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Judgment
The petitioners has filed the present petition being aggrieved by the order dated 30.11.2017 passed by Tehsildar, Tehsil-Hatpipaliya, District-Dewas whereby application filed under section 109 & 110 of M.P. Land Revenue Code, 1951 (hereinafter referred as "MPLR Code") for mutation in the revenue records has been rejected.
Necessary facts in brief for disposal of the writ petition are as under:
According to the petitioners the land bearing Survey No.942/1 area 5.75 acres , 947/5 area 2.00 acres and 946/1 area 0.15 acres of village and Tehsil Hatpipliya, District- Dewas (hereinafter referred to as the ' the land') have been of the ownership of the Hindu Undivided Family, namely, Ghasilal Kalyanmai of which Late Shri Narendra Kumar Jain was the Karta. The present petitioners are the legal heirs/ representative of Coparceners of the HUF. The land was recorded as Abadi land and a Ginning Factory was constructed over the said land in the year 1965-66. In the year 1965-66 the proceedings under Section 248 of the MPLR Code were initiated against the petitioners and they were declared as encroachers. The petitioners challenged the said order by filing an appeal before the Additional Commissioner, which was allowed vide order dated 14.6.1968 with declaration that the petitioners are owner of the land. Thereafter petitioners were illegally dispossessed form part of the land measuring 1.04 Bigha ( 27,000 sqft) by the respondents without payment of any compensation. The petitioners filed the writ petition(M.P. No.693/1989) before this the High Court for challenging the aforesaid action. The said writ petition was disposed vide order dated 6.3.1994 by giving direction to the respondents to decide the issue as to whether the compensation is payable to the petitioners or not.
Petitioners filed a Civil Suit claiming decree of title, possession and compensation. The learned Trial Court vide judgment and decree dated 20.7.2000 passed a decree of declaration and permanent injunction in favour of the petitioners. It was also held that land admeasuring 1.04 Bigha (27,000 sqft) was illegally occupied by the respondents for which the petitioners are entitled for compensation. The aforesaid judgment and decree was challenged by the State Government by way of first appeal (F.A. no. 804/2000) before this High Court, which was dismissed in default vide order dated 4.4.2001. Thereafter respondents filed in M.C.C.No.269/2013, for restoration of first appeal with the delay of 12 years ,but this Court has refused to condone the delay of 12 years to restore the F.A.No.804/2000 .
After dismissal of the first appeal the petitioners applied under section 109-110 of MPLR Code for mutation of their names as owner in the revenue records. Thereafter, three more applications were filed on 23-03-2009,13-06-2011, 26-07-2011 & 12-08-2011 but the Tehsildar did not pass any order on merit, hence the petitioners filed writ petition (W.P. No.1703/2012) before this Court which was disposed of vide order dated 25-02-2013 with the direction to the respondent No.2 to decide the pending application within a period of six weeks.
Despite above direction when application was not decided the petitioners filed the contempt petition (C.P. no.571/2012) .This Court issued notices to the respondents and directed for filling the reply in 4 weeks.. In the pending contempt petition, vide order dated 15-05-2013 this court observed , that respondents are free to decide the pending applications. Thereafter the contempt petition was finally disposed of vide order dated 18-06-2013. Thereafter the petitioners filed the Review Petition No. 364 of 2013 seeking restoration of contempt petition and same was restored . Meanwhile during pendency of this contempt case, the application filed for mutation was "Dismissed in Default" by the Superintendent Land Record. On the basis of this information the Contempt Petition No. 571 of 2012 the contempt petition was disposed of vide order dated 17.9.2013 which is as under:-
"This is a petition for drawing contempt proceedings for non compliance of order dated 05/02/2012 passed in W.P. No.1703/2012.
After hearing the counsel for parties at length and keeping in view that mutation proceedings were pending which was dismissed in default, the petition itself is disposed of with a short direction that petitioners shall submit appropriate application along with application for condonation of delay and exclusion of time spent in other proceedings. If such applications are filed then competent authority shall restore the proceedings and shall consider the same on merits after giving an opportunity of hearing to the petitioners and shall decide the same by passing a reasoned order within a period of three months.
With the aforesaid, petition stands disposed of."
After the aforesaid order, on 11-12-2013 the petitioners filed application for restoration along with condonation of delay before the same Superintendent Land Record, who has earlier dismissed their application for mutation vide order dated 7.6.2013.
That the subsequent application filed by the petitioners came up for consideration before the Superintendent Land Record on 19.12.2013 but he has dismissed the said application on the ground that he is not the competent authority to decide the application filed for mutation. Being aggrieved by this order the petitioners again approached this court by way of writ petition (W.P.No.2994/2014). Vide order dated 02.08.2016, the writ petition was allowed and impugned order was set aside with the direction to the Superintendent, Land Record to reconsider the application filed by the petitioners for mutation as well as the application for condonation of delay.
In compliance of the aforesaid order, the petitioners submitted an application before the Superintendent, Land Record . Vide order dated 15-09-2016 he has transferred the matter to the respondent no.2 ,who has started proceedings vide order dated 24.09.2016. The petitioners have also submitted the written arguments.
Meanwhile, the State of Madhya Pradesh filed a Special Leave Petition before the Hon'ble Supreme Court against the order dated 21.06.2013, passed in M.C.C.No.269/2013, by which this Court has refused to condone the delay of 12 years to restore the F.A.No.804/2000. By order dated 19.09.2016, the Special Leave Petition No.10022/2014 has been dismissed. Due to dismissal of the SLP, the judgment & decree passed in favour of the petitioners has attained finality because now First Appeal No.804/2000 cannot be restored.
The learned Tehsildar, vide order dated 22.11.2016, has rejected the application under Section 35(3) of the MPLR Code for restoration as well as application for condonation of delay.
Being aggrieved by the order dated 22-11-2016 the petitioners again approached this High Court by way of writ petition (W.P.No. 8532/2016) By order dated 02.08.2016, this Court has remitted the matter to the Tehsildar Hatpipaliya with the direction to decide the application filed by the petitioners for mutation on merit within 30 days from production of certified copy of High Court order.
Now again the Tehsildar has rejected the application for mutation on the ground that under Section 57(2) of MPLR Code the question of title cannot be decided by him. The petitioners have assailed the impugned order dated 30-11-2017 inter alia on the grounds that they never submitted an application before the Tehsildar for deciding the title. The title of the petitioners had already been decided by the Civil Court vide judgement dated 20.07.2000 in C.S.No.16-A/1998. Since the aforesaid judgement had attained finality, therefore, an application for mutation under Section 109/110 of MPLR Code for mutation is filed.
After notice, the respondents have filed the return by submitting that the land in question is an open space and used as public land for carrying out various public functions and activities since last so many years. As per the direction given by this Court in W.P.No.8532/2016 the application for mutation has been decided in accordance with law. Since there is a direct conflict between petitioners and State Government in respect of ownership of the land , hence the Tehsildar cannot pass any order in respect of mutation unless and until there is an order passed under Section 57(1) of the MPLR Code. As per sub Section (2) of Section 57 where there is a dispute arises between the State Government and any person in respect of right under sub Section (1) such dispute shall be decided by the State Government/SDO. As per sub Section (3) if any person is aggrieved by the order of SDO/State Government, he may institute a Civil Suit within a period of 1 year from the date of such order. The Civil Court gets the jurisdiction to decide the title only after the order passed under Section 57(2) of the MPLR Code by the SDO/State Government. The petitioners had obtained the judgement and decree without approaching the SDO/State Government under Section 57 of the MPLR Code, therefore, in absence of any order passed by the SDO/State Government under Section 57(2) the name of the petitioners cannot be mutated in the revenue records. It is further submitted that the petitioners is having remedy of appeal under Section 44 of the MPLR Code against the impugned order passed by the Tehsildar.
I have heard Shri A.K. Sethi, learned senior counsel appearing for the petitioners and Shri Mayank Purohit, learned GA appearing for the respondents/State and peruse the records.
The petitioners approached the civil Court by way of civil suit seeking relief of declaration of title and possession of agricultural land Survey No.942/1, 947/5 and 946/1. The petitioners have also claimed compensation for the area of land in which the respondents had constructed the road for public purpose. According to the petitioners, the land bearing Survey No.942/1, 942/2 is a property of joint Hindu family, firm Ghasilal Katyamal. They established a ginning factory, godown, office, servant quarter over the land, thereafter, they were illegally dispossessed by the State Government without payment of compensation. In the Civil Suit the State Government came up with the plea that the land has been belonging to the State Government and the plaintiffs were in possession as encroacher. The proceedings under Section 248 of the MPLR Code were also initiated against the plaintiffs as they wanted to grab the Government land worth of crores of rupees. Learned Civil Court framed 8 issues for adjudication and after appreciating the evidence came to the conclusion that the plaintiffs are the owner of land bearing Survey No.942/1, 947/5 and 946/1 including House, Well, Servant Quarter constructed therein. The defendants have been restrained to dispossess them. The defendants were also directed to pay the compensation of Rs.2,70,000/- and the interest @ 12% pa from 06.09.1885 to 21.06.1998 . Against the aforesaid judgement and decree, First Appeal No.804/2000 was filed before the High Court but it was dismissed in default. Thereafter, an MCC was filed for restoration of the appeal that was dismissed and against which SLP was filed and that too has been dismissed.
Since, the judgement and decree has attained finality the petitioner filed an application under Section 109 and 110 of MPLR Code seeking mutation of their name in the revenue record. When the application remained pending for years together the petitioners filed the writ petition which was disposed of with the direction to decide the application in accordance with law.
The respondent No.2 instead of deciding the application on merit has dismissed the application in default. Again a writ petition was filed and the proceedings were restored. Thereafter, the respondent No.2 has dismissed the mutation proceedings on the ground of competency to restore the proceedings. Again W.P.No.2994/2014 was filed and vide order dated 02.08.2016 the writ petition was allowed and direction was issued to the Tehsildar to decide the application. The petitioners were granted liberty to file an application for condonation of delay.
Surprisingly after adjudication in regards to the title of the petitioners over the land by the civil Court the respondents are disputing the title of the petitioners. The contention of respondents is that since there is no order under Section 57(2) of the MPLR Code, hence the civil Court could not have decided the title. The aforesaid contention is absolutely fallacious and misconceived in light of the judgement passed by this Court in State of M.P. Vs. Radhika Prasad, reported in 2012(4) MPLJ 404. The full bench of this Court in case of Ramgopal Vs. Chetu, reported in 1976 MPLJ (F.B.) 325 , in which it has been held that civil suit for the declaration of Bhumiswami right based upon the title can straightway be filed in the civil Court. Later on in case of State of M.P. Vs. Balveer Singh, reported in 2001(2) MPLJ (F.B.) 644 the full bench of this High Court has again held that the plaintiff can file a suit directly without availing the remedy under Section 57(2) of the MPLR Code. The apex Court has affirmed the aforesaid full bench judgement in case of Hukum Singh Vs. State of M.P., reported in (2005) 10 SCC 124. Despite aforesaid settled law the respondent No.2 has ventured to reject the application for mutation on the ground that the petitioners had wrongly approached the civil Court without availing the remedy under Section 57 (2) of MPLR Code. From the very beginning the approach of respondent No.2 is to somehow avoid the mutation of name of the petitioners in the revenue record. He has left no occasion but to reject the application on whimsical grounds. Every time this Court requires to decide the writ petition by directing the respondent No.2 to pass the order.
That in the impugned order the respondent no.2 has disclosed the reason for not mutating the names of the petitioners, which is reproduced below:
"प्रकरण में पटवारी रिर्पोट भी अवलोकनार्थ सलंग्न है। वर्तमान में वादोक्त भूमि पर नगर पंचायत हारपीपल्या द्वारा 15 अगस्त एवं 26 जनवरी जैसे राष्ट्रीय पर्व का आयोजन एवं रामनवमी से 20 दिन तक का मेला प्रतिवर्ष आयोजित किया जाता है, साथ ही नगर पंचायत हाटपीपल्या द्वारा प्रति बुधवार को साप्ताहिक हाट बाजार एवं मवेशी व्यापार लगाया जाता है। राजनैतिक दलों द्वारा भी आम सभाओं का आयोजन वादोक्त भूमि पर किया जाता है। कृषि उपज मंडी हाटपीपल्या में किसानों के द्वारा अपने वाहन ट्रकों-ट्रालियों द्वारा अपनी, कृषि उपज लाकर मंडी में बेचा जाता है उन वाहनों (ट्रक-ट्रालियों ) की पार्किग व्यवस्था भी वादोक्त भूमि पर की जाती है। वादोक्त भूमि नगर हाटपीपल्या के बीचों बीच स्थित होंकर एक मात्र भूमि सार्वजनिक प्रयोजन में आने वाली भूमि है।"
It is clear from the aforesaid observation that the land in question is being used by the Nagar Panchayat Hatpipaliya for various public purpose and that is why the respondents are avoiding the mutation of names of the petitioners. If the respondents are interested to use the land for public purpose they have a remedy to acquire under the provisions of Right to Fair Compensation & Transparency in Land Acquisition Rehabilitation & Resettlement Act, 2013 (for short, hereinafter referred as "Act of 2013") but they cannot avoid the mutation of name of the petitioner.
In view of the above obstinate approach and prejudiced attitude of the respondents the petitioners cannot be relegated to the appellate authority. This time instead of remanding the matter back to the respondents for adjudication this court deem it appropriate to issue writ of mandamus to the respondents to mutate the names of the petitioners forthwith .The writ petition is allowed, Impugned order is set aside. Respondent No.2 is directed to mutate the name of petitioners in the revenue record.
Petition is allowed with the cost of Rs.10,000/-(ten Thousand only).