Madhya Pradesh High Court
Smt.Usha Rathore vs The State Of Madhya Pradesh on 15 April, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:29076
1 WP-4953-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 15th OF APRIL, 2026
WRIT PETITION No. 4953 of 2008
ASHOK KUMAR JAIN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Avinash Zargar - Advocate for the petitioners/L.Rs.
Shri Suyash Thakur - Government Advocate for the respondents/State.
WITH
WRIT PETITION No. 5747 of 2008
SMT.USHA RATHORE AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Janak Lal Soni - Advocate for the petitioners.
Shri Suyash Thakur - Government Advocate for the respondents/State.
WRIT PETITION No. 6046 of 2008
NARESH KUAMR MALGANI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Janak Lal Soni - Advocate for the petitioners.
Shri Suyash Thakur - Government Advocate for the respondents/State.
WRIT PETITION No. 6426 of 2008
BALDEV RAJ DHINGRA AND OTHERS
Versus
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 04-05-2026
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2 WP-4953-2008
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Janak Lal Soni - Advocate for the petitioners.
Shri Suyash Thakur - Government Advocate for the respondents/State.
WRIT PETITION No. 6715 of 2008
SMT.NAYNA BAIN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Janak Lal Soni - Advocate for the petitioners.
Shri Suyash Thakur - Government Advocate for the respondents/State.
ORDER
Considering the similitude of the controversy involved in all the
aforesaid cases, they have been heard analogously and are being decided by
this common order, however, for the sake of convenience, the facts are being
extracted from WP No. 4953/2008.
2. The petitioners have filed the present petition under Article 226/227
of the Constitution of India challenging the legality and propriety of the
order dated 01.04.2008 (Annexure P/1) passed by the respondent No.2,
whereby representation submitted by the petitioners pursuant to the order
dated 26.09.2005 passed by the High Court in Misc. Petition No. 3835/1993,
has been rejected in a most arbitrary manner, without going through the
record of the ceiling case and without appreciating the provisions of the
Urban Land (Ceiling and Regulation) Act, 1976 (Hereinafter referred to as
‘the Act, 1976’).
3. It is contended by the counsel for the petitioners that the agricultural
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
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3 WP-4953-2008
land measuring 4.12 acres out of Bandobast No. 660, Khasra No. 203 and
0.42 acres of land out of Khasra no.204, total area 4.54acres (1,97,760 Sq.
Ft.) was purchased in the joint name of Smt. Magan Bai,W/o late Choudhary
Chandrabhan Jain and Shri Ashok Jain (Petitioner No.1) from Baini Prasad
Tandan, Purushottam Tandan, Harimohan Tandan & others by a registered
sale deed dated 11.02.1970.
4. It is submitted that one Dr. P.C. Jain, S/o late Choudhary
Chandrabhan Jain (brother of petitioner No.1), after the death of Smt. Magan
Bai, who died on 16.11.1976, prepared a forged Will of Smt. Magan Bai, and
on the basis of said forged Will got mutated his name in the revenue records
of the abovementioned agricultural land measuring 4.54 acres in year 1976-
77. Thereafter the name of Dr. P.C. Jain was recorded as the owner of the
said land.
5. It is submitted that when the said fact came in the knowledge of the
daughters of late Magan Bai, they filed a suit i.e. Civil Suit No. 10-A/1983
against Gulab Chand Jain, P.C. Jain and Ashok Jain. Vide judgment and
decree dated 07.01.1985, the court below decreed the suit and declared the
plaintiffs as owners. Consequently, the names of all the nine brothers and
sisters were recorded in the revenue records namely, (1) Smt. Sandhya
Vaidhya; (2) Smt. Chameli Bai; (3) Smt. GeetaJain; (4) Smt. Shakuntala
Jain; (5) Shri Gulab Chand Jain; (6) Dr. PooranChand Jain @ Kamal Kumar;
(7) Shri Ashok Kumar Jain; (8) Smt Suman Jainand (9) Smt. Shushila Jain
against Khasra Nos. 203/1 and 204/6 area 1.838 hectares. Copy of Khasra
Panchsala is Annexure P/2.
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
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6. It is submitted that the petitioner No.1 applied for partition and vide
order dated 01.07.1987 (Annexure P/3), partition of the land was done
amongst the parties by metes and bounds and the possession of the respective
portion of the land was taken by the persons concerned. As per partition,
petitioner No.1 became the owner of the land measuring 16146 sq. ft. and
was put in possession. Thereafter, petitioner No.1 sold the land measuring
10146 Sq.Ft. out of the said total land to petitioner No.2 vide registered sale
deed dated 21.06.2001 and since then petitioner No.2 is in possession.
7. It is submitted that the Competent Authority, Urban Land Ceiling,
Jabalpur initiated proceeding against Dr. P.C. Jain (brother of petitioner
No.1) under the Act and accordingly Revenue Case No. 696/A-90-B-9/76
was registered. Vide order dated 16.12.1980, the authority declared the land
measuring 1,81,614 Sq.Ft. out of Khasra No. 203/1 and 204/6 total
measuring 1,97,760 Sq.Ft. held by Dr. P.C. Jain as surplus. When this fact
came to the knowledge of other eight family members of Dr. P.C. Jain, they
intervened in the ceiling proceedings. Thereafter vide order dated 27.01.1987
the competent authority granted right of the land in question to Dr. P.C. Jain
including eight other family members and on that basis, total 1,45,314 sq.ft.
of land had fallen in the share of Dr. P.C. Jain. The authority declared 45,846
sq.ft. of land as surplus excluding 6600 sq.ft. land and without granting
opportunity to the other share holder, directed to prepare a final statement
under Section 9 of the Act, 1976. Copy of order dated 27.01.1987 is
Annexure P/4. It is submitted that the competent authority ought to have
divided the land in question into 9 equal share and thereafter should have
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
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calculated the ceiling limit as per the provisions of the Act, 1976, which has
not been done rendering whole proceedings illegal and void.
8. It is further submitted that Dr. P.C. Jain filed an application under
Section 45 of the Act, 1976, however, vide order dated 09.04.1987 the said
application was rejected and the authority directed to prepare the final
statement under Section 9 of the Act, 1976, copy whereof was served to Dr.
P.C. Jain on 05.05.1987. Thereafter, a notification under Section 10(1) of the
Act, 1976 was published in the Gazette dated 03.07.1987 in the name of Dr.
P.C. Jain alone whereas as per Section 10(1) of the Act, 1976 after service of
statement under Section 9 on the person concerned, a notification should
have been published giving particualrs of vacant land of the person
concerned in excess of ceiling limit, however, no statement has been served
on all the persons i.e. nine units and it was served only on Dr. P.C. Jain. As
such notification issued under Section 10(1) of the Act, 1976 is contrary to
the provisions of the Act. Copy of notification is Annexure P/5.
9. It is submitted that vide order dated 08.01.1988 direction was issued
to submit the map of the land willing to surrender. A notification was issued
under Section 10(3) of the Act, 1976 in the same manner as that of Section
10(1) in contravention of the provisions of the Act. Copy of notification is
Annexure P/6. Thereafter, the proposed map was filed, which was rejected
vide order dated 30.11.1988 and the authority directed to prepare a map and
send the same to Tahsildar, Nazul for taking possession. An appeal was
preferred against the said order before the Commissioner, Jabalpur. The
Additional Commissioner, vide order dated 06.12.1989 allowed the appeal
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
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and set aside the order dated 30.11.1988.
10. After receiving the record of the proceedings from the appellate
authority, the competent authority issued notices to the land holders on
06.06.1990 and fixed the case for 22.08.1990, however, hearing could not
take place as the case was called by the State for proceeding under Section
33 of the Act, 1976. Thereafter, on 18.11.1992 proceedings commenced and
proposed map was filed, however, the authority vide order dated 28.11.1992
(Annexure P/7) rejected the proposal submitted by Dr. P.C. Jain and directed
Revenue Inspector to submit proposal of land vested in the State. An appeal
was preferred against the order dated 28.11.1992, however, the competent
authority vide order dated 26.12.1992 directed the Tahsildar for taking
possession of the land as per map submitted by RI and fixed the case for
06.01.1993. Thereafter, on 06.01.1993 the Competent Authority recorded in
the order sheet that before directing Tahsildar Nazul to take possession,
notice under Section 10(5) of the Act, 1976 be issued to the land holders.
11. It is contended by the counsel for the petitioners that the perusal of
the order sheet dated 06.01.1993 reveals the very fact that on which date
notice under Section 10 (5) of the Ceiling Act was actually issued to the land
owners is missing, which creates a serious and reasonable doubt that no
notice under Section 10 (5) was ever issued. It is submitted that in the right
side of the said order sheet a note dated 22.01.1993 is endorsed to the effect
that notice under Section 10(5) after service on Dharak is annexed.
12. It is submitted that thereafter the Competent Authority while
deciding an application filed by the respondents therein, passed a detailed
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SHARAN SHUKLA
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order dated 12.02.1993 (Annexure P/8) and directed the Tahsildar Nazul to
take possession of the land in question as per the proposed map submitted by
the R.I. within 4 days. When the counsel appearing for the land holders came
to know about issuance of notice Under Section 10(5) of the Act, 1976, he
requested for supply of the said notice, which was supplied, which is evident
from Annexure P/8. Thereafter, an application for stay was filed in appeal
no. 56/A-90-B-9/92-93 pending before the Appellate Authority. The
Appellate Authority vide order dated 17.02.1993 (Annexure P/9) was pleased
to grant stay and summoned the record of ceiling case.
13. It is further submitted that copy of the stay order was presented
before the Competent Authority on 18.02.1993 whereupon the Tahsildar was
asked that in case possession of the land is not taken, the same be stayed.
Thereafter, on 04.03.1993 possession report was received from Tahsildar
Nazul and it was directed to send the record to the Appellate Authority.
However, vide order dated 23.08.1993 (Annexure P/1), the appellate
authority rejected the appeal directing to submit a proposal of surrendering
land in such a way so that single portion of land is made available to the
State.
14. It is submitted that the petitioners assailed the order dated
23.08.1993 by filing a petition before this Court, which was registered as
MP No. 3835/1993. The respondents also filed return to the petition. The said
petition was disposed of with the direction to the competent authority to
cause an inquiry after affording an opportunity of hearing to the petitioners
to find out whether the possession has been actually taken over in accordance
Signature Not Verified
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SHARAN SHUKLA
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with the section 10 of the parent Act. If the possession has not been taken
over as per law and there is any violation the possession shall rest with the
petitioners and all proceedings would stand abated as per section 4 of the
Repeal Act.
15. Thereafter, the petitioners made representation vide Annexure P/13
for conducting enquiry as per the direction of the Court, however, the
Additional Collector refused to conduct enquiry on the ground that in
absence of notification notifying him as Competent Authority, he cannot
conduct any enquiry. The Additional Collector vide letter dated 20.12.2007
(Annexure P/15) requested the Principal Secretary, Revenue Department
either to notify him as Competent Authority or to authorize
Collector/Additional Collector for conducting inquiry.
16. It is contended that the authority has taken the aforesaid steps just
to circumvent the order passed by this Court and to flout the same.
17. It is contended by the counsel for the petitioners that instead of
deciding the representation of the petitioner, Tahsildar initiated eviction
proceedings treating the petitioners encroachers. The petitioners preferred a
review petition i.e. MCC No. 535/2006, which was disposed of vide order
dated 10.03.2006 with a direction that Tahsildar shall understand the order
and take appropriate steps, however, the respondent No. 4 demolished the
boundary wall constructed over the land.
18. It is contended that thereafter Additional Collector proceeded with
the case of the petitioners and called the enquiry report and the matter was
fixed for 07.02.2008. It is submitted that the petitioner were not served with
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SHARAN SHUKLA
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any notice regarding fixing of date in the case. However, the petitioner No. 2
was shocked to know that the final order has been passed on 01.04.2008
(Annexure P/1) in the matter. It is contended that the impugned order has
been passed behind the back of the petitioner and misleading them. It is
submitted that the order has been passed without hearing the petitioners and
in violation of the order dated 26.09.2005 (Annexure P/11) and as such the
order is illegal and void and is liable to be set aside.
19. It is contended that the Competent Authority has failed to conduct
enqiry as per the provisions of Section 10 of the Ceiling Act as directed by
the Hon’ble High Court vide order dated 26.09.2005 (Annexure P-
11).Therefore, the impugned order dated 01.04.2008 (Annexure P-1) is
arbitrary, illegal, perverse and as such the same is liable to be quashed.
20. It is contended that although as per respondents, the possession of
45846 Sq.Ft. of land in question was taken on 15.02.1993 and the record was
corrected accordingly, but from the admitted facts it is evident the
possession, if any, was taken in contravention to the provisions of Section 10
(5) & (6) of the Act, 1976, according to which, the Competent Authority
cannot take possession of land before the expiry of 30 days from the service
of the notice to the person who is in possession and after the expiry of 30
days, if the person fails to deliver the possession then only the Competent
Authority may take possession of the vacant land and may use force.
21. It is contended by the counsel for the petitioners that in the present
case as per the order sheet dated 12.02.1993 the notice under Section 10 (5)
was served to counsel of land holders on 12.02.1993, but the possession was
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
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taken by the Tahsildat Nazul on 15.02.1993, which itself makes it clear that
the possession, if any, taken by the respondents is illegal and in
contravention to the provisions of Section 10 of the Act, 1976. Therefore, in
view of the order dated 26.09.2005 (Annexure P/11) passed by this Court,
since the possession of the land has not been taken over as per law and there
is violation of the provisions of the Act, the possession shall rest with the
petitioners and all proceedings thereto shall stand abated as per Section 4 of
the Repeal Act.
22. It is further contended that without passing of final statement and
demarcating the vacant land, the proceedings under Section 10 of the Act,
1976 cannot be initiated.
23. It is contended that the paper possession was taken by the
respondentno.3 after the order dated 12.02.1993 (Annexure P-8).
The competent authority directed the Revenue Inspector to take possession
and correct the records and submit the report and as submitted the report was
received, the possession was taken by the RI and accordingly the record was
corrected. It is submitted that the perusal of the record reveals that no
possession report was submitted by the RI, rather a report dated 17.02.1993
(Annexure P/27.), is on record, which shows that Patwari had taken over
possession. Thus, it is clear that the Tehsildar Nazul has not taken over the
possession and the alleged possession is without authority of law and is
nullity.
24. It is contended by the counsel for the petitioners that the enquiry
conducted by the competent authority is a face saving and mere eye wash. By
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
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the impugned order, the authority has tried to cover up earlier illegal acts.
The authority, while passing the impugned order, has deliberately not
considered the mandatory provisions of the Act, 1976. Consequently, as the
possession has not been so far taken by the respondents and the proceedings
in ceiling case are still pending, therefore in view of Section 4 of the Urban
Land (Ceiling and Regulation) Repeal Act, 1999 the proceedings of ceiling
case stand abated. Hence, this petition.
25. To bolster his submission, counsel for the petitioners has relied on
a judgment passed by the Hon’ble Apex Court in the case of Ramanlal
Bhailal Patel and others vs. State of Gujrat reported in (2008) 5 SCC 449.
26. The respondents have filed a short reply denying the averments
made in the petition. It is contended by the respondents that in compliance of
the order dated 26.09.2005 passed in WP No. 3835/1993, the respondent No.
2 has conducted a detailed enquiry. It is contended that the respondent No. 3
after giving proper notice to the petitioners under Section 10 (5) dated
07.01.1993 (Annexure R/1) and granting adequate opportunity to the
petitioners, possession of the excess land admeasuring 45846 sq. feet.
(4259.23 sq. meter) has been taken on 15.02.1993. It is contended that the
said notice was duly served on Dr. Pooran Chand Jain, S/o Chandrabhan
Jain, who was the original land owner of total area i.e. 1,97,760 sq. ft., out of
which, area of 1 unit of Pooran Chand Jain comes to 16,146 sq.ft. Copy of
service of notice is Annexure R/2. It is contended that since the notice of
possession has already been served to land owner Dr. Pooran Chand Jain, as
required under the Act, 1976 and the procedure prescribed under Section 10
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SHARAN SHUKLA
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of the Act, 1976, therefore, the possession taken by the competent authority
cannot be said to be against the provisions of the Act. Copy of possession
letter dated 15.02.1993 is Annexure-R/3.
27. It is contended by the respondents that the Coordinate Bench of
this Court in WP No. 3534/2005 decided on 01.03.2006 (Annexure R/4) has
already held that once the notice under Section 10 (5) of the Act of 1976 for
taking over possession has been served on the original land owner, the
subsequent action of receipt of possession, which is signed by the witnesses
and endorsed by the Tehsildar, cannot be doubted. It is submitted that the
said order of the coordinate Bench has been affirmed by the Division Bench
in WA No. 91/2006 and also by Hon’ble Supreme Court. Copy of the
judgment passed in WA No. 91/2006 is Annexure R/5.
28. It is further contended that in compliance of the order dated
26.09.2005 passed in WP No. 3835/1993, the respondent no. 2 has initiated
the proceedings according to the order passed by this Court and the
representation of the petitioners was considered by the competent authority
and after scrutiny of the records of the original proceedings, it was found that
the possession of the land in question was taken from the original land owner
by following due process of law and on the commencement of the Repeal
Act, no proceedings whatsoever was pending in respect of the land in
question before in forum, therefore, the petitioners are not entitled to claim
any relief by virtue of enforcement of Repeal Act. The respondent No. 2 has
rightly rejected the representation of the petitioners by passing s detailed
order dated 01.04.2008, which is impugned herein. Hence, no interference is
Signature Not Verified
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SHARAN SHUKLA
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called for by this Court under the extraordinary jurisdiction under Article 226
of the Constitution of India. The petition being bereft of merit, deserves to
be dismissed.
29. Heard learned counsel for the parties and perused the record.
30. Now, the only controversy which has been agitated by the
petitioners before this court in this petition is that the authority in compliance
of the order dated 26-09-2005 in W.P.No.3835/1993 has passed an order
without conducting an enquiry, which has been directed and expected from
the authority. It is further submitted that the authority vide impugned order
dated 01.04.2008, Annexure P/1, has passed an order absolutely ignoring the
direction issued by this court in the earlier petition. This court vide order
dated 26-09-2005 in W.P.No.3835/1993 has issued following directions :
“7. Submission of Mr. Khare is that 30 days notice was not given.
Mr. Deepak Awasthy, learned Government Advocate has placed
reliance on the order-sheet . The possession has to be taken in
accordance with Section 10. There can be no scintilla of doubt, as
has been asseverated in the petition, the petitioner is still in
possession. If the statutory notice period had not been given it is
difficult to hold that possession has been taken over. This matter is
to be inquired into by the competent authority. Hence I am
inclined to direct the competent authority to cause an inquiry after
affording an opportunity of hearing to the petitioners to find out
whether the possession has been taken over in accordance with the
section 10 of the parent Act. If the possession has not been taken
over as per law and there is any violation the possession shall rest
with the petitioners and all proceedings would stand abated as per
section 4 of the Repeal Act.”
31. From perusal of the said direction it was incumbent upon the
authority to conduct an enquiry as per the mandate of the order of the court
and thereafter ought to have passed an order. This court in the earlier round
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SHARAN SHUKLA
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of litigation has clearly held that the court has no scintilla of doubt as has
been asseverated in the petition, the petitioner is still in possession. It is
further observed that if the statutory notice period had not been given it is
difficult to hold that possession has been taken over and directed competent
authority to cause an enquiry after affording an opportunity of hearing to the
petitioner to find out whether the possession has been taken over in
accordance with the section 10 of the Parent Act. It is also observed that if
the possession has not been taken over as per law and there is any violation,
the possession shall rest with the petitioner and all the proceeding would
stand abated as per section 4 of the Repeal Act.
32. When the impugned order dated 01.04.2008 (Annexure P/1) has
been scrutinized, it is found that the authority in its order though has
recorded the finding that during the proceeding vide order dated 27-1-1987
the competent authority had found that there are nine units constituting a
holder and accordingly by calculating the area of ceiling limit of nine units,
the area has been reduced from total area of 1,91,160 sq.ft. to 145314 sq.ft..
Accordingly, rest of 45846 sq.ft. land has been declared to be in excess of
the ceiling limit and passed direction to issue final statement.
33. It is observed by the authority that Dr. P.C. Jain against whom the
ceiling proceedings were originally initiated shall be deemed to be holder of
the land. It is also observed that there is no order of the civil court whereby
the land has been partitioned amongst the nine joint owners and even
assuming that if such order has been passed then also it is not enforceable as
per section 42 of the Act of 1976. Therefore, the holder or objector cannot
Signature Not Verified
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SHARAN SHUKLA
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claim that they be given possession of the land according to their share apart
from the entitlement held by the authority.
34. It is further submitted that as the appellate authority had also given
choice to P.C. Jain, which has been exercised by the holder, therefore, the
objections raised by the petitioners have been rejected. It is further observed
that the Tehsildar by its report dated 14-03-2008 has found that excess land
admeasuring area 45,846 sq.ft. has been recorded as Najul State Government
in the revenue record by the orders of the competent authority. It is further
observed that as per report the then Tehsildar Najul Jabalpur in case
No.88/B-121/92-93 has taken over possession vide possession letter dated
15-02-93 and accordingly the record has been corrected.
35. From perusal of the order it is found that the authority has not
addressed the question of the statutory limitation of the notice as observed by
this court in the earlier order and has also not given any finding on the said
issue. This court had observed in the earlier writ petition that if the statutory
notice period had not been given, it is difficult to hold that possession has
been taken over. Therefore, the authority ought to have given finding on the
notice by which the possession has been taken over; but, the authority has
not dwelt upon the issue. When this court has perused the record, it is found
that possession letter contains the date 15.2.1993. The said possession letter
contains the names in the column of Bhoomi Swami which reads as :- Dr. PC
Jain, Gulabchand Jain, Ashok Kumar s/o Chandrabhan Jain, Lordgunj,
Jabalpur. Now this possession letter contains the name of three Bhoomi
Signature Not Verified
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SHARAN SHUKLA
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Swamis. Notice of Section 10(5) is also attached at page 175 just next to the
page of possession letter in the record, which contains the recital, which has
been referred to P.C. Jain and according to which the person was asked to
deliver the possession before 08-03-1982. On the back leaf of said notice, the
date contains i.e. 06-03-1982 of endorsement that notice has been delivered.
The next page of it contains at page 177, possession taking over letter dated
08-03-1982 i.e. on the same date and it contains the signature of the
Authority but not of the holder.
36. The authority in its entire order could not give any finding on the
said notices, which are found attached in the office record. It seems that the
authority either did not understand the context of the order or deliberately
avoided to give any finding because it is adverse to the interest of the State.
The Collector is directed to take note of this fact that the order passed by this
court has not been complied with in its true spirit, however, the order is
under challenge under the writ jurisdiction. Therefore, instead of taking any
contempt proceeding against the authority, who has passed the impugned
order dated 01.04.2008 (Annexure P-1), the Collector is directed to take up
the matter on the departmental and administrative side.
37. Now, when the question, which has been dealt with by the
authority in regard to holding P.C.Jain as the holder for the entire land is
examined then it is found that Section 3 of the Act of 1976 provides that no
person shall be entitled to hold any vacant land in excess of the ceiling
limit. Section 3 of the Act, 1976 reads as under:-
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“3. Persons not entitled to hold vacant land in excess of the ceiling
limit-Except as otherwise provided in this Act, on and from the
commencement of this Act, no person shall be entitled to hold any
vacant land in excess of the ceiling limit in the territories to which
this Act applies under sub-section (2) of section 1.”
38. Similarly, Section 6 of the Act, 1976 provides that every person
holding vacant land in excess of ceiling limit at the commencement of the
Act shall within such period it was required to file a statement before the
competent authority having jurisdiction specifying the location, extent, value
and such other particulars as may be prescribed of all vacant lands and of
any other land on which there is a building whether or not with a dwelling
unit therein held by him (including the nature of his right, title or interest
therein and also specifying the vacant land within the ceiling limit which he
desires to retain). Section 6 of the Act, 1976 reads as under:-
“6. Persons holding vacant land in excess of ceiling limit to file
statement.-(1) Every person holding vacant land in excess of the
ceiling limit at the commencement of this Act shall, within such
period as may be prescribed, file a statement before the competent
authority having jurisdiction specifying the location, extent, value
and such other particulars as may be prescribed of all vacant lands
and of any other land on which there is a building, whether or not
with a dwelling unit therein, held by him (including the nature of
his right, title or interest therein) and also specifying the vacant
lands within the ceiling limit which he desires to retain:
Provided that in relation to any State to which this Act applies
in the first instance, the provisions of this sub-section shall have
effect as if for the words “Every person holding vacant land in
excess of the ceiling limit at the commencement of this Act”, the
words, figures and letters “Every person who held vacant land in
excess of the ceiling limit on or after the 17th day of February,
1975 and before the commencement of this Act and every person
holding vacant land in excess of the ceiling limit at such
commencement” had been substituted.
Explanation.-In this section, “commencement of this Act” means,-
(i) the date on which this Act comes into force in any State;
(ii) where any land, not being vacant land, situated in a State
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in which this Act is in force has become vacant land by any
reason whatsoever, the date on which such land becomes
vacant land;
(iii) where any notification has been issued under clause (n)
of section 2 in respect of any area in a State in which this Act
is in force, the date of publication of such notification.
(2) If the competent authority is of opinion that –
(a) in any State to which this Act applies in the first instance,
any person held on or after the 17th day of February, 1975
and before the commencement of this Act or holds at such
commencement; or
(b) in any State which adopts this Act under clause (1) of
article 252 of the Constitution, any person holds at the
commencement of this Act,
vacant land in excess of the ceiling limit, then, notwithstanding
anything contained in sub-section (1), it may serve a notice upon
such person requiring him to file, within such period as may be
specified in the notice, the statement referred to in sub-section (1).
(3) The competent authority may, if it is satisfied that it is
necessary so to do, extend the date for filing the statement under
this section by such further period or periods as it may think fit;
so, however, that the period or the aggregate of the periods of
such extension shall not exceed three months.
(4) The statement under this section shall be filed,-
(a) in the case of an individual, by the individual himself;
where the individual is absent from India, by the individual
concerned or by some person duly authorised by him in this
behalf; and where the individual is mentally incapacitated
from attending to his affairs, by his guardian or any other
person competent to act on his behalf.;
(b) in the case of a family, by the husband or wife and where
the husband or wife is absent from India or is mentally
incapacitated from attending to his or her affairs, by the
husband or wife who is not so absent or mentally
incapacitated and where both the husband and the wife are
absent from India or are mentally incapacitated from
attending to their affairs, by any other person competent to
act on behalf of the husband or wife or both;
(c) in the case of a company, by the principal officer thereof;
(d) in the case of a firm, by any partner thereof;
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(e) in the case of any other association, by any member of the
association or the principal officer thereof; and
(f) in the case of any other person, by that person or by a
person competent to act on his behalf.
Explanation.-For the purposes of this sub-section, “principal
officer”,-
(i) in relation to a company, means the secretary, manager or
managing-director of the company;
(ii) in relation to any association, means the secretary,
treasurer, manager or agent of the association,
and includes any person connected with the management of the
affairs of the company or the association, as the case may be, upon
whom the competent authority has served a notice of his intention
of treating him as the principal officer thereof.”
39. From the perusal of the record it is found that the other co-owners
of the land had submitted their objections before the competent authority.
The competent authority treating them to be the co-owners had found that
the person is entitled to have 9 units and accordingly the area of 9 units have
been reduced from the total area and accordingly ceiling limit has been
assessed of 45,846 square feet. Earlier, the total land was found to be of
1,97,760 square feet, out of which 6600 was reduced as the lands have been
found to be on the road on Jabalpur-Damoh State highway. Accordingly, out
of 1,91,160 holding entitlement of 9 units, 1,45,314 square feet has been
reduced and accordingly the excess lands have been found to be 45,846
square feet vide order dated 27.1.1987.
40. The Act of 1976 provides definition of person in Section 2 sub-
section (i) which reads as under :-
“Section 2(i) “person” includes an individual, a family, a firm, a
company, or an association or body of individuals, whetherSignature Not Verified
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incorporated or not;”
41. According to said definition, a person includes an individual, a
family, a firm, a company, or an association or body of individual whether
incorporated or not. The Hon’ble Apex Court in the case of Ramanlal Bhailal
Patel (supra) while dealing with the meaning and scope of ‘person’ under
the Gujarat Agriculture Land Ceiling Act 1960 having the same definition of
person having perimetria provision in para 29 has held as under :-
“29. Normally, where a group of persons have not become co-
owners by their own volition with a common purpose, they cannot
be considered as a “person”. When the children of the owner of a
property succeed to his property by testamentary succession or
inherit by operation of law, they become co-owners, but the co-
ownership is not by volition of parties nor do they have any
common purpose. Each can act in regard to his/her share, on
his/her own, without any right or obligation towards the other
owners. The legal heirs though co-owners, do not automatically
become an “association of persons/body of individuals”. When
different persons buy undivided shares in a plot of land and
engage a common developer to construct an apartment building,
with individual ownership in regard to respective apartment and
joint ownership of common areas, the co-owners of the plot of
land, do not become an “association of persons/body of
individuals”, in the absence of a deeming provision in a statute or
an agreement. Similarly, when two or more persons merely
purchase a property, under a common sale deed, without any
agreement to have a common or joint venture, they will not
become an “association of persons/body of individuals”. Mere
purchase under a common deed without anything more, will not
convert a co-ownership into a joint enterprise. Thus when there are
ten co-owners of a property, they are ten persons and not a “body
of individuals” to be treated as a “single person”. But if the co-
owners proceed further and enter into an arrangement or
agreement to have a joint enterprise or venture to produce a
common result for their benefit, then the co-owners may answer
the definition of a “person”.”
42. It is held by the Hon’ble Apex Court that when there are several
co-owners then they are all ‘persons’ in their own capacity and not body of
individuals “to be treated as a single person”. But if the co-owner proceeds
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further and enter into an agreement or agreement to have a joint enterprise or
venture to produce a common result for their benefit, then the co-owners
jointly may fall within the definition of a person.
43. In the present case in hand, as there is no such agreement which
has been submitted by the persons/holders/co-owners, therefore, in absence
of such agreement there was no reason for the authority to deem one person/
co-owner P.C.Jain as person/holder for entire land. More so, the competent
authority has taken note of the fact that there are nine co-owners who owns
the land and, accordingly, made nine units to calculate and re-assess the total
excess limit of the ceiling. When such exercise was done by the authority, at
the relevant point of time the authority should have dwelt upon the issue and
accordingly initiated proceedings against all the members but instead of
taking it in accordance of law, as laid down by the Hon’ble Apex Court or as
per the definition clause, the authority proceeded with the same proceedings
and ultimately has shown that the possession has been taken over on
15.02.1993 in the light of the notice dated 12.02.1993. The possession letter
also contains three names. When the authority itself has recorded nine units
but holding that the purpose can be served by treating P. C. Jain as a holder
for the purpose of ceiling, then there was no requirement for writing three
names and in absence of such persons, such possession, which has been
taken over, cannot be said to be a legal possession, that may be a paper
possession but not a possession in accordance with law, as directed by this
Court in the earlier round of litigation.
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44. It is found by this court in the earlier round of litigation that the
physical possession is still with the petitioners then this Court does not fit
right to sit over and make the judgment over it once the finding has already
been arrived by this court in the earlier round of litigation. As no challenge
has been made to the said findings, that has attained finality.
45. The State Govt. by virtue of Section 3(2) cannot take possession
after vesting under Section 10(3) of the Act 1976 because as found by this
Court that the entire proceedings initiated against one person despite
recording that it contains nine shares and as per the law laid down by the
Hon’ble Apex Court in the case of Ramanlal (supra) , all were required to be
treated as persons in their independent capacity for proceedings under the
Act of 1976 coupled with the fact that in the earlier round of litigation the
Court has already found that the possession remained with the petitioners,
the entire proceedings under the Act of 1976 have been found to be vitiated
against the petitioners.
46. Therefore, in the considered opinion of this Court, the Authority
has not passed an order in consonance of the direction issued by this Court
and therefore, failed in its jurisdiction to address the issue directed by this
Court to be decided. As this Court has categorically scrutinized the record
and found that possession was not taken in accordance with law, therefore
there is no need to again remand the matter back to the authority with certain
direction. Therefore, in the considered opinion of this Court, the possession
as per Section 10(5) of the Act has not been taken over from the petitioners
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in accordance with law. It remains with the petitioners. Therefore, by
application of the repeal Act, Section 3 and Section 4, the ceiling proceeding
stood abated after coming into force of the repeal Act.
47. The petitions stand allowed. The authorities are directed to record
the entries accordingly.
(DEEPAK KHOT)
JUDGE
RAGHVENDRA
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