Umrao Singh & Ors vs State Of M.P. & Ors

State of M.P. & Ors. .......Respondents

JUDGMENT

HARJIT SINGH BEDI,J.

1. The facts of the case are as under:

2. On 31st October, 1956 the Government of the erstwhile

State of Madhya Pradesh issued circular No.3609 dated

31st October 1956 providing for allotment of beed land by

way of compensation to the former Zamindars and which

was already in their cultivating possession, but had

come to be vested in the State Government under the

Madhya Bharat Zamindari Abolition Act, 1951. The 2

appellants herein, being such zamindars and taking

advantage of the aforesaid circular were allotted 4 Bighas

and 15 Biswas of land in Survey No.48/1 and 14 Biswas

of land in Survey No.441 making a total area of 5 Bighas

and 9 Biswas vide order dated 13th August 1960.

As per the case of the appellants the Collector of the

District in exercise of his suo-moto powers set aside the

allotment of the suit land except for one Biswas in

Survey No.441 vide order dated 20th August 1974. This

order was challenged by the appellants before the

Commissioner of the Division and having failed, filed a

civil suit in the Court of the Civil Judge, Class II

impugning the order of the Collector and the

Commissioner. The Civil Court after framing issues

relating to the case decreed the suit vide judgment dated

7th January 1981. This judgment and decree was

challenged in first appeal by the State Government before

the Additional District Judge, Shajapur which too was,

dismissed on 7th May 1993. A second appeal was taken 3

by the State of M.P. before the High Court on the

following substantial question of law:

"Whether on the facts and in the circumstances of the case, the court below has erred in granting the relief to the plaintiffs on the basis of the executive instructions of the Government?

and after hearing the contesting parties, the appeal was

allowed and the judgment and decree granted by the courts

below was set aside by judgment dated 31st March 2001.

The land owner/allottees are before us in the present

appeal.

3. The learned counsel for the appellants has raised

two arguments before us in the course of the hearing; first,

that the suo-moto power of revision which the Collector had

exercised had not been vested in him by any Statute and if

such a power did exist it had been exercised after an unduly

long period of time and as such the interference made by him

was unjustified, and secondly that the question of law that

had been framed had not been answered and for this

additional reason the appeal must succeed. The learned 4

counsel for the respondents has, however, pointed out that

the Tehsildar had no authority to allot the land under the

executive instructions and that the Collector had not

exercised his suo-moto powers but had declined to grant

approval to the order of the Tehsildar making the allotment

and that the matter had been kept pending for this purpose.

It has also been pleaded that the executive instructions dated

31st October 1956 had been withdrawn under the

Government letter dated 23rd June 1975, and as the matter

was pending before the Commissioner at that stage, the

allotment had been rightly cancelled.

4. We have considered the arguments advanced by the

learned counsel for the parties. It appears from the record

that the Collector had not exercised suo-moto powers while

cancelling the allotment made to the appellants but had made

a decision on a matter which was already pending for his

approval. We are, thus, of the opinion that the argument of

the learned counsel for the appellants does not appear to be

correct. We also find from a perusal of the impugned

judgment that the High Court has relied upon, several other 5

judgments of the Madhya Pradesh High Court holding that

the aforesaid executive instructions of 1956 created only a

concession in favour of the land owner and not a right in them

and as such they could not claim entitlement as a matter of

right. Be that as it may, the fact remains that in the present

case the allotment had, in fact, been made by the Tehsildar

way back in the year 1960 and had been set aside by the

Collector though the land admittedly continued to remain in

possession of the erstwhile owner. It appears that in the

meanwhile and as a consequence of the aforementioned

judgments, the circular of 1975 was issued withdrawing the

circular of 31st October, 1956 and for closing all pending

cases. It is equally true as on the date of the issuance of the

aforesaid circular, the Collector had already declined to

confirm the allotment made to the appellants and the matter

was pending before the Commissioner. The learned counsel

for the appellants has, however, argued that as the circular of

1975 had never been produced on record, it could not,

therefore, be made applicable to the present proceedings. We

find that the decisions rendered by three Division Bench 6

judgments of the Madhya Pradesh High Court holding that the

executive instructions of 1956 had no binding force and being

contrary to the provisions of the Madhya Bharat Zamindari

Abolition Act, 1951 could not be applied to justify an

allotment to an erstwhile land owner, cannot be ignored. We

have, therefore, no option, but to dismiss the appeal, with no

order as to costs.

...............................J. (TARUN CHATTERJEE)

................................

J. (HARJIT SINGH BEDI )

New Delhi Dated: May 16, 2008