Madhya Pradesh High Court
Jitendra Singh Narwariya vs The State Of Madhya Pradesh on 30 September, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
1
THE HIGH COURT OF MADHYA PRADESH
W.P.No.1793/2019 (PIL) (Jitendra Singh Narwariya Vs. State of M.P.
and others)
Gwalior, Dated:-3.10.2019
Shri Ajeet Singh Bhadoriya, learned counsel for the petitioner.
Shri F.A. Shah, learned Govt. Advocate for the
respondents/State.
Shri Prakhar Dhengula, learned counsel for the respondent no.7. Alleging that respondents no.6 and 7 have made illegal temporary construction/shed over land bearing Survey No.139 and 142/1 Village Ohadpur, Tahsil and District Gwalior, petitioner, a public spirited person has filed this public interest litigation seeking following reliefs:
"(i) That, this Hon'ble Court may kindly be pleased to allow this writ petition in the form of Probono Publico in the interest of public at large.
(ii) That, the Respondent no.1 and 5 be commanded to take a note of the conduct of the Respondent no.6 and 7 who has raised the temporary construction/sheds and providing on rent for commercial purposes with a further direction to take suitable action, in accordance with law.
(iii) The respondents be further directed to take action against the erring officers for giving undue shelter to the Respondent No.6 and 7 in the aforesaid matter with a further direction to hold an enquiry by constituting a committee, in the interest of justice.2
THE HIGH COURT OF MADHYA PRADESH W.P.No.1793/2019 (PIL) (Jitendra Singh Narwariya Vs. State of M.P. and others)
(iv) That, other directions deemed fit in the facts and circumstances of the case be issued to the respondents.
(v) Cost of the petition be awarded."
Notice have issued to respondents.
Respondent No.5 is Municipal Corporation Gwalior submits that the Corporation did not grant any sanction for alleged construction. It is urged that the construction plan sanctioned by the Town and Country Planning Department of the State was later on revoked on 14.11.2018. It is contended that the revocation has led the Municipal Corporation serve notice on 13.3.2019 and 18.3.2019 for demolition of the structure.
It was later informed and not disputed by the respondent no.7 in its return that the structures have since been removed. There is no construction raised by the respondent no.7 over the Survey No.139, however, certain Kachha construction in shape of Tin Shade was there, the same was constructed after getting the N.O.C from the TNCP, that in shape of Kachha Construction for raising the construction as per the map sanctioned by the TNCP, after obtaining the permission of the Municipal Corporation. However, the Kachha construction has been removed by the Municipal Corporation, now there is no construction over the land in shape of construction. The 3 THE HIGH COURT OF MADHYA PRADESH W.P.No.1793/2019 (PIL) (Jitendra Singh Narwariya Vs. State of M.P. and others) NOC from the TNCP is subsequently cancelled. The said fact came into the knowledge after the notice to the present petition. An application for recalling the order has already been moved before the concerning authorities the same is still pending for consideration. The cancellation was made because of civil dispute between the private parties which has no connection with the government land or the government. There is no loss to the public exchequer made, because of Tin Shade over the private land by the private parties. The Tin Shade was there in the anticipation of the permission of the Municipal Corporation after obtaining the NOC from the TNCP. So far as the Annexure P/1 is concern which was shown as receipt of 1.1.2019 and PIL was filed before this court in the same month within 25 days, that itself shows the eagerness and hurry on the part of the petitioner to get demolish the Tin Shade and because of this the present petition being sponsored and no public interest is involved in the matter deserves to be dismissed with costs.
The State of Madhya Pradesh and its functionaries, have filed separate return; wherein, it is stated that the khasra entries of Samvat 1997 shows that the land bearing Survey No.139 belongs to the Government, whereas Survey No.142 is private land. As regard to land bearing Survey No.142, it is urged that the predecessor-in-title of respondents no.6 and 7 had preferred a Civil Suit which was 4 THE HIGH COURT OF MADHYA PRADESH W.P.No.1793/2019 (PIL) (Jitendra Singh Narwariya Vs. State of M.P. and others) decreed and the decree was maintained upto the Supreme Court in SLP No.8825/1998 decided on 18.1.1999. The fact of filing of Civil Suit is further elaborated by respondent no.7 in its return; wherein it is stated that the land of Survey No.139 area 0.261 hectares, and Survey No.142/1 area 0.263 hectares was the subject matter of Civil Suit No.22A/1996 decreed on 15.1.1996, whereby Trial Court refused to grant injunction which was reversed in Civil Appeal No.15A/1996 and Second Appeal No.177/1996 decided on 23.4.1998. A Special Leave to Appeal (Civil) CC No.8825/1998 was dismissed on 18.1.1999. Consequent thereof, Tahsildar, Tehsil Gwalior by his order dated 24.12.2012 mutated the name of legal heirs of Late Omprakash Sharma viz., Dilip Sharma, Sanjay Sharma, Girraj Sharma over land bearing Survey No.135, 136, 137, 138 and 139 total area 5 bigha 17 biswa. Evidently the area of Survey No.139 is 0.261 hectare and that of Survey No.142/1 is 0.253 hectare.
That to have a clear status as regard to land bearing Survey NO.142 at Village Ohadpur, Collector Gwalior was called upon to file an affidavit; whereon an affidavit is filed on 23.9.2019; wherein it is stated:
"3. That, it is respectfully submitted that the aforesaid land bearing S.No.142 belongs to the 5 THE HIGH COURT OF MADHYA PRADESH W.P.No.1793/2019 (PIL) (Jitendra Singh Narwariya Vs. State of M.P. and others) predecessor-in-title of private respondent No.6 and 7 i.e. the name Shri Heera Lal was recorded in the Khasra entry of the year 1940. Copy of Khasra entry of the year 1940 is annexed herewith and marked as Annexure A/1.
4. That, since the year 1940 aforesaid survey number is recorded as private land and after execution of sale deed by the heirs of Heera Lal, the land has been recorded in the name of private persons who had purchased the aforesaid property.
5. That, vide Case No.45/5.7.2010 -Aa dated 10.8.2010 was filed, taken into consideration by Collector and Case No.43/2015-16/B-12100/854 dated 1.8.2016 was declared as Rakshit Van Khestra Munara Kramank 7 that out of area 1.2590 hectare area 0.015 hectare declared as Forest Land of land bearing S.No.142/5 in column No.12 of khasra.
6. That, land bearing S.No.142/2 total area 1.0080 hectare vide namantaran Case No.38/ 17.5.2010 on the basis of application by Tehsildar which was accepted by Collector in Case No.43/2015-16/B- 121/10854 dated 1.8.2016 declared as Arakshit Van Khestra No.7 area 0.219 hectare recorded as Forest Land in column No.12 of khasra.
7. That, the land bearing S.No.142 has been further divided and after division part portion of S.No.142/2 is recorded as arakshit Forest area for 0.219 hectare and land bearing S.No.142/5 part of 6 THE HIGH COURT OF MADHYA PRADESH W.P.No.1793/2019 (PIL) (Jitendra Singh Narwariya Vs. State of M.P. and others) which is recorded as Aarakshit Forest area, rest of the portion of S.No.142 which has been divided further, has been recorded in the name of Amit Ojha, Blue Lotus Real Estate Private Ltd. Through Director Smt.Neeru Wadhwa W/o Shri Rohit Wadhwa, Sanatan Grah Nirman Sahakari Sanstha Maryadit, Gwalior through President Rohit Wadhwa, Shruti Infrastructure Pvt.Ltd. through Director Mukesh Agarwal. Copy of the recent khasra entry is annexed herewith and marked as Annexure A/2 collectively. Hence in view of the above, the information is being tendered before this Hon'ble Court incompliance of the order dated 6.9.2010."
Evidently, the land which is now reserved as Forest is to be protected and secured by the State of Madhya Pradesh which is under an obligation to keep it free from all types of encroachments and is to be preserved as forest.
The petition is accordingly disposed of with the direction that the part of land of Survey No.139 and 142 which vests with the State of Madhya Pradesh in the form of forest land or as Nazul as the case may be, be scrupulously preserved. The State of Madhya Pradesh and its functionaries shall ensure that there is no encroachment on unauthorized occupation over the Government 7 THE HIGH COURT OF MADHYA PRADESH W.P.No.1793/2019 (PIL) (Jitendra Singh Narwariya Vs. State of M.P. and others) land. And if there are, it should remove the same by taking recourse to law. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
Pawar/-
ASHISH PAWAR
2019.10.05
17:02:18 +05'30'