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PETITIONER: KANTILAL AND ORS. ETC.

       Vs.

RESPONDENT: SHANTILAL AND ORS. ETC.

DATE OF JUDGMENT14/11/1991

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) KANIA, M.H.

CITATION:  1992 AIR  477            1991 SCR  Supl. (2) 257  1992 SCC  (1) 481        JT 1991 (4)   337  1991 SCALE  (2)1037

ACT: Madhya Pradesh Land Revenue Code. 1959.’     Section  50--Court  sale  of  property--Mutation   order passed  by  Tehsildar on the basis of sale  certificate  and compromise application-Collector issuing notice in suo  motu proceedings initiated after 17 years on the legality of  the mutation----Subsequently   setting   aside   the    mutation order--Whether justified. Town Improvement Trust Act. 1960.     Sections 68, 73--Acquisition proceedings and  determina- tion of compensation  Party entitled to compensation on  the basis  of mutation order passed by Tehsildar--Collector  suo motu interfering after 17years--Validity of--Enhancement  of compensation--Whether justified.

HEADNOTE:     The  land in question was granted by the Ruler of  erst- while State of Ratlam in favour of ancestors of  respondents (Pitaliyas) for installation of a ginning factory. Ancestors of  appellants  (Jhalanis) entered into a  partnership  with Pitaliyas and started a ginning factory on a portion of  the said land. In the revenue records, in respect of the  entire land the names of Jhalanis and Pitaliyas were entered.     According  to  the  Jhalanis in execution  of  a  decree against  Pitaliyas  the  above land was  sold  and  Jhalanis purchased  the said land in an auction.  On  an  application moved by the Jhalanis, the Tehsildar passed an order  mutat- ing the names of Jhalanis in respect of the entire land. The said mutation was allowed on the basis of compromise between the parties and on the basis of a sale certificate issued by the Civil Court.     The Town Improvement Trust started acquisition  proceed- ings for a housing scheme and acquired certain lands includ- ing  the  land in question. The Collector started  suo  motu proceedings, issued notice to the Jhalanis and set aside the order  of mutation passed by the Tehsildar. An  appeal  pre- ferred by the Jhalanis before the Addi- 258 tional  Commissioner  was dismissed. The  Board  of  Revenue allowed  the further appeal and held that  pending  mutation proceedings,  there  was  compromise  between  the  parties,

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objections were withdrawn by the Pitaliyas and no appeal  or revision  was filed against the mutation order nor any  suit was filed challenging the order of the Tehsildar. The  Pita- liyas  then  filed a writ petition before  the  High  Court, which was allowed and the order of the Board of Revenue  was set aside. Against the said judgment of the High Court,  the Jhalanis have preferred an appeal before this Court.     In  the  acquisition  proceedings the  Tribunal  gave  a finding  that Pitaliyas had no right to  claim  compensation and  Jhalanis  alone were entitled to the entire  amount  of compensation.  The order of the Tribunal was  challenged  by the  parties  by  filing separate appeals  before  the  High Court. The High Court allowed the appeal filed by  Pitaliyas and  held that they were entitled to claim  compensation  in equal  proportion  with Jhalanis; it  dismissed  the  appeal filed  on behalf of the Trust for reducing compensation  and allowed  the appeal filed by Jhalanis in part and  increased the rate of compensation from 65 paise per sq.ft to 75 paise per  sq.ft. Aggrieved against the aforesaid judgment of  the High Court in acquisition proceedings, the Jhalanis and  the Trust have filed the other two appeals before this Court.     Allowing the appeals on the questions of validity of the mutation  made and entitlement to receive compensation,  and partly allowing the appeal on the question whether  enhance- ment of compensation was justified, this Court,     HELD:  1.1. There was a decree of a Civil Court  and  in execution of the same the properties were auctioned. Even if there  was any dispute as to whether any share of  Pitaliyas in  the land was sold or not in the auction proceedings  the same  does  not  survive after the  compromise  between  the parties.  In  the order of the Tehsildar passed as  back  as 20th February, 1953 the Jhalanis alone were recorded as full owners  of  the properties and they continued to  remain  in possession. The Trust took possession from Jhalanis on  21st March,  1968 in the land acquisition proceedings.  There  is nothing  on record to show that Pitaliyas ever  remained  in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compen- sation before the Tribunal. [264 D, E]     1.2.  The Collector had no justification at all to  have initiated the proceedings suo motu in 1970 after 17 years of the order passed 259 by  the Tehsildar. Even under the law of limitation no  suit for possession could have been maintained after 12 years  by Pitaliyas  and  they were not entitled to any share  in  the amount of compensation. There was also no justification  for entering  the names of Pitaliyas in the revenue records  and to set aside the order of the Tehsildar dated 20th February, 1953, after 17 years. The Tehsildar was perfectly  justified in  passing  the order dated 20.2.1953 on the basis  of  the sale certificate, as well as compromise application and  the statement made before him on 16.10.1952. [264 F, G]     2.   One  bigha is equivalent to 22500 sq.  ft.  and  no contention was raised before the Tribunal that one bigha was equivalent to 21511 sq. ft. prevalent in the erstwhile State of Ratlam. For the first time, this point was raised  before the High Court. This being a controversial question of  fact and  the  other  side did not have the chance  to  lead  any evidence on this point, the High Court rightly negatived  it and  held that the compensation for one bigha of land  would be calculated as equivalent to 22500 sq. ft. [265 A-C]     3.  The District Judge after consideriug large number of documentary  evidence placed on record by both  the  parties arrived  at the conclusion based on good and  valid  reasons

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that  the  fair market price of the acquired  land  on  22nd August,  1964 was 65 paise per sq. ft. The High  Court  went wrong  in  increasing  the rate from 65 paise  to  75  paise without any valid reasons whatsoever. In the  circumstances, enhancement  ordered by the High Court is set aside and  the compensation determined by the District Judge at the rate of 65 paise per sq. ft. is maintained. [266 C-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1345 of 1986.     From  the  Judgment  and Order dated  29.8.1984  of  the Madhya Pradesh High Court in Misc. Petition No.613 of 1983.     Avadh  Behari Rohtagi. S.K. Gambhir, Vivek  Gambhir  and K.K. Mohan for the Appellants.     U.R. Lalit, S.S. Khanduja, Y.P. Dhingra, B.K Satija  and Surinder Karnai for the Respondents. The Judgment of the Court was delivered by 260     KASLIWAL,  J. In all the above appeals the  parties  are the  same and the controversies raised are  intimately  con- nected and dependent on each other, hence all the cases  are disposed of by one single order.     Land measuring 19 bighas was granted by the ruler of the erstwhile State of Ratlam in favour of ancestors of respond- ents  Shantilal  and  Poonam  Chand  Pitaliyas  (hereinafter referred  to as ’Pitaliyas’) for installation of  a  Ginning factory. Ancestors of Kantilal Jhalani and other  appellants (hereinafter  referred to as ’Jhalanis’) entered into  part- nership with Pitaliyas and the partnership started a Ginning factory  on  a portion of the above 19 bighas of  land.  The names of Jhalanis and Pitaliyas were recorded in the revenue records  in respect of the entire land. The above 19  bighas of  land had some different survey numbers but  subsequently at the time of settlement in Ratlam in the year 1956-57, the numbers  were changed to survey numbers 120 and 121.  Survey No. 120 comprised of 2 biswas and survey No.121 of 18 bighas and  18 biswas. According to the Jhalanis in execution of  a decree against Pitaliyas the above land was sold and  Jhala- nis  purchased the said land in an auction.  Thereafter,  an application  was moved by the Jhalanis on 13th  April,  1951 for mutation of their names before the Tehsildar in  respect of the entire lands bearing survey Nos. 120 and 121  leaving such  portion of the land on which the Ginniing factory  was standing. The Tehsildar vide his order dated 20th  February, 1953  allowed the application and passed an  order  mutating the  names of Jhalanis on the entire 19 bighas of land.  The said mutation was allowed on the basis of compromise between Pitaliyas  and  Jhalanis  and also on the basis  of  a  sale certificate issued by the Civil Court.     The Town Improvement Trust, Ratlam (hereinafter referred to  as  ’the Trust’) started acquisition proceedings  for  a housing scheme under the provisions of the Town  Improvement Trust  Act, 1960 (hereinafter referred to as ’the Act’)  and issued  a notification on 28th August, 1964 under Sec.68  of the Act. Survey Nos. 120 and 121 were shown in the notifica- tion leaving out some area of survey No.121. In the acquisi- tion  proceedings,  the  Trust obtained  possession  of  the acquired land on 21st March, 1968.     The  Collector started svomotu proceedings under  Sec.50 of  the Madhya Pradesh Land Revenue Code, 1959 and issued  a notice  on 17th December, 1970 to the Jhalanis stating  that the  mutation proceedings did not appear to be legal. It  is not  necessary to state the details of other proceedings  by

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which  the Jhalanis went to the higher authorities as  ulti- mately the matter came back to the Collector by remand.  The Jhalanis contested the proceedings before the Collector  and prayed for the cancellation of the      261 notice dated 15th February, 1972 which was issued afresh  by the  Collector  after  the remand of the case  to  him.  The Collector ultimately by an order dated 31st March, 1977  set aside the order of mutation passed by the Tehsildar and gave a  direction that the Tehsildar, Ratlam will again make  the same entry in the revenue records which was done  previously in  respect of disputed land. It was further  directed  that thereafter  the Tehsildar will do proper  investigation  and analyse  all the concerned facts and events which  had  hap- pened in the case and take steps for making the record  upto date.  Particularly he will see by which lease and  on  what conditions  originally how much land was given  for  factory purpose by the State and whether that lease is effective  or lapsed.  An appeal filed by the Jhalanis to  the  Additional Commissioner  was  dismissed by order dated  11th  December, 1981. The Jhalanis then filed an appeal before the Board  of Revenue.  This appeal filed by the Jhalanis was  allowed  in their  favour  by the Board of Revenue by order  dated  26th March, 1983. The Board inter alia held that pending mutation proceedings,  there  was  compromise  between  the  parties, objections were withdrawn by the Pitaliyas and no appeal  or revision  was filed against the mutation order nor any  suit was  filed  challenging  the order of  the  Tehsildar.   The Pitaliyas  then filed a writ petition before the High  Court for  setting  aside the order of the Board of  Revenue.  The High Court by order dated 29th August, 1984 allowed the Writ Petition and set aside the order of the Board of Revenue and restored  the orders of the Additional Commissioner and  the Collector.  Aggrieved against the aforesaid judgment of  the High Court, the Jhalanis have filed Civil Appeal No. 1345 of 1986 by grant of Special leave.     In the acquisition proceedings the question of compensa- tion was decided by the Tribunal constituted under Sec.73 of the Act. The Tribunal by its order dated 30th November, 1973 held  that Pitaliyas had no right to claim compensation  and the  Jhalanis  alone were entitled to the entire  amount  of compensation.  The Order of the Tribunal was  challenged  by Pitaliyas, for apportionment of the amount of  compensation, also  by Jhalanis for increasing the amount of  compensation and by the trust for reducing the amount of compensation  by filing separate appeals in the High Court. The High Court by its order dated 29th July, 1984 allowed the appeal filed  by the  Pitaliyas  and held that they were  entitled  to  claim compensation  in  equal proportion with Jhalanis.  The  High Court dismissed the appeal filed on behalf of the Trust. The High Court allowed the appeal filed by Jhalanis in part  and increased  the rate of compensation from 0.65 paisa per  Sq. Ft.  10 0.75 paisa per Sq. Ft. Aggrieved against the  afore- said judgment of the High Court in acquisition  proceedings, the  Jhalanis have filed Civil Appeal No. 1346 of  1986  and the  Trust  has  flied appeal No.3426 of 1987  by  grant  of special leave. 262     We  have heard learned counsel for the parties and  have thoroughly perused the record.     The land in question was given by the Ruler of erstwhile State of Ratlam for establishing a Cotton Ginning factory at Ratlam.  The deed of partnership between the  Pitaliyas  and Jhalanis  has not been produced on the record of  this  case but the admitted position is that the Janlabandi entries  in

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the  revenue records of the year 1921-22 show  tllat  survey Nos.  1326  to 1336, 1337/2 and 1340 to  1342  (subsequently changed  to Survey Nos. 120 and 121), stood in the  name  of Keshrimal Vardhman Pitaliya and Keshrimalji Dhanrajji Jhala- ni  in equal shares. Keshrimal Vardhman Pitaliya  proprietor of  firm Vardhman Keshrimal died sometime prior to 1932  and he left behind two sons Sagarmal and Vinayakrao Pitaliya who became the proprietors of Hindu Undivided Family firm  Vard- human  Keshrimal. Sagarmal and Vinayakrao Pitaliyas did  not apply  for  the mutation of their names in the  revenue  re- cords,  after the death of their father Keshrimal  Pitaliya. Keshrimal  Dhanraj Jhalani had to recover some  amount  from the  firm Vardhman Keshrimal and he filed a civil  suit  for the  recovery of the money against Sagarmal  and  Vinayakrao Pitaliyas. A degree was passed in favour of Keshrimal  Dhan- raj  Jhalani and they filed an application for execution  of the  decree.  In the execution case No.  161/42  the  right, title and interest of Pitaliyas in the Ginning Factory  were sold  in  auction  for Rs.6541 and which  was  purchased  by Keshrimal  Dhanraj  Jhalani on 2nd November,  1946.  A  sale certificate  was also issued in favour of Keshrimal  Dhanraj Jhalani  by the Civil Court Ratlam on 3rd October, 1950.  On the basis of this sale certificate Keshrimal Dhanraj Jhalani applied  for mutation in the revenue records on  3rd  April, 1951 before the Tehsildar, Ratlam. Alongwith the application Keshrimal Jhalani filed a copy of the sale certificate and a certified  copy of the Jamabandi of the land of Samwar  year 20,35  (1948-49 A.D). During the pendency of  this  mutation application  Vinayakrao  Pitaliya  died  leaving  no  heirs. Sagarmal  who  was  Karta of the Joint  Hindu  Family  filed objections to the mutation application on 17th March.  1952. It  is important to note that in these  objections  Sagannal clearly  raised the ground that in the  auction  proceedings only  movable property of the factory was sold and  as  such Keshrimal  Dhanraj Jhalani had no right to clam mutation  of the  entire agricultural land in his favour.  Thereafter  an agreement took place between Sagarmal Pitaliya and Keshrimal Dhanraj  Jhalani on 16th October. 1952. This agreement  made in writing was filed before the Tehsildar in which  Sagarmal Pitaliya agreed to with draw his objections for the mutation of his share in 19 bighas of land. in favour of Shri Keshri- mal Dhanraj Jhalani in lieu of Shri Keshrimal Dhanraj JhaIa- ni  having agreed not to recover Rs.4941. being the  balance amount  of decree passed in suit No.2 of 1932 against  Pita- liyas. Apart from the 263 aforesaid  compromise application the statement of  Sagarmal Pitaliya was also recorded on 16th October, 1952 itself  and Sagarmal  clearly made a statement that he  was  withdrawing his  objections as regards mutation in respect of his  share in the land of 19 bighas and that he had no objection to the mutation  of Shri Keshrimal Dhanraj Jahalani’s name  in  re- spect  of  the land in dispute. Thereafter,  the  Teshsildar rejected  the  objections filed by Sagarmal  and  passed  an order on 20th February, 1953 granting mutations in the  name of  Shri  Keshrimal  Dhanraj Jhalani. After  this  order  of mutation  passed  by the Tehsildar on  20th  February,  1953 Sagaramal or any other member of the family of Pitaliyas did not  take any steps for challenging the aforesaid  order  of the Tehsildar. It is further proved on record that  thereaf- ter  names  of Jhalanis alone was continued in  the  revenue records in respect of the entire 19 bighas of land. The land acquisition proceedings then commenced in the year 1964  and possession  over  the land was taken by the  Trust  on  21st March,  1968  from  Jhalanis. The Collector  took  suo  motu

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proceedings in 1970 and passed an order on 31st March,  1977 setting  aside the order of the Tehsildar. In the above  set of  circumstances  Pitaliyas came forward and  claimed  half share  in the compensation amount in land  acquicition  pro- ceedings  before  the Tribunal. The  Tribunal  rejected  the claim  of the Pitaliyas but High Court by order  dated  29th August,1984 granted half share in favour of Pitaliyas taking the  view that they were persons interested under  the  Town Improvement  Trust Act. On the same day by a separate  judg- ment the High Court set aside the order of Board of  Revenue and maintained the order of the Additional Commissioner  and the Collector passed in mutation proceedings.     After going through the entire record ,’red hearing  the arguments  at  length, we are clearly of the view  that  the High  Court  went wrong in passing the impugned  orders.  As already  mentioned  above  from the year  1922  onwards  the entries  in the Revenue records in respect of 19  bighas  of land  was made in favour of Jhalanis and Pitaliyas  both  in equal share. Jhalanis had a decree against Pitaliyas and  in execution  of said decree share of Pitaliyas  was  auctioned and  was purchased by Jhalanis for a sum of Rs.  6541.  Sale certificate was also issued in favour of Jhalanis. According to Jhalanis the half share of Pitaliyas in the land was also sold  and on that basis an application was filed before  the Tehsildar for ranration of the entire land in their  favour. According  to Sagarmal Pitaliya who was also Karta of  Joint Hindu  Family, no such land was sold in auction. 11  may  be noted  that the bid in auction was for an amount of  Rs.6541 but  it did not satisfy the entire decretal amount  and  the balance   of   Rs.4941  still  remained  due   against   the Pitaliyas--Judgment debtors. In view of these  circumstances a  compromise  took place between the parties  according  to which Sagarmal agreed to withdraw his objections in  consid- eration of 264 satisfaction of the aforesaid amount of Rs.4941  outstanding against  him. On 16th October, 1952 the compromise  applica- tion  was  filed in writing and statement of  Sagarmal.  was also  recorded in which he clearly agreed that he  will  not claim any right in the land and withdraw his objections  and the  amount of Rs.4941 was taken as satisfied  and  Jhalanis agreed not to recover the aforesaid amount of Rs.4941. It is an admitted position that the order passed by the  Tehsildar on 20th February, 1953 rejecting the objections of  Sagarmal Pitaliya  and mutating the name of Jhalanis for  the  entire land, was not challenged and the same became final.     Mr.U.R.Lalit,  learned Sr. Advocate appearing on  behalf of Pitaliyas did not argue, that the compromise  application filed  on 16th October, 1952 and the statement  recorded  on the same day were forged or not genuine. The only submission made  by  Mr. Lalit was that any order  passed  in  mutation proceedings  cannot  confer  any legal title  in  favour  of Jhalanis  nor such order can divest the ownership rights  of Pitaliyas in the agricultural land. We do not find any force in  this  submission. Admittedly, there was a  decree  of  a Civil Court and in execution of the same the properties were auctioned.  Even if there was any dispute as to whether  any share  of Pitaliyas in the land was sold or not in the  auc- tion  proceedings, the same was settled at rest by making  a compromise  between  the parties. Not only  that  after  the order of the Tehsildar passed as back as 20th February, 1953 the  Jhalanis  alone  were recorded as full  owners  of  the properties and also continued to remain in possession. It is also proved that the Trust took possession from Jhalanis  on 21st March, 1968 in the land acquisition proceedings. It  is

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no  where proved on record that the Pitaliyas ever  remained in  possession of the land in question after 20th  February, 1953  till the time they made a claim of half share  in  the compensation before the Tribunal. The Collector in our  view had no justification at all to have initiated such  proceed- ings suo motu in 1970 after 17 years of the order passed  by the Tehsildar. Even under the law of limitation no suit  for possession  could  have been maintained after  12  years  by Pitaliyas  and  they were not entitled to any share  in  the amount of compensation. There was also no Justification  for entering  the names of pitaliyas in the revenue records  and to  set aside the order of the Tehsildar dated  20th  Febru- ary,1953 after 17 years, As already mentioned above, Tehsil- dar  was  perfectly  justified in passing  the  order  dated 20.2.1953  on the basis of the sale certificate, as well  as compromise  application and the statement of Sagarmal  marie before him on 16.10.52.     Now,  we  shall deal with Civil Appeal No.3426  of  1987 filed  by the Trust. It was argued on behalf of  the  appel- lant-Trust  that in the erstwhile State of Ratlam one  bigha was equivalent to 21511 Sq. Ft. as per Jantri 265 Milan  Bigha Va Ekad prepared in 1911 and the  lower  courts wrongly  calculated the area acquired by treating one  bigha equivalent  to 22500 Sq. Ft. as now prevalent  according  to the  prescribed standards. We do not find any force  in  the abvoe  contention.  No such argument was raised  before  the Tribunal  and  it was raised for the first time  before  the High  Court. The High Court rejected the aforesaid  argument on  the  ground  that admittedly at present  one  bigha  was equivalent  to  22500 Sq. Ft. and no contention  was  raised before  the Tribunal that one bigha was equivalent to  21511 Sq.  Ft.  prevalent in the erstwhile State of  Ratlam.  This being  a controvercial question of fact and the  other  side having given no chance to lead any evidence on this point it was difficult to rely on the Jantri Milan Bigha Va Ekad. The High Court thus held that the compensation for one Bigha  of land  would be calculated as equivalent to 22500 Sq. Ft.  We do  not  find any error in the aforesaid view taken  by  the High Court.     It  was next contended on behalf of the Trust  that  the Tribunal had awarded compensation at the rate of 0.65  paisa per Sq. Ft. and there was no ground or justification for the High  Court to have increased the same at the rate  of  0.75 paisa  per sq. Ft. There is some force in the above  conten- tion  raised on behalf of the Trust. The High Court  in  in- creasing the rate of compensation to 0.75 paise per Sq.  Ft. has given no reason. The High Court in this regard  observed as under:               "Thus, after going through the oral as well as               documentary  evidence and material  placed  on               record and after beatifing the learned counsel               for the Trust as also appellant No. 1 and also               after  going through the case law  cited,  the               question  arises  at  what  rate  compensation               should be paid for the land which is compulso-               rily  acquired.  It cannot  be  disputed  that               either  party No. 1 nor party No.2 was  making               any  use of the land at the time  of  acquisi-               tion. On the contrary it was being treated  as               a waste and fallow land having no  importance.               There  is no satisfactory evidence  placed  on               record  to  prove that in fact  the  land  was               being used as an agricultural land from  which               certain  income was derived. It  appears  this

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             land  gained  importance only when  the  trust               proposed to acquire the same.               Therefore, though the principles enunciated in               the various authorities cited and referred  to               above are not disputed, we are of opinion that               considering the facts and circumstances of the               case  it would be just, proper and  reasonable               to award compensation for the land at the rate               of  0.75 p. per square feet and not  more  be-               cause  the  price fetched  for  the  developed               lands  also  the price fetched for  the  small               plots of land cannot be taken               266               into consideration for purposes of comparision               in respect of such big lands. After all for  a               developed plot of land the cost of development               has also to be taken into consideration  which               cannot  be said to be quite  meagre,  Besides,               admittedly there is a big nala in the land  in               question, that there was no direct independent               road  to approach this land and that even  the               factory was also not working for several years               before the acquisition. All these facts  indi-               cate that the potential value of the land even               as a building site was not so high."     Learned  Distt. Judge after considering large number  of documentary  evidence placed on record by both  the  parties arrived to the conclusion that the fair market price of  the acquired  land on 22nd August, 1964 was 0.65 p. per Sq.  Ft. The finding recorded by the Distt. Judge in this regard  was based on adequate material placed on record and supported by good  reasons.  In  our view the High Court  went  wrong  in increasing the rate from 0.65p. to 0.75p. without any  valid reasons  whatsoever.  As a result of the  findings  recorded above, the appeal Nos. 1345 and 1346 of 1986 filed by Kanti- lal  & Ors. are allowed. The appellants therein would  alone be entitled to claim the entire amount of compensation.  The orders  of the High Court, Addl. Commissioner and  Collector in the matter of mutation proceedings are set aside and that of  the  Board of Revenue is upheld. The appeal  No.3426  of 1987 filed by the Trust is allowed in part. The market value determined  by the High Court at the rate of 0.75p. per  Sq. Ft.  is  set aside and the rate determined by  the  District Judge at 0.65p. per Sq. Ft. is maintained. In the facts  and circumstances  of  the case, there would be no order  as  to costs. G.N.                                                 Appeals allowed. 267