.^^w^ .^^3'11^ 8 ^MS" V&iSfv' '^ .\\ HIGH COURT OF CHHATTISGARH. BILASPUR Writ Petition (Art. 227) No.152 of 2010 Kanhaiyalal - Versus - State of Chhattisgarh and others th Post for pronouncement of order on 12"' of Auaust. 201 1 Sd/- T.P. Sharma HIGH COURT OF CHHATTJSGARH, BILASPUR PETITIONER/: (Revisioner) Writ Petition (Art. 227) No.152 of 2010 Kanhaiyalal, son of Shri Puhupram, aged 59 years, resident of Village Didhari, P.0. Bhansoj, P.S. Mandir Hasaud, Tehsil & District Raipur (CG) RESPONDENTS: Versus 1. State of Chhattisgarh, Collector, Durg. through the 2. Anil. 3. Jugal Kishore 4. Prakash Narayan 5. Shesh Narayan No.2 to 5 are legal heirs of Shanti Bai, daughter of Late Indubai & Ramjivan Dubey and residents of Village Mudpaar, Tehsil Kharora, District Raipur (CG) 6. Nandini Bai, Daughter of Ramjivan Dubey, Quarter No.2, Dhamdha Naka, District Durg (CG) 7. Pushpa Bai, daughter of Ramjivan Dubey, resident of Village Darbha, Tehsil Mandir Hasaud, District Raipur (CG) {Petition underArticle 227 of the Constitution of India} Present: No.1. Mr. B.P. Sharma, counsel forthe petitioner. Mr. Vinod Kumar Tekam, Panel Lawyer for the State/respondent Mr. Ashish Shrivatava, counsel for respondents No.2 to 7. Sinflle Bench: Hon'ble Mr. T.P. Sharma, J ORDER (12-8-2011) 1. By this writ petition under Article 227 of the Constitution of India, the petitioner has challenged legality & propriety of the order dated 3-10- 2009 passed by the Board of Revenue, Chhattisgarh, Bilaspur (Circuit Court Raipur) in Revenue Revision Case No.6/B-92(5)/2003-04 affirming the order dated 12-11-2002 passed by the Additional Commissioner, Raipur Division, Raipur in Revenue Case No.82-B/92(3)/1997-98 afRrming the order dated 27-12-97 passed by the Additional Collector, .-^.^sg^ ^-^ Raipur in Appeal Case No.82B/92(3) year 97-98 affirming the order dated 12-7-94 passed by theSub Divisional Officer, Raipur in Case No. 10748/92(3) year 74-75. 2. I have heard learned counsel for the parties, perused the orders impugned and copies of other documents. 3. As per the order impugned and copies of other documents, proceeding under the provisions of the Chhattisgarh Ceiling on Agricultural Holdings Act, 1960 (for short 'the Act, 1960') was initiated against holder of the land Indu Bai, widow of Late Ramsajivan Dubey in Revenue Case No. 1074e/92(3) year 74-75 vide order dated 16-12-75. Finally 14.81 acres of land was declared surplus by the Sub Divisional Officer, Raipur/ competent authority under the Act, 1960, same was challenged before the superior authorities and finally the order passed by the Sub Divisional Officer, dated 16-12-75 was quashed after declaring the land surplus as per the scheme of the Act, 1960. The land was allotted to landless persons including the petitioner herein whom Khasra No.341 area 1.129 hectares was allotted vide lease dated 24-2-89 and possession was handed over to the petitioner. After final order passed by the superior authorities, the order dated 12-7-94 was passed by the Sub Divisional Officer, Raipur in Case No. 10748/92(3) year 74-75 whereby ceiling proceeding was dropped against Indu Bai and direction to correct the record was passed by the Sub Divisional Officer. In compliance of such order, record was corrected, land recorded in the name of the petitioner herein was corrected and name of Indu bai was amended, same was challenged before the Additional Collector & Additional Commissioner and finally, before the Board of Revenue, and the aforesaid authorities have dismissed theclaim ofthe petitioner herein. 4. Learned counsel for the petitioner vehemently argued that as per the scheme and the provisions containedin Section 11-A (3) of the Act, 1960, after declaring the land surplus in the ceiling proceeding, the competent authority and the revenue authorities are competent to distribute the land as per the scheme, and in compliance of such provision and scheme, the competent authority has distributed the land to landless persons including the petitioner herein. Although the provisions ofsub-sections (2) & (3) of Section 11-A, Section 11-B, the proviso to Section 41 and the proviso to Section 42 oftheAct, 1960 have ".\\ been declared ultra vires by the High Court of Madhya Pradesh in the matter of Smt. Basant Kumari and others v. State of Madhya Pradesh and others , but the petitioner herein is entitled to retain his land which has been allotted to him. Learned counsel further argued that no opportunity of hearing has been provided to the petitioner before correction of revenue record by all the revenue courts and thereby all the revenue courts have committed illegality. Learned counsel also argued that as per Sections 11-A (3) & 11-B of the Act, 1960, after final disposal of ceiling case by the appellate or revisional authority if after declaring the land surplus same was allotted to persons entitled, then even after the order passed by the appellate or revisional authority, the land cannot be reverted back to the holder of the land, only compensation may be awarded to the holder of the land. Learned counsel contended that the Land Acquisition Act, 1894 provides similar provision and once the land is acquired then it cannot be reverted back to the person from whom the land is acquired. Therefore, as per the provisions of the Act, 1960 the petitioner herein is squarely covered by the statutes in pari materia. Learned counsel placed reliance in the matter of Bangalore Development Authority and others v. R. Hanumaiah and others in which the Supreme Court has held that the provisions of Section 29 of the City of Bangalore Improvement Act, 1945 and Section 38 of the Bangalore Devetopment Authority Act, 1 976 are in pari materia with each other. Learned counsel further contended that the petitioner herein cannot be debarred from enjoyment of his property or cannot be deprived of his property and the right to property is a constitutional right, though not a fundamental right, in terms of Article 300A of the Constitution of India. 5. On the other hand, learned counsel for respondents No.2 to 7 opposed the petition and submitted that as a result of final decision of the superior courts rights and obligations over the property of respondents No.2 to 7 i.e. legal representatives of original holder, have been restituted in terms of Section 144 of the Code of Civil Procedure, 1908 read with Section 43 of the Chhattisgarh Land Revenue Code, 1959. While passing such order the Court below has not committed illegality. It is not disputed that after declaring the land surplus.the land has been allotted to the 1AIR 1990 MP 160 2 (2005)123cc 508 petitioner herein but for restitution no opportunity of hearing^ was necessary to the petitioner because he was not necessary party and allotment of land to the petitioner was subject to final decision of the superior courts. Therefore, by passing such orders the revenue courts have not committed any illegality. 6. Sub-section (3) ofSection 11-AoftheAct, 1960 readsas follows: - "(3) If the final disposal of the case pending before the Civil Court results in declaration of the title of land to a ptfrson other than the holder of the land who had filed return under this Act, such person shall not be entitled for the land of which he had claimed the title, if such land already stands distributed in accordance with the provisions of this Act and in that event the said person shall be paid market value of the said land calculated in such manner as may be prescribed: Provided that where the total land together with the land to which holder has become entitled under this section exceeds the ceiling limit, nothing in this sub- section shall apply in respect of that such land which is in excess ofthe ceiling limit." 7. Section 11-B ofthe Act, 1960 reads as follows: - "11-B. Consequences of final disposal by Appellate or Revisional Authority.—Ifthe final disposal of the case before the Appellate Authority or Revisional Authority results in— (i) declaration of title of land to a person other than the holder of the land who has filed return under this Act; or (ii) declaration of land to be exempted from the provisions of this Act; or (iii)entitlement of holder or person other than holder under any of the provisions of this Act; such person shall not be entitled for the land of which he had claimed the title or such holder shall not be entitled for the land in respect of which he had claimed exemption or the holder or such other person shall not be entitled for land declared in his favour under (iii) above as the case may be, if such land already stands distributed in accordance with the provisions of this Act and in that event the provisions of sub-section (3) of Section 11-Ashall apply to such person or holder as the case may be." [ The aforesaid provisions have been declared ultra vires by the High Court of Madhya Pradesh in Smt. Basant Kumari's case (supra). The ; High Court of Madhya Pradesh has observed in para 9 of its order as follows: - "9. Let us now turn to the provisions of sub-section (3)'. of Section 11-A, Section11-B and the proviso to Sections 41 and 42 of the Act, as amended by the Amending Act. The effect of these provisions is that notwithstanding any order or decision by a Court or an appellate authority, a person shall not be entitled to land, but only to compensation. These provisions, therefore, have the effect of modifying an order or decision given by a Court or a Tribunal in exercise of judicial power so that even of a person becomes entitled to land by virtue of an order properly passed in exercise of judicial power, it is declared by the legislature that such person would not be entitled to that land. There can be no manner of doubt that these provisions have the effect of modifying an order passed by a Court or a Tribunal in exercise of judicial power without changing the basis of that order. This would, therefore, amount to encroachment on judicial power. It was contended on behalf of the State that the said provisions were protected by the second proviso to Art. 31-A of the Constitution. The contention cannot be upheld. The challenge to the provisions in question is not on the ground that there is no provision for payment of compensation in accordance with the provisions of the second proviso to Art. 31-A or that these provisions offend the provisions ofArt. 14 or 19 ofthe Constitution. The validity of these provisions is assailed on the ground that they are violative of the Rule of law inasmuch as they lay down that full effect shall not be given to an order properly passed by a Court or a Tribunal in exercise of judicial power and hence these provisions constitute encroachment on judicial power by the legislature. In our opinion, these provisions are violative of the Rule of law which is a basic and essential feature of our Constitution. These provisions, therefore, deserve to be struck down." 9. Submission of counsel for the petitioner that this provision is pari materia with the provisions ofthe LandAcquisition Act, 1894 has no force and is totally misconceived. After final order passed by the superior courts only option left to the court of first instance was to restitute the original possession which holder of the land was occupying just before passing of the order of the competent court. lO.Consequently, l,do not find any merit in the petition requiring any iriterference in exercise of supervisory jurisdiction. The petition is, therefore, liable to be dismissed and it is hereby dismissed. No order as to costs. _— Sd/- T.P. Soma