescribed under Section 33 and 34 of the Act of 1976 but in this case, circumstances are little different, as in the present matter, the respondent (petitioner) was having an order in her favour of Competent Authority under the Act of 1976 and no such order was there in favour of Mangilal, therefore, order submitted by the appellants is distinguishable on facts.

The appellants have also submitted Shri Vyankatesh Grih Nirman Sahkari v. State of Madhya Pradesh, order dated 17.04.2006, passed in W.P. No.2305/2000, Radhakrishan S/o Lt. Shri Nandkishore v. State of Madhya Pradesh and others order dated 09.08.2005 passed in W.P. No.1669/2005, Radhakrishan v. State of Madhya Pradesh and others order dated 07.02.2007 passed in WA No.51/2007, State of Madhya Pradesh and others v. Shri Ganesh Aaloo Pyaj Vayvasayik Samiti order dated 27.09.2012 passed in WA No.242/2011, State of Madhya Pradesh and Anr. v. Lakshman and others order dated 17.04.2013 passed in WA No.641/2007, State of Madhya Pradesh and others v. Heeralal and others order dated 17.09.2013 passed in Writ Appeal No.162/2011.

By these orders the Hon''ble Court has declined to grant any benefit prayed in the petitions due to delay in filing the petitions but as stated above, there is no inordinate delay in filing the petition, therefore, relief cannot be denied to the petitioner on this ground also.

Late Shri Suresh Agrawal had created "Patidar Firms" and after death of Vrindawan, he became sole partner in the firm and later, upon his death his wife (respondent) became a partner in the firm. The respondent (petitioner) is wife of late Shri Suresh Agrawal and has acquired all rights in the land after death of her husband. Therefore, plea of the appellants in this regard is not tenable.

Learned writ Court has allowed the writ in view of the order dated 31/03/1984. The order reads as under :-

"VERNACULAR MATTER OMITTED"

The aforesaid order makes it very clear that the land admeasuring 6.395 hectare situated in village Khajrana was considered by the competent authority and out of the aforesaid land, land admeasuring 1-922 hectare was excluded from the ceiling proceedings. The petitioner''s land is part of the aforesaid land which has been excluded from the ceiling proceedings and, therefore, once it was excluded by the order dt. 31/3/84 by the competent authority the question of permitting the State Government to take possession or to claim title in respect of the land, does not arise.

Resultantly, the present Writ Petition is allowed. The respondents are directed to correct revenue record and to mutate name of the petitioner in place of the State of Madhya Pradesh keeping in view the order dt. 31/3/1984. The State Government cannot deny legitimate relief to a person only on a frivolous ground that the Ceiling Act of 1976 is not in force. The exercise of mutating name of the petitioner be concluded within a period of 30 days from the date of receipt of certified copy of this order."

There is no dispute that the land bearing survey No.999/1 area 0.085 hectare originally belongs to Mangilal and Jagdish S/o Bondar. The appellants has initiated proceedings against the owner in respect of surplus land after coming into force the Act of 1976. The original owners filed particulars of their holding before the Competent Authority under Section 10 (1) of the Act of 1976 in case No.106/A-90-C-1/77-78. During pendency of this case Suresh Agrawal and Vrindawan Patidar filed an application before the Competent Authority stating that they are in possession of the land in question and land belongs to them as they have acquired the rights of Mourusi Kastkar and Tehsildar has allowed their claim. Considering the order of the Tahsildar, the Competent Authority under the Act of 1976 allowed their claim vide order dated 31/03/1984 and that order has never been challenged before any authority and thus, attained finality.

All the proceedings taken under and all the notifications published in compliance of Section 10 (3) and 10 (5) of the Act of 1976 have been taken or published after the said order dated 31/03/1984 passed by the Competent Authority.

Thus, it is amply clear that by the time the notification under Section 10 (3) of the Act of 1976 was issued, the land in question was not belonging to the original owner i.e. Mangilal and Jagdish S/o Bondar, rather it was mutated under Section 190 of M.P. Land Revenue Code by Tehsildar in the name of respondent (petitioner) and on the basis of this mutation the Competent Authority has declared that land as not surplus and released the same from the ceiling proceedings and as stated above that order of the Competent Authority has attained finality. The learned writ Court have not committed any error in relying upon the order of the Competent Authority passed much prior to the acquisition proceedings or proceedings under the Act of 1976.

Considering the order dated 31/03/1984 passed by Competent Authority releasing the land from the ceiling proceedings, we are of the considered view that there is no illegality or perversity in the judgment under challenged. Present appeal has no merits and is liable to be and is dismissed accordingly.