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Supreme Court of India
Bajranga (Dead) By Lrs. vs The State Of Madhya Pradesh on 19 January, 2021Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6209 of 2010
BAJRANGA (Dead) by LRs. …Appellant
Versus
THE STATE OF MADHYA PRADESH & ORS …Respondents
JUDGMENT
SANJAY KISHAN KAUL, J.
1. The social objective of providing land to the tiller and the landless
post independence was sought to be subserved by bringing in ceiling in
agricultural holdings in different States. It is towards this objective that
the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960
(hereinafter referred to as the ‘said Act’) was brought into force in 1960.
The said Act, inter alia, provided for acquisition as well as disposal of
Signature Not Verified
Digitally signed by
GEETA AHUJA
Date: 2021.01.19
surplus land.
17:27:44 IST
Reason:
2. The predecessor-in-interest of the appellant (now represented by
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the LRs) was the bhumiswami of agricultural dry land measuring 64.438
acres situated in Village Bagadua, Paragna Sheopur Kala, District
Morena, Madhya Pradesh. He was, thus, stated to be holding land in
excess of the ceiling limit prescribed as per Section 7(b) of the said Act,
whereby a holder along with his family of five members or less could
hold a maximum amount of 54 acres of land. As a sequitur thereto the
competent authority/competent officer (respondent No.2 herein) initiated
the process to acquire the surplus land and issued a draft statement in
Land Ceiling Case No.180/75-76/A-90(B) for acquisition of 10.436 acres
of dry land from Survey Nos.755, 756, 780 and 881/1 (for short ‘surplus
land’). A final order dated 30.3.1979 was published declaring such land
as surplus. In furtherance of the aforesaid, the respondents herein
initiated the process of taking over possession and eviction under Section
248 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter
referred to as the ‘said Code’) (the provision has since been deleted).
3. The appellant being aggrieved by the final order dated 30.3.1979
filed a suit for declaration of title and permanent injunction before the
Court of Civil Judge Class-II, Sheopur Kala, District Morena. It is the
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say of the appellant, as per averments in the plaint, that the proceedings
to recover land from him were illegal as he was actually left with only 54
acres of land which was within the prescribed ceiling limit in view of the
fact that the land measuring 17 bighas and 7 biswa in Survey No.77 had
been decreed in favour of one Jenobai, who was in kabza kasht
(possession by cultivation) of the land for about 20 years. She had filed a
civil suit, being Civil Suit No.319/75A O.C. on 15.10.1975 against the
appellant seeking declaration of title and permanent injunction with
respect to the aforementioned land. There had been an admission of the
ground position by the appellant and thus, the suit was decreed on
5.3.1979 declaring Jenobai to be the owner in possession of the said land.
We may note that Jenobai is actually the mother-in-law of the appellant
and according to her, this land was being cultivated by her on the basis of
half and half of the land proceeds. However, subsequently the appellant
developed improper intent and taking advantage of her being a widow
and an old woman, had colluded with the Patwari to get this disputed
land mutated in his name.
4. The suit filed by the appellant was contested by the respondents
herein and they took a defence in the written statement that the
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possession of the surplus land had been taken over and allotted to other
cultivators. There was, however, an admission that the appellant in the
return, filed as per Section 9 of the said Act, mentioned the aspect of the
pending suit qua Survey No.77. However, it was contended that the
appellant had neither submitted a copy of the suit nor any proof of
pendency of the suit. The suit was alleged to be collusive inasmuch as
Jenobai, in fact, was the mother-in-law of the appellant and the
endeavour was to prevent the surplus land from being acquired. It was
pleaded that Jenobai, if she had title or possession of the land in survey
No.77, would have submitted a claim before the competent authority
after the draft statement was issued. The appellant was also alleged to
not have submitted any objection to the draft statement and the remedy of
the appellant was stated to be by way of an appeal before the competent
court which was not pursued. The order of the competent authority was
stated to have become final and, thus, the action for taking over
possession of surplus land and allotment thereof was lawful.
5. The trial court decided the suit post trial vide judgment and decree
dated 7.10.1997. The trial court held that the appellant was the
bhumiswami in respect of the survey number in question and the suit was
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collusive with Jenobai having knowledge of the ceiling proceedings.
These findings resulted in a dismissal of the suit.
6. The appellant filed an appeal under Section 96 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the ‘CPC’) before the Court of
Additional District Judge, Sheopur Kala, District Morena. The
appellant’s say was that in view of the pendency of the suit filed by
Jenobai, the proceedings under the said Act should have been kept in
abeyance in view of the provisions of Section 11(4) of the said Act. The
relevant provisions of Section 11 read as under:
“11. Preparation of statement of land held in excess of the
ceiling area. – (1) On the basis of information given in the return
under Section 9 or the information obtained by the competent
authority under Section 10, the said authority shall after making
such enquiry as it may deem fit, prepare a separate draft statement
in respect of each person holding land in excess of the ceiling area,
containing the following particulars:
(3) The draft statement shall be published at such place and in such
manner as may be prescribed and a copy thereof shall be served on
the holder or holders concerned, the creditors and all other persons
interested in the land to which it relates. Any objection to the draft
statement received within thirty days of the publication thereof
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shall be duly considered by the competent authority who after
giving the objector an opportunity of being heard shall pass such
order as it deems fit.
(4) If while considering the objections received under sub-section
(3) or otherwise, the competent authority finds that any question
has arisen regarding the title of a particular holder and such
question has not already been determined by a Court of competent
jurisdiction, the competent authority shall proceed to enquire
summarily into the merits of such question and pass such orders as
it thinks fit.
Provided that if such question is already pending for decision
before a competent court, the competent authority shall await the
decision of the court.
(5) The order of the competent authority under sub-section (4)
shall subject to appeal or revision, but any party may, within three
months from the date of such order, institute a suit in the civil court
to have the order set aside, and the decision of such court shall be
binding on the competent authority, but subject to the result of such
suit, if any, the order of the competent authority shall be final and
conclusive.]
[(6) After all such objections, have been disposed of, the competent
authority shall, subject to the provisions of this Act and the rules
made thereunder, make necessary alterations in the draft statement
in accordance with the orders passed on objections and shall
declare the surplus land held by each holder. The competent
authority shall, thereafter, publish a final statement specifying
therein the entire land held by the holder, the land to be retained by
him and the land declared to be surplus and send a copy thereof the
holder concerned. Such a statement shall be published in such
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manner as may be prescribed and shall be conclusive evidence of
the facts stated therein.]”
7. The information about the pendency of the suit between Jenobai
and the appellant had been furnished to the competent authority, and post
decree of the suit the appellant had been left with only 54 acres of land.
Thus, there was no reason to initiate proceedings to take possession of
the disputed land. The appellate court noted the admission in the written
statement filed by the respondents herein, that in the return filed by the
appellant there was disclosure of the factum of Jenobai being in
possession of Survey No.77 land as also of the pendency of the suit,
being Suit No.319A/75 between her and the appellant. That being the
factual position, Section 11(3) of the said Act mandated that the copy of
the draft statement ought to have been served on Jenobai as she was an
‘interested person’ in the land. The acquisition proceedings had to be
kept in abeyance in view of the proviso to Section 11(4) of the said Act
till the disposal of the suit, and that such a judgment of the civil court was
binding on the competent authority. The suit was stated to have been
decreed for 3.306 hectares out of 17.715 hectares of land recorded in the
name of the appellant, resultantly leaving 14.399 hectares of land, which
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was within the prescribed limited under Section 7 of the said Act. On the
basis of these findings, the appeal was allowed and the judgment of the
trial court was set aside on the ground that the competent authority had
failed to comply with the statutory provisions under Section 11(3) and
11(4) of the said Act. The appellant was declared as the bhumiswami of
the surplus land and the respondents were restrained from interfering
with his possession of the land.
8. It is now the turn of the respondents herein to prefer an appeal
under Section 100 of the CPC before the High Court of Madhya Pradesh,
Gwalior Bench in Second Appeal No.644 of 1998. The High Court vide
order dated 8.5.2008 framed two substantive questions of law, which read
as under:
“i. Whether the jurisdiction of the Civil Court challenging the
order of the Competent Officer is barred under Section 46 of the
said Act?
ii. Whether the judgment and decree of the first appellate court is
sustainable under the provisions of the said Act?”
9. On a conspectus of the matter, the High Court allowed the appeal.
The rationale for the same was that after the publication of the draft
statement neither the appellant nor Jenobai had filed objections. In the
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revenue records the appellant’s name was recorded as holder of the entire
agricultural land in question. No information was stated to have been
provided to the competent authority giving particulars of the suit of
Jenobai. The competent authority was found not at fault in the alleged
breach of Sections 11(3) and 11(4) of the said Act as the information
germane for the same had not been disclosed.
10. The appellant at that stage, thus, approached this Court by the
present Special Leave Petition and on 2.3.2009, notice was issued and
status quo was directed to be maintained. Subsequently, leave was
granted on 26.7.2010 and ad interim order was made absolute till the
disposal of the appeal.
11. On the appeal being taken up for hearing on 16.1.2020 an order
was passed recording the factual controversy as to whether the appellant
had filed objections giving particulars of the pendency of the civil suit.
This was so as in terms of Section 9(iv) of the said Act that such
particulars were required to be stated. Even on the question of
maintainability of the suit, it was mentioned that it was necessary to
peruse the objections filed by the appellant to determine whether the
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requirement of Section 9 of the said Act had been fulfilled, Thus, records
of the last ceiling case were directed to be produced by the respondents
herein. The records were, however, not produced and, thus, on 9.9.2020,
an order was passed giving further time but directing that failure to
produce the record would result in an adverse inference being drawn
against the respondents herein.
12. The respondents filed an affidavit on 26.9.2020 stating that the
records were untraceable including the objections filed by the appellant.
It appears that due to carving out of some districts the records could not
be traced out. The son of the appellant had stated that he did not have the
record either.
13. We have heard learned counsel for the parties, albeit in the absence
of the aforesaid record, which was not produced right till the date of
hearing.
14. The appellant canvassed that the civil suit filed was maintainable
as the bar of jurisdiction of the civil court did not come into play as
specified in Section 46 of the said Act in view of the provisions of
Sections 11(4) and 11(5) of the said Act read together. Section 46 of the
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said Act reads as under:
“46. Bar of jurisdiction of Civil Courts. – Save as expressly
provided in this Act, no Civil Court shall have any jurisdiction to
settle, decide or deal with any question which is by or under this
Act required to be settled, decided or dealt with by the competent
authority.”
15. The plea, thus, was that the Section begins with a saving clause
qua the bar of civil court – “Save as expressly provided in this Act…..”
The provisions of Section 46 were pleaded to be expressly subject to the
provisions of Section 11(5) of the said Act and the observations in
Competent Authority, Tarana District, Ujjain (M.P.) v. Vijay Gupta &
Ors.1 were relied upon, opining that a suit can be filed in a civil court
within three months of passing of an order by the competent authority
under Section 11(4) of the said Act in view of the provisions of Section
11(5) of the said Act. There was pleaded to be an admission about the
disclosure of the appellant regarding the factum of the suit filed by
Jenobai in the returns and, thus, the respondents herein were required to
wait for the outcome of the suit and should have also invited objections
from Jenobai. The decree in the civil suit between the appellant and
Jenobai was, thus, submitted to be binding on the competent authority.
1 1991 Supp (2) SCC 631.
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16. On the other hand, the respondents herein reiterated that the suit
filed by Jenobai was a collusive one and the object of the institution was
to circumvent the provisions of the said Act. In this behalf, it was
submitted that the suit under Section 11(5) of the said Act can only be
instituted within three months from the date of Section 11(4) order, the
date of which is not mentioned. However, even if the date of the
subsequent order under Section 11(6) passed on 31.3.1979 is considered,
the period of three months elapsed as the suit was filed on
31.8.1979/3.9.1979 (there is some discrepancy qua the dates as recorded
in different proceedings). Further under Section 11(5) of the said Act, a
suit can only be filed for setting aside the order under Section 11(4) of the
said Act but no such prayer was made.
17. It was urged that after the order under Section 11(6) of the said Act
is passed, the land vests with the State under Section 12 of the said Act
and, thus, a suit for declaration of title was not maintainable. There was
no challenge to the order under Section 11(6) of the said Act and, thus,
the suit was not maintainable. It was also urged that no suit lies against
an order under Section 11(6) of the said Act in view of the judgment of
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this Court in State of Madhya Pradesh & Anr. v. Dungaji (Dead)
Represented by Legal Representatives & Anr. 2 Learned counsel for the
respondents herein pleaded that though the appellant raised the issue
about the pendency of the suit with Jenobai in the return filed under
Section 9 of the said Act, the documents were not produced and exhibited
in this behalf even before the trial court. The possession of Jenobai as
reflected in the revenue records was not proved by any evidence led in
that behalf. And, in fact, no such objections were filed before the trial
court.
18. On the aspect of this Court observing that an adverse inference will
be drawn as per the orders dated 16.1.2020 and 9.9.2020, it was
submitted that the copy of the objections were never placed before the
trial court, the first appellate court and the High Court and, thus, the
appellant failed to discharge the burden of proving the case. There
should, thus, be no occasion to draw the adverse inference against the
respondents herein.
19. We have given a thought to the matter in the conspectus of what
2 (2019) 7 SCC 465.
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has been urged before us on the different dates and the proceedings that
had been recorded. The matter was taken up on 16.1.2020 and in view of
the submissions advanced by the parties, the Court required perusal of the
record. Thus, in the proceedings it was recorded that there was a factual
controversy as to whether the appellant in pursuance of the draft
statement in the objections filed had given the particulars of the pending
civil suit filed by the mother-in-law of the appellant claiming part of the
land held by the appellant. This was considered to be relevant as in terms
of Section 9(iv) of the said Act such particulars are mandated to be given
and, thus, the respondents herein being in breach or not of the other
succeeding provisions of the Act would depend on this important aspect.
We also took note of the fact that as per the respondents herein no
particulars had been given and the suit was alleged to be collusive. In
order to determine the question it was opined that this Court found it
necessary to peruse the objections filed by the appellant to come to a
conclusion.
20. On the said date itself, this Court also required the pleadings in the
civil suit filed by the mother-in-law, Jenobai, to be placed on record as
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also the judgment.
21. The appellant complied with the order dated 16.1.2020 by filing
these additional documents but the respondents herein did not do the
needful. It is in these circumstances that on 9.9.2020 this Court made it
clear that in case the records are not filed adverse inference will be
drawn. The natural sequitur to this is that the failure to place the
aforementioned documents on record shows that there had been proper
disclosure about the suit in the return filed under Section 9 of the said
Act. The factum of disclosure of the suit could not really be doubted by
the respondents herein in view of their own pleadings (admitted in the
pleadings before the trial court, as perused by us). However, the records
are alleged not to have been located.
22. The aforesaid factual matrix is, thus, to be examined in the context
of the provisions of the said Act. The preparation of the statement of land
held in excess of ceiling limit under Section 11 of the said Act has to be
on the basis of information given in the return under Section 9 of the
said Act, or the information obtained by the competent authority under
Section 10 of the said Act after making an enquiry. In terms of Section
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11(3), the draft statement is to be published and served on the holder, the
creditor and “all other persons interested in the land to which it relates.”
Once a disclosure is there that Jenobai had filed a suit, there has to be
mandatorily a notice to her as otherwise any decision would be behind
her back and would, thus, violate the principles of natural justice.
23. There is little ambiguity about the aforesaid position as in Section
11(4) it has been stated that in case the competent authority finds that any
question has arisen regarding the title of a particular holder, which has
not been determined by the competent court, the competent authority
shall proceed to enquire summarily into merits of such question and pass
such orders as it thinks fit. Thus, the power is vested with the competent
authority to determine such conflict of the land holding. This is,
however, subject to a proviso. The proviso clearly stipulates that if such
a question is already pending for decision before the competent court, the
competent authority shall await the decision of the court.
24. In our view, the embargo came there and then as once the
disclosure was made the proceedings should have been kept in abeyance
to await the decision in those proceedings. The occasion to pass orders
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under sub-section (5) and sub-section (6) of Section 11 of the said Act did
not arise in the present case as in view of the disclosure of Jenobai’s suit.
Further proceedings should have been kept in abeyance to await the
verdict in the suit as per proviso to sub-section (4) and notice should have
been issued to Jenobai. All this has been observed to be in breach by the
respondents herein. We are, thus, of the view that the findings of the
appellate court in constructions of these provisions reflects the correct
position of law in the given facts of the case.
25. The issue of jurisdiction of civil court is no more res integra in
view of the judgment in Competent Authority, Tarana District, Ujjain
(M.P.).3 where it has been observed in para 4 as under:
“4. So far as the other question regarding the maintainability of the
suit in a civil court is concerned, suffice to say that sub-section (5)
of Section 11 of the Act itself provides that any party may within
three months from the date of any order passed by the Competent
Authority under sub-section (4) of Section 11 of the Act institute a
suit in the civil court to have the order set aside. Thus the above
provision itself permits the filing of a suit in a civil court and any
decision of such court has been made binding on the Competent
Authority under the above provision of sub-section (5) of Section
11 of the Act. It is not in dispute that the suit in the present case
was filed within three months as provided under sub-section (5) of
3 (supra).
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Section 11 of the Act. In the result, we do not find any force in this
appeal and it is accordingly dismissed with no order as to costs.”
26. We have taken note of the latter proceedings of this Court in State
of Madhya Pradesh & Anr. v. Dungaji (Dead) Represented by Legal
Representatives & Anr.4 discussing the scheme of the Act and the
requirement of taking recourse to the provisions of appeal and revision
under the said Act.
27. We have also considered the plea of limitation advanced by learned
counsel for the respondents albeit no specific issue being framed in
respect of the same.
28. In our view the legal position has to be appreciated in the factual
context. Thus, though there may be a process provided for redressal
under the scheme of the Act, it is this very scheme of the Act which has
been breached by the respondents herein in not complying with the
statutory provisions. It can be nobody’s say that Jenobai cannot file a
title suit against the appellant. That suit being maintainable and pending,
and the factum of that suit being disclosed in the return (if the nature of
4 (supra).
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disclosure being the reason we wanted to peruse the record, which were
not made available), the provisions of Section 11 had to be strictly
complied with. We say so as the right to property is still a constitutional
right under Article 300A of the Constitution of India though not a
fundamental right. The deprivation of the right can only be in accordance
with the procedure established by law. The law in this case is the said
Act. Thus, the provisions of the said Act had to be complied with to
deprive a person of the land being surplus.
29. The provisions of the said Act are very clear as to what has to be
done at each stage. In our view once a disclosure was made, the matter
had to be dealt with under sub-section (4) of Section 11 of the said Act
and in view of the pending suit proceedings between the appellant and
Jenobai, the proviso came into play which required the respondent
authorities to await the decision of the court. Sub-section 5 and
thereafter sub-section 6 would kick in only after the mandate of sub-
section 4 was fulfilled. In the present case it was not so. Even notice
was not issued to Jenobai. She could have clarified the position further.
The effect of the decree in favour of Jenobai is that the appellant loses the
right to hold that land and his total land holding comes within the ceiling
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limit. If there is no surplus land there can be no question of any
proceedings for take over of the surplus land under the said Act.
30. We are, thus, of the view that the impugned order is liable to be set
aside and the order of the first appellate court is restored.
31. The appeal is accordingly allowed leaving the parties to bear their
own costs.
………………………………J.
[Sanjay Kishan Kaul]
………………………………J.
[Dinesh Maheshwari]
………………………………J.
[Hrishikesh Roy]
New Delhi.
January 19, 2021.
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