SAROJ CHAND Vs. PREMWATI

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed against the order dated 01.10.2018 passed by Commissioner, Gwalior Division, Gwalior in Case No.69/2017- 18/appeal by which the order dated 13.12.2014 passed by the Collector, Gwalior in Case No.10/2014-15/A-21 has been set aside.

(2.) The necessary facts for disposal of the present petition in short are that the respondent No.1 filed an application before the Collector, Gwalior for grant of permission to sell Survey No.318/2 area 0.836 hectare situated in village Dongarpur and, accordingly, the Tahsildar, Gwalior was directed to conduct an enquiry. After the enquiry it was found by the Tahsildar that as per the statement made by respondent No.1, the disputed land i.e. Survey No.318/2 situated in village Dongarpur was allotted to the husband of the respondent No.1 about 40 years back and after the death of husband of respondent No.1 namely Khubiram, the names of his legal representatives i.e. Premwati widow of Khubiram (respondent No.1), Rajendra, Ramdulare, Rakesh, Ramprakash and Baijnath sons of Khubiram were mutated in the revenue record and they are still in the possession of the same. It was further prayed that because of poor condition, the respondent No.1 and her sons are inclined to alienate the property, so that they can look after their family and bear the educational and marriage expenses of the legal representatives of Khubiram. It was also pointed out by the Patwari that survey No.318/2 area 0.836 hectare situated in village Dongarpur is recorded in the name of respondent No.1 and her sons Rajendra, Ramdulare, Rakesh, Ramprakash and Baijnath and has been mentioned as "non- transferable". Earlier Khubiram had alienated the property to Totaram who in his turn alienated the same to the petitioner and the mutation of the name of the petitioner was rejected by the Tahsildar by order dated 15.12.2013 in compliance of order dated 4.2.2009 passed in Case No.16/08-09/A-6. However, it was also pointed out that at present the petitioner is in cultivating possession of the said land. On 6.11.2012, the respondent No.1 had made an application to the Collector, Gwalior in Jan Sunwai that after the death of her husband, some unscrupulous person had fraudulently got the name of Totaram and Hariram sons of Shankarlal recorded in the revenue records and, accordingly, the said mutation order was challenged and the order of mutation was set aside by order dated 9.4.2002, however, still the name of respondent No.1 has not been recorded so far. It appears that the land in question was given to the husband of respondent No.1 by Patta dated 18.10.1978. As per the report dated 1.5.2013 given by the Tahsildar, Tahsildar had sought permission to review the order as the land was sold without the permission of the Collector and, accordingly, the permission to review was granted by the SDO, Gwalior by order dated 8.5.2013 and the notices were issued to the petitioner. The petitioner appeared before the authority on 30.11.2013 and prayed for time to file reply. However, on 6.12.2013, the petitioner did not appear, as a result of which, she was proceeded ex parte and ultimately the Tahsildar by order dated 16.12.2013 passed in Case No.02/13-14/A-6 came to a conclusion that since the sale deed was executed in violation of the provisions of Section 165 (7-b) of M.P. Land Revenue Code, therefore, the order dated 4.2.2009 passed in Case No.16/08-09/A-6 was set aside and it was also mentioned that at present the name of respondent No.1 and her sons are recorded in the revenue records. After considering the report submitted by the parties, the application filed by the respondent No.1 and her sons for sale of the land was granted by the Collector, Gwalior by order dated 13.12.2014 with certain conditions mentioned in the said order. Being aggrieved by order dated 13.12.2014 passed by the Collector, Gwalior, the petitioner filed an appeal which has been partly allowed and it has been directed that now the respondent No.1 is also not entitled to take possession on the land in question, therefore, the order of the Collector is set aside and the Tahsildar is directed to pass a final order in accordance with law. For arriving a conclusion, the Commissioner, Gwalior Division, Gwalior has come to a finding that the mutation made in favour of respondent No.1 has also been set aside by order dated 15.6.2018 passed by the SDO, Gwalior.

(3.) Challenging the order passed by the Commissioner, Gwalior Division, Gwalior, it is submitted by the counsel for the petitioner that the provisions of Section 165(7-b) of M.P. Land Revenue Code does not have a retrospective operation and, therefore, the original lease holder Khubiram was not required to take permission from the Collector before alienating the property to Totaram and, accordingly, the petitioner is the lawful owner of the property in dispute.