Sabir Hussain vs State of M.P. and another

The petitioners have filed this writ petition under Article 227 of the Constitution of India challenging the order dated 17/04/2007 passed by the Board of Revenue.

The petitioners are the owners and in possession of the lands bearing Khasra Nos.241/2 having area of 12.25 acres, 406, 407, 409/2/2 having area of 0.80 acre and 408/1 having area of 2.24 acre situated at Village Pipalia Dhakad (Khajuri- Sadak), Tahsil Huzur, Distt. Bhopal. The petitioners are in peaceful possession of the said lands. The names of the petitioners have been recorded in the Rin Pustika. The petitioners are also paying land revenue and Lagaan for the said land since 1964. The names of the petitioners are also

recorded in the revenue entries. In February, 2003, the petitioners obtained copy of khasra entries of the said land for the purpose of getting loan from the bank, at that time, the petitioners came to know that in the khasra entry, the name of the State Government was recorded as the owner of the said lands. On enquiry, Patwari told the petitioners that their lands have been declared as surplus under the provisions of M.P. Ceiling on Agricultural Holdings Act, 1960 (hereinafter referred to as ''the Ceiling Act''). Thereafter the petitioners made an inspection of the relevant land records, herein the petitioners came to know that their lands have been declared as surplus by the Court of Additional Commissioner vide order dated 19/11/1991. Aggrieved by the said order of Additional Commissioner, the petitioners preferred an appeal before the Board of Revenue. The Board of Revenue vide order dated 17/04/2007 has dismissed the said appeal, hence this writ petition.

Learned counsel for the petitioners argued that the Board of Revenue has erred in dismissing the appeal preferred by the petitioners on the ground of limitation. He submitted that before declaring the lands of the petitioners as

surplus, the Additional Commissioner has not issued any notice to the petitioners. As per the record, when the Additional Commissioner initiated the ceiling proceedings against one Manikchand, the actual owners of the said lands were the petitioners and not Manikchand. Thus, the orders passed by Additional Commissioner as well as the Board of Revenue are in gross violation of the natural justice. He further submitted that in the revenue record, the name of the petitioners was recorded and before passing any order the Additional Commissioner should have issued notice to the petitioners. He further submitted that the notice of ceiling case given to one Manikchand and not to the petitioners, so the petitioners by no way could not know about the ceiling proceedings. He also submitted that the Board of Revenue has also erred in dismissing the appeal on the ground that the petitioners have failed to explain the delay of each day. Learned counsel further submitted that husband of petitioner No.1 and father of petitioners No.2 and 3 died in the year 1977 when they were minor. Draft statements were issued on 31/05/1989 but the service of notice was never served upon the petitioners because they were minor at that time. As per

the rules which have been framed under the Ceiling Act, Rule 3 of the said Rules deals with service of notice. Sub-section (2) says that notice shall be served on the adult member of the family of the person concerned. It is submitted that petitioners No.2 and 3 are minor and, therefore, the statement of the respondents that the notices were served on them on 15/3/1989 cannot be accepted. Learned counsel for the petitioner further submitted that the notices were not served upon the petitioners in person and, therefore, the ex-parte proceedings adopted by the Additional Commissioner without making them as a party is illegal and arbitrary and the order passed by the Board of Revenue is also illegal and arbitrary.

The respondents have filed their reply and in the reply they have stated that there is almost delay of 11 years in preferring the appeal before the Board of Revenue and the petitioner has failed to properly explain the delay, therefore, the Board of Revenue has rightly passed the impugned order. The respondents have further submitted that the petitioners were served notices under Section 11 of the Ceiling Act and in compliance of Rule 7(1) of the Rules framed under the

Ceiling Act, these notices were served on 15/03/1989 on the concerned parties and the report of service is also filed with the reply. In such circumstances, the petitioners cannot raise a plea of about not having knowledge of ceiling proceeding. Thus, there was sufficient cause for not condoning the delay.

I have heard learned counsel for the parties and perused the record as well as the orders passed by the Additional Commissioner as well as Board of Revenue. The petitioners are the owners of the agriculture land situated at Tah. Huzur, Distt. Bhopal. The said lands were declared as surplus by the Additional Commissioner under the provisions of Ceiling Act vide order dated 19/11/1991. Against this order the petitioners preferred an appeal before the Board of Revenue in the year 2003. Board of Revenue vide order dated 17/04/2007 has dismissed the said appeal on the ground of limitation. Being aggrieved by that order, the petitioners have preferred the present writ petition. From perusal of the record, it reveals that notices were issued by the Additional Commissioner before taking proceeding under the Ceiling Act which were never served to the petitioners. When the name of State Government is recorded in the revenue record,

notices should have been issued by the Additional Commissioner to the petitioners. The reason stated by the petitioners that they got the knowledge of passing of the order by the Additional Commissioner in the year 2003 when they submitted an application for obtaining copies of khasra entries and at that time they came to know that the land has been recorded in the name of State Government appears to be bona fide reason as the ex-parte proceedings were taken by the Additional Commissioner. Initially one Manikchand was the owner of the said land thereafter the said land was transferred in the name of the petitioners and their names have been recorded in the revenue entries and the petitioners were paying the land revenue also. It is also to be noted that in the year 1989 petitioners No.2 and 3 were minor and petitioner No.1 who is widow is illiterate lady, therefore, as per Rule 3 of the rules, notice has to be served on the adult person. Thus, in the present case, notices were never served properly and, therefore, the petitioners could not get the knowledge about the said proceedings.

In view of aforesaid, the writ petition is allowed. The impugned order dated 17/04/2007 passed by the Board of

Revenue is hereby set aside and the matter is remanded back to the Board of Revenue to pass fresh order after hearing both the parties on merit. The order be passed within a period of four months from the date of receipt of certified copy of this order.