Madhya Pradesh High Court
Nayagaon Cooperative Housing Society ... vs The State Of Madhya Pradesh on 15 September, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.13760/2017
Nayagaon Cooperative Housing Society Ltd.
Vs.
State of M.P. and others
Shri Kishore Shrivastava, learned senior counsel with
Ku.C.V. Rao, learned counsel for the petitioner.
Shri Shri R.K. Verma, learned Additional Advocate
General with Shri Sudeep Deb, learned Govt. Advocate
for the respondents.
ORDER
(15/09/2017) The petitioner has filed the present writ petition under Article 227 of the Constitution of India challenging the order dated 30/08/2017 passed by 18 th additional District Judge, Jabalpur in Misc. Civil Appeal No.19/2015 by which the appellate Court has set aside the order passed by the trial Court on an application filed by the petitioner under Order 39 rule 1 and 2 of the Code of Civil Procedure.
2. The petitioner is a cooperative housing society registered under the M.P. Cooperative Societies Act, 1960. The purpose of society is to purchase and sell the land at nominal rates. The petitioner-society was allotted 66.040 hectare i.e. 163.12 acres 2 of land situated at Mouja Nayagaon, bearing Khasra No.06/17. The name of the petitioner society is also mutated in the revenue record and since then the petitioner-society is in possession of the said land from 17/04/1963. The petitioner-society got lay out plan of the said society approved by the Town and Country Planning Department for 102 acre of land. The remaining land i.e. 61.12 acre was left for 2nd and 3rd phase of development. From the lay out plan approved by Town & Country Planning Department, it is clear that the lay out of 102 acre of land was approved for Phase-I and the remaining ares is left for Phase-II and Phase- III.
3. Respondent No.3 has also allotted 30.345 hectare of land bearing Khasra No.6/18. Respondent No.3 submitted an application before respondent No.2 for demarcation of the land of Khasra No.6/18. The land of Khasra No.6/18 was demarcated by the revenue authorities on 10/08/2015. At the time of demarcation the petitioner-society raised an objection that the land of Khasra No.6/17 be also demarcated but the revenue authorities did not consider the objection raised by the petitioner-society. Respondent No.3 are trying to 3 encroach on the land of Khasra No.6/17 though they have been allotted land of Khasra No.6/18. Respondent No.3 also filed an application for Batankan of Khasra No.6/18 and on the basis of application, order was passed by respondent No.2. Since respondent No.3 started encroaching the land of Khasra No.6/17, therefore, the petitioner has filed the present suit for permanent injunction along with an application filed under Order 39 Rule 1 and 2 of CPC.
4. Respondents filed reply to the application filed under Order 39 Rule 1 and 2, CPC and also filed written statement. The trial Court vide order dated 04/09/2015 has allowed the application preferred by the petitioner under Order 39 Rule 1 and 2 of CPC and defendants were restrained from encroaching the land of the petitioner-society and also not to raise any construction on the land of the petitioner-society.
5. The respondents has challenged the order dated 04/09/2015 in M.C.A. No.19/2015. The appellate Court vide impugned order dated 30/08/2017 has allowed the appeal preferred by the respondents and set aside the order passed by the trial Court on the ground that the trial Court has not mentioned the survey number in the order, only suit property 4 is mentioned, though, respondents have legal possession on the land of Khasra No.6/18. Being aggrieved by that order, the petitioner has filed the present writ petition.
6. Respondents have filed their reply and have stated that the land bearing Khasra No.6/18 was allotted to them. In the year 2015 demarcation of the land was made by the Tahsildar that too by a very scientific method i.e. "total machine" and after that findings were given that the lands allotted as comprised in Khasra No.6/18 is exclusive of the Police Department and boundaries were also fixed. The respondents have further stated that if the petitioner/plaintiff is aggrieved by the order of demarcation, they could prefer an appeal under M.P. Land Revenue Code before the higher forum challenging the order of demarcation but the Civil Court cannot interfere. It has further been submitted that under Section 257(g) of the M.P. Land Revenue Code, the jurisdiction of the Civil Court is ousted in the matter relating to demarcation. The objection preferred by the petitioner/plaintiff was entertained and extending due opportunity of hearing and granting time to produce documents, the objection preferred by the petitioner/plaintiff 5 was rejected against which no appeal as contemplated under the provisions of M.P. Land Revenue Code has been preferred, therefore, the order rejecting their objection has attained finality and the same cannot be questioned. Vide order dated 06/10/1994, 75 acre of land was allotted to the Department of Police by the Department of Revenue. After allotment, the said land was mutated in the name of Department of Police.
7. On 10/02/2006 Department of Police has submitted an application for ascertainment of its boundaries. The same was done by Revenue Inspector and Field Book and Map was also prepared. In the year 2015, some slum dwellers were trying to encroach upon some piece of the land of the respondents and, therefore, on 17/06/2015 another application was submitted and on the said application the petitioner has raised an objection on 10/08/2015. The objections raised by the petitioner were rejected vide order dated 27/08/2015 and thereafter final demarcation was done. Immediately after demarcation, Superintendent of Police, Jabalpur has submitted an application on 12/08/2015 to the Tahsildar for Map Batankan. After calling the report from 6 Tahsildar, Revenue Inspector and Patwari on 24/08/2015, Map Batankan was prepared. The possession of the land was already taken by the Police Department on 11/11/1994. In pursuance of the order issued by the Home Department, a decision was taken to launch a scheme to provide accommodation to Police Personnel which is known as "Mukhya Mantri Police Awaas Yojana" whereby a decision was taken and sanction was also accorded to construct as many as 25,000 houses.
8. A letter dated 24/04/2017 was issued by the M.P. Police Housing Corporation whereby a decision was taken to construct as many as 606 houses over the land which was allotted to the respondents/defendants. Thus, on the basis of all the documents, the respondents have stated that the land was allotted to the Police Department and the houses are to be constructed over the same for police personnel and for that purpose construction activities have already been started and in such circumstances, if the respondents/defendants are restrained from raising their construction, it will undoubtedly cause irreparable loss to them. In such circumstances, the respondents have stated that the appellate Court has rightly 7 set aside the order passed by the trial Court.
9. Respondents have also filed additional reply. In the said reply, they have filed a copy of the letter dated 25/04/1975 and stated that the petitioner-society was allotted only 46.025 acre of land for housing purpose.
10. The petitioner has filed rejoinder to the reply filed by the respondents. In the said rejoinder, the petitioner has raised an objection that the copy of letter dated 25/04/1975 cannot be considered by this Court since at the time of deciding the application under Order 39 Rule 1 and 2 of CPC as well as the appeal, this document was not produced on record. So far as the objection raised by the respondents that the petitioner has not challenged the demarcation report as well as Batankan report passed by the Tahsildar, the petitioner has stated that the petitioner submitted an application for getting the certified copy of the order passed in demarcation and in the Batankan case but the certified copy of the same was not supplied to the petitioner by the Copying Section of the Collector Office, therefore, the order of demarcation as well as Batankan could not be challenged before the Court of Sub Divisional Officer. The petitioner- 8 society has raised an objection before the Tahsildar on 10/08/2015. Tahsildar, Gorakhpur, Jabalpur asked the petitioner-society to submit the objection on 13/08/2015. Accordingly, the petitioner-society submitted objection and also sought time for submitting documents on 14/08/2015. The time, as prayed by the petitioner, was not granted by the Tahsildar and he proceeded to pass the order. Batankan was made by the Tahsildar without giving any opportunity of hearing to the petitiner which is clear from the fact that the Superintendent of Police, Jabalpur submitted an application for Batankan before the Tahsildar on 14/08/2015 though the order sheet was written by the Tahsildar on 12/08/2015. It has further been submitted that after passing of the impugned order dated 30/08/2017, the respondents have started fencing work in the land of Khasra No.6/17. The petitioner as well as the members of the petitioner-society raised objection for the illegal work being done by the respondents but the revenue authorities did not listen the objection raised by the petitioner-society, therefore, submitted police report before the police authorities but no action has been taken in the matter.
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11. Learned senior counsel appearing on behalf of the petitioner argued that the petitioner-society was allotted 66.040 hectare of land situated at Khasra No.6/17, Mouja Nayagaon, Jabalpur in the year 1962 and since then the petitioner-society is in legal possession of the said land. The lay out plan of the said society was sanctioned on 01/11/1983. Out of 163.12 acre of land, the petitioner-society got lay out plan approved for 102 acre of land and the remaining land i.e. 61.12 acre was left for 2nd and 3rd phase of development. It is this land on which the respondents are encroaching. The respondent-police department has also allotted the land bearing khasra No.6/18 which is situated near the land of the petitioner-society. Respondent No.3 submitted an application for demarcation of the said land before the Tahsildar and the Tahsildar has passed an order dated 10/08/2015 for demarcation. The petitioner-society has submitted an objection to the said demarcation, however, without considering the objection submitted by the petitioner, demarcation was done by the Tahsildar. He argued that the said demarcation is contrary to the rules framed under Section 125 and 129 of the M.P.Land Revenue Code. He submitted 10 that as per Section 125 of M.P.L.R.C., before demarcation an opportunity of hearing is required to be given, however, no such opportunity was given to the petitioner. He further submitted that as per demarcation report (Annexure-P/7) given by the Revenue Inspector, there is no Chanda Patthar available at the spot. Rule 3 of the Rules framed under Section 129 of M.P. Land Revenue Code, states that in absence of mark, no demarcation can be made.
12. Learned senior counsel for the petitioner further argued that the respondents have not taken any development permission as per Sections 26 and 27 of the Nagar Tatha Gram Nivesh Adhiniyam. Learned senior counsel also argued that after taking into consideration all the facts and documents produced produced on record by the petitioner, the trial Court has rightly allowed the application preferred by the petitioner under Order 39 Rule 1 and 2 of CPC. He further submits that the trial Court while allowing the application has given a finding that the land bearing Khasra No.6/17 and 6/18 are separate lands. The said land was allotted to the petitioner in 1962 by the State Government. The trial Court has further found that the petitioner is in legal possession of 11 the said land. On the basis of this finding, the trial Court has found that the prima facie case as well as the balance of convenience is in favour of the petitioner. The first appellate Court while deciding the appeal has given a finding that the plaintiff is in legal possession of the disputed land, however, has set aside the order passed by the trial Court on the ground that the petitioner has not challenged the order of demarcation dated 27/05/2015 passed by the Tahsildar. Learned senior counsel further submits that as the said order was not supplied to the petitioner, although the petitioner has submitted an application for getting certified copy of the same, therefore, it could not be challenged before the Tahsildar. He contended that the demarcation which is done by the Tahsildar is in violation of the rules framed under the M.P.Land Revenue Code and, therefore, the Court could have appointed a Commissioner for demarcation of the said land. He further argued that the appellate Court while granting an injunction in favour of the petitioner should have dismissed the appeal preferred by the respondents.
13. Learned Additional Advocate General for the respondents argued that the order passed by the appellate 12 Court is just and proper. He submits that in the present case demarcation of the land was made on three occasions, however, these demarcation orders were never challenged by the petitioner. He submits that respondent No.3 is in possession of the land bearing Khasra No.6/18 since 6/10/1994. The first demarcation was made in the year 2006. The demarcation report is dated 09/06/2006, however, no objection was raised by the petitioner. Thereafter in the year 2015 respondent No.3 again submitted application for removing encroachment in which petitioner was noticed. The petitioner-society filed their objections which were rejected. He submits that in the year 2015 demarcation was made by the scientific method i.e. by Total Machine. He further submits that the suit preferred by the petitioner is not, itself, maintainable in view of Section 257(g) of the M.P. Land Revenue Code. He contended that the suit is also barred by Section 34 of the Specific Relief Act in absence of relief of declaration. He further argued that till date no lease has been executed in favour of the plaintiff/petitioner. He relied upon the judgment passed by the Apex Court in the case of Jugraj Singh and another Vs. Jaswant Singh and others, 13 reported in AIR 1971 SC 761. He also placed reliance upon the judgment passed by this Court in the case of State of M.P. Vs. Shyam Kishore Agrawal reported in 1975 JLJ 557, Seva Ram Vs. Sugan Bai and others, reported in 2009 Revenue Nirnayan 192. He further argued that the scope of interference by this Court is very limited as the present petition is being filed under Article 227 of the Constitution of India and for the said purpose he relied upon the judgment passed by the Apex Court in the case of Jai Singh and others Vs. Municipal Corporation of Delhi and another, reported in (2010) 9 SCC 385.
14. I have heard learned counsel for the parties and perused the record as well as the orders passed by the Courts below. The petitioner/plaintiff has filed a civil suit for permanent injunction on the ground that the land bearing Khasra No.6/17 having an area of 163.12 acre of land was allotted to the petitioner-society in the year 1962. Since 17/04/1963 the petitioner-society is in possession of the said land. Out of 163.12 acre of land, the Town and Country Planning has sanctioned the lay out plan for 102 acre of land and remaining land i.e. 61.12 acre was left for 2nd and 3rd phase of the 14 development. It is this land which is disputed. Respondent No.3 has also allotted land bearing Khasra No.6/18 having an area of 30.345 hectare of land. The said land was allotted to respondent No.3 for purchase of construction of houses of the police personnel. Some encroachment has been made on the land allotted to respondent No.3 and, therefore, respondent No.3 has submitted an application for declaration before the Tahsildar. The Tahsildar thereafter initiated proceeding for demarcation of the said land.
15. The petitioner filed an objection on 10/08/2015, however, without considering the objection preferred by the petitioner, the Tahsildar has passed an order for demarcation of the said land. On the basis of the said demarcation, respondent No.3 started encroaching the land of Khasra No.6/17 and, therefore, the petitioner has filed a civil suit along with application filed under Order 39 Rule 1 and 2 of CPC. The respondents filed their reply of the said application. The trial Court after considering the documents available on record passed an order dated 04/09/2015 thereby allowing the application preferred by the petitioner-society. Against the order passed by the trial Court, the respondents 15 have preferred an appeal before the appellate Court. The appellate Court vide order dated 30/08/2017 has allowed the appeal preferred by the respondents. However, while allowing the appeal, the appellate Court has further directed the respondents not to interfere with the possession of the land bearing Khasra No.6/17 belonging to the petitioner. It is the contention of the petitioner that in spite of the order of injunction, the respondents are interfering into the land of the petitioner. Learned senior counsel for the has argued that the demarcation done by the Tahsildar is not in accordance with procedure as given under the rules framed under Sections 124 and 129 of the M.P. L.R.C. Section 124 of the M.P.L.R.C. provides for construction of boundaries marks of villagers or survey number or plot number. The procedure for survey has been given under the rules framed under Section 124 which are known as rules regarding boundaries, boundary marks and survey marks. As per the rule 4 when the length of a boundary exceeds 250 metres or such shorter distance, not less than 60 metres, as the State Goernment may by order fix in this behalf for any particular tract or villages, one intermediate stone or teela shall be erected on such boundary, 16 unless the boundary is clearly defined by a hedge, fence or wall. From perusal of the demarcation report (Annexure- P/7) it is clear that there is no stone.
16. The petitioner also raised an objection against the said demarcation. The petitioner has submitted an objection on 10/08/2015 and asked for time to submit the document, however, without giving any time to the petitioner to submit the documents, the Tahsildar has passed an order of demarcation. The petitioner could not challenged the said order of demarcation as certified copy of the same was not supplied to the petitioner even though furnished demand. After considering all these facts and documents produced by the petitioner, the trial Court has allowed the application preferred by the petitioner under Order 39 Rule 1 and 2 of the Code of Civil Procedure holding that the petitioner-society is in legal possession of the said land. Once the Court is found that the petitioner-society is in legal possession of the land, then the possession of the petitioner-society should be protected. The next contention of learned senior counsel for the petitioner is that when there is a serious dispute regarding boundaries of the land, then the Court should have issued a 17 direction for appointment of Commissioner. For the said purpose, he relied upon the judgment passed by this Court in the case of Durga Prasad Vs. Parveen Foujdar and others, reported in 1975 JLJ 440. In the said case the Division Bench of this Court in para-25 has held as under :
"25. Point No.2: In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26, Rule 9 of the Code of Civil Procedure................................................... .................................................................."
Thus, as per this judgment in case there is a dispute as to the encroachment, then in absence of an agreed map, the same can be determined except by the appointment of Commissioner under Order 26 Rule 9 of CPC.
17. The contention of learned Additional Advocate General is that the demarcation was made by scientific method by the total machine, therefore, the same cannot be questioned. To 18 this contention, learned senior counsel for the petitioner submits that the executive instructions cannot override the statutory rules. When the procedure has been prescribed for demarcation in the statute, then the respondents are required to follow the said procedure and for the said purpose, he relied upon the judgment passed by the Apex Court in the case of Paluru Remkrishnaiah and others Vs. Union of India and another, reported in (1989) 2 SCC 541.
18. The appellate Court while passing the impugned order has also affirmed the finding given by the trial Court that the petitioner is in legal possession of the disputed land, however, has set aside the order passed by the trial Court merely on the ground that the petitioner has not challenged the order of demarcation and the said order has attained the finality.
19. Although learned senior counsel for both the parties have argued the matter on merit of the case, but, I refrain from discussing the evidence and recording the conclusion because the evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this Court may prejudice one or the other party in 19 having a fair trial and uninhibited decision.
20. While deciding the application under Order 39 Rule 1 and 2 of CPC, three ingredients are required to be seen i.e. (i) prima facie case; (ii) balance of convenience; (iii) irreparable loss. I will first deal with the ingredient i.e. prima facie case. In the present case, the State Government has allotted 60.040 hectares i.e. 163.12 acres of land situated Nayagaon bearing at Khasra No.06/17 in the year 1962 and the name of the petitioner-society is also recorded in the revenue record and since then the petitioner-society is in possession of the said land from 17/04/1963. Both the Courts below have found that the petitioner is in legal possession of the disputed land. Thus, there is a prima facie case in favour of the petitioner. The Apex Court in the case of Rame Gowda (D) by L.Rs. Vs. M. Varadappa Naidu (D) by L.Rs. and another, reported in AIR 2004 SC 4609, in para-8 has held as under :
"8. ........................................................... A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser 20 is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. ...... ............................ In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a filmsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
As per this judgment of the Apex Court, if a person is in a settled possession or effective possession, then his possession should be protected.
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21. So far as second and third ingredients regarding balance of convenience and irreparable loss are concerned, it appears that respondent No.3 has not yet obtained any development permission in their favour for construction of the houses as per Sections 24 and 26 of the Nagar Tatha Gram Nivesh Adhiniyam. Before taking development, respondent No.3 has to apply for getting development permission and after obtaining the same, respondent No.3 can continue with the development permission. Thus, at present, there is no development permission in favour of respondent No.3, therefore, no irreparable loss would be caused to respondent No.3 if the injunction is granted in favour of the petitioner and, thus, the balance of convenience is also in favour of the petitioner. The Apex Court in the case of Maharwal Khewaji Trust (Regd.), Faridkot Vs. Daldev Dass, reported in (2004) 8 SCC 488, has held that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit a change of the said status quo. In the present case, the appellate Court has failed to consider that all three ingredients are in favour of the petitioner. The appellate Court has further erred on the one 22 hand in setting aside the order passed by the trial Court and on the other hand has granted an injunction in favour of the petitioner. The appellate Court, after granting an injunction in favour of the petitioner, should have dismissed the appeal preferred by respondent No.3. Thus, the appellate Court has failed to exercise the jurisdiction vested in it by law.
22. In light of the aforesaid discussion, this writ petition is allowed. The order passed by the appellate Court dated 30/08/2017 is set aside and the order passed by the trial Court is restored. Looking to the facts and circumstances of the case, the trial Court is directed to decide the suit as expeditiously as possible.
(Ms. Vandana Kasrekar) JUDGE ts