HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 3503 of 2003
Soneju
- V/s -
State of MP and others.
Present: Hon'ble Shri Justice Rajendra Menon.
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Shri Mrigendra Singh, counsel for the petitioner.
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Whether approved for reporting: Yes / No.
ORDER
22/07/2011
Challenging the orders passed by the Board of Revenue and
the Commissioner, Sagar Division in the matter of interfering with an
order passed by the Sub Divisional Officer, Tikamgarh on 27.1.1976 –
Annexure P/2, this writ petition has been filed by the petitioner.
2- Facts in brief indicate that petitioner was owner of 66.22
Acres of agricultural land. According to the petitioner, the said land was
owned by him even before the MP Ceiling on Agricultural Holding Act,
1960 came into force and the cut-off date fixed under the Act was
1.1.1971. According to the petitioner apart from the aforesaid land, he
also became owner of 51.91 Acres of land which came to him after death
of his aunt – one Smt. Badi Dulaiya, in the year 1967. Accordingly, it is
stated that prior to 1.1.1971 petitioner owned 119.33 Acres of land. Out
of this land petitioner is alleged to have sold 31.88 Acres of land to
respondent No.2 in the year 1968 and it is the case of the petitioner that
in the year 1968 possession of this land was handed over to respondent
No.2. Part consideration was also taken, but the formality of executing
the registered sale-deed was done only in the year 1972 i.e… after the
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cut-off date 1.1.1971. It is the case of the petitioner that for all practical
purposes the sale of this land to respondent No.2 was affected in the year
1968 and the possession was also handed over in the year 1968,
therefore, the transaction was valid.
3- Similarly, petitioner is alleged to have transferred 28.81
Acres of land by way of a Gift Deed, said to have been executed in
favour of his mother namely Smt. Phoolan Dulaiya. According to the
petitioner, this transaction also took place much before the cut-off date
1.1.1971. It is the case of the petitioner that in view of the aforesaid two
sales made, the land held by the petitioner was within the permissible
limit and, therefore, the MP Ceiling on Agricultural Holding Act, 1960
(hereinafter referred to as ‘Act of 1960’) would have no application.
Inspite thereof, when respondent No.3 – the competent authority, issued
notice to the petitioner under section 4, petitioner appeared and justified
his holding in the manner as indicated hereinabove, examined himself
and certain witnesses and on the basis of the averments made, it is stated
that respondent No.3 accepted the contention of the petitioner and
dropped the proceedings initiated under section 4 of the Act of 1960 on
27.1.1976 – vide Annexure P/2. However, Collector Tikamgarh finding
the order of the SDO to be not in accordance to law, instead of filing an
appeal referred the matter to the Additional Commissioner for taking up
the issue under suo motu revision by exercising the powers under section
42. The Additional Commissioner refused to exercise this power vide
Annexure P/3 on 11.7.1989, but on an order passed by the Board of
Revenue on 3.3.1983, the matter was remanded back to the
Commissioner and the Commissioner vide order-dated 11.7.1989
quashed the order of the SDO, holding that the transaction allegedly
made by the petitioner with respondent No.2 and his mother are not
proved and, therefore, declared certain land as surplus under the Ceiling
Act. Aggrieved thereof petitioner preferred further revision petition and
review before the Board of Revenue and the same having been dismissed
on 1.12.1989 and 6.5.2003 – vide Annexures P/5 and P/6, petitioner is
before this Court.
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4- During the course of hearing, the only argument advanced
by learned counsel for the petitioner was that when an order is passed
under section 4 of the Act of 1960, the aggrieved person has to file an
appeal under section 3 and the powers of suo motu revision under
section 42 cannot be exercised when no appeal is filed as provided for in
the Act. Accordingly, placing reliance on the second proviso to section
42, and the provision of appeal contained in sub-section (4) of section 3,
it is argued that the powers of suo motu revision exercised by the
Additional Commissioner is illegal.
5- From the facts that have come on record, it is clear that on
the merits of the case, admittedly petitioner was holding land in excess
of the permissible limit under the Act of 1960. However, it was the case
of the petitioner that 31.88 Acres of land was sold by him to respondent
No.2, in the year 1968, but the sale deed was executed in the year 1972,
and further 28.81 Acres of land was gifted by him to his mother. Even
though the SDO accepted the aforesaid contentions of the petitioner in
the order-dated 27.1.1976 – Annexure P/2, but when the matter was
reconsidered by the Additional Commissioner in his order-dated
19.12.1988 – Annexure P/4 and again by the Board of Revenue on
1.12.1989 vide Annexure P/5, the aforesaid transaction was found to be
nothing but an illegal one to avoid liability under the Act of 1960. Both
the authorities have recorded concurrent finding that the petitioner has
miserably failed to prove these transactions and the contention of the
petitioner that even though he had sold the land in the year 1968 but the
formality for executing the sale-deed was undertaken in the year 1972,
was found to be incorrect and the finding recorded is that the
transactions took place after the appointed date i.e…. 1.1.1971. During
the course of hearing of this writ petition, nothing was pointed out to this
Court as to how and on what ground the aforesaid finding concurrently
arrived at by the Commissioner and the Board of Revenue is found to be
illegal. The only ground raised is that the Commissioner could not
exercise the power of suo motu revision. If the orders passed in this
regard are taken note, it would be seen that initially when the
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Commissioner refused to exercise the powers of suo motu revision, the
Commissioner did so on the basis of certain orders passed by a Revenue
Court, as is evident from Annexure P/3 dated 11.7.1980, but when the
matter was considered by the Board of Revenue, the Board of Revenue
on 3.3.1983 – vide Annexure P/7, found that a Bench of this Court in
M.P.No.95/1977 – Ramchandra Ram Vs. Competent Authority,
Tikamgarh, has held that a revision before the Commissioner was
maintainable and, therefore, the matter was remanded back to the
Additional Commissioner. This order-dated 3.3.1983 was never
challenged by the petitioner. The petitioner did not at that point of time
assail the jurisdiction of the Additional Commissioner in exercising the
powers of suo motu revision nor did he challenge the order-dated
3.3.1983, passed by the Additional Commissioner. Even before this
Court, this order of remand dated 3.3.1093 is not challenged. On the
contrary in the body of the petition, it is stated that this order is not
available with the petitioner and, therefore, he is not filing the same. It
was only filed after a period of two years of filing the writ petition on
27.7.2005, vide I.A.No.6393/2005. When the Board of Revenue found
that the Commissioner could entertain the powers of revision and when
the revision was being considered by the Commissioner and when the
proceedings were held before the Commissioner which culminated in
passing of the order-dated 19.12.1988 – Annexure P/4, petitioner did not
challenge the same, but participated in the revision proceedings without
any objection. That being so, now after having submitted to the
jurisdiction of the Additional Commissioner, petitioner cannot now raise
the ground before this Court. That apart, when the matter was
adjudicated before the Board of Revenue, a perusal of the order passed
by the Board vide Annexure P/5 on 1.12.1989 indicates that the Board of
Revenue has taken note of the order passed earlier on 3.3.1983 and the
order of the High Court in Writ Petition No.95/1977 – Ramchandra Ram
Vs. Competent Authority, and there is nothing in the order of Board of
Revenue that the petitioner has ever raised the question of jurisdiction of
the Additional Commissioner to exercise the powers of revision.
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Nothing is pointed out to this Court during the course of hearing to
indicate as to whether any such objection was raised when the
proceedings were pending before the Board of Revenue in Revision
No.158-A/90/(V-3)/87-88. Once the petitioner chose not to challenge he
order of remand made by the Board of Revenue on 3.3.1983 and when
the petitioner submitted to the revisional jurisdiction of the
Commissioner, now petitioner cannot be permitted to take a turn around
and assail the jurisdiction of the authority on the grounds raised,
particularly when the concurrent findings available on record is with
regard to the fact that petitioner was holding land in excess of the ceiling
limit and his contention that he had transferred the land before cut-off
date i.e… 1.1.1971 is found to be incorrect by all the authorities.
6- Taking note of all these circumstances, this Court does not
find any ground to interfere in the matter, now at the instance of the
petitioner.
7- Accordingly, the petition is dismissed.
( RAJENDRA MENON )
JUDGE
Aks/-