Bajranga (Dead) By Lrs. vs The State Of Madhya Pradesh on 19 January, 2021


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Supreme Court of India

Bajranga (Dead) By Lrs. vs The State Of Madhya Pradesh on 19 January, 2021

Author: 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

7
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

8
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

9
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
10
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.

11

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.

13
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
15
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

16
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).

17

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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