MANOHAR KUMARI DAGA Vs. STATE OF M P

JUDGEMENT

(1.) This order will also govern the disposal of Writ Petition No.7335/2002. However, for the convenience facts are taken from Writ Petition No.1133/2008.

(2.) The petitioners have approached this Court calling in question the orders dated 31.5.2006 and lease deed dated 6.10.2007 executed by the respondent No.1 in favour of respondent No.7 contending inter alia that they are the owners and in cultivating possession of the land bearing Khasra Nos. 361, 362, 363, 364, 371/1, 434, 437, 439, 405/1, 356/1, 406, 407/1, 422/1 and 421 total area admeasuring 37.58 acres situated at Village Babadiyakala, Tahsil Huzur, District Bhopal. It is contended by the petitioners that since treating as if the aforesaid land vested in the State Government under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 1976 Act for brevity), despite the fact that the land was never vested in the State government, the orders of allotment of land on a lease to the respondent No.7 has been issued, therefore, they are required to approach this Court by way of filing this writ petition. It is contended that earlier a writ petition was filed on the same subject matter when certain land was being used by the State Government without the consent of the holder of the land and since the subject matter of the writ petition is also identical, the main grievance of the petitioners may be considered in view of the subsequent orders passed, which have been brought on record and the order impugned be quashed.

(3.) The brief facts are given for the proper appreciation of controversy involved in the petition. Originally the land belongs to one Shri Chandmal Daga and his brother. There was a partition between the two brothers and the disputed land fell in the share of Shri Chandmal Daga. Since said Chandmal Daga has died on 9.2.2005, the present petitioners have filed this petition as the legal representative and successor of estate of Chandmal Daga. It is contended that some sort of report was given and though the land was situated within the Urban Agglomeration, on being informed that the land is being used for agriculture purpose, the proceedings initiated against the brother of said Shri Chandmal Daga under the 1976 Act were closed. However, Shri Chandmal Daga was called upon to furnish a return as provided under Section 6 of the Act. For the purposes to demonstrate that the use of the land in particular area was agriculture and it was not to be treated as urban residential open land, said Shri Chandmal Daga made an application for grant of time to ascertain certain documents and after obtaining their copies to file his reply. Such a request made by Chandmal Daga was rejected and an appeal was preferred before the competent appellate authority as per the 1976 Act i.e. the Commissioner of Bhopal Division. The application was also made by the original holder to grant exemption under Section 20 of the 1976 Act stating that the land in dispute was being used for agricultural purposes, but such application was rejected by the State Government. Thereafter, hasty actions were being taken by the competent authority, Urban Ceiling, and therefore, a prayer for grant of interim relief was also made. Prior to this, certain orders were already issued, the lands were declared to be surplus and proceedings were initiated for taking possession of the land after making a declaration that the land stand vested in the State Government. It is the contention of the petitioners that well before the date which was fixed for taking possession, the interim order of stay was obtained, the same was brought to the notice of the competent authority under the 1976 Act, the said authority endorsed the order to the Tahsildar, who was executing the directions for taking possession of the land, but the said Tahsildar acted only when paper possession of the land was taken. It is contended that even when the fact was well within the knowledge of the competent authority that there was an interim stay granted by the appellate authority with respect to the possession of the land, no proceedings were required to be done, but fraudulently, the possession of the land was said to be taken. As a result, certain representations were required to be made. Thereafter, the matter was referred to the higher authorities. Some part of the land was allotted to the Kendriya Vidhyalaya Sangathan for the purposes of establishment of a school and keeping in mind such facts, the petitioners moved an application seeking redressal in respect of illegal act of taking possession of the land in dispute on papers. It is contended that a revision was also filed by said Chandmal Daga before the competent authority and in the said revision, the orders were passed. In the meanwhile, since repealing of the original Act was made applicable in the State of Madhya Pradesh, ultimately, the revision petition of said Chandmal Daga was closed. As a result, there was no vesting of the land in the State Government and the entire land of the petitioners was required to be set free, but instead of doing this, the order impugned was issued with respect to the allotment of land to the respondent No.7, therefore, the present writ petition is required to be filed. It is contended that the Repeal Act contains the provision of Repeal and its effect as also the Saving Clause. Sections 3 and 4 of the Repeal Act if are to be read harmoniously, it will be clear that by no stretch of imagination could it be said that the land in dispute vests in the State Government and, therefore, the same was illegally allotted to the respondent No.7. It is submitted by the learned senior counsel for petitioners that in view of such facts, the orders impugned are bad in law and are liable to be quashed.