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IN THE HIGH COURT OF MADHYA PRADESH
Smt. Sunita Yadav and Milind Ramesh Phadke, JJ.
State of M. P. & Another v. Adhunik Grih Nirman Sahakari Samiti Mydt., Gwalior
¼1½ jktLo iqLrd ifji= Òkx pkj&3 ¼e-ç-½ && dafMdk 3 rFkk 10 && ç:i d esa O;fä;ksa dks iÍk çnku fd;k x;k && ik¡p o"kZ dh dkykofèk d¢ iwoZ iÍkèkkjd d¨ ÒwfeLokeh vfèkdkj çnku fd, x, && dysDVj }kjk vkcaVu bl vkèkkj ij jí fd;k x;k fd ik¡p o"kZ ls iwoZ ÒwfeLokeh vfèkdkj çnku fd, x, gSa && iÍs dh 'krZ Øekad 14 d¢ vuqlkj] iÍkèkkjd }kjk 75 izfr'kr Òwfe ls vfèkd fodflr fd, tkus dh n'kk esa ik¡p o"kZ dh dkykofèk d¢ iwoZ Òh mls ÒwfeLokeh vfèkdkj çnku fd, tk ldrs gSa && dysDVj }kjk ikfjr vkns'k =qfViw.kZ çrhr g¨rk gSA ¼iSjk 30 ls 32
¼2½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼7&[k½ rFkk 158 ¼3½ && ykxw g¨uk && dysDVj dh vuqKk d¢ fcuk Òwfe dk varj.k && èkkjk 165 esa mièkkjk ¼7&[k½ d¢ var%LFkkiu rFkk èkkjk 165 ¼7&[k½ esa èkkjk 158¼3½ d¢ var%LFkkiu ls iwoZ iV~Vkèkkjd d¨ ÒwfeLokeh vfèkdkj ç¨nÒwr && èkkjk 165 ¼7&[k½ d¢ micaèk ykxw ugÈ g¨axsA 2013 jkfu 8 ¼mPp U;k-½ vfÒiq"VA ,vkbvkj 1994 ,llh 2623] 2012 jkfu 97 ¼mPp U;k-½] fjV ;kfpdk Ø- 7805 lu~ 2015 fu.kÊr fnukad 29-11-2018] fjV ;kfpdk Ø- 5788 lu~ 2017 fu.kÊr fnukad 5-8-2021] ¼2011½ 2 ,llhlh 94 rFkk flfoy vihy Øekad 9941 lu~ 2018 fu.kÊr fnukad 3-1-2024 fufnZ"VA ¼iSjk 34 ls 37
¼3½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼7&[k½ rFkk 158 ¼3½ && ykxw g¨uk && micaèk ls i{kdkj¨a d¢ lkjoku~ vfèkdkj çÒkfor gksrs gSa rks og Òfo";y{kh :i ls çofrZr gksxk && micaèk¨a d¢ ykxw g¨us dks lqO;ä Òwry{kh çÒko ugÈ fn;k x;k && èkkjk 165 ¼7&[k½ rFkk 158 ¼3½ d¢ micaèk Òwry{kh :i ls ykxw ugÈ g¨axsA ¼iSjk 36 ls 39
¼4½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 50 && Loçsj.kk ls iqujh{k.k d¢ fy, ifjlhek && 180 fnol gS && ifjlhek dk vkjaÒ fcanq tkudkjh dk fnukad gS && tkudkjh ds fnukad ls 180 fnol ls ijs Loçsj.kk ls iqujh{k.k dh 'kfä ç;qä ugÈ dh tk ldrh && dysDVj }kjk ifjlhek d¢ ç'u ij fopkj ugÈ fd;k x;k && tkudkjh d¢ fnukad dk mYys[k ugÈ && ,dy U;k;kèkh'k dk fu"d"kZ fd dysDVj d¨ Loçsj.kk ls iqujh{k.k 'kfä ç;qä djus dk çkfèkdkj ugÈ Fkk] voSèk ;k vuqfpr ugÈA 2010 jkfu 409 ¾ 2010 ¼3½ ts,yts 77 ¼mPp U;k-&iw.kZ U;k;ihB½ fufnZ"VA ¼iSjk 42
¼5½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼7&[k½ && 'kfä dh O;kfIr && iÍk jí ugÈ fd;k tk ldrk && ,dy U;k;kèkh'k us lgh leqfä dh gS fd èkkjk 165 ¼7&[k½ d¢ vèkhu iÍk jí djus dk micaèk ugÈ gS && vfirq] mlesa d¢oy ;g dgk x;k gS fd ÒwfeLokeh d¨ dysDVj dh vuqKk d¢ fcuk Òwfe dk foØ; djus dk vfèkdkj ugÈ gSA ¼iSjk 43
¼6½ iwoZ fu.kZ; && vfÒçsr && fofu’p; dsoy ml fcanq d¢ fy, çkfèkdkjiw.kZ fu.kZ; gksrk gS tks og okLro esa fofuf'pr djrk gS && mldk lkj mldk fu.kZ;kèkkj gksrk gS] çR;sd leqfä ugha && d¢oy fu.kZ;k/kkj vkc)dj gksrk gSA ¼1996½ 6 ,llhlh 40 rFkk 1992 ¼198½ vkbVhvkj 297 ¼,llh½ fufnZ"VA ¼iSjk 45 ,oa 46
¼7½ mPp U;k;ky; ¼[kaM U;k;ihB d¨ vihy½ vfèkfu;e] 2005 ¼e-ç-½ && èkkjk 2 ¼1½ && 'kfä dh O;kfIr && fjV ;kfpdk esa leLr igyqv¨a ij fopkj fd;k x;k ,oa fofu'p;u fd;k x;k && gLr{ksi visf{kr ugÈ && fjV vihy [kkfjtA ¼iSjk 40 ls 43 ,oa 47
(1) Revenue Book Circular Part Four-3 (M. P.) -- Cls. 3 and 10 -- lease granted to individuals in Form A - Bhumiswami rights granted to lease holder prior to period of five years -- allotment cancelled by Collector on ground that Bhumiswami rights have been granted prior to five years -- as per condition No. 14 of lease, in case development of more than 75% of land is fulfilled by lease holder, Bhumiswami rights can be given to him even prior to five years period -- order passed by Collector appears to be faulty. [Paras 30 to 32
(2) Land Revenue Code, 1959 (M. P.) -- Ss. 165(7-b) and 158 (3) -- applicability -- transfer of land without permission of Collector -- Bhumiswami rights accrued to lease holder prior to insertion of sub-section (7-b) in section 165 and insertion of section 158 (3) in section 165(7-b) -- provisions of section 165(7-b) would not apply. 2013 RN 8 (HC) affirmed. AIR 1994 SC 2623, 2012 RN 97(HC), W. P. No. 7805 of 2015 decided on 29.11.2018, W. P. No. 5788 of 2017 decided on 5.8.2021, (2011) 2 SCC 94 and Civil Appeal No. 9941 of 2018 decided on 3.1.2024 referred to. [Paras 34 to 37
(3) Land Revenue Code, 1959 (M. P.) -- Ss. 165(7-b) and 158(3) -- applicability -- if provision affects substantive rights of parties, it would have prospective operation -- no express retrospective effect given to application of provisions -- provisions of sections 165(7-b) and 158(3) would not apply retrospectively. [Paras 36 to 39
(4) Land Revenue Code, 1959 (M. P.) -- S. 50 -- limitation for suo motu revision -- is 180 days -- starting point of limitation is date of knowledge -- power of suo motu revision cannot be exercised beyond 180 days from date of knowledge -- question of limitation not considered by Collector -- no mention of date of knowledge -- conclusion of Single Judge that Collector had no authority to exercise power of suo motu revision, not illegal or perverse. 2010 RN 409 = 2010 (3) JLJ 77 (HC-FB) referred to. [Para 42
(5) Land Revenue Code, 1959 (M. P.) -- S. 165(7-b) -- scope of power -- patta cannot be cancelled -- Single Judge rightly observed that there is no provision under section 165(7-b) to cancel patta -- rather, it only says that Bhumiswami has no right to sell land without permission of Collector. [Para 43
(6) Precedent -- meaning -- decision is authority for what it actually decides -- its ratio is of essence, and not every observation -- only ratio is binding. (1996) 6 SCC 40 and 1992 (198) ITR 297 (SC) referred to. [Paras 45 & 46
(7) Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (M. P.) -- S. 2(1) -- scope of power -- all aspects of matter considered and decided in writ petition -- no interference called for -- writ appeal dismissed. [Paras 40 to 43 & 47
ORDER
1. The present writ appeal under section 2 (i) of M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 2.11.2012 passed in W.P. No.8414/2011, whereby while allowing the writ petition the order passed by the Collector dated 11.11.2011 in suo-moto revision in case no.97/10-11 was quashed.
2. The order passed by the learned Single Judge is assailed raising a question as to under which provision of law, the lease holders who were granted the lease in 1972 had obtained the absolute transferable rights to transfer the lease land free from embargo of permission from Collector and further whether they had such rights in 1976 or 1978, when they were granted the Bhumiswami rights.
3. Learned counsel for the appellant/State, Shri Ankur Modi, learned AAG had vehemently submitted that as per the provisions of section 158 (3) of MPLRC the cut of date for conferred of Bhumiswami rights in respect of land under lease by its deaming provision is suggested and finally indicative of the Bhumiswami rights effected from 28.10.1992 in respect of the land being held under lease prior to 28.10.1992 and as per section 158 (3), the lease holder of pre-amendment period i.e. prior to 28.10.1992, when the amendment Act of 1992 came into force by which section 158 (3) of the MPLRC had been amended, for the first time conferred Bhumiswami status in statutory manner in respect of the lease land from 28.10.1992 which implies and pre-supposes that prior to 28.10.1992, the lease holders were merely lessees and remained as such.
4. It was further submitted that the fact of status of lease holders of pre-amendment period retaining their status as lessee up to 28.10.1992 and, therefrom, the conferral Bhumiswami right is strengthened from the statement of object of Amendment Act, 1992 which makes the intention of the legislature clear as to when the Bhumiswami rights would be conferred on the old lease.
5. Learned AAG referred to the object behind the amendment act which reads as under: Statements of Objects and Reasons given in section 159 of MPLRC, 1959 list of persons included under the term Bhumiswami has been given, but such list does not cover the names of the persons who have been allotted land by the State Government. Consequently such persons are always deemed to be lessee. In order to remove the discrepancy it was proposed to grant Bhumiswami rights to such persons who have been allotted land by the State Government, Collector or the Allotment Officer subject to condition that such person would not be entitled to transfer such lands within a period of ten years from the date of lease or allotment”.
6. It was further submitted that from the aforesaid statements of objects it could be inferred that legislature has always treated the old lease-holders to be lessees and to be outside the purview of term Bhumiswami, thus, it is apparent from the statement of object that legislature had never thought of the old leases to have been inflected with the status of Bhumiswami in statutory manner with transferable rights and it was for the first time that section 158 (3) of MPLRC by the Amendment Act of 1992 had included the old lessees in the list of Bhumiswami under section 158 (3) of the Act and hence by such inclusion the status of Bhumiswami with transferable right for the first time was conferred upon the lease-holders, but that too was subjected to complete ban on right of transfer within 10 years and, thereafter, it was made subject topermission of Collector.
7. It was further submitted that on the question of conferment of Bhumiswami rights the writ Court held in para No.20, 21 and 22 by referring the case of AIR 1976 MP 160 that Bhumiswami had right to transfer the land, but the said judgment did not touch the merits of the dispute herein as it did not pertain to conferral of Bhumiswami rights upon the lease-holders nor had dealt with and decided as to how and when the lease-holder acquires the Bhumiswami right
Amendments to land revenue legislation confer Bhumiswami rights retrospectively, necessitating compliance for valid land transfers; sales executed without required permissions are null and void.
The main legal point established in the judgment is the requirement for permission from the Collector for the transfer of government land, as stipulated in Section 165(7-b) of the Land Revenue Code, ....
Land transfers by government lessees require prior approval from a Revenue Officer; transactions made without such consent are invalid.
A decision by an authority exercising discretionary power under a statute must be arrived at by taking into account the relevant considerations and eschewing the irrelevant considerations, in the abs....
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