SAADAT MOHAMMAD KHAN Vs. STATE OF M P

JUDGEMENT

(1.) PETITIONERS ' prayer is to quash the order (Annexure-F) passed in Ceiling case by competent authority Addl. Commissioner and order (Annexure-G) passed by the Board of Revenue and to restore the possession of the land to the petitioners.

(2.) COMPETENT authority in the instant case Addl. Commissioner, Bhopal under the provisions of M.P. Ceiling on Agricultural Holdings Act, 1960 directed holder Fazlur-Rehman Qureshi to file the return. Return was filed by Shri Fazlur-Rehman Qureshi in which it was mentioned that at village, Chandanpura Tahsil-Huzur, Bhopal Shri Saadat Mohd. Khan is in possession of the land bearing Survey No. 73 in area 29.98 acres in the capacity of Bataidar of the holder since 1964. Shri Hidayat Mohd. Khan is in possession of land bearing Survey No. 82 in area 46.48 acres in the capacity as a Bataidar to the holder since 1964 and Shri Aijaz Mohd. Khan is in possession of land bearing Khasra No. 84 and 92 in an area 13.50 and 14.67 acres in village Chandanpura in capacity of a Bataidar since 1965. In return Annexure-A aforesaid facts find place. An affidavit Annexure-B was also filed in support of the return. In affidavit also the fact was disclosed that land mentioned above situated at Chandanpura is in possession of Bataidars. On 5.1.1977 an order Annexure-C was passed declaring the land at Chandanpura as surplus including the land held by the petitioners who were in possession as Bataidars. The draft statement was not served upon the petitioners; the transaction between the petitioners and the holder was not declared void under section 4 of the Act. Final order was subsequently modified as per order (Annexure E-1) dated 28.5.1984 and with respect to certain other lands which were inherited by the holder from his mother separate proceedings were ordered to be registered and they have been taken to their logical conclusion separately and land has been declared as surplus. Petitioners are concerned with Survey No. 73, 82, 84 and 92 total area being 104.63 acres. When possession was sought to be taken, the report dated 5.9.1985 indicates that the possession could not be taken from petitioners and their name was recorded in the revenue papers also though on the strength of the orders (Annexure-D) passed in ex-parte which were passed in Revenue Case Nos. 8/A-46/76-77, 9/A-46/76-77 and 10/A-46/76-77 by the Tahsildar, Huzur, Bhopal in which names of Shri Hidayat Mohd. Shri Ejaj Mohd. and Shri Saadat Mohd. Khan were ordered to be recorded as Bhumiswamis on the strength of Bataidars of the holder Fazalur-Rehman Qureshi. Ultimately the possession was taken from petitioners in the year 1986 as apparent from the report letter dated 21.4.1986 of Deputy Collector to Addl. Commissioner, Bhopal Division, Bhopal, the competent authority in the instant case. As possession was taken from the petitioners, petitioners filed an application under section 32A read with section 94 to restore the possession as they were not heard. Application was dismissed by the competent authority as per order (Annexure-F) dated 24.8.1987; petitioner preferred an appeal before the Board of Revenue; same has been dismissed as per order (Annexure-G) dated 10.8.1989. Hence, the present writ petition has been filed before this Court.

(3.) SHRI S. Shaukat Ali, learned counsel appearing for the petitioners has strenuously urged that over the Bir land held by the Bataidar/sub-tenants, right of occupancy tenant and consequently that of Bhumiswami accrues. It is not the land held by Jamindar; only the Bir land held by ex-Jamindar vested in the State and that too on the date of Abolition of Proprietary Rights. The petitioners were entitled to issue of notice and service of draft statement under section 11 (3) of the Ceiling Act, thus taking away of the possession from them is bad in law and is without complying the provisions of section 11 (3) of the Act.