M.P. Samdariya vs State of M.P. and Others

Sanjay Yadav, J.

Heard.

Order dated 15.9.11 passed by the Additional Collector, Jabalpur is being challenged in this writ petition under Article 226/227 of the Constitution of India. By said order petitioners request for recording him as owner of land admeasuring 0.983 hectare Khasra No. 19, S.N. 664 P.C. No. 20/17 Village Maharajpur has been declined on the ground that the same vests in the Government and is recorded as Government land after being declared surplus in a proceeding under Urban Land (Ceiling and Regulation) Act 1976 and taken possession of.

The land in question originally belonged to one Anandilal Dubey who owned the entire Khasra No. 19. In a proceedings under the Act of 1976 forming subject matter of case No. 308 9)/1981-82, land admeasuring 9831.17 sq.mts. was declared surplus. Possession of said land was handed over to the State on 27.2.92 as is apparent from the possession letter on record. The possession was given by one Shankar Prasad Tiwari, son-in-law of said Anandilal Dubey in presence of two independent witnesses Santlal and Arjun Prasad.

It appears that after the land in question has been declared surplus, said Anandilal through power of Attorney Holder Shri Anand Giri s/o Shri Sewak Giri Goswami sold the part of surplus land (i.e. the land in question) to one Kasturi Devi vide sale deed dated 26.3.90. Name of Kasturi Devi on the basis of sale deed was got recorded in panchshala Khasra.

Said Smt. Kasturi Devi expired on 19.11.93. The petitioner on the basis 6 of the will dated 30.5.86 claimed himself to be the owner of the property and through one Power of Attorney Shri Vinay Kumar Khanna applied for mutation on the ground that with the repeal of Act of 1976 by Urban Land (Ceiling and Regulation) Repeal Act 1999, the land in question reverted in favour of erstwhile owner.

The Claim of the petitioner has been negativ by the impugned order on the ground that having been vested with the State Government after being declared surplus and taken possession of, the Act of 1999, will not effect the vesting.

6 Rightly so, as only those proceedings under 1999 Act standabated where possession has not been taken Please See: Smt. Sulochana Chandrakant Galande Vs. Pune Municipal Transport and Others, , In the case at hand, the possession of land in question in pursuance to the declaration of it being surplus was handed over on 27.2.92. Though the petitioner questions the manner in which possession of land is taken.

It is urged that the Shakarlal Tiwari, (son-in-law of Anandilal) had no authority to hand over the possession. Even if the submission is presumed to be correct, the fact remains that neither Shankarlal Tiwari nor said Anandilal ever came forward to question the vesting of surplus land.

Even otherwise (though the petitioner has not declared the relevant dates as to when the statement u/s 6 of the Act of 1976 was filed by the said Anandilal and the date of notification u/s 9 and Section 10(1) of the 1976 Act) the title of the case wherein the land in question was declared surplus discloses it to be of the year 1981-82 i.e. much before the execution of said sale deed dated 26.3.90. Sub-Section (1) of Section 5 of 1976 Act stipulates that where any person commencing on the appointed day and ending with the commencement of the Act of 1976 has transferred such land or part thereof, by way of sale, mortgage, gift, lease or otherwise, the extent of the land so transferred shall also be taken into account in calculating the extent of vacant land held by such person and the excess vacant land in relation to such person shall be selected out of the vacant land held him. Clause (i) of sub-Section (4) of Section 10 of the Act of 1976 stipulates that no person shall transfer by way of sale, mortgage, gift lease or otherwise any excess vacant land (including any part thereof) specified in the notification under sub-Section (1) or sub-Section (3) of Section 10 and any such transfer made in contravention of the provision shall be deemed to be null and void. (Similar situation arises when transfer is before the statement filed u/s 6 and the publication u/s 10 (1) as per Section 5 (3) such transaction is deemed to be null and void u/s 5(3) of 1976 Act: Please see Ritesh Tewari and Another Vs. State of U.P. and Others,

In the case at hand the said transfer of excess land by virtue of sale deed dated 26.3.90 being after the draft statement filed u/s 6 and the notification u/s 10(1) of 1976 Act, is void ab initio, and does not create any right in favour of the petitioner. In Ritesh Tewari (supra) it is observed-

32- It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits.

35- In the instant case, as we have observed that the alleged sale deed dated 20.4.82 in favour of Mayur Sahkari Awas Samiti has been a void transaction, all subsequent transactions have merely to be ignored.

In view of above the impugned order negativing the claim of the petitioner for recording him owner of the property in question cannot be faulted with. In the result, petition fails and is hereby dismissed.