G H BAJRANGA (DEAD) BY LRS. versus THE STATE OF MADHYA PRADESH & ORS. on 19 January 2021

130

SUPREME COURT REPORTS

[2021] 1 S.C.R.

ABAJRANGA (DEAD) BY LRS.

v.

THE STATE OF MADHYA PRADESH & ORS.

(Civil Appeal No. 6209 of 2010)

BJANUARY 19, 2021

[SANJAY KISHAN KAUL, DINESH MAHESHWARI ANDHRISHIKESH ROY, JJ.]

Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960– s.11(3) and s.11(4) – Surplus land under the Act – Predecessor-Cin-interest of appellant was bhumiswami of agricultural dry land –He was stated to be holding land in excess of the prescribed ceilinglimit – Such excess land declared to be surplus land, whereafter,respondents initiated proceedings for taking over possession andeviction u/s.248 of the Madhya Pradesh Land Revenue Code –DAppellant filed suit for declaration of title and permanent injunctioncontending that the land recovery proceedings were illegal sincehe was actually left with land within the prescribed ceiling limitsince a part of the land had been decreed in favour of his mother-in-law, ‘J’, after she filed a civil suit against him – Suit of appellantdismissed by trial court – First Appellate Court however held thatEthe competent authority had failed to comply with the statutoryprovisions u/s.11(3) and s.11(4) and restrained the respondents frominterfering with possession of such land – High Court set aside thejudgment of Appellate Court – On appeal, held: Right to propertyis still a constitutional right under Art.300A of the ConstitutionFthough not a fundamental right – Deprivation of the right can onlybe in accordance with the procedure established by law – On facts,once a disclosure was made (that ‘J’ had filed a suit againstappellant), the matter had to be dealt with under sub-section (4) ofs.11 and in view of the pending suit proceedings between appellantand ‘J’, the proviso to sub-section (4) of s.11 came into play whichGrequired the respondent authorities to await the decision of the court– However, the very scheme of the Act was breached by therespondents in not complying with the statutory provisions – Evennotice was not issued to ‘J’ – She could have clarified the positionfurther – The effect of the decree in favour of ‘J’ is that the appellantH

loses the right to hold that land and his total land holding comeswithin the ceiling limit – If there is no surplus land there can be noquestion of any proceedings for takeover of the surplus land underthe Act – Judgment of first Appellate Court accordingly restored –Madhya Pradesh Land Revenue Code, 1959 – s.248.

Allowing the appeal, the Court

HELD : 1. The factual matrix of the instant case is to beexamined in the context of the provisions of the Madhya PradeshCeiling on Agricultural Holdings Act, 1960. The preparation ofthe statement of land held in excess of ceiling limit under Section11 of the said Act has to be on the basis of information given inthe return under Section 9 of the said Act, or the informationobtained by the competent authority under Section 10 of the saidAct after making an enquiry. In terms of Section 11(3), the draftstatement is to be published and served on the holder, the creditorand “all other persons interested in the land to which it relates.”Once a disclosure is there that ‘J’ had filed a suit, there has to bemandatorily a notice to her as otherwise any decision would bebehind her back and would, thus, violate the principles of naturaljustice. [Para 22][141-B-D]

2. There is little ambiguity about the aforesaid position asin Section 11(4) it has been stated that in case the competentauthority finds that any question has arisen regarding the title ofa particular holder, which has not been determined by thecompetent court, the competent authority shall proceed toenquire summarily into merits of such question and pass suchorders as it thinks fit. Thus, the power is vested with thecompetent authority to determine such conflict of the land holding.This is, however, subject to a proviso. The proviso clearlystipulates that if such a question is already pending for decisionbefore the competent court, the competent authority shall awaitthe decision of the court. [Para 23][141-D-F]

3. The embargo came there and then as once the disclosurewas made the proceedings should have been kept in abeyance toawait the decision in those proceedings. The occasion to passorders under sub-section (5) and sub-section (6) of Section 11 of A

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[2021] 1 S.C.R.

Athe said Act did not arise in the present case in view of thedisclosure of J’s suit. Further proceedings should have been keptin abeyance to await the verdict in the suit as per proviso to sub-section (4) and notice should have been issued to ‘J’. All this hasbeen observed to be in breach by the respondents. Thus, thefindings of the appellate court in constructions of these provisionsBreflects the correct position of law in the given facts of the case.[Para 24][141-F-H]

4. The legal position has to be appreciated in the factualcontext. Thus, though there may be a process provided forredressal under the scheme of the Act, it is this very scheme ofCthe Act which has been breached by the respondents in notcomplying with the statutory provisions. It can be nobody’s saythat ‘J’ cannot file a title suit against the appellant. That suit beingmaintainable and pending, and the factum of that suit beingdisclosed in the return, the provisions of Section 11 had to beDstrictly complied with. This is so as the right to property is still aconstitutional right under Article 300A of the Constitution of Indiathough not a fundamental right. The deprivation of the right canonly be in accordance with the procedure established by law. Thelaw in this case is the said Act. Thus, the provisions of the saidAct had to be complied with to deprive a person of the land beingEsurplus. [Para 28][142-F-H; 143-A-D]

5. The provisions of the said Act are very clear as to whathas to be done at each stage. Once a disclosure was made, thematter had to be dealt with under sub-section (4) of Section 11 ofthe said Act and in view of the pending suit proceedings betweenFthe appellant and ‘J’, the proviso came into play which requiredthe respondent authorities to await the decision of the court. Sub-section 5 and thereafter sub-section 6 would kick in only afterthe mandate of subsection 4 was fulfilled. In the present case itwas not so. Even notice was not issued to ‘J’. She could haveGclarified the position further. The effect of the decree in favour of‘J’ is that the appellant loses the right to hold that land and histotal land holding comes within the ceiling limit. If there is nosurplus land there can be no question of any proceedings for takeover of the surplus land under the said Act. Thus, the impugned H

order of the High Court is liable to be set aside and the order ofthe first appellate court is restored. [Paras 29, 30][143-B-E]

Competent Authority, Tarana District, Ujjain (M.P.) v.Vijay Gupta & Ors., (1991) Supp 2 SCC 631 and Stateof Madhya Pradesh & Anr. v. Dungaji (Dead)Represented by Legal Representatives & Anr., (2019) 7SCC 465 : [2019] 9 SCR 979 – referred to.

Case Law Reference

(1991) Supp 2 SCC 631referred toPara 15[2019] 9 SCR 979 referred toPara 17

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6209of 2010.

From the Judgment and Order dated 08.05.2008 and the decreeof the High Court for Madhya Pradesh at Gwalior in Second AppealNo. 644 of 1998.

Saurabh Moishra, AAG, Ms. Christi Jain, Harsh Jain, HarshitKhanduja, Akshat Maheshwari, Harshvardhan Sharma, Ms. PratibhaJain, Sunny Choudhary, Advs. for the appearing parties.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. The social objective of providing land to the tiller and the landlesspost independence was sought to be subserved by bringing in ceiling inagricultural holdings in different States. It is towards this objective thatthe Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960(hereinafter referred to as the ‘said Act’) was brought into force in1960. The said Act, inter alia, provided for acquisition as well asdisposal of surplus land.

2. The predecessor-in-interest of the appellant (nowrepresented by the LRs) was the bhumiswami of agricultural dry landmeasuring 64.438 acres situated in Village Bagadua, ParagnaSheopur Kala, District Morena, Madhya Pradesh. He was, thus,stated to be holding land in excess of the ceiling limit prescribed asper Section 7(b) of the said Act, whereby a holder along with hisfamily of five members or less could hold a maximum amount of 54

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Aacres of land. As a sequitur thereto the competent authority/competentofficer (respondent No.2 herein) initiated the process to acquire thesurplus land and issued a draft statement in Land Ceiling CaseNo.180/75-76/A-90(B) for acquisition of 10.436 acres of dry land fromSurvey Nos.755, 756, 780 and 881/1 (for short ‘surplus land’). A finalorder dated 30.3.1979 was published declaring such land as surplus.BIn furtherance of the aforesaid, the respondents herein initiated theprocess of taking over possession and eviction under Section 248 of theMadhya Pradesh Land Revenue Code, 1959 (hereinafter referred toas the ‘said Code’) (the provision has since been deleted).

3. The appellant being aggrieved by the final order dated 30.3.1979Cfiled a suit for declaration of title and permanent injunction before theCourt of Civil Judge Class-II, Sheopur Kala, District Morena. It is thesay of the appellant, as per averments in the plaint, that the proceedingsto recover land from him were illegal as he was actually left with only 54acres of land which was within the prescribed ceiling limit in view of the Dfact that the land measuring 17 bighas and 7 biswa in Survey No.77 hadbeen decreed in favour of one Jenobai, who was in kabza kasht(possession by cultivation) of the land for about 20 years. She had fileda civil suit, being Civil Suit No.319/75A O.C. on 15.10.1975 againstthe appellant seeking declaration of title and permanent injunctionwith respect to the aforementioned land. There had been an admissionEof the ground position by the appellant and thus, the suit wasdecreed on 5.3.1979 declaring Jenobai to be the owner in possession ofthe said land. We may note that Jenobai is actually the mother-in-law ofthe appellant and according to her, this land was being cultivated by heron the basis of half and half of the land proceeds. However, subsequently Fthe appellant developed improper intent and taking advantage of herbeing a widow and an old woman, had colluded with the Patwarito get this disputed land mutated in his name.

4. The suit filed by the appellant was contested by the respondentsherein and they took a defence in the written statement that the possessionGof the surplus land had been taken over and allotted to other cultivators.There was, however, an admission that the appellant in the return, filedas per Section 9 of the said Act, mentioned the aspect of the pendingsuit qua Survey No. 77. However, it was contended that the appellanthad neither submitted a copy of the suit nor any proof of pendencyof the suit. The suit was alleged to be collusive inasmuch as Jenobai, inH

fact, was the mother-in-law of the appellant and the endeavour was toprevent 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 havesubmitted a claim before the competent authority after the draft statementwas issued. The appellant was also alleged to not have submitted anyobjection to the draft statement and the remedy of the appellant wasstated to be by way of an appeal before the competent court which wasnot pursued. The order of the competent authority was stated to havebecome final and, thus, the action for taking over possession of surplusland and allotment thereof was lawful.

5. The trial court decided the suit post trial vide judgment anddecree dated 7.10.1997. The trial court held that the appellantwas the bhumiswami in respect of the survey number in question andthe suit was collusive with Jenobai having knowledge of the ceilingproceedings. These findings resulted in a dismissal of the suit.

6. The appellant filed an appeal under Section 96 of the Code ofCivil Procedure, 1908 (hereinafter referred to as the ‘CPC’) before theCourt of Additional District Judge, Sheopur Kala, District Morena.The appellant’s say was that in view of the pendency of the suitfiled by Jenobai, the proceedings under the said Act should havebeen kept in abeyance in view of the provisions of Section 11(4) of thesaid Act. The relevant provisions of Section 11 read as under:

“11. Preparation of statement of land held in excess ofthe ceiling area. - (1) On the basis of information given in thereturn under Section 9 or the information obtained by thecompetent authority under Section 10, the said authority shallafter making such enquiry as it may deem fit, prepare a separatedraft statement in respect of each person holding land in excessof the ceiling area, containing the following particulars:

(3) The draft statement shall be published at such place and insuch manner as may be prescribed and a copy thereof shall beserved on the holder or holders concerned, the creditors and allother persons interested in the land to which it relates. Anyobjection to the draft statement received within thirty days ofthe publication thereof shall be duly considered by thecompetent authority who after giving the objector an opportunityof being heard shall pass such order as it deems fit.

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A(4) If while considering the objections received under sub-section(3) or otherwise, the competent authority finds that anyquestion has arisen regarding the title of a particular holderand such question has not already been determined by a Court ofcompetent jurisdiction, the competent authority shall proceedto enquire summarily into the merits of such question and passBsuch orders as it thinks fit.

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Provided that if such question is already pending for decisionbefore a competent court, the competent authority shall await thedecision of the court.

C(5) The order of the competent authority under sub-section(4) shall subject to appeal or revision, but any party may, withinthree months from the date of such order, institute a suit in thecivil court to have the order set aside, and the decision of suchcourt shall be binding on the competent authority, but subject tothe result of such suit, if any, the order of the competent authorityDshall be final and conclusive.]

[(6) After all such objections, have been disposed of, the competentauthority shall, subject to the provisions of this Act and the rulesmade thereunder, make necessary alterations in the draft statementin accordance with the orders passed on objections and shallEdeclare the surplus land held by each holder. The competentauthority shall, thereafter, publish a final statement specifyingtherein the entire land held by the holder, the land to be retainedby him and the land declared to be surplus and send a copy thereofthe holder concerned. Such a statement shall be published inFsuch manner as may be prescribed and shall be conclusiveevidence of the facts stated therein.]”

7. The information about the pendency of the suit betweenJenobai and the appellant had been furnished to the competent authority,and post decree of the suit the appellant had been left with only 54 acresGof land. Thus, there was no reason to initiate proceedings to takepossession of the disputed land. The appellate court noted the admissionin the written statement filed by the respondents herein, that in the returnfiled by the appellant there was disclosure of the factum ofJenobai being in possession of Survey No.77 land as also of thependency of the suit, being Suit No.319A/75 between her and the H

appellant. That being the factual position, Section 11(3) of the said Actmandated that the copy of the draft statement ought to have been servedon Jenobai as she was an ‘interested person’ in the land. Theacquisition proceedings had to be kept in abeyance in view of theproviso to Section 11(4) of the said Act till the disposal of the suit, andthat such a judgment of the civil court was binding on the competentauthority. The suit was stated to have been decreed for 3.306hectares out of 17.715 hectares of land recorded in the name of theappellant, resultantly leaving 14.399 hectares of land, which was withinthe prescribed limited under Section 7 of the said Act. On the basis ofthese findings, the appeal was allowed and the judgment of the trialcourt was set aside on the ground that the competent authority had failedto comply with the statutory provisions under Section 11(3) and11(4) of the said Act. The appellant was declared as the bhumiswamiof the surplus land and the respondents were restrained frominterfering with his possession of the land.

8. It is now the turn of the respondents herein to prefer anappeal under Section 100 of the CPC before the High Court of MadhyaPradesh, Gwalior Bench in Second Appeal No.644 of 1998. The HighCourt vide order dated 8.5.2008 framed two substantive questions oflaw, which read as under:

“i. Whether the jurisdiction of the Civil Court challenging theorder of the Competent Officer is barred under Section 46 of thesaid Act?

ii. Whether the judgment and decree of the first appellate court issustainable under the provisions of the said Act?”

9. On a conspectus of the matter, the High Court allowed theappeal. The rationale for the same was that after the publication ofthe draft statement neither the appellant nor Jenobai had filed objections.In the revenue records the appellant’s name was recorded as holder ofthe entire agricultural land in question. No information was statedto have been provided to the competent authority giving particularsof the suit of Jenobai. The competent authority was found not at faultin the alleged breach of Sections 11(3) and 11(4) of the said Act asthe information germane for the same had not been disclosed.

10. The appellant at that stage, thus, approached this Courtby the present Special Leave Petition and on 2.3.2009, notice was A

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Aissued and status quo was directed to be maintained. Subsequently,leave was granted on 26.7.2010 and ad interim order was madeabsolute till the disposal of the appeal.

11. On the appeal being taken up for hearing on 16.1.2020an order was passed recording the factual controversy as to whetherBthe appellant had filed objections giving particulars of the pendency ofthe civil suit. This was so as in terms of Section 9(iv) of the saidAct that such particulars were required to be stated. Even onthe question of maintainability of the suit, it was mentioned that itwas necessary to peruse the objections filed by the appellant todetermine whether the requirement of Section 9 of the said Act hadCbeen fulfilled, Thus, records of the last ceiling case were directed to beproduced by the respondents herein. The records were, however, notproduced and, thus, on 9.9.2020, an order was passed giving furthertime but directing that failure to produce the record would result inan adverse inference being drawn against the respondents herein.D12. The respondents filed an affidavit on 26.9.2020 statingthat the records were untraceable including the objections filed by theappellant. It appears that due to carving out of some districts the recordscould not be traced out. The son of the appellant had stated that he didnot have the record either.E13. We have heard learned counsel for the parties, albeit in theabsence of the aforesaid record, which was not produced right tillthe date of hearing.

14. The appellant canvassed that the civil suit filed wasmaintainable as the bar of jurisdiction of the civil court did notFcome into play as specified in Section 46 of the said Act in viewof the provisions of Sections 11(4) and 11(5) of the said Act readtogether. Section 46 of the said Act reads as under:

“46. Bar of jurisdiction of Civil Courts. – Save asexpressly provided in this Act, no Civil Court shall have anyGjurisdiction to settle, decide or deal with any question which is byor under this Act required to be settled, decided or dealt with bythe competent authority.”

15. The plea, thus, was that the Section begins with a savingclause qua the bar of civil court – “Save as expressly provided in this H

Act…..” The provisions of Section 46 were pleaded to be expresslysubject to the provisions of Section 11(5) of the said Act and theobservations in Competent Authority, Tarana District, Ujjain (M.P.)v. Vijay Gupta & Ors.[1]were relied upon, opining that a suit can befiled in a civil court within three months of passing of an order bythe competent authority under Section 11(4) of the said Act in view ofthe provisions of Section 11(5) of the said Act. There was pleaded to bean admission about the disclosure of the appellant regarding the factumof the suit filed by Jenobai in the returns and, thus, the respondentsherein were required to wait for the outcome of the suit and should havealso invited objections from Jenobai. The decree in the civil suitbetween the appellant and Jenobai was, thus, submitted to be bindingon the competent authority.

16. On the other hand, the respondents herein reiterated thatthe suit filed by Jenobai was a collusive one and the object of the institutionwas 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 canonly be instituted within three months from the date of Section 11(4)order, the date of which is not mentioned. However, even if thedate of the subsequent order under Section 11(6) passed on 31.3.1979is considered, the period of three months elapsed as the suitwas filed on 31.8.1979/3.9.1979 (there is some discrepancy qua the datesas recorded in different proceedings). Further under Section 11(5) ofthe said Act, a suit can only be filed for setting aside the order underSection 11(4) of the said Act but no such prayer was made.

17. It was urged that after the order under Section 11(6) of thesaid Act is passed, the land vests with the State under Section 12 of thesaid 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 Actand, thus, the suit was not maintainable. It was also urged that no suitlies against an order under Section 11(6) of the said Act in view of thejudgment of this Court in State of Madhya Pradesh & Anr. v.Dungaji (Dead) Represented by Legal Representatives & Anr.[2]Learned counsel for the respondents herein pleaded that though theappellant raised the issue about the pendency of the suit withJenobai in the return filed under Section 9 of the said Act, the 1 1991 Supp (2) SCC 631.

2 (2019) 7 SCC 465.

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Adocuments were not produced and exhibited in this behalf even beforethe trial court. The possession of Jenobai as reflected in the revenuerecords was not proved by any evidence led in that behalf. And, in fact,no such objections were filed before the trial court.

18. On the aspect of this Court observing that an adverse inferenceBwill be drawn as per the orders dated 16.1.2020 and 9.9.2020, itwas submitted that the copy of the objections were never placedbefore the trial court, the first appellate court and the High Courtand, thus, the appellant failed to discharge the burden of provingthe case. There should, thus, be no occasion to draw the adverseinference against the respondents herein.C

19. We have given a thought to the matter in the conspectus ofwhat has been urged before us on the different dates and the proceedingsthat had been recorded. The matter was taken up on 16.1.2020 and inview of the submissions advanced by the parties, the Court requiredperusal of the record. Thus, in the proceedings it was recorded thatDthere was a factual controversy as to whether the appellant inpursuance of the draft statement in the objections filed had given theparticulars of the pending civil suit filed by the mother-in-law of theappellant claiming part of the land held by the appellant. This wasconsidered to be relevant as in terms of Section 9(iv) of the said ActEsuch particulars are mandated to be given and, thus, the respondentsherein being in breach or not of the other succeeding provisions ofthe Act would depend on this important aspect. We also took note ofthe fact that as per the respondents herein no particulars had beengiven and the suit was alleged to be collusive. In order to determinethe question it was opined that this Court found it necessary toFperuse the objections filed by the appellant to come to a conclusion.

20. On the said date itself, this Court also required the pleadingsin the civil suit filed by the mother-in-law, Jenobai, to be placed on recordas also the judgment.G21. The appellant complied with the order dated 16.1.2020 byfiling these additional documents but the respondents herein did notdo the needful. It is in these circumstances that on 9.9.2020 this Courtmade it clear that in case the records are not filed adverse inferencewill be drawn. The natural sequitur to this is that the failure toplace the aforementioned documents on record shows that thereH

had been proper disclosure about the suit in the return filed underSection 9 of the said Act. The factum of disclosure of the suit couldnot really be doubted by the respondents herein in view of their ownpleadings (admitted in the pleadings before the trial court, as perusedby us). However, the records are alleged not to have been located.

22. The aforesaid factual matrix is, thus, to be examined in thecontext of the provisions of the said Act. The preparation of the statementof land held in excess of ceiling limit under Section 11 of the said Act hasto be on the basis of information given in the return under Section9 of the said Act, or the information obtained by the competentauthority under Section 10 of the said Act after making an enquiry. Interms of Section 11(3), the draft statement is to be published and servedon the holder, the creditor and “all other persons interested in the land towhich 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 decisionwould be behind her back and would, thus, violate the principles of naturaljustice.

23. There is little ambiguity about the aforesaid position as in Section11(4) it has been stated that in case the competent authority finds thatany question has arisen regarding the title of a particular holder, whichhas not been determined by the competent court, the competentauthority shall proceed to enquire summarily into merits of such questionand pass such orders as it thinks fit. Thus, the power is vested with thecompetent authority to determine such conflict of the land holding.This is, however, subject to a proviso. The proviso clearly stipulates thatif such a question is already pending for decision before the competentcourt, the competent authority shall await the decision of the court.

24. In our view, the embargo came there and then as once thedisclosure was made the proceedings should have been kept in abeyanceto await the decision in those proceedings. The occasion to pass ordersunder sub-section (5) and sub-section (6) of Section 11 of the said Actdid not arise in the present case as in view of the disclosure of Jenobai’ssuit. Further proceedings should have been kept in abeyance toawait the verdict in the suit as per proviso to sub-section (4) and noticeshould have been issued to Jenobai. All this has been observed to be inbreach by the respondents herein. We are, thus, of the view that thefindings of the appellate court in constructions of these provisionsreflects the correct position of law in the given facts of the case.

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A25. The issue of jurisdiction of civil court is no more resintegra in view of the judgment in Competent Authority, TaranaDistrict, Ujjain (M.P.).[3]where it has been observed in para 4 asunder:

“4. So far as the other question regarding the maintainability ofBthe suit in a civil court is concerned, suffice to say that sub-section(5) of Section 11 of the Act itself provides that any party maywithin three months from the date of any order passed by theCompetent Authority under sub-section (4) of Section 11 of theAct 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 civilCcourt and any decision of such court has been made bindingon the Competent Authority under the above provision of sub-section (5) of Section 11 of the Act. It is not in dispute that the suitin the present case was filed within three months as providedunder sub-section (5) of Section 11 of the Act. In the result, weDdo not find any force in this appeal and it is accordingly dismissedwith no order as to costs.”

26. We have taken note of the latter proceedings of this Court inState of Madhya Pradesh & Anr. v. Dungaji (Dead) Representedby Legal Representatives & Anr.[4]discussing the scheme of theEAct and the requirement of taking recourse to the provisions of appealand revision under the said Act.

27. We have also considered the plea of limitation advanced bylearned counsel for the respondents albeit no specific issue being framedin respect of the same.F

28. In our view the legal position has to be appreciated in thefactual context. Thus, though there may be a process provided forredressal under the scheme of the Act, it is this very scheme of the Actwhich has been breached by the respondents herein in not complyingwith the statutory provisions. It can be nobody’s say that Jenobai cannotGfile a title suit against the appellant. That suit being maintainable andpending, and the factum of that suit being disclosed in the return (if thenature of disclosure being the reason we wanted to peruse the record,which were not made available), the provisions of Section 11 had to 3 (supra).H4 (supra).

3 (supra).H4 (supra).

be strictly complied with. We say so as the right to property is still aconstitutional right under Article 300A of the Constitution of Indiathough not a fundamental right. The deprivation of the right can only bein accordance with the procedure established by law. The law in thiscase is the said Act. Thus, the provisions of the said Act had to becomplied with to deprive a person of the land being surplus.

29. The provisions of the said Act are very clear as to what has tobe done at each stage. In our view once a disclosure was made, thematter had to be dealt with under sub-section (4) of Section 11 of thesaid Act and in view of the pending suit proceedings between theappellant and Jenobai, the proviso came into play which requiredthe respondent authorities to await the decision of the court. Sub-section 5 and thereafter sub-section 6 would kick in only after themandate of sub- section 4 was fulfilled. In the present case it was notso. Even notice was not issued to Jenobai. She could have clarified theposition further. The effect of the decree in favour of Jenobai is that theappellant loses the right to hold that land and his total land holding comeswithin the ceiling limit. If there is no surplus land there can be noquestion of any proceedings for take over of the surplus land under thesaid Act.

30. We are, thus, of the view that the impugned order is liable tobe set aside and the order of the first appellate court is restored.

31. The appeal is accordingly allowed leaving the parties to beartheir own costs.

Bibhuti Bhushan Bose

Appeal allowed.

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