Rajendra Kumar Patel vs The State of M.P. and The Collector

A.K. Shrivastava, J.—By this petition under Article 226/227 of the Constitution of India, the petitioner is challenging the validity of impugned order dated 10.03.2005 (Annexure-P/7) passed by the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 (in short "Act of 1976"). The facts necessary for disposal of this petition lie in a narrow compass. Suffice it to say that under the Act of 1976 the proceedings were started against the petitioner and the lands in question were declared to be surplus. Eventually it was directed by the competent authority to take possession u/s 10(5) of the Act of 1976. The competent authority sent the case to the Tehsildar Jabalpur who sent the case to the Court of Naib Tehsildar where a revenue case was registered as 33/B/121/1993-94. In the said revenue case the Naib Tehsildar on 28.12.1993 directed to issue possession warrant and eventually the possession was obtained by the Naib Tehsildar on 28.01.1994.

The contention of Shri Verma, learned Government Advocate is that before coming into the force of Repeal Act, the possession of the land was taken from the petitioner and therefore he has no locus standi to file this petition. Further it has been contended by him that despite the land vested in the State the Tehsildar wrongly entered the name of petitioner in the revenue record. Hence, by exercising suo motu power of revision the Collector rightly passed the order to delete the name of petitioner from the revenue record. Therefore, this petition has no force and it be dismissed.

On bare perusal of the notice u/s 10(5) of Act of 1976 it is gathered that 30 days notice was issued to the petitioner to deliver possession with further stipulation that in case possession is not given, the possession u/s 10(6) of the Act of 1976 will be taken. Admittedly no notice u/s 10(6) of the Act of 1976 was issued to the petitioner. Even otherwise on bare perusal of the receipt of possession this Court finds that in ex parte possession has been obtained by the Naib Tehsildar but possession was not taken in presence of any witness because there is no endorsement of the name or signature of any witness. Hence, according to me, firstly the possession could not have been taken in the manner and fashion which has been alleged to have been obtained by Naib Tehsildar. Secondly the document of receipt of possession is highly suspicious and cannot be relied upon because the names of witnesses are not mentioned in the receipt and the space is left blank. Hence, to me, such possession cannot be said to be obtained in accordance to the Section 10(6) of the Act of 1976.

The Repeal Act, 1999 came into force w.e.f. 17.02.2000 but since the possession was not obtained from the petitioner holding the proceedings to be abated u/s 4 of the Repeal Act, 1999 the Tehsildar recorded the name of petitioner in the revenue record. However, the matter was taken up by the competent authority by exercising suo motu power of review and that too was taken u/s 51 of the M.P. Land Revenue Code, 1959 (in short "Code"). The competent authority by the impugned order dated 10.03.2005 (Annexure-P/7) directed to delete the name of petitioner from the revenue record holding that possession of the suit land has already been vested in the State and the State is the owner of the land.

I have already held hereinabove that the possession was neither obtained in consonance to the provisions of Section 10(6) of the Act of 1976 nor it was obtained by the competent authority however it was obtained by Naib Tehsildar who was not at all authorized to obtain possession u/s 10(6) of the Act of 1976. That apart, u/s 51 of the Code, the power of review cannot be exercised by the competent authority under the Act of 1976. Hence the said order is without jurisdiction.

Eventually, this petition succeeds and is hereby allowed. The impugned order dated 10.03.2005 (Annexure-P/7) is set aside and it is hereby held that the petitioner is the owner of the lands in question. The name of petitioner which was already mutated, may be restored in the revenue record. Let a writ of mandamus may be issued in this regard. The original record which was submitted by Shri Sudesh Verma, Government Advocate is returned back to him. Petition is allowed and disposed of. No costs.