Madhya Pradesh High Court
Pramod Kumar Goel vs The State Of Madhya Pradesh on 25 January, 2016
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B : HON'BLE SHRI JUSTICE P.K. JAISWAL & HON'BLE SHRI
JUSTICE JARAT KUMAR JAIN.
W.P.No.4414/2014
Pramod Kumar Goel & Anr.
V/s.
State of M.P. & Ors.
**********
Shri V.K. Jain, learned Counsel for the petitioners.
Shri Sunil Jain, learned Addl. Advocate General with Shri
Mukesh Kumawat, panel lawyer for respondents No.1 and 2.
Shri Anand Agrawal, learned counsel for respondent
No.3.
Shri Ajay Bagadiya, learned counsel for respondent
No.4.
************
W.P. No.5998 / 2014
Rajesh Malviya Thru. Power of Attorney
holder Shri Vallabh Malviya.
V/s.
State of M.P. & Ors.
**************
Shri Anshuman Shrivastava, learned Counsel for the
petitioner.
Shri Sunil Jain, learned Addl. Advocate General with Shri
Mukesh Kumawat, panel lawyer for respondents No.1 and
2/State.
Shri Anand Agrawal, learned counsel for respondent
No.3.
Shri Ajay Bagadiya, learned counsel for respondent
No.4. *****
ORDER
(25.01.2016) PER P.K. JAISWAL, J:-
In writ petition No.4414/2012, filed in public interest, petitioners, claiming to be public spirited citizens prayed for a writ in the nature of mandamus
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 directing the respondents No.2 and 3 to remove the illegal encroachment of respondent No.4 from the land bearing survey No.269/1 of village - Palasia Hana Indore. They also prayed for writ of prohibition directing the respondent No.3 to ensure that no illegal construction or unauthorized construction is raised and to take proper and effective steps for removal of such illegal and unauthorized construction, if already made or is being made, on the ground that it is an illegal and against public interest.
2. Brief facts of the case are that the land bearing Survey Nos.269/1 and 269/2, are the land of Municipal Corporation, Indore, as is evident from Khasra Panchshala 1973-74 (Annexure P/4) and revenue records upto 2013-14 (Annexure P/4). One Vallabh Malviya son of Ganga Bishan Malviya, real brother of Rajesh Ganga Bishan Malviya (respondent No.4) on 27.3.1998, executed sale deed (Annexure P/5) in favour of his brother - Rajesh Malviya
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 (respondent No.4.) in respect of 2900 sq. fts of Survey No.269, for a consideration of Rs.1,00,000/-. On 27.3.2005 a corrigendum (amended deed) to the sale deed dated 27.9.1998 was executed by Shri Vallabh Malviya, in favour of respondent No.4 - Rajesh Malviya (Writ petitioner in W.P.No.5998/2014). By this amendment in place of survey No.269, Khajrana Kankad, Indore, the Survey No.264, village Palasiya Hana, Indore has been mentioned. Clause '', & '' ch" is sale deed (Annexure P/6) :-
"(,) ;g fd] foØsrk us iathd`r foØ; foys[k Øekad 1 v@6078@1998] fnukad 28@3@1998 ds }kjk vius LokfeRo dh lEifRr tks fd xzke & iykfl;kgkuk ds losZ uEcj 264] isfd Hkkx 2900 oxZQhV ij fLFkr Fkh] Øsrk dks foØ; dh Fkh rFkk blds izfrQy dh lEiw.kZ /kujkf'k Øsrk ls izkIr djds bldk fjDr vkf/kiR; Øsrk dks rRle; gh ekSds ij ns fn;k x;kA (ch) ;g fd] fyfidh; =qfV ,oa Vk;fiax dh Hkwyo'k mDr foØ; foys[k ds pj.k 1 esa foØhr lEifRr ^^[kljk uEcj 269] [ktjkuh dkdM] bUnkSj^^ Vkbi gks x;k Fkk tcfd okLrfod :i ls foØhr lEifRr ^^[kljk uEcj 264] xzke iykfl;kgkuk] bUnkSj^^ ij gSA lEifRr dk lEiw.kZ fooj.k layXu vuqlwph esa fn;k x;k gSA"
3. On 31.12.2010 another corrigendum (amended deed) was executed by Shri Vallabh Malviya
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 son of Ganga Bishan Malviya, in favour of Ratnesh @ Rajesh Malviya son of Vallabh Malviya, through power of attorney Sri Shri Vallabh Malviya son of Ganga Bishan Malviya. By this second amended deed, the number of survey land as well as name of the father of the respondent No.4 was also changed. Para 6 to 11 of the amended sale deed dated 31.12.2010, which has been executed after a period of more than 12 years from the original sale deed reads as under :
"6. izFkei{k ds }kjk] f}rh;i{k ds fgr esa fu"ikfnr ,oa iathd`r foØ; ys[k Øekad 1v@6078 ¼,p½ ds i`"B Øekad 2 ds pj.k Øekad 1 dh f}rh; iafDr esa Hkwyo'k ,oa Vad.k =qfV ds QyLo:i xzke iyklh;k gkuk ds LFkku ij [ktjkuh dkadM Vafdr gksdj mYysf[kr gqvk gSA 7- izFkei{k ,oa f}rh;i{k us fu"ikfnr la'kks/ku ys[k esa mfpr ,oa lgh xzke LFkku ds leFkZu esa ekuuh; mPp U;k;ky;] e-iz- bUnkSj ds }kjk fd;s x;s deh'uj egksn; ds }kjk iznRr dh xbZ deh'ulZ fjikVZ dh Nk;kizfr layXu dh gSA 8- izFkei{k ,oa f}rh;i{k us fu"ikfnr la'kks/ku ys[k esa mfpr ,oa lgh xzke LFkku ds leFkZu es ljiap xzke iapk;r [ktjkuk ftyk bUnkSj ds fnukad 18@07@1971 ds nk[kyk dh Nk;kizfr layXu dh gSA 9- izFkei{k ,oa f}rh;i{k us fu"ikfnr la'kks/ku ys[k esa mfpr ,oa lgh xzke LFkku ds leFkZu esa fnukad 20@12@2005 ds ekSdk iapukek dh Nk;kizfr layXu dh gSA 10- izFkei{k ,oa f}rh;i{k us fu"ikfnr la'kks/ku ys[k esa mfpr ,oa lgh xzke LFkku ds leFkZu esa fnukad 25@2@2006 ds ekSdk iapukek dh Nk;kizfr layXu dh gSA
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 11- izFkei{k ,oa f}rh;i{k us fu"ikfnr la'kks/ku ys[k esa mfpr ,oa lgh xzke LFkku ds leFkZu esa iVokjh egksn; ds lR;kfir Vsªl uD'kk dh Nk;kizfr layXu dh gSA"
4. In the year 2004, the respondent No.4 had filed an application before Tehsildar under Section 129 of the M.P. Land Revenue Code, 1959, for demarcation of land wherein, the land of respondent No.4 is situated on survey No.417 of village Khajrana. In the panchnama, prepared by revenue officer, the plot of respondent No.1 was shown on survey No.264. In the year 2003-04, the respondent No.4 filed an application to the Tehsildar for correction of the survey number wherein, it was stated that the land of respondent No.4 is situated on Survey No.264 of village Palasiyahana. The Tehsildar passed an order on 8.10.2004 (Annexure P/9), holding that the question of title can be decided by the Civil Court and it was ordered that the possession of the respondent No.4 be recorded on the survey No.264 of village Palasiyahana. The Sub-Divisional Officer, Indore
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 (revenue Indore) set aside the order dated 8.10.2004 in an appeal No.55/05-06 on 24.7.2007 (Annexure P/11). In Civil Suit No.69/05 filed in 2005 for declaration and permanent injunction by respondent No.4 (Writ petitioner in W.P.No.5998 of 2014), showing himself to be son of Shri Ganga Bishan Malviya, it was stated that the land of respondent No.4 is situated at survey No.264 as is evident from plaint (Annexure P/10). Para 1 of plaint reads as under :-
"1 & ¼,d½ ;g fd oknh ds LokfeRo ,oe~ vkf/kiR; dk edku e; ry tehu losZ Øekad 264 ¼nks lks pkSlB½ ¼=qfViw.kZ vadu losZ Øekad 269 % nks lks mUklRrj %½ dh Hkwfe iSdh {ks=Qy 2900 ¼nks gtkj uks lks½ oxZQhV dh fuEu o.kZu o prq%lhek dk xzke iykfl;kgkuk] rglhy o ftyk bUnkSj fLFkr gS] tks oknh us jftLVMZ foØ;i= fnukafdr 15@4@98 ¼iUnzg vizsy mUuhl lks bV~B;kuos½ }kjk Ø; djds dCtk ,oe~ vkf/kiR; ,deso Lokeh ukrs ekSds ij izkIr dj ekfyd ukrs dkfct gSA Hkw[k.M dk o.kZu losZ Øekad 264 ¼nks lks pkSlB½ ¼=qfViw.kZ vadu losZ Øa0 269% nks lks mulRrj%½ xzke iykfl;kgkuk] rglhy o ftyk bUnkSj fLFkr 2900 ¼nks gtkj uks lks½ oxZQhV Hkwfe] ftldh pkSMkbZ if'pe fljk 37-6 ¼lsarhl n'keyo N%½ QhV ,oe~ iwoZ fljk 43-6 ¼f=;kyhl n'keyo N%½ QhV rFkk yEckbZ mRrj fljk 72 ¼cgksRrj½ QhV vkSj nf{k.k fljk 269-51 ¼nks lks mulRrj n'keyo bDdkou½ oxZehVj gSA ;g edku vkoklh; Hkwfe mn~ns'; dk gSA bl Hkou dh Hkwfe ij oknh dk edku 200 ¼nks lks½ oxZQhV bZV xkjs dh tqMkbZ dk cuk gS ftlesa oknh dk pkSdhnkj fuokl djrk gSA
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 oknksDr Hkou ds Hkw[k.M Hkwfe dh prq%lhek fuEukuqlkj gS& prq%lhek iwoZ esa % [kqyh Hkwfe if'pe esa % jksM mRrj esa % [kqyh Hkwfe ,oe~ jkLrk nf{k.k esa % jkukMs dk cxhpk ¼jkukMs dEikm.M½"
5. Application for grant of temporary injunction in the said civil suit was dismissed on 24.10.2005 (Annexure P/12). Miscellaneous Appeal No.3107/2005 against the refusal of temporary injunction was dismissed as withdrawn by order dated 30.1.2008 (Annexure P/14).
6. The land bearing Survey Nos.269/1 and 269/2, is a Government / Municipal land situated at a prime location of Indore City near to Palasia Square, which is said to be encroached upon by the respondent No.4. The allegation against the respondents No.1,2 and 3 that, they being aware of the said encroachment on the valuable land are not deliberately taking any action against the same. On
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 23.6.2014, the Division Bench of this Court made the following directions :-
"Heard counsel for the parties.
Considering the nature of grievance
made in this petition about the
encroachments caused on
Government/Municipal land, instead of examining that grievance for the first time in this Court, we deem it appropriate that the said grievance ought to be examined by the Collector/Commissioner, Municipal Corporation, Indore, as the case may be, in the first instance; and thereafter the concerned Authority to take appropriate legal action in accordance with law after following due process and giving opportunity to all concerned.
We, accordingly, pass following directions for disposing of this petition:-
(I)The petition be treated as representation made to the Collector/Commissioner, Municipal Corporation, Indore about encroachments on subject land, which incidentally is Government/Municipal land.
(ii) The Collector/Commissioner, Municipal Corporation, Indore shall cause to make enquiry into this grievance and if convinced about the same, must take action against the encroachers and unauthorized structures to remove the said encroachment on the public property with utmost dispatch by following due process and giving opportunity to all concerned.
(iii) If the Collector/Commissioner, Municipal Corporation, Indore have any difficulty in taking follow-up action as per the direction issued by them, must report that fact to this Court forthwith and seek
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 appropriate directions, as may be required.
(iv) If the Authority intends to proceed to remove/demolish unauthorized structure(s) standing on the public property and apprehends any threat from the encroachers with regard to that action, may request Superintendent of Police, District Indore to provide sufficient police force for security arrangement. If such request is made, the Superintendent of Police shall personally ensure that adequate police force is deputed on the site, on the date and time notified by the Authority for proceeding with the removal/ demolition of unauthorized structure(s) standing on the public property.
(v) In case the Authorities have any difficulty in taking action, in accordance with law, and in terms of the direction contained hitherto, must approach this Court for appropriate directions with utmost dispatch.
(vi) Any person aggrieved by the decision or action of the Authorities will be free to challenge the same by way of appropriate proceedings, if so advised, before the Court of competent jurisdiction.
(vii) If any adverse order is passed by the Collector/Commissioner, Municipal Corporation, Indore the affected person(s) be given one week's time before taking action on the basis of that order to enable the concerned person(s) to assail that order by way of appropriate proceedings before the Court of competent jurisdiction.
Action taken report be filed by the Collector/ Commissioner, Municipal Corporation, Indore in this Court, on or before 30/9/2014. If such report is not filed, the matter be notified on 13/10/2014 under caption "Directions" for passing appropriate orders. Liberty is given to the petitioners to
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 move this Court if the action taken report is deficient or discloses that complete action has not been taken to remove all the unauthorized occupants/structures.
This order shall be carried out promptly by all concerned in its letter and spirit.
Subject to above, the petition be treated as disposed of."
7. By order dated 23.6.2014, this court directed the Collector/Commissioner Municipal Corporation, Indore, to submit action taken report. The Commissioner, Municipal Corporation, Indore has filed it's report on 29.9.2014. No report on behalf of Collector, Indore was filed. On 12.11.2014, this Court directed the Collector, Indore to submit a detailed action taken report in compliance to order dated 23.6.2014.
8. On 17.12.2014, an affidavit has been filed by the Collector, Indore. Para 4 and 5 of the affidavit is relevant, which reads as under :-
"4. I say that, in compliance to the orders of this Hon'ble court the Tehsildar of the area was directed to undertake the spot inspection of the area in the presence of the parties concerned. Thereafter the
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 report was submitted and on the basis of this Panchnama the affidavit is sworn in before this Hon'ble Court.
5. I say that the spot inspection on the area was undertaken on 28.11.2014 in presence of the representative of the petitioner as well as the Respondent No.4. It is submitted that the Respondent No.4 had informed the authorities that he had build one room construction over the land and the rest of the land was lying vacant. It was also seen that on two sides of this land a Pakka construction of boundary wall was existent and further in the revenue record also the name of Rajesh S/o Gangavishan Malviya was recorded. This panchnama was made in front of the parties. Copy of the panchnama is annexed herewith as Annexure A/1 and copy of the revenue record is annexed as Annexure A/2.
A report was called from the IMC Officer wherein it was revealed that the constructions over the land in question was unauthorized without valid permission from IMC. Copy of letter of IMC is annexed herewith and marked as Annexure A/3.
9. From the perusal of the aforesaid, it is clear that spot inspection on the area was undertaken on 28.11.2014. During spot inspection, the respondent No.4 had informed the authorities that, he had build
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 one room construction over the land and rest of the land was lying vacant. As per report of building officer, Municipal Corporation dated 28.11.2014, the construction over the land in question was unauthorized, without valid permission from the Indore Municipal Corporation.
10. On 24.6.2015, Municipal Corporation, Indore, has filed it's reply. As per Annexure R-3/1, copy of Khasra Panchshala of Survey number in question, the Municipal Corporation is the title holder of the land. The area is more than 2900 sq. fts. The Corporation has never given the land to respondent No.4 - Rajesh Malviya or his predecessors or to any other person nor any 'Patta' has been granted in their favour. The respondent No.4 by taking the advantage of the open land has encroached upon the land and put the illegal construction by constructing one room with lat and bath. No building permission has been granted in favour of the respondent No.4 or in favour of his
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 predecessors nor site plan has been sanctioned by Town and Country Planning Department of Indore Municipal Corporation. As per the documents filed by the petitioners, the said land was never recorded in the name of Vallabh Malviya, the seller to his own brother/son, the suit for declaration of title of land filed by the respondent No.4 has been dismissed for want of prosecution. As per enquiry, conducted by Municipal Corporation, Indore, the construction over the land is unauthorized and the respondent No.4 illegally encroached upon the land in question. The then Collector, Indore, on the basis of inquiry conducted by Tehsildar, Municipal Corporation, Indore, submitted his affidavit. The respondent No.4 has filed building permission along with the reply, which has been granted by Khajrana Panchayat. The land bearing Survey Nos.269/1 and 269/2, is situated at village Palasiya-Hana and, therefore, Gram Panchayat of Khajrana has no authority to grant permission over the
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 land, which does not fall within the purview to the Gram Panchayat, Khajrana. The so called permission dated 16.3.2001 was never granted by the Municipal Corporation. As per reply of the Municipal Corporation, Indore, no such permission was ever granted / issued to the respondent No.4. As per serial number of the permission, the same was issued to one Durga Shankar for his Nanda Nagar House. The said permission is in respect of Khajrana village and not of Palasiya-Hana land. The N.O.C. by the Property Tax Officer dated 1.8.2001 is of plot of village Khajrana. On 8.10.2004, the Tehsildar ordered for recording the possession of Survey No.264 of Palasiya-Hana, but directed him to approach civil suit. Thereafter, the suit of the respondent No.4 was dismissed.
11. It is well settled that under the provision of M.P. Land Revenue Code, 1959 Tehsildar has no authority or jurisdiction to either decide title or record ownership or possession of any private person on
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 Government / Municipal Land in a proceedings under Sections 109/110/115,116 of M.P.L.R. Code.
12. No material nor any evidence has been produced by the respondent No.4 to show that he is owner of an area of 2900 sq. fts. of Survey No.269. The sale deed was executed in the year 1998, but no document or the material or any revenue record has been produced along with the return to show that at that relevant point of time, brother of the respondent No.4 or respondent No.4 was having any legal documents about the ownership of the land in question. Thus, the said so called sale deeds and amended deeds are not binding upon the Municipal Corporation by the then Collector, Indore, report dated 28.11.2014 and letter of building officer of Municipal Corporation, Indore is also annexed (Annexure A/3), which shows that no permission has been granted for the construction in question over the Municipal Corporation land, Indore. The Municipal Corporation,
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 Indore, in it's reply has also stated that notice has been issued to the respondent No.4 on 7.2.2014 (Annexure R/3-2 to Annexure R-3/5). In revenue proceedings Municipal Corporation, Indore was not made a party and, therefore, so called order passed in the mutation proceedings is not binding upon the Corporation. On the strength of the order passed by the Tehsildar, the name of the Municipal Corporation as Bhoomi Swami has been deleted. The Tehsildar without going through the fact that no convenience deeds have been executed by the Municipal Corporation, Indore in favour of Rajesh Malviya (respondent No.4) or his predecessors or to any other person passed the order, the plan which has been submitted by the respondent No.4 has never been issued by the Municipal Corporation.
13. On behalf of the respondents No.1 and 2, Shri Rajesh Kumar Soni, Tehsildar, Indore in his reply has deposed that the land bearing Survey Nos.269/1
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 and 269/2, are the land of Municipal Corporation. He also admitted that the complete process of mutation carried out by the then Tehsildar was not in accordance with law and the then Tehsildar, committed an error in passing the order dated 17.3.2010. He has explained the exact position and status of the land in question and stated that Municipal Corporation is the owner of the land and construction over the land in question is unauthorized and without legal and valid permission and they are taking appropriate action in accordance with law, for removing the name of the petitioner(s) from the revenue record.
14. Shri Ajay Bagadiya, learned counsel for the respondent No.4 has also not point out any document/material in respect of ownership of the land in question. Shri Bagadiya, learned counsel for the respondent No.4 has drawn our attention to the sale deed executed by Shri Vallabh Malviya, in favour of respondent no.4 - Rajesh Malviya. As per sale deed of
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 1998, both are real brothers. Along with the reply, no document or record or any revenue record has been produced to prove the ownership/Bhoomi Swami of Shri Vallabh Malviya. In pursuance to the order passed by this Court on 23.6.2014, the Commissioner Municipal Corporation, Indore and Collector, Indore, initiated the proceedings for removal of illegal encroachment and communicated the same on 14.10.2014.
15. The respondent No.4 just to delay the proceedings has filed a separate (Writ Petition No.5998/2014), knowing well that the present writ petition is pending and also filed an application for grant of stay on 23.4.2015 vide I.A.No.1861/2015. By order dated 3.7.2015, we directed for listing the matter along with W.P.No.5998/2014, for analogous hearing. Shri Bagadiya, learned counsel for the respondent No.4 has drawn our attention to the various provision of M.P. Bhoomi Vikas Rules and the decision of the
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 Apex Court in the case of Kusum Lata V/s. Union of India & Ors., reported as 2006 (7) Scale 41 and submitted that the present writ petition has been filed at the instance of private parties, who is having colony and the petitioners are also resident of the said colony and when no relief was granted in the civil suit, the present writ petition has been filed and challenged the action by way of public interest litigation. He submits that there must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant borne out of wishful thinking. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration and prayed for dismissal of the writ petitions.
16. The writ petition has been filed in respect of illegal encroachment over the land, which is owned by the Municipal Corporation, Indore. The respondent No.4 on the basis of sale deed of 1998, which has been issued by his own brother in his favour and thereafter, sale deed was amended twice though the respondent No.4 is claiming ownership over the land in question, but at the time of execution of sale deed in the year 1998 as well as today also, he is not having any legal document to prove the ownership over the land in question. Whereas as per revenue record, the land is owned by Municipal Corporation, Indore. The Tehsildar, Indore also in his reply very categorically admitted that the land belongs to Municipal
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 Corporation, Indore and has also admitted that the Tehsildar had no jurisdiction to pass an order mutating the name of respondent No.4, without any title. It is also not in dispute that the question of title cannot be decided by the revenue authority. As per reports of Collector, Indore and Municipal Corporation, Indore, no valid permission was ever granted for so called construction and thus, we direct the Collector, Indore and Municipal Corporation, Indore to take appropriate steps by taking an action against the encroachers and remove the encroachment (unauthorized structure) on the public property with the help of police and as per order dated 23.6.2014 and submit a detailed report supported with their affidavits before the Principal Registrar of this Court, within a period of sixty days from today.
17. With the aforesaid, W.P.No.4414/2014 is disposed of and W.P.No.5998/2014, has no merit and
--- 22 --- *W.P.No.4414/2014 & W.P.No.5998/2014 is accordingly, dismissed with liberty to the respondent No.4 to challenge.
(P.K. JAISWAL) (JARAT KUMAR JAIN)
JUDGE JUDGE
ss/-