Jafar Ulla Khan vs State of M.P.

Rohit Arya, J.—By this petition under Article 227 of the Constitution of India, petitioner has questioned legality, validity and propriety of impugned order passed by Board of Revenue dated 30/12/2013 affirming the order dated 07/05/2003 in appeal No. 192/2001-02 by Additional Commissioner, Bhopal and Hoshangabad Division, Bhopal which restored the order of Tahsildar dated 11/06/2001 setting aside order of SDO dated 212/01/2002.

Facts necessary for disposal of this petition in nutshell are to the effect that the applicants/respondents No. 2 to 8 before the Tahsildar have filed an application under sections 32 and 190/110 of the Madhya Pradesh Land Revenue Code, 1959 in relation to land in question admeasuring 1.024 hectare falling in survey Nos. 2512, 2518 and 2523 situated in Sironj, District Vidisha (hereinafter referred to as ''the suit land'') inter alia contending that the same has been given on oral patta to them by its original owner, Khatoon Bi D/o Abdul Ghani on a condition of payment of annual lagan. As such, they have claimed to be in possession over the suit land for more than 60 years doing cultivation and harvesting crops. On the strength of the aforesaid oral patta, the applicants sought for mutation of their names in the revenue record. The application was registered as case Nos. 27/A-6/2000-2001 & 2/A-46/2000-2001 by the Tahsildar, Tahsil Sironj, District Vidisha. During pendency of these proceedings, order No. F/22/110/84/28 dt. 04/12/2000 issued by the Rehabilitation Department, State of Madhya Pradesh and followed by another order dated 14/05/2011 bearing No. F/22-110/84/24 have been received by the aforesaid authority.

The application was turned down by the Tahsildar by an order dated 11/06/2001 in the light of the fact that by orders of State government as contained in letter No. F/22/110/84/28 dt. 04/12/2000 and followed by another one dated 14/05/2011 bearing No. F/22-110/84/24, on the basis of allotment (Sanad), the suit land was ordered to be mutated in the name of Nirmal Kumar and Manoj Kumar sons of Puranchand Sahu, residents of Sironj.

On appeal before the Sub Divisional Officer, order of Tahsildar was set aside by an order dated 21/01/2002 with a direction to afford opportunity of hearing to the applicants/appellants therein and also after assessing market value of the suit land, on the basis of cubit meter instead of hectare, matter be decided on merits.

Respondents, Manoj Kumar and Nirmal Kumar have filed an appeal before the Commissioner, Bhopal and Hoshangabad Division, Bhopal u/s 44 of the Code. First appellate Court has allowed the appeal and by setting aside the order of SDO (supra) had affirmed the order passed by the Tahsildar (supra) on the premise that undisputedly the suit land has been declared to be evacuee property by the orders of the Central Government and on the basis of order of the State Government, Rehabilitation Department dated 15/09/2000 as regards suit land, sanad (allotment) has been issued in favour of respondents on 14/05/2001. The order of the Central Government in that behalf remained unchallenged and allotment (Sanad) has been issued in favour of Manoj Kumar and Nirmal Kumar, the provisions of the Code have no application. Accordingly, application filed by the petitioners for mutation was found to be not maintainable. First appellate Court has also relied upon judgment of this Court reported in 1995 RN 311, Atma Singh (Sardar) Vs. Bhagwandas and another to justify its order to the aforesaid effect.

Besides, first appellate Court on additional ground also dismissed the appeal holding that the alleged photo copy of power of attorney on the strength whereof the matter was contested was not found to be duly signed by petitioners No. 1 to 7. Further, two separate cases were registered seeking mutation of names before Tahsildar but only one appeal was filed. For the aforesaid reasons, the first appeal was dismissed restoring order of the Tahsildar (supra).

Revision petition at the instance of petitioner was dismissed for the same reasons, particularly; the suit land having been declared evacuee property by the orders of the Central Government, no individual has challenged the same. As such, the order passed by the Central Government remains unchallenged before any Court of law. Sanad/allotment done in favour of Manoj Kumar and Nirmal Kumar by the orders of the State Government could not be interfered with in the proceedings under the Code. As no challenge was made either to the procedure adopted in declaring the suit land as evacuee property or to the order declaring it as such, no interference could be sought for in the proceedings initiated by the petitioner in the matter of mutation under the Code. Accordingly, the revision petition was dismissed. Hence, the instant writ petition has been filed.

Heard learned counsel for the parties. Record of the case has been perused.

Undisputedly, suit land has been declared to be evacuee property and entrusted to the custodian by orders of the Central Government under the provisions of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as ''the Act''). Admittedly, no challenge has been made to the aforesaid orders of the Central Government while issuing notification u/s 7 of the Act. The submission of petitioner that suit property could not be declared as evacuee property on or after 07/05/1954 is based on incomplete reading of section 7A of the Act as proviso carves out exceptions thereto which reads as under:

"7A. Property not to be declared evacuee property on or after 7th May, 1954.-Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954:

Provided that nothing contained in this section shall apply to-

(a) any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaring such property to be evacuee property; and

(b) the property of any person who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances had left on or after the 1st day of March, 1947, any place now forming part of India, and who on the 7th day of May, 1954, was resident in Pakistan:

Provided further that no notice u/s 7 for declaring any property to be evacuee property with reference to clause (b) of the preceding proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954 (42 of 1954).

The factual matrix of the case in hand do not fall in any of the aforesaid exceptions carved out.

More over, the aforesaid submission advanced in a proceeding initiated by the petitioners for mutation in respect of suit land is on the strength of alleged oral patta given by erstwhile owner of the suit land, i.e., 60 years ago. There is nothing on record to sustain challenge to the aforesaid declaration of fact that the suit property has been declared to be evacuee property u/s 7 of the Act with the custodian appointed u/s 4 of the Act.

The allotment (Sanad) has been done in favour of Manoj Kumar and Nirmal Kumar by orders of the State Government dated 15/09/2000 (supra) and 14/05/2001 (supra) in respect of the suit land.

The provisions of the Act have overriding effect by virtue of section 4 of the said Act. As such, in relation to the evacuee property, the provisions of the Code have no application. Accordingly, in the opinion of this Court, proceedings sought to be initiated by the applicants under sections 32 and 190/110 of the Code in respect of the evacuee property was rightly terminated.

Petition sans merit and is accordingly dismissed.