Parashram Thakur Dass & Ors Vs.
Ram Chand S/O Shri Radhumal & Ors [1982] INSC 22 (17 February 1982)
PATHAK, R.S.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION: 1982 AIR 872 1982 SCR (3) 288 1982
SCC (1) 627 1982 SCALE (1)148
ACT:
Madhya Pradesh Land Revenue Code, 1954 Ss.
149(2) and 164(3) & Madhya Pradesh Land Revenue Code Rules, 1956, Rules 2
to 26.
Allotment of nazul land to displaced persons-
Applications from claimants-State Government initially deciding not to grant
plots-Subsequent decision to allot plots taken-Plots allotted to some
claimants-Claims of other parties not considered-Such action-Whether valid.
Grant of lease-Hold right in nazul land
without auction-Reasons to be recorded in writing-Whether essential.
HEADNOTE:
Respondents Nos. 1 to 16 applied for the
grant of plots of land for purposes of constructing shops, alleging that they
were displaced persons and entitled to the grant of plots. The appellants also
made a similar application. There were applications from other claimants. The
State Government acting on the report of the Commissioner rejected all the
applications. Subsequently the Government at the instance of the appellants who
had sought a review, reversed its earlier order and decided to grant plots on
permanent lease to the appellants. The decision was conveyed in a memorandum by
the State Government, who granted the plots to the appellants as shop sites in
Bhumidhari rights without auction on payment of premium. The allotment was
assailed by the respondents and they represented to the State Government that
only after further inquiry should the land be reserved for deserving claimants.
The respondents filed a writ petition in the
High Court challenging the allotment made by the Government in favour of the
appellants contending that no reasonable opportunity had been given to them to
press their claim for grant of plots, after reversal of the earlier decision
not to grant land, that the appellants had been unduly favoured, and that the
power to grant plots was vested in the Collector and not in the State
Government. The appellants contested alleging that they had acquired a right to
the land that they could not be divested of those rights. The High Court
quashed the order granting plots to the appellants and directed the State
Government to take appropriate action on the several claims for allotment of
land. It held that under sub-section (2) of section 149 read with sub-section
(3) of section 164 of the Madhya Pradesh Land Revenue Code, 1954, and rules 22
and 26 framed under the Code it was not open to the State Government to dispose
of the plots without holding a public auction unless there were reasons
recorded in writing for doing so and that after initially deciding not to 289
grant the plots, the subsequent decision to allot them was contrary to law as
the claims of others had not been considered.
Dismissing the appeal,
HELD :1. The High Court was right in quashing
the order granting plots to the appellants and directing the State Government
to consider the several claims for allotment.
[296 C-D]
2. The grant cannot be attributed to clause
(c) of sub- section (2) of section 149. The land was disposed of in Bhumidhari
right. It was not given on favourable terms to the appellants, the market value
of the plots was taken for fixing the premium. From the nature of the grant, it
was clear that action under subsection (1) of section 149 was intended. [293 E]
3. Under Rules 24 to 26 of the Land Revenue
Code, lease-hold rights in nazul land are to be disposed of by public auction.
If in any particular case the State Government or the Collector considers that
there is good reason for granting the land without auction the reasons must be
recorded in writing. The existence of good reason for departing from the
general principle and the recording of the reason in writing are essential
prerequisites which must be satisfied before lease hold rights are granted
without auction. [295 A-C] In the instant case there is no evidence that the
State Government has recorded any reasons in writing for preferring the mode of
disposing of the land without auction. It had also no good reason for favouring
that mode.
In these circumstances the grant of land to
the appellants was rightly quashed by the High Court. [295 E-F]
4. The State Government had decided earlier,
as a matter of policy, not to allot nazul land to displaced persons, and
pursuant to the decision all the applications for allotment were rejected. The
applications were not rejected on the merits of their respective claims.
Subsequently, when the State Government made
an allotment of the plots to the appellants, it was consequent to a decision,
which must be regarded as a composite of two decisions, one a policy decision
to throw open the land to allotment in reversal of the earlier policy and, two,
to allot the land to the appellants. The applications of the respondents for
allotment of plots were rejected on the ground that the land was not available
for allotment. That was a policy decision. When it was reversed it was
incumbent on the State Government to reconsider those applications or to notify
that the land was available for allotment and to invite fresh applications in
that behalf. It was not open to the State Government to allot the plots to the
appellants in disregard of the claims of others who had also applied for
allotment.[295 G-H; 296 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 440 (N) of 1970.
Appeal by special leave from the judgment and
order dated the 18th June 1969 of the Bombay High Court in Misc.
Civil Appln. No. 139 of 1968.
290 Naunit Lal, for the Appellant.
A.G. Ratnaparkhi for Respondents Nos. 1-6.
M.N. Shroff, for Respondents Nos. 17-19.
The Judgment of the Court was delivered by
PATHAK, J. This appeal by special leave is directed against the judgment of the
Nagpur Bench of the Bombay High Court quashing the grant of Nazul land to the
appellants on a writ petition filed by the respondents Nos. 1 to 16.
The respondents Nos. 1 to 16 applied on March
15, 1963 for the grant of sixteen plots of land included in Government Nazul
Plot No. 31/1 (Sheet No. 49-D) in Yeotmal Town for the purpose of constructing
shops thereon. They alleged that they had not been allotted any land yet for
carrying on business at Yeotmal, and inasmuch as land sites were being released
to refugees or displaced persons they claimed that having been compelled to
migrate from West Pakistan to India during the partition of 1947 they were
entitled to the grant of such plots. The appellants made a similar application
on May 16, 1964 and it is their case that they had also applied earlier in the
same behalf on February 27, 1962. There were applications from other claimants
also. The State Government, acting on the report of the Commissioner, Nagpur
Division, rejected all the applications. The appellants say that they sought a
review of the order of the Government, and on June 28, 1965 the Government
reversed its order and decided to grant plots on permanent lease to the
appellants. The Collector, Yeotmal submitted a report to the Government
pointing out that each plot would be 192 sq. ft. in area and having regard to
its market value each allottee should be required to pay a premium of Rs. 960.
The State Government granted the plots to the appellants as shop sites in
Bhumidhari right without auction on payment of premium, and the decision was
conveyed in a Memorandum dated March 3, 1966. The allotment was assailed by the
respondents, and they represented to the State Government that after further
inquiry the land should be reserved for deserving claimants.
The respondents filed a writ petition before
the Nagpur Bench of the Bombay High Court challenging allotment made by the
Government in favour of the appellants. They urged that no reason- 291 able
opportunity had been given to them to press their claims for grant of plots
after the Government had reversed its earlier decision not to grant land, that
the appellants had been unduly favoured and that the order was bad in law
because the plots had been granted without holding an auction. It was also
contended that the power to grant the plots was vested in the Collector and not
the State Government.
During the pendency of the writ petition a
statement was made on behalf of the State Government that it was prepared to
consider the claims of the respondents. The appellants, however, maintained
that they had acquired a right to the land in terms of the order dated March 3,
1966 and that they could not be divested of those rights.
By its judgment dated March 14, 1968 the High
Court allowed the writ petition, quashed the order granting plots to the
appellants and directed the State Government and its officers to take
appropriate action on the several claims for allotment of land. The High Court
held that in view of sub-s. (2) s. 149 read with sub-s. (3) of s. 164 of the
Madhya Pradesh land Revenue Code, 1954, as applied to the Vidharba region of
Maharashtra, and rules 22 and 26 framed under the Code, it was not open to the
State Government to dispose of the plots without holding a public auction unless
there were reasons recorded in writing for doing so, and that after initially
deciding not to grant the plots the subsequent decision to allot them to the
appellants was contrary to law inasmuch as the claims of others had not been
considered.
In this appeal, it is urged by the appellants
that the High Court erred in applying sub-s. (3) of s. 164 and rule 26, and
therefore in holding that the lease of the plots without auction and without
recording any reasons was invalid.
When the Government decided to grant land to
the appellants, it thought that the grant should take the form of a permanent
lease in their favour. The Collector was requested to frame suitable proposals
and to submit them to the Government. The Collector submitted a report dated
November 23, 1965 suggesting the allotment of plots for the construction of
shops on the footing that each plot would measure 192 sq. ft. and its market
value, worked out on the basis of recorded sale transactions, and taking into
regard the commercial purpose for which the land was intended, indicated a
premium of Rs. 960. He recommended further that the plots may 292 be granted
without auction and in Bhumidhari right on payment of premium for constructing
shops thereon for carrying on business. On March 3, 1966 the State Government
made an order accordingly.
Now s. 149 of the Madhya Pradesh Land Revenue
Code 1954 provides:
"149. (1) Subject to rules made under
this Code, land belonging to the State Government, not being land herein after
mentioned in sub-section (2), shall be disposed of in Bhumidhari or Bhumiswami
rights by the Deputy Commissioner who may require payment of a premium for such
right or sell the same by auction.
(2) The land referred to in sub-section (1)
shall be the following, namely:- (a) land situate in the bed of a river of a
tank;
(b) land reserved for communal purposes such
as common grazing ground and cremation grounds;
(c) land given out on favourable terms for
the promotion of religious, charitable, educational, public or social purposes;
(d) land given out to persons on the
condition that it shall be used only for grazing cattle;
(e) land given out for temporary purposes or
for limited periods or for mining and purposes subsidiary thereto or for
industrial or commercial purposes;
(f) land given out to persons on favourable
terms for rendering service as a kotwar;
(g) any other land which the State Government
may, by notification issued in this behalf, specify." Section 164 of the
Code may also be set forth:
293 "164. (1) Every person who holds
land from the State Government or to whom a right to occupy land is granted by
the State Government or the Deputy Commissioner and who is not entitled to hold
land as a tenure-holder shall be called a Government lessee in respect of such
land.
(2) The Government lessee shall, subject to
any express provision in this Code, hold his land in accordance with the terms
and conditions of the grant which shall be deemed to be a grant within the
meaning of the Government Grants Act, 1895.
(3) The State Government or the Deputy
Commissioner may, subject to rules made under this Code, dispose of the right
to occupy the land specified in sub-section (2) of section 149 on payment of a
premium or by auction or on such terms and conditions as may be
prescribed." It is apparent that the grant cannot be attributed to clause
(c) of sub-s. (2) of s. 149. The land was disposed of in Bhumidhari right.
Moreover, it was not given on favourable terms to the appellants; the market
value of the plots was taken for fixing the premium. From the nature of the
grant, it is clear that action under sub-s. (1) Of s. 149 was intended. Now
Part III of the Notification No. 1118-1832-55- XXVIII dated May 22, 1956 sets
forth the rules framed with reference to sub-section (1) of s. 149. These rules
provide for the grant of Bhumiswami and Bhumidhari rights in nazul land for
dwelling houses and ancillary purposes. Rule 24 defines the expression
"Nazul Land" to mean land belonging to the State Government which is
used for building on, or for roads, markets and other public purposes. Rule 26
applies the provisions of rules 18 to 36 contained in Part V of the
Notification No. 1119-1832-55-XXVIII dated May 22, 1956 to the disposal of
nazul land under Part III. The provise to rule 26 declares that where nazul
land is put to auction it should normally be granted in Bhumiswami right, and
where it is disposed of without auction it should normally be granted in
Bhumidhari right. Rule 22 of Part V defines the power of the State Government
and of the Collector to dispose of nazul plots with or without auction.
Rule 22 provides:- 294 "22. Power to
dispose of nazul plots with or without auction shall be exercised in accordance
with these Rules- (1) by the State Government in the case of- (i) plots of
which the freehold market value is not less than Rs. 5,000;
(ii) plots within the limits of the Municipal
Corporation of the City of Nagpur, whether or not included in the Schemes of
Nagur Improvement Trust;
(iii) plots reserved for specific purposes
under rule 20;
(iv) strips of land not being independent
plots to be settled with the occupants of adjoining land where the freehold
value of the strip is not less than Rs. 5,000;
(v) small strips of land adjacent to occupied
plot, which cannot be disposed of as a separate site and in respect of which
there is a difference of opinion between the Collector and the Officer-in
charge, Town Planning and Valuation:
(vi) independent plots not included in the
approved lists where there is a difference of opinion between the Collector and
the Officer-in-charge, Town Planning and Valuation;
(vii) plots granted without auction.
(2) by the Collector, in case of the other
plots." Sub-rule (1) of rule 26 in Part V declares:- "26. (1)
Leasehold rights in nazul land shall be disposed of by public auction except
when in any particular case the State Government or as the case may be, the
Collector thinks for reasons to be recorded in writing that there is good
reason for granting the land without auction." 295 It seems indisputable
that under the Rules as a general principle leasehold rights in nazul land are
to be disposed of by public auction. If in any particular case the State
Government or, as the case may be, the Collector considers that there is good
reason for granting the land without auction the reasons must be recorded in
writing. The existence of good reason for departing from the general principle,
and the recording of the reason in writing are essential prerequisites which
must be satisfied before leasehold rights are granted without auction. It is
pointed out that under clause (vii) of sub-rule (1) of rule 22 the State
Government is empowered to dispose of nazul plots without auction. We have no
doubt it can do so, but only after full compliance with sub-rule (1) of rule
26. The sub- rule (1) controls the power of the State Government conferred by
clause (vii) of sub rule (1) of rule 22. To hold otherwise would be to confer
an arbitrary power on the State Government to dispose of nazul plots. It would
be in the absolute discretion of the State Government to decide whether nazul
plots should be granted with auction or without auction. If that construction
is accepted, it is clear that sub-rule (1) of rule 26 would be negatived. The
only reasonable construction, it seems to us, is to read the two provisions
together.
In the present case there is no evidence that
the State Government has recorded any reasons in writing for preferring the
mode of disposing of the land without auction and we are not satisfied that it
had good reason for favouring that mode. In the circumstances the grant of land
to the appellants has been rightly quashed by the High Court.
There is also sufficient justification in the
grievance of the respondents that the State Government did not consider the
claims of other persons, including the respondents, when making an allotment of
the plots. The State Government had decided earlier, as a matter of policy, not
to allot nazul land to displaced persons, and pursuant to that decision all the
applications for allotment were rejected. The applications were not rejected on
the merits of the respective claims set out therein. Subsequently when the
State Government made an allotment of the plots to the appellants, it was
consequent to a decision which analytically must be regarded as a composite of
two decisions, one, a policy decision to throw open 296 the land to allotment
in reversal of the earlier policy and, two, to allot the land to the
appellants. It will be remembered that the applications of the respondents for
allotment of plots were rejected on the ground that the land was not available
for allotment. That was a policy decision.
When it was reversed, it was incumbent on the
State Government to reconsider those applications or to notify that the land
was available for allotment and to invite fresh applications in that behalf. It
was not open to the State Government to allot the plots to the appellants in
disregard of the claims of others who had also applied for allotment.
In quashing the order granting plots to the
appellants and directing the State Government or its appropriate officers to
consider the several claims for allotment the High Court, in our opinion, did
that which was plainly right.
The appellants say that the respondents must
be taken to have accepted the rejection of their applications for allotment,
and it was only the appellants who pursued the matter and obtained a reversal
of the order of the Government and therefore the appellants alone were entitled
to the allotment of plots. The submission would have had force but for the
circumstance that the State Government effected what was a change of general
policy. The change of policy altered the situation completely, and all the
claimants were entitled to the benefit of that change. By adopting the new
policy, the State Government must be taken to have declared that the land was
now open to allotment to the claimants who were found most deserving. There
were several applicants for allotment, and a selection had to be made. It
cannot be contended, as indeed it is urged before us, that the appellants
constitute a distinct and separate class from the respondents only because the
appellants agitated against the rejection of their applications while the
respondents did not.
The controversy which remains is whether it
is the State Government or the Collector who has power to dispose of the plots
in view of their market value. That is a matter on which we need express no
opinion, having regard to the quashing of the entire allotment proceeding from
its inception. It will be for the Government or the appropriate authority to
decide what should be the nature of the rights to be conferred on the allottees
and, therefore, what should be the premium to be fixed.
In the result, the appeal is dismissed with
costs.
N.V.K. Appeal dismissed.
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