State of M.P. and Others vs Usman Patel

P.K. Jaiswal, J.—1. This intra Court appeal has been filed by the State against the order dated 4.12.2014, passed in W.P. No3371/2014 whereby, the learned writ court allowed the writ petition and directed the appellants/State to correct the revenue record and to mutate the name of the respondent in place of State of Madhya Pradesh keeping in view the order dated 31.3.1984 passed by the competent authority.

Brief facts of the case are that the land admeasuring 6.395 hectares (herein after referred as ''the land is question'') situated in village Khajrana and 1.335 hectares situated in village Bhicholi Hapsi was considered by the competent authority (Urban Land Ceiling) in case No. 106/6-90 -1/77-78 wherein, the land bearing Survey No. 959 area 0.101 hectares (owned by Ishwarlal S/o. Heeralal), Survey No. 999/1 area 0.085 hectares (owned by Sureshchandra S/o. Girdhari), Survey No. 1305 area 0.162 hectares (owned by Nanomal Resomal....Hariram, Kavitabai Rishichandra, Ashok Kumar Bhagwandas Savitribai Bhagwandas), Survey No. 1370 area 0.991 hectares (owned by Shrajendra Harinarayan) and Survey No. 1356/3 area 0.583 hectares (owned by Banechandra S/o. Mangalprasad Narmadabai Phoolchandra, Indra Kumar Nayranjan, Ravichandra Phoolchand) under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred as ''the Act'') was declared surplus.

The objections were submitted by the landowners for not declaring the land as surplus land under the Act. The authorities were informed that the landowners were in possession prior to 1976 and a factory has also been established. Statements of Patwari were recorded by the competent authority and after scrutinizing of the entire record, the competent authority passed the order on 31.3.1984. As the possession were recorded in original Khasra Panchshala in 1975 - 76 as ''Maurusi Krushak '' and names were also mutated by the Tehsildar on payment of 15 times more rent to the Bhoomiswamis and, therefore, the competent authority accepted the possession and transfer of their names in place of original landowners from the ceiling proceedings and rest of the land is declared as surplus of land, i.e., 4.473 hectares. On 4.7.1997, declaration under Section 10 (3) of the Act, was made. On 19.9.1995, registered sale deed in respect of the land in question, ie., 0.101 hectares (3000 sq.fts) of Khasra No. 959 was executed in favour of the respondent by Suresh Kumar Patidar and Nilesh Kumar Patidar, son of Ishwarlal Patidar and Smt. Mayabai wife of Ishwarlal, the legal heirs of the landowners of Ishwarlal son of Heeralal. Thereafter, an application was filed by the respondent for rectification of the mistake on the ground that the revenue record showing State as owner in pursuance of the proceedings under the ceiling, which is incorrect. A detailed representation was also submitted by the respondent/petitioner, but no action has been taken and, therefore, he filed a writ petition for issuance of writ of mandamus for correcting the revenue records and name of Ishwarlal son of Heeralal, be entered in place of State in the revenue record as owner of the land in pursuance to order dated 31.3.1984.

According to the appellants, the land in question has been declared as surplus and after taking the possession of the said land by the State Government, the same has been recorded in the name of the State in the revenue records from 26.5.1998. The respondent purchased the land on 19.9.1995, without taking appropriate permission as per Section 5 (3) read with Section 10(4) of the Act and further after execution of the sale deed in his favour for the land in question, the respondent has failed to get it''s name recorded in the revenue records and has tried to defeat the purpose and provisions of the Act by not submitting the details as per Section 15 of the Act. It is also submitted that the respondent after purchasing the land and after acquiring the ownership rights and title on the land has failed to submit an appeal before the appellants under Section 33 of the Act, after the publication of the notification in respect of land in gazette on 4.7.1997 under Section 10(3) of the Act, for merging the land in the Government free from all encumbrances. One of the objection was that the original recorded owner has not filed any appeal/objection against the notice issued under Section 10(5) of the Act for handing over the possession of the land to the Government. As per return filed by the State, the possession of the land in question was taken by the appellant on the spot on 26.5.1998, after inscribing a spot panchanama. The lands are mentioned in the revenue record in the name of the appellants from last 15 years.

The learned writ court without considering the aforesaid legal grounds raised by the appellants on the basis of order passed in identical writ petition in the matter of Smt. Nirmala Agarwal v. State of Madhya Pradesh & others, W.P. No. 3236/2014 decided on 27.11.2014, allowed the writ petition and directed the appellants to correct the revenue record and to mutate the name of the respondent in place of appellants - State, keeping in view the order dated 31.3.1984. By impugned order, the learned writ court while disposing of the writ petition of Usman Patel, has held that the order passed in the matter of Smt. Nirmala Agarwal v. State of Madhya Pradesh & others (supra) will apply ''mutatis mutandis'' in the present writ petition also and the respondent will also be entitled for the benefit of the directions issued in the aforesaid matter.

Shri Rohit Mangal, learned Government Advocate has drawn our attention to Section 10 of Sub-section 4 of the Act and submitted that transfer by the landowners in favour of the respondent by way of sale deed dated 19.5.1995 in respect of the excess vacant land specified in the notification shall be deemed to be null and void. It is also submitted that belated writ petition was filed in the year 2014 in respect of the preceding year 1998, ie., after 16 years and the respondent had not assigned any reasons for such inordinate delay in para 4 of the writ petition. He also submitted that the writ petition was preferred by the respondent - Usman Patel, was pertaining to Survey No. 959 and the order was passed by the competent authority on 31.3.1984 in favour of Ishwarlal son of Heeralal and the respondent being third purchaser did not take the permission from the concerned authority at the time when the Act was in force and thus, the respondent - Usman Patel was not eligible to get the benefit of order dated 31.3.1984. The said order dated 31.3.1984 was never challenged till date and had attained finality. He further pointed out that the land in question bearing Survey No. 959 was never recorded in the name of the respondent in revenue records as is evident from the aforesaid Khasra entries of the order dated 1998-99 submitted by the respondent with his writ petition as Annexure P/1, wherein the name of Mayabai Ishwarlal and others are mentioned in the column No. 3 till the year 1997-98 and thereafter, the name of State Ceiling is mentioned. Thus, it is evident that the lands were never acquired by the respondent and thus, he had no right to file the writ petition.

Order dated 31.3.1984 passed by the competent authority under Urban Land Ceiling, Indore in Case No. 106/6-90 - 1/77 -78 reads as under:--

Sub-section (3) of Section 5 and Sub-section (4) of Section 10 of the Act read as under:--

"Sub-section (3) In any State to which this Act applies in the first instance and in any State which adopts this Act under clause (1) of the article 252 of the Constitution, no person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under section 6 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of section 10; and any such transfer made in contravention of this provision shall be deemed to be null and void."

Sub-section (4) of Section 10:--

"(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)-

(i) 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 aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and

(ii) no person shall alter or cause to be altered the use of such excess vacant land."

With the aforesaid, he submitted that impugned order be set aside and writ appeal be allowed.

In reply, Shri Chhabra, learned counsel for the respondent has submitted that publication was made in 1981. The objection was decided by order dated 31.3.1984 and total area of 1.922 hectares was excluded and was not declared as surplus land, the then bhoomi swami executed sale deed in the year 1995 in favour of the respondent and, therefore, Sub-section (3) of Section 5 and Sub-section (4) of Section 10 of the Act will not come on the way of the respondent nor the sale deed is to be declared as null and void. He further submits that once the total land admeasuring 1.922 hectares of village Khajrana was excluded from the ceiling proceedings, the respondent''s land is part of the aforesaid land in question, which has been excluded from the ceiling proceedings by the competent authority. The question of permitting the State Government to take possession or to claim title in respect of the land, does not arise and prays for dismissal of the writ appeal.

As per sub-section (3) of Section 5 and sub-section (4) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976, no person holding vacant land in excess of the ceiling limit, immediately before the commencement of this Act, shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise, until he has furnished a statement under Section 6 of the Act and a notification regarding the excess vacant land held by him, has been published under subsection (1) of Section 10; and any such transfer made in contravention of this provision shall be deemed to be null and void.

From the aforesaid, it is very clear that the total land ad measuring 6.395 hectare situated in village Khajarana was considered by the Competent Authority and out of the aforesaid land, surplus land ad-measuring 1.922 hectare was excluded from the ceiling proceedings. The respondent''s land is a part of the surplus land, which has been excluded from the ceiling proceedings vide order dated 31.3.1984 and, therefore, provision of Sections 5 (3) and 10 (4) of the Urban Land (Ceiling & Regulation) Act, 1976 would be applicable.

The land in question was transferred without taking permission and registered sale-deed dated 19.09.1995 was executed in contravention to the provisions of Section 5 (3) and Section 10 (4) of the Urban Land (Ceiling and Regulation) Act, 1976.

In the present case, no permission of the Collector was obtained by the holder under Section 5 of the Act and, therefore, in the light of non-compliance of the mandatory provision, as stated above, the sale ought to be treated as void.

The Apex Court in the case of State of Madhya Pradesh v. Chundru Veerraju (dead) by LRS., reported in (2003) 12 SCC 286 has held as under:--

"6. We have carefully considered the submissions made by the learned counsel on either side. It is not in dispute that nine sale deeds were executed in the month of September and October, 1971 and one sale deed was executed in December, 1971. The Act came into force with effect from 1-1-1973 but as far as the ceiling law is concerned, the notified date is 1/1/1975. Admittedly, all the sale transactions were between 24/1/1971 to 1/1/1975. The controversy that was to be resolved was, whether the area of land covered by these ten sale deeds could be excluded on the ground that these transactions were effected bona fidely and not to defeat the provisions of the Act in regard to the ceiling area. The Primary Tribunal, on the basis of oral and documentary evidence, held that these sale deeds were brought into existence to defeat the provisions of the act in relation to the ceiling area. In other words, they were not bona fide transactions and the respondent did not discharge the burden of proof placed on him in this regard in terms of Section 7 of the Act. In so doing, the Primary Tribunal has recorded the following reasons: in the sale deeds, the declarant, that is, the original respondent, and his wife did not state that they had sold the lands on the ground that they had become old and they were suffering from blood pressure and weakness and were to invest the sale consideration amount in money-lending business; in all the sale deeds, the declarants have taken lesser amounts at the time of sale and delivered possession of the lands and permitted the vendees to pay the remaining sale consideration amount later. No vendor will deliver the possession of lands by taking lesser amounts and allow the vendees to pay the remaining sale consideration amount later; the sale of lands made between September and December 1971 of an area of 89.86 acres covered by ten sale deeds within a period of two months or little more gave rise to the impression that the lands were disposed of in anticipation of and with a view to defeat the provisions of the Act in relation to the ceiling area; the land revenue receipts do not contain the survey numbers of the lands purchased by the vendees. Further neither the declarants nor the vendees have produced the land revenue receipts of earlier years. The stamped receipts are only bought up to suit the evidence and the contentions of the declarants. The Primary Tribunal has also looked into the other evidence and on a detailed consideration, concluded, as already indicated above, that these transactions covered by ten sale deeds were not bona fide and they were executed with a view to circumvent the provisions of the Act and as such the area covered by the ten sale deeds should not be excluded from the holding of the declarant, that is the original respondent..........................................

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In view of the aforesaid discussion, the order passed by the writ Court is not sustainable and, therefore, the same is hereby set aside.

The appeal is allowed with no orders as to costs.