Back
2014 Supreme(MP) 539
HIGH COURT OF MADHYA PRADESH
S.K. Gangele and Sheel Nagu, JJ.
Kalpana Shivhare (Smt.) and another v. State of M.P. and others
Review Petition No. 390 of 2014 (Gwalior);
against order dated 19.3.2013 passed by High Court of M.P.
in Writ Petition No.1635 of 2013;
Decided on 16.2.2014
V. K. Bhardwaj with Anand Bhardwaj for petitioners;
Raghvendra Dixit, Govt. Advocate for respondents No.1 to 3/State;
Deepak Khot for respondent No.4.
Headnote:(1) Land Revenue Code, 1959 (M.P.) -- S.158(1)(b) -- Bhumiswami rights to pakka tenant -- accrued by operation of law -- such rights allowed by High Court -- right of ownership of Bhumiswami on land -- remained intact -- some land reserved for road in town development scheme -- possession not taken by Gwalior Development Authority -- land not handed over to Municipal Corporation -- rights of ownership -- can only be acquired by paying compensation after acquisition of land in accordance with law. [Paras 17, 19 & 20
(2) Nagar Tatha Gram Nivesh Adhiniyam, 1973 (M.P.) -- Ss.50(7) and 54 -- land held in Bhumiswami rights -- some land reserved for road in town development scheme -- possession not taken by Gwalior Development Authority -- land not handed over to Municipal Corporation -- such scheme lapsed -- ownership of Bhumiswami on land remained intact -- right of ownership -- can only be acquired in accordance with law. [Paras 19 & 20
(3) Municipal Corporation Act, 1956 (M.P.) -- S.5(49) -- land held in Bhumiswami rights -- some land reserved for road in town development scheme -- possession not taken by Gwalior Development Authority -- scheme lapsed -- land not handed over to Municipal Corporation -- land for road could be acquired in accordance with law. [Paras 19 & 20
(4) Constitution of India -- Art.300A -- land held in Bhumiswami rights -- right to property is constitutional right -- such right cannot be taken away without process of law. (2013)3 SCC 764 and (2008)15 SCC 517 followed. [Paras 21 to 23
(5) Civil P.C., 1908 -- O.47 R.1 -- ground for review -- grounds raised in writ petition -- not considered -- it is a ground for review as any other sufficient reason -- controversy raised in writ petition requires adjudication -- review allowed -- writ petition restored for hearing. 2012 R N 226 (DB), (2001)8 SCC 329, (2002)3 SCC 137, (2012)4 SCC 441, (2013)1 SCC 353, (2014)5 SCC75, (2013)8 SCC 320, (2006)7 SCC 740 and 2013(2) MPLJ 707 referred to. [Paras 23 & 24
¼1½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 158¼1½¼[k½ & iDdk Ñ"kd dks HkwfeLokeh vf/kdkj & fof/k ds izHkko ls izksnHkwr & ,sls vf/kdkj mPp U;k;ky; }kjk eatwj fd, x, & HkwfeLokeh dk Hkwfe ij LokfeRo dk vf/kdkj & vfoQy jgk & dqN Hkwfe uxj fodkl Ldhe esa lM+d ds fy, vkjf{kr & Xokfy;j fodkl izkf/kdj.k }kjk dCtk ugha fy;k x;k & Hkwfe uxjikfyd fuxe dks ugha lkSaih xbZ & LokfeRo vf/kdkj & dsoy fof/k ds vuqlkj vtZu djus ds i'pkr~ izfrdj dk lank; dj gh vftZr fd;k tk ldrk gSA
¼iSjk 17] 19 ,oa 20½
¼2½ uxj rFkk xzke fuos'k vf/kfu;e] 1973 ¼e-iz-½ & /kkjk 50¼7½ rFkk 54 & HkwfeLokeh vf/kdkjksa esa /kkfjr Hkwfe & dqN Hkwfe fuxj fodkl Ldhe esa lM+d ds fy, vkjf{kr & Xokfy;j fodkl izkf/kdj.k }kjk dCtk ugha fy;k x;k & Hkwfe uxjikfyd fuxe dks ugha lkSaih xbZ & ,slh Ldhe O;ixr gks xbZ & Hkwfe ij HkwfeLokeh dk LokfeRo vfoQy jgk & LokfeRo dk vf/kdkj & dsoy fof/k ds vuqlkj vftZr fd;k tk ldrk gSA
¼iSjk 19 ,oa 20½
¼3½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-iz-½ & /kkjk 5¼49½ & HkwfeLokeh vfèkdkjksa esa /kkfjr Hkwfe & dqN Hkwfe uxj fodkl Ldhe esa lM+d ds fy, vkjf{kr & Xokfy;j fodkl izkf/kdj.k }kjk dCtk ugha fy;k x;k & Ldhe O;ixr gks xbZ & Hkwfe uxjikfyd fuxe dks ugha lkSaih xbZ & lM+d ds fy, Hkwfe fof/k ds vuqlkj vftZr dh tk ldrh FkhA
¼iSjk 19 ,oa 20½
¼4½ Hkkjr dk lafo/kku & vuqPNsn 300d & HkwfeLokeh vf/kdkjksa esa /kkfjr Hkwfe & laifÙk dk vf/kdkj lkafo/kkfud vf/kdkj gS & fof/k dh izfØ;k ds fcuk ,slk vf/kdkj ugha Nhuk tk ldrkA ¼2013½3 ,l lh lh 764 rFkk ¼2008½15 ,l lh lh 517 vuqlfjrA
¼iSjk 21 ls 23½
¼5½ flfoy izfØ;k lafgrk] 1908 & vk-47 fu-1 & iqufoZyksdu ds fy, vk/kkj & fjV ;kfpdk esa mBk, x, vk/kkj & fopkj ugha fd;k x;k & ;g dksbZ vU; i;kZIr dkj.k ds :i esa iqufoZyksdu dk vk/kkj gS & iqufoZyksdu eatwj fd;k x;k & fjV ;kfpdk lquokbZ ds fy, izR;kofrZr dh xbZA ¼2012½ jk fu 226 ¼[kaM U;k;ihB½] ¼2001½8 ,l lh lh 329] ¼2002½3 ,l lh lh 137] ¼2012½4 ,l lh lh 441] ¼2013½1 ,l lh lh 353] ¼2014½5 ,l lh lh 75] ¼2013½8 ,l lh lh 320] ¼2006½7 ,l lh lh 740 rFkk 2013¼2½ ,e ih ,y ts 707 fufnZ"VA
¼iSjk 23 ,oa 24½
Gangele, J. -- 1. Petitioners have filed this review petition for review of the order dated 19.3.2013 passed by this Court in Writ Petition No.1635/2013.
2. This Court disposed of the aforesaid writ petition with the following observations :
''It is observed by the Commissioner in the order under challenge (Annexure P/1) that the Gwalior Development Authority published a lay out plan/scheme in regard to development of the area. Gazette notification was also published and in accordance with the aforesaid scheme, the land is reserved for construction of road. The petitioners had purchased the land as agriculture land after the notification of the scheme and thereafter petitioners encroached over the area, which is reserved for construction of road. On the basis of the aforesaid finding, the representation of the petitioners has been rejected vide impugned order.
Learned senior counsel appearing on behalf of the petitioners contended that the scheme published by the Gwalior Development Authority was lapsed after a period of three years in accordance with the provisions of section 54 of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973. Learned Senior Counsel further contended that the petitioners are owners of the land because they purchased the land from valid owner. Hence, the Municipal Corporation has no right to remove or disturb the possession of the petitioners over the land.
In the present case, the Commissioner, Municipal Corporation considered the representation of the petitioners and rejected the same after observing that in accordance with the scheme the land is reserved for construction of road. Scheme is statutory one. In our opinion, in the present petition there is a dispute in which question of facts is involved for determination to the effect that whether petitioners tried to make construction over the land, which is reserved for road in accordance with lay out plan. The aforesaid question could not be decided in the writ petition. It can be decided effectively in a civil suit. Hence, the petition at this stage can not be entertained. The petitioners are at liberty to file appropriate proceedings including the civil suit in accordance with law.
With the aforesaid observations, writ petition is disposed of. No order as to costs.''
3. Four persons namely Shrimati Bhagwati, Shrimati Bekunti, Shrimati Triveni and Shrimati Shakuntala filed a writ petition before this Court which was registered as Misc.Petition No.1561/1993. They pleaded in the said petition that they are the owners of the land bearing survey numbers 697/1, 697/2 and 697/3 situated at village Mahalgaon, Tahsil and District Gwalior and they acquired Bhumiswami rights. This Court vide order dated 8.12.1993 declared that the petitioners acquired Bhumiswami rights by operation of law in accordance with the provisions of MP Land Revenue Code, 1959. The Division Bench passed the following order :
''Heard Shri Agrawal, for the petitioners. G. A. for the State.
A show cause notice was issued and despite service no reply so far has been filed.
The petitioners pray for issuance of a Writ of Mandamus and Certiorari. The dispute relates to land bearing Survey numbers 697/1, 697/2 and 697/3 situated in village Mahalgaon Tahsil and District Gwalior.
Petitioners are in possession of the land in question. Indisputably name of Dhundsingh, the predecessor-in-title and elder brother of respective husband of petitioners 1, 2 and 3, was in cultivating possession of the land in question whose name also stands recorded as 'MamuliMaurusi' for Samvat year 2007 as per Anx.P.I. There is no denying fact that petitioners are in settled possession of the land in question and by operation of law they have acquired Bhumiswami rights.
While filing no reply, learned G.A. contended that it is a title dispute, which stands negatived by the documents placed on record, the Revenue Entries Anx. P.1 and P.4 to P.15. Dhundsignh, the predecessor-intitle, having record
