The Hindu Business Line : Horsing around on jail land

Dwight D. Eisenhower is credited with this quote: "I feel like the fellow in jail who is watching his scaffold being built." Similar is the experience of those who are helpless witnesses to their own lands getting grabbed by others.

It is the rare few who not only stand up for their rights, but also succeed in reclaiming their property. The apex court decided one such case last week: Begam Suraiya Rashid and Others vs State of Madhya Pradesh and Others. Quite bizarrely, the land in question, measuring about 59 acres, belonged to the Bhopal jail.

The land, situated near the Arera Hills in front of the old jail premises, had been recorded in the name of jail department since 1935. "The area was developed as a garden having trees of mangoes, jamun, lemon and so on, and the same was used to let out to different contractors and the property was managed from the income received from the fruits grown in the garden," informs the text of the Supreme Court judgment dated February 20.

59 acres for Rs 375 per annum

"No revenue was assessed on that income as the land belonged to the State Government." The Superintendent gave the land on lease to Bhawani Singh and Jameel Ahmed for Rs 375 per annum.

Then comes a crucial twist. Rashiduzzafar Khan, predecessor of the appellants, obtained a deed of relinquishment in his favour from the lessees Singh and Ahmed. "This was done without the concurrence and consent of the Government," and Khan continued using the land in the capacity of lessee and paid annual rent of Rs 375, from 1940 till his death in 1961.

In August 1960, Khan had submitted an application to the Government for recording his name as a Bhumiswami in respect of the land; but the Government rejected the application. After Khan died, the plaintiffs remitted the amount till 1978, when the jail department refused to accept the payment. Something had stirred, perhaps.

Like Khan, the appellants too had filed an application, but the same was rejected in January 1965 "on the ground that the land in question was recorded in the name of jail department." So far, so good.

In 1981, there was clear awakening. The Government initiated a proceeding under Section 248 of the Madhya Pradesh Land Revenue Code, 1959 (the Code) for eviction of the appellants, as they were trespassers. Not giving up, however, the appellants challenged the Tahsildar's eviction order at various levels, such as the SDO (Sub-divisional Officer) and the Commissioner.

When faced with adverse decisions at these forums, the appellants took up the issue with the Revenue Minister, who directed an enquiry in the matter. Anti-climax was when the Government ordered in November 1991 that the Revenue Minister had no jurisdiction to pass such an order. Thus, the order of eviction passed by the Tahsildar in 1981 attained its finality. The appellants also filed civil suit but the same "was dismissed on withdrawal on July 1, 1998."

Tahsildar's order on mutation

Meanwhile, a parallel development was on. In 1983, the appellants filed an application, praying for Bhumiswami rights in their favour, "on the basis of the registered deed dated April 6, 1940 executed by Bhawani Singh and Jameel Ahmed."

One other ploy which yielded apparent fruits to the appellants was "an application for mutation before the Naib Tahsildar in 1989". On January 29, 1990, the Tahsildar allowed that application, through an ex-parte order, saying that the land in question be mutated in the name of the appellants.

But the Collector, Bhopal, initiated `suo motu proceedings', in August 1990. "An enquiry was ordered against the Naib Tahsildar and by an enquiry report dated April 27, 1994 the Naib Tahsildar was held guilty of ordering mutation improperly."

Justices H.K. Sema and A.R. Lakshmanan noted that the land in dispute was recorded in the name of jail department from 1935 to 1989, "when for the first time the appellants filed an application for mutation".

Fifty-year story

On behalf of the appellants, it was argued that there was the Jagir Commissioner's order dated March 2, 1954 in their favour. And that the dispute on hand gets barred by the principle of res judicata (Latin for "the thing has been judged"). But the Supreme Court studied the 1954 order and found that the land referred to there had different Khasra numbers.

Another argument from the appellants banked on the provisions of the Bhopal Abolition of Jagirs and Land Reforms Act, 1953. But the court had to point out that the jail land was never Jagirs land prior to the enforcement of the Reforms Act.

Yet another assertion from the appellants was that they paid income tax and wealth tax on the stud and agricultural farm and that the income tax and other tax authorities assessed the same. Significantly, in a return filed by the appellants in June 1968, they had admitted that they were only lessees of the land.

Also, there was evidence against their assertions as follows. In July 1968, the appellants had written to the Assistant Controller of Estate Duty, Indore, in connection with the estate duty of Khan. Paragraph 4 in that letter said: "Jail Bag Land, Khasra Nos. 943, 960, 961 and 962 of village Shahar. As this land is owned by the Jail Department, as per land records, it is called Jail Bag Farm. Our client pays rent of Rs 375 per annum to the Jail Department of MP in respect of this land owned by the Jail Department."

In 1962, the appellants' chartered accountant had written to the Deputy Controller of the Estate Duty about "the Stud Farm (Jail Bag) standing in the area of about 59 acres, which is used for breeding of horses," and said that the land did not belong to the appellants.

The apex court noted, "The Tahsildar in his order also noticed that the name of the jail department is mentioned in the land records. However, the order was passed ex-parte on the ground that despite several letters sent to the jail department none appeared on its behalf." Naib Tahsildar's order dated January 29, 1990 was an abuse of the process of law, ruled the apex court.

"In the facts and circumstances this appeal is devoid of merits and deserves to be dismissed which we hereby do," ruled the judges. "Considering the fact that the appellants were suppressing the facts at every stage of proceeding, we deem it necessary that the appeal deserves to be dismissed with costs which we quantify at Rs 10,000," they added.

Some freedom for jail land, at last, from unauthorised horsing around!

LawOfTheLand@rediffmail.com