Malla @ Nand Kishor Ahirwar vs State Of Madhya Pradesh

The petitioner before this Court, Agrawal Samaj Sarvajanik Dharmshala, Sardarpur, has filed the present petition being aggrieved by the order dated

31.07.2015 passed by Deputy Collector, Dhar, by which he has directed the Sub-Divisional Officer (revenue), District-Dhar to take possession of the

Dharamshala situated at Sardarpur bearing survey No.504 area 0.209 hectare.

The facts of the case reveal that in township of Sardarpur, District-Dhar, a Dhramshala was constructed by the member of Agrawal community. The

Dharmshala was constructed in the year 1971-72 on the basis of duly sanctioned map, as sanctioned by the competent authority. The sanction map is

also on record as Annexure-P/3. Thereafter the Agrawal Samaj Sarvajanik Dharmshala has obtained electricity connection and it is catering not only

to the need of Agrawal Samaj but various other cultural, religious and social functions are being held in the Dharmshala. It is given for public use to

any member of the society regardless of the caste, creed and culture. The Dharmshala was renovated in the year 1982.

Another important aspect of the case is that as and when, the public authorities require the Dharmshala like for the election purposes, for organizing

meetings, the Dharmshala is given to them free of charge and in fact the Agrawal Samaj is helping the public authorities also by organizing public

functions, which are being organized by the State Government by giving Dharmshala free of charge.

The fact further reveals that in the year 1994, a civil suit was filed by the Dharmshala for possession in respect of part of Dharmshala building and the

same was registered as Civil Suit No.151-A/1994. A judgment and decree was passed on 17.09.1997 and the trial Court has directed eviction of the

tenants.

Another undisputed fact is that on Mohan Lal Yadav in the year 2005-06, who is an ex-councilor of Nagarpalika Sardarpur, has submitted an

application to the Collector for handing over the possession of Dharmshala to Nagarpalika Parishad, Sardarpur and case was registered as Case

No.2/0506/A-20 by the Collector, Dhar and an order was passed by dismissing the application on 29.01.2014.

The petitioner’s problem arose on account of a news published in Dabang Dunia, a newspaper of great repute, regarding mismanagement of the

Dharmshala and the Deputy Collector based upon the newspaper report, has passed the impugned order.

The impugned order reveals that the Deputy Collector has directed the Sub-Divisional Officer to take possession of the Dharmshala.

The logic stated in the letter dated 31.07.2015 is that in the judgment and decree passed by the Civil Court in respect of eviction of the tenants, it has

been observed that the Dharmshala is a Sarvajanik Dharmshala and the public at large is the owner of Dharmshala.

Shri Pavecha, learned senior counsel along with Shri Aman Garg, learned counsel for the petitioner has argued before this Court that the Deputy

Collector has assumed a role of the Civil Court. He has passed a judgment and decree based upon a newspaper clipping and has also acted as an

executing Court under the provisions of Code of Civil Procedure and has directed the Sub-Divisional Officer to take possession of the Dharmshala.

A reply has certainly been filed in the matter by the State of Madhya Pradesh and it has been stated that Dharmshala is situated over Survey No.504

area 0.209 hectare, Sardarpur, District-Dhar and it is in existence since 1958. It was earlier on survey No.298/3, which was renumbered as survey

No.504 in 1971-72.

The respondents have admitted that a representative civil suit was filed under Order 1 Rule 8 of Civil Procedure Code and the trial Court has granted

a decree of eviction. The reply does not reveal that under which provision of law, the Deputy Collector has passed the impugned order.

Additional reply has also been filed in the matter and it has been stated that the impugned order has been issued in larger public interest for

maintenance of Sarvajanik Dharmshala, as it does not belong to any particular person and it is situated over the land belonging to the State

Government.

In respect of the application preferred by Mohan Lal Yadav, the State in its reply has stated that the Collector has held that since there is an order of

the civil Court, he does not possess any right to decide the application of Mohan Lal Yadav. It has been stated that the order 31.07.2015 has been

passed in the larger public interest.

Shri Anuj Bhargava, learned counsel for respondent No.3 has fairly stated before this Court that they are simply complying the order passed by the

State Government. They have not initiated any action against the Dharmshala.

There is an application for intervention also and it has been stated that based upon the complaint submitted by the intervenor, action has been initiated

against the Dharmashala, and therefore, no case for interference is made out in the matter.

This Court has heard learned counsel for the parties at length. Undisputedly, the Dharmshala is in existence as admitted by the State Government

since 1958 and it is being managed by Agrawal Samaj Sarvajanik Dharmshala. It is also true that the Dharmshala was renovated in the year 1971-72

and again in the year 1982 by collecting funds from the members of the community. It is also not in dispute that Dharmshala is given to all citizens

irrespective of caste, creed and culture even it is given to the State Government as and when there is need like holding the election etc. and it is being

managed properly by the petitioner. It is also true that the civil suit was filed by the present petitioner for eviction of certain tenants and a judgment

and decree was passed on 17.09.1997 in respect of eviction of certain tenants.

Undisputedly, the impugned order has been passed based upon a newspaper published in Dabang Dunia. The impugned order does not reveal that

under which provisions of law, the Deputy Collector has assumed the role of a civil Court. He has decided a suit relating to possession and for grant of

permanent injunction. He has also acted as an executing Court by directing the Sub-Divisional Officer to take possession of Dharmsala.

In the case of Malwa Vanaspati & Chemicals Company Ltd v/s State of Madhya Pradesh & Ors, a similar order has been passed by the Collector

dated 01.04.2014, was subjected to judicial scrutiny, wherein the Collector, Indore has directed his sub-ordinate to take possession of a land owned by

Malwa Vanaspati. This Court in the aforesaid case in paragraphs-17 to 24 has held as under:-

“17. In the case of Ramcharan and others Vs. State of Madhya Pradesh and others reported in 1997 RN 141 it has been held that the Revenue

Book Circular does not have the force of law, and it is only meant for guidance of the Revenue Authorities. The impugned order has been passed

without there being any statutory provision / Authority.

In the case of Eshugbayi Eleke Vs. Officer reported in AIR 1931 Privy Council 248, it has been held by the Privy Council that all executive

actions must be founded on statutory authority and the petitioner in the present case is in possession of the land since 1946 as Bhumiswami. He cannot

be thrown out of his property by an executive action. The petitioner is not guilty of transgression of the law of the land in the matter. It has been

argued by the learned counsel for the respondent State that the land in question was acquired by the Holkar State for establishment of industry with

intention to give employment and development of the city by invoking urgency clause and as the purpose has come to an end and as the land is being

sold by the land owners, the State Government is well within its jurisdiction to initiate proceedings and to take back the possession of the land under

the provisions of Revenue Book Circular. Learned counsel has also placed reliance upon Sec. 44 of the Land Acquisition Act, 1894 and Sec. 99 of the

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The undisputed facts of the case reveal that thepetitioner Company is in peaceful and settled possession of the land in question right from 1946.

The Company is the Bhumiswami. The petitioner's title was recorded by the State Government in the Revenue Records and the same is fortified by

the fact that in 1956 part of the land was acquired by the State Government for the purposes of construction of Railway Line and the petitioner being

the land owner was paid compensation. The petitioner Company is being deprived of its property by passing the impugned order and the respondent

State has not been able to point out any statutory provision of law which empowers the Collector to pass the impugned order and to dispossess the

petitioner Company.

In the case of Eshugbayi Eleke (supra), the Privy Council has held as under :

Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is

erroneous. The Governor acting under the Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only

act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the

liberty or property of a British subject except on the condition that he can support the legality of his action; before a court of justice. And it is the

tradition of British justice that judges should not shrink from deciding such issues in the face of the executive. The analogy of the powers of the

English Home Secretary to deport aliens was invoked in this case. The analogy seems very close. Their Lordships entertain no doubt that under the

legislation in question, if the Home Secretary deported a British subject in the belief that he was an alien, the subject would have the right to question

the validity of any detention under such order by proceedings in habeas corpus, and that it would be the duty of the Courts to investigate the issue of

alien or not. The case of Rex v. Governor of Brixton Prison ([1916] 2 K.B. 742) turned first on the question whether the regulation under which the

order was made was ultra vires, which was a question of law. It further turned on the question whether the Secretary of State was abusing the

powers given to him under the order by using them to deport a mere criminal, who it was suggested, was no danger to the State.

In the case of Bidi Supply Co. Vs. Union of India reported in (AIR 1956 SC 479), the apex Court has held as under :

“As said by Lord Atkin in Eshugbai Eleko's case the executive can only act in pursuance of the powers given to it by law and it cannot interfere

with the liberty, property and rights of the subject except on the condition that it can support the legality of its action before the Courtâ€​

In the case of State of U.P. Vs. Maharaja Dharmander Pratap Singh reported in (AIR 1989 SC 997) the apex Court has held as under :

“Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in

accordance with law. Government is, accordingly prohibited from taking possession otherwise than in due course of lawâ€​.

In the light of the aforesaid judgments, the onlystatutory provision relied upon in the impugned order is Sec. 16 of the Land Acquisition Act. The

provision of is not at all attracted in the facts and circumstances of the case. The aforesaid provision is attracted only when the land of a person is

acquired by passing an award and after acquisition, possession of the acquired land is taken and, therefore, the aforesaid provision does not empower

the State Government to dispossess a title holder from his property against whom no such award has been passed and who has received the

possession after due acquisition and has paid compensation to the land owners directly. It is a well settled proposition of law that validity of an order

has to be judged only on the basis of the contents of the order and not by any reason supplemented in the return / affidavits filed by the State in

support of the order.

In the light of the aforesaid, this Court is of theconsidered opinion that the learned Collector was jurisdictionally incompetent to pass the impugned

order by taking shelter of Sec. 16 of the Land Acquisition Act 1894 and Revenue Book Circular â€" Part â€" I, No.4 does not confer a power upon

the Collector to forcibly dispossess the petitioner who is a title holder of the property and who is in settled possession as lawful owner since pre-

independence. Not only this, the provision relied upon under the M.P. Land Revenue Code are not at all applicable in the facts and circumstances of

the case. In fact, depriving the petitioner of its property by passing an executive order is contrary to the well settled principles of law and, therefore, as

the petitioner Company is title holder of the property, owner of the property and recorded as Bhumiswami, is entitled to possess the property and to

utilise the property. The impugned order is bad in law and is hereby quashed.â€​

The judgment delivered by this Court was subjected to judicial scrutiny and Writ Appeal No.14/2017 was preferred in the matter and the same was

dismissed by Division Bench of this Court on 09.03.2017, against which, Special Leave Petition was preferred and the same was dismissed by the

Hon’ble Supreme Court on 27.10.2017.

In the considered opinion of this Court, the impugned order passed by the Deputy Collector, which is not supported by any statutory provisions of law,

by which, he has directed the Sub-Divisional Officer to take possession of the property is void ab initio the impugned order deserves to be quashed.

The respondents in the return have claimed title of the property and the impugned order, which is based upon the claim of title is certainly bad in law

and neither the Deputy Collector nor any other authorities are entitled to decide a title suit.

Resultantly, the present writ petition stands allowed.

The impugned order (Annexure-P/1) dated 31.07.2015 is hereby quashed. The petitioner shall be free to continue with the management of

Dharmshala.

No order as to costs.

Certified copy as per rules.