Right to Property a Constitutional Right though not a Fundamental Right : Supreme Court

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.62010 BAJRANGAby LRs …Appellant THE STATE OF MADHYA PRADESH & ORS …Respondents JUDGMENT SANJAY KISHAN KAUL J 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 The predecessor in interest of the appellantwas 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 officerinitiated 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(the provision has since been deleted 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 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 The suit filed by the appellant was contested by the respondents herein and they took a defence in the written statement that the 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 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 collusive with Jenobai having knowledge of the ceiling proceedings These findings resulted in a dismissal of the suit The appellant filed an appeal under Section 96 of the Code of Civil Procedure 1908before 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. 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 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 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 manner as may be prescribed and shall be conclusive evidence of the facts stated therein.]” 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 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 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.6498. The High Court vide order dated 8.5.2008 framed two substantive questions of law which read “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 ” 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 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 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 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 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 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 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 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 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 Ujjainv. 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 SuppSCC 631 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 3.9.1979of 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 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 this Court in State of Madhya Pradesh & Anr. v. Dungaji 7 SCC 465 19. We have given a thought to the matter in the conspectus of what 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 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 also the judgment 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 pleadingsthe 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 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 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 under sub sectionand sub sectionof 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 sectionand 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 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 sectionof 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 sectionof 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 sectionof 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. DungajiRepresented 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 respect of the same 27. We have also considered the plea of limitation advanced by learned counsel for the respondents albeit no specific issue being framed in 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 returnthe 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 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 sectionof 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 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 The appeal is accordingly allowed leaving the parties to bear their January 19 2021 Sanjay Kishan Kaul

Summary: Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The Supreme Court bench consisting of J. Sanjay Kishan Kaul, J. Dinesh Maheshwari and J. Hrishikesh Roy decided upon the matter of Bajranga (Dead) by LRs v. The State of Madhya Pradesh &amp; Ors. [Civil Appeal No. 6209 of 2010] and postulated upon the legislative intent behind Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960. The appellant (now represented by LRs) was the bhumiswami of a piece of agricultural land and was stated to be holding land in excess of the ceiling limit prescribed as per Section 7(b) of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960. Hence, the competent authority/officer (respondent) initiated the process to acquire the surplus land and issued a draft statement for the same. After the final order which declared the said excess land as surplus, the respondents initiated the process of taking over possession and eviction under Section 248 of the Madhya Pradesh Land Revenue Code, 1959. The appellants, aggrieved, filed a suit for declaration of title and permanent injunction before the District Court. They stated that the proceedings to recover land from him were illegal as he was actually left with was lesser which was within the prescribed ceiling limit rather than as claimed by the respondents. This was because, the appellants mother-in-law, Jenobhai, who was in Kabza kasht (possession by cultivation)of the land for about 20 years had filed a civil suit against the appellants seeking declaration of title and permanent injunction  with respect to the disputed land. In the suit, Jenobhai was declared the owner.  The Trial Court held that the appellant was the bhumiswami in respect of the survey number in question and the suit was collusive with Jenobai having knowledge of the ceiling proceedings and hence, dismissed the suit. The appellant filed an appeal under Section 96 of the Code of Civil Procedure which the Court allowed and The appellant was declared as the bhumiswami of the surplus land and the respondents were restrained from interfering with his possession of the land.