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MohiuddIn Mohommad DIn Vs. State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Petn. No. 36 of 1957
Judge
Reported inAIR1960MP265
ActsConstitution of India - Article 226
AppellantMohiuddIn Mohommad Din
RespondentState of Madhya Pradesh and anr.
Appellant AdvocateM.A. Khan, Adv.
Respondent AdvocateBalwantsingh, Adv.
DispositionPetition dismissed
Excerpt:
.....appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - let us suppose that they are as good as law, still, the petitioner is not able to derive any benefit from them. the very patta which he refused to place before the commissioner, is a suspicious document, which he produces now, when it is known that the papers of the sarf-e-khas have disappeared for good and verification is impossible. anyway, these copies given under the certificate of learned counsel for the petitioner can, at best, indicate that at different stages, this particular village -nibbookheda -was deemed to be a forest area......brought under cultivation. the ground urged here is that the lands were not held under the bhopal land revenue act, and, as such, the commissioner had no jurisdiction. possibly, according to the petitioner, the forest authorities had jurisdiction but they have not acted. 2. the petitioner's case is that in january 1949 he was given a seven years lease of about 380 acres of forest land in village nibbookheda, which, by virtue of various orders, become a reserve forest -- 'a forest village' and was in 1947, transferred from khalsa or revenue charged land, to 'sarf-e-khas' (the ruler's private jagir). the lease, according to him, was by a written patta given by the officer-in-charge of the sarf-e-khas, forest department, who could exercise the powers of the conservator of forest under the.....
Judgment:
ORDER

H.R. Krishnan, J.

1. This is an application, ostensibly under Article 226 (and under Article 227 in the alternative) of the Constitution for a direction on the Revenue Commissioner, Bhopal, not to implement his order dated 12th March, 1956, setting aside an alleged settlement of about 380 acres in a village called Nibbookheda on pagras, a class of tenure, in which lands are given on progressively increasing rent, for a long term, for being brought under cultivation. The ground urged here is that the lands were not held under the Bhopal Land Revenue Act, and, as such, the Commissioner had no jurisdiction. Possibly, according to the petitioner, the forest authorities had jurisdiction but they have not acted.

2. The petitioner's case is that in January 1949 he was given a seven years lease of about 380 acres of forest land in village Nibbookheda, which, by virtue of various orders, become a reserve forest -- 'a forest village' and was in 1947, transferred from Khalsa or revenue charged land, to 'Sarf-e-Khas' (the Ruler's private Jagir). The lease, according to him, was by a written patta given by the officer-in-charge of the Sarf-e-Khas, Forest Department, who could exercise the powers of the Conservator of Forest under the Bhopal Forest Act.

It is also alleged that this patta itself was granted in pursuance of an order of the Nawab in exercise of his prerogative, but no such order is produced. The petitioner was to appropriate the forest produce, and ultimately bring the land under cultivation. The rent was to be increased by stages to. its poper level.

3. This was on the eve the eleventh hour--of the political changes in which the Nawab's Government vacated and the Government of India took over. In many Indian States public property was hastily settled or granted to people on the eve of the abolition of the Ruler's Government; but that by itself, is no ground for setting aside the settlement or the grant, if it was given by the properauthority acting under a law valid at that time. This is what the petitioner avers; further, that he had invested his money and labour in improving the land.

The Collector, Sehore, in whose jurisdiction this village lies, reported under Section 38 of the Bhopal State Land Revenue Act, recommending to the Revenue Commissioner that this settlement on the petitioner should be cancelled and the land taken over by the Government. The Revenue Commissioner passed a stay order at the first instance, andafterwards, heard the petitioner, and ultimately decided that the alleged settlement in favour of the petitioner should be set aside and the land taken over by Government. In the interval, he also took action under Section 35 of the Indian Forest Act, but since the lease was cancelled under the Land Revenue Act, they were not proceeded with. The petitioner's grievance is that he had a valid written lease, which, however, he refused to produce before the Commissioner; in any case, the Commissioner had no jurisdiction under the Bhopal Land Revenue Act, as this area was reserve forest.

4. In reply, the State of Madhya Pradesh has pointed out various defects and urged that, for one thing, the petitioner did not produce his so-called patta before the Commissioner, and it was not known which authority had granted it, and, for another, the patta that he does produce in this Court, itself shows that even the authority purporting to grant could not settle lands longer than one year.

5. Before going into the merits of the allegation, I note that the application is delayed and there has been no explanation. The order of the Commissioner which is being challenged was made under Section 38 of the Bhopal Land Revenue Act on the 12th March, 1956, cancelling the settlement, which the petitioner claimed was by a patta without producing it. The application in this Court was made on 1-7-1957, that is to say, about 15 or 16 months afterwards.

It appears that in the interval, the petitioner had moved the Judicial Commissioner, Bhopal, but that application was dismissed for default on 18-2-1957 after being received in this Court and taken up for disposal. Even if one treats the present petition as in effect a prayer for the restoration of the petition before the Judicial Commissioner (No. 48 of 1956), still, it is delayed by 4 1/2 months. This delay also is not accounted for.

6. A very special feature of this case is that the petitioner claims by a patta supposed to have been in his possession all the time from January 1949; but he flatly refused to produce it before the Commissioner, even when he was so directed. The Commissioner was acting under Section 38 of the Bhopal Land Revenue Act on a report by the Collector, about the illegal allotment of these lands ostensibly by the outgoing Government of Bhopal. In his own interest, the petitioner should have produced what he claimed to be his title-deed.

But he refused to do so. In this Court, however, he has produced a litho copy, ostensibly signed by somebody exercising the powers of the Conservator of Forests in respect of Sarf-e-Khas of theerstwhile Nawab of Bhopal. Asked to explain Shri Khan, learned counsel for the petitioner, stated that 'the Commissioner not having jurisdiction to question his client's patta, could not compel him to produce it and as such, he was within his rights in refusing there and in producing the patta here.' I have noted this verbatim without comment.

The consequence is that the litho copy of the so-called patta itself becomes suspicious. If there is a properly run record-room, one would at least be in a position to verify whether this patta produced in these circumstances, is really genuine; office duplicates would be available in the record-room or so register will contain particulars o such pattas. Strangely enough, we are told, and in fact, the Commissioner himself seems to have been told that all the papers of Sarf-e-Khas had disappeared either by being burnt or being eaten up by moths.

Certainly, the petitioner could not prevent the performance of fire or moths in the record-room of Sarf-e-Khas; but he could, at all events, have produced his patta for what it was worth, when the Commissioner was begging him to do so. Thus, it is an open question, whether the Commissioner could do anything for a claimant who would not produce his own title-deed, On one view, this single fact is sufficient to disentitle the petitioner to the assistance of this Court.

7. The third peculiarity of this case is that even on his own showing, the petitioner's patta has not been given by the authority competent to issue it. He has not mentioned in his memorandum the actual rule or authority under which this so-called patta was granted to him. It is said :

'In pursuance of a grant by the Nawab, Shri Abdul Rahim Khan, Officer Incharge Sarf-e-Khas of the Forest Department, issued a patta to the petitioner on 10-1-1949 on pagras for seven years.'

We do not have any grant under the signature or seal of the Nawab, but the so-called patta is a settlement ostensibly by the functionery named, for a period of seven years for removing the forest and bringing the land under cultivation. In argument, I am told that this has been granted in exercise of the powers given by Rule 69 of the Bhopal Forest Rules. These rules are not made under any section of the Bhopal Forest Act (which was there ever since 1946), but they have been made by the Nawab himself who has described these as 'quway-ad' to distinguish them from 'qanoon' or Act. Let us suppose that they are as good as law, still, the petitioner is not able to derive any benefit from them. One of the topical headings is 'The method of realising income from the jungle.' Rule 69 comes under it and has a set of sub-rules mentioning the powers of the officers designated there, to grant settlement.

The highest are the Conservator of Forest and the Forest Divisional Officer. Even they cannot give any settlement under this chapter for a period more than one year to get forest produce. The so-called patta is supposed to give a lease for seven years, for bringing the land under cultivation after cutting down the forest. Certainly, the ostensible authority granting the patta is incompetent to grant it. Shri Khan, appearing for the petitioner, urges that the proviso to this rule implies that after due inquiry and deliberation, the Conservator of Forest could give a lease for a longer period. I do not agree.

After setting out the rank of all officers who could give pattas the rule goes on to state that 'no patta for a longer term should be given till there is a full inquiry and the interests of revenue are properly safeguarded etc. etc.'. Certainly, this docs not in any manner, extend the powers already mentioned in so many words. All that it means is that within the powers given to these officers, they should still exercise this caution if the duration is long within these limits already provided. Thus,the very patta which the petitioner is propounding after a lot of hide and seek, does not help him.

8. In my opinion, this is sufficient ground to dismiss the petition. A petitioner seeking the assistance of this Court in exercise of extra-ordinary jurisdiction should show that in any view of the matter he has a basic interest. It is not enough for him to argue that whatever his right or title, the authority that is evicting him is not the proper authority. Even supposing this to be true, and I am not very sure of it as the discussion will presently show, still the petitioner should show that he has a legal title.

If he is a squatter or a trespasser, this Court will not give him assistance, whether or not he is being evicted by the authority that should evict him. It is not a title suit, but a petition in equity, and a seeker should come with clean hands. The petitioner's case is even worse. The very patta which he refused to place before the Commissioner, is a suspicious document, which he produces now, when it is known that the papers of the Sarf-e-Khas have disappeared for good and verification is impossible.

9. The sheet-anchor of the petitioner's case is that whether or not he may have title, he has come into possession of this vast area of forest land and the Commissioner is not competent to terminate the patta that he is propounding. Here also, it is difficult to agree. In this Court, during the hearing, the petitioner has filed typed copies of what he calls different notifications over a length of time.Many of them are obscure and the manner and the time of production is not at all satisfactory. Apetitioner coming to this Court, should file his documents in time so that the other party can examinethem and reply.

Anyway, these copies given under the certificate of learned counsel for the petitioner can, at best, indicate that at different stages, this particular village -- Nibbookheda -- was deemed to be a forest area. But in 1947 it was transferred to the Sarf-e-Khas, that is to say, the private Jagir of the Nawab of Bhopal. Whether after transfer to the private jagir of the Nawab, it still partook of the nature of a reserved forest is very doubtful. Once it is made part of the private jagirdari, it comes under the revenue authorities.

Moreover, the patta propounded is not for the exploitation of the forest by collection of the forest produce in the manner set out in Rule 69 under the heading 'Ways of collecting forest income' (tariqa vasool amadani jangalat), but 'pagras', that is to say, for bringing the land under cultivation on payment of revenue -- that is to say, revenue law. Thus, the settlement propounded by the petitioner himself, is a settlement cognizable by the revenue Courts.

No doubt, the Bhopal Land Revenue Act has no application to land in a reserve forest: but when the land is taken away out of the reserve forest and is brought under or is claimed to be brought under pagras, that is a settlement for cultivation, then obviously, it comes under the jurisdiction of the revenue authorities. In fact, it ceases to be a reserve forest, the forest being cut down under the terms of the alleged settlement. Another reason why the Commissioner gets jurisdiction is that after the taking over of the State by the Union Government, all the Sarf-e-Khas became State property.

If State property was being administered or had been disposed for maintaining the reserveforest as reserve forest, then at least, the petitioner could be heard to say that the Land Revenue Act had no application. But here, on his own showing, it had ceased to be reserve forest by the very process of granting the so-called lease.

10. The Commissioner was acting under Section 38 of the Land Revenue Act. The petitioner was arguing that he had no jurisdiction as the grant had been of a forest area by the appropriate forest authority. Probably, he mentioned the name of the grantor of the alleged patta, but that also was not very illuminative because in the small riya-sats, the same person was found to exercise many functions. The Commissioner was prepared to' examine this matter if the petitioner could bring the patta, but the latter for reasons altogether not ascertainable, defiantly refused to produce it. Thus, the petitioner himself would not care to show at the proper stage that the Commissioner had no jurisdiction. That way also, the petition is without substance.

11. The result is that the petition is dismissed.Hearing fee to the opposite party Rs. 100/-.


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