--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 7963 / 2009 SAIFUDDIN S/O ABDUL HUSSAIN & 6 ORS., Vs. STATE OF MP & 2 ORS., * * * * * [ O R D E R ] ( 6/1/2011) The petitioner before this court has filed this present petition being aggrieved by the order dt. 14/7/09 passed by the Tehsildar, Nazul, Distt. Ratlam in case No. 32/B-121/08-09 (Asgar Ali & Ors., Vs. State of MP & Ors.). The contention of the petitioner is that he is owner of land bearing Survey No. 43/1131, admeasuring 0.840 hectares, situated at Sajjan Mill Road, Ratlam. The petitioner has further stated that the land in question was given by the erstwhile ruler of Ratlam State vide his order No. 11026 dt. 2/12/1944 to one Jagannath Kagdi, for construction of Oil Mill at Ratlam and thereafter on 20th November 1945, the Maharaja issued a 'Robkyar' in favour of Jagannath Kagdi allowing him to establish an oil mill at Ratlam by importing suitable machinery for the working of the said oil --- 2 --- mill. The petitioner has further stated that the predecessor – in – title Jagannath Kagdi sold the said mill along with the land, building and machinery to one Magni Ram of Ratlam vide sale deed dt. 18/12/1949. The petitioner has further stated that in the year 1955 one Narendra Kumar Zalani got the aforesaid mill and its land, attached in Civil Execution Case No. 10 / 1955, which was pending against Magni Ram and the plant, building and machinery was subjected to public auction by the Civil Court. The petitioner has further stated that one M/s. Nandram of Badnawar purchased the said mill in the court auction and the sale certificate was issued in favour of the auction purchaser. The petitioner has further stated that in the year 1983 the firm Nandram Jawaharlal and Company sold the said mill along with plant, building and machinery as well as land to Jivaji Rao Sugar Mills Co. Ltd., The petitioner has further stated that the petitioner along with his other family members have purchased the land including the plant, building and machinery from Jivaji Rao Sugar Mills Co. Ltd., However, when the document of registration was presented before the Registrar, an objection was raised in the matter and the same was not registered by the Distt. Registrar, Ratlam. The petitioner has further stated that the Sub --- 3 --- Registrar, Ratlam has refused to register the document on the ground that there was no permission u/S. 165 (7)(b) of the MP Land Revenue Code, 1959 and the petitioner was directed to obtain permission from the Collector, Ratlam before executing the sale deed. The petitioner has further stated that the owner of the land in question submitted an application u/S. 165(7)(b) of the MP Land Revenue Code, 1959 before the Collector and the Collector, Ratlam on receiving such an application referred the matter to the State Government through Commissioner, Ujjain for obtaining necessary opinion. The petitioner has enclosed the opinion of the State Government dt. 18/2/86 as Annexure P/3 and the opinion of the State Government reflects that no permission under the MP Land Revenue Code, 1959 was required for registering the document in question. The petitioner has also enclosed the opinion given by the Law Department in the matter dt. 28/12/85. The petitioner has further stated that after receiving the opinion from the State Government, as the Sub Registrar and the Collector were left with no other choice except to register the document, the same was registered. The petitioner has further stated that after the document was registered in their favour, the petitioner and his other family --- 4 --- members submitted an application for mutation of their names and an order was passed by the Collector on 21/12/06. The petitioner's contention is that the Collector has rejected their application for mutation by assigning a reason that in the revenue records the land in question was entered as a Government land. The petitioner being aggrieved by the order of the Collector dt. 21/12/06 has preferred an appeal before the Commissioner, Ujjain Division, Ujjain and the Commissioner, Ujjain Division, Ujjain has passed an exhaustive order dt. 1/10/07. Learned Commisioner has set aside the order of the Collector dt. 27/1/07 and the matter was remanded back to the Collector to take appropriate action in accordance with law. The petitioner has further stated that after the matter was remanded back to the Collector the same was forwarded to Tehsildar Nazul and the Tehsildar Nazul by passing the impugned order dt. 14/7/09 has rejected the application preferred by the petitioner for mutation. The petitioner's grievance is that the Tehsildar Nazul could not have superseded the order passed by the Commissioner and once the Commissioner has held that the name of the petitioner has to be mutated in the revenue records, Tehsildar could not have given a finding contrary to the findings --- 5 --- arrived at by the Commissioner. The petitioner has prayed for quashing of the order passed by the Tehsildar. A reply has been filed by the respondent State and the contention of the respondent State is that the land in question was initially given by erstwhile ruler of Ratlam State vide lease deed dt. 28/11/45 to Firm Jagannath Atmaram for installation of an Oil Mill on certain terms and conditions. Condition No.12 of the said lease deed clearly mentions that the property of Mill will not be transferred by way of sale, mortgage etc., without previous approval of the Darbar. The respondent State has further stated that the 'Robkyar' holder has violated the said condition and as he was simply a lease holder was certainly not having a right to sale the property in contravention to the terms and conditions of the said lease deed. The respondents have admitted the opinion given by the State of MP in the matter and have also admitted the order passed by the Commissioner, Ujjain Division, Ujjain. The stand of the State Government is that the Commissioner, Ujjain Division, Ujjain has remanded the matter back to the Collector to take appropriate action in accordance with law and the Tehsildar has rightly passed the impugned order by taking an appropriate action in accordance --- 6 --- with law. The respondents have also stated that the land in question is recorded as Government land in the revenue records since 1956 and the State Government is in possession of the land in question since 1956. The respondents have prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that the land in question was earlier owned by the erstwhile ruler of Ratlam and the same was given by the erstwhile ruler of Ratlam by order No. 11026 dt. 2/12/1944 in favour of Jagannath Kagdi. The said Jagannath Kagdi sold the land along with building and machinery to one Magni Ram of Ratlam vide sale deed 18/12/1949. The land in question along with building and machinery was transferred to M/s. Magni Ram and no objection was raised in the year 1949 by the Town Improvement Trust or by the State Government or by any authority. In the year 1955 one Narendra Kumar Zalani got the aforesaid land, plant and machinery attached in Civil Execution Case No. 10 / 55 and the same was sold by public auction by the Court. One M/s. Nandram Jawahar of Badnawar purchased the same in court --- 7 --- auction and a sale certificate was issued in favour of the auction purchaser. In the year 1993 the firm Nandram Jawahar and Company sold the mill along with land, building and machinery to Jiwaji Rao Sugar Mills & Co. Ltd., Daloda and Jivaji Rao Sugar Mills Co. Ltd., sold the same to the petitioner as well as to other family members of the petitioner. A sale deed dt. 28/7/1983 was presented before the Sub Registrar, Ratlam for registration. However, the Sub Registrar, Ratlam expressed his inability to register the sale deed and directed the owner of the land to submit sanction u/S. 165(7)(b) of the MP Land Revenue Code, 1959. An application was submitted before the Collector, Ratlam for grant of sanction u/S. 165(7)(b) of the MP Land Revenue Code, 1959 and the Collector, Ratlam has forwarded the matter to the State Government through the Commissioner, Ujjain for necessary legal opinion. The matter was referred to the Law Department and the Law Department has opined on 28/12/85 that no such permission / sanction is required u/S. 165 of the MP Land Revenue Code, 1959 in the matter. The State Government has subsequently issued an order dt. 18/2/86 and the same reads as under : e/; izns'k 'kklu jktLo foHkkx --- 8 --- dzekad 5&178@}kjk@lk2ch@84 Hkksiky]fnukad 18@2@86 izfr] dysDVj] jryke fo"k;%& uxj jryke esa fLFkr vkbZy fey dh Hkwfe ds fcdz; ckcn~ A lanHkZ%& vkidk Kkiu dzekad D;wvkj@1&84&@4104@nk@ch&121 ,@57] fnukad 11&6&84 A mijksDr fo"k; esa lanfHkZr i= dk d`i;k voyksdu djsa A izdj.k esa lwfpr fd;k tkrk gS fd orZeku Hkwfe Lokeh iz'uk/khu Hkwfe ij viuk vf/kdkj ÞVªkalQj vkWQ izkiVhZ ,DVÞ ds rgr izkIr fd;k gS vkSj blfy;s orZeku Hkwfe dk laOogkj VªkalQj vkWQ izkiVhZ ,DV ds rgr fu/kkZfjr gksxk A e0iz0 Hkw&jktLo lafgrk ds rgr ugha A bl izdkj e0iz0 Hkw&jktLo lafgrk dh /kkjk 165¼7½ ds rgr dksbZ vuqefr izkIr djus dh vko';drk ugha gksxh vkSj u gh e0iz0 Hkw0jk0 lafgrk dh vU; /kkjk;sa ykxw gksxh A 2@ blds lkFk vkids dk;kZy; dk izdj.k dzekad 83&84@v&37 ewyr% okil ykSVk;k tkrk gS A vij lfpo e/; izns'k 'kklu jktLo foHkkx The order of the State Government clearly reflects that no permission under the MP Land Revenue Code, 1959 is required for registering the sale deed and after receiving the opinion of the State Government the document was registered transferring the land, building and machinery in favour of the petitioner as well as other family members. The petitioner after execution of the sale deed submitted an application before the Collector for mutation of his name and names of other family members and an order was passed by the Collector, on 21/12/2000 rejecting the application submitted by the petitioner on the ground that in respect of the land in question State Government is recorded as Bhumiswami and the same cannot be mutated in the name of the --- 9 --- petitioner. It was also observed that no sale deed could have been executed in the matter and in case the erstwhile ruler wanted to transfer the land in question, the State of MP was having a peremptory right over the land in question meaning thereby the application of the petitioner was rejected and the petitioner being aggrieved by the order of the Collector dt. 21/12/06 has preferred an appeal before the Commissioner, Ujjain Division, Ujjain. The Commissioner, Ujjain Division, Ujjain has passed an exhaustive order dt. 1/10/2007 and has arrived at a conclusion that the property in question was sold through public auction in execution proceedings. He has also taken into account the opinion of the Law Department and the order of the State Government and has in the concluding paragraph held that the petitioner is entitled for mutation of his name in respect of the land in question and thereafter the matter was remanded back to the Collector to take appropriate action in accordance with law. The respondent Collector after receiving the matter back from the Office of the Commissioner, Ujjain Division, Ujjain has forwarded the matter to the Tehsildar for appropriate action and now the Tehsildar has passed the impugned order holding that no mutation can be done in the --- 10 --- matter as the State Government is recorded as Bhumiswami in respect of the land in question. This court has carefully gone through the order passed by the Tehsildar, Nazul dt. 14/7/09. The order of the Tehsildar is in fact in defiance to the findings and the directions given by the Commissioner vide order dt. 1/10/07. In case the order passed by the Commissioner was bad in law, the proper remedy available to the respondent State was to challenge the same. In the present case, opinion was obtained from the Law Department and based upon the exhaustive opinion of the Law Department the State Government has permitted registration of the document in favour of the petitioner and the earlier order of the Collector dt. 21/12/06 by which the application of the petitioner for mutation was rejected, was set aside by the Commissioner by passing a detailed and exhaustive order. Learned Commissioner has arrived at a conclusion that the petitioner is entitled for mutation of his name by virtue of the sale deed executed in the matter and therefore this court is of the considered opinion that the Tehsildar could not have taken a view contrary to the view expressed by the Commissioner, Ujjain Division, Ujjain. --- 11 --- Resultantly the impugned order passed by the Tehsildar, dt. 14/7/2009 is hereby quashed. The Collector, Ratlam is directed to take appropriate steps in accordance with law keeping in view the order passed by the Commissioner, Ujjain Division, Ujjain dt. 1/10/07. However, the State shall also be at liberty to take appropriate action in accordance with law in case the State is aggrieved by the order of the Commissioner, Ujjain Division, Ujjain dt. 1/10/2007. (S. C. SHARMA) J U D G E KR