Madhya Pradesh High Court
Ritesh vs Secretary State Of M.P. And 6 Ors. on 12 May, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
WRIT PETITION No. 5460 of 2013
Between:-
RITESH S/O SHRI SHYAMLAL RATHORE, AGED ABOUT 42
YEARS, 52 SADAR BAZAR NAMLI RATLAM (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ASHOK KUMAR SETHI, LEARNED SENIOR COUNSEL
WITH SHRI RISHABH A. SETHI, LEARNED COUNSEL FOR THE
PETITIONER.)
AND
SECRETARY STATE OF M.P. AND 6 ORS. GOVT. PUBLIC WORKS
1.
DEPT.,VALLABH BHAWAN,BHOPAL (MADHYA PRADESH)
EXECUTIVE ENGINEER PUBLIC WORKS DEPTT.,RATLAM
2.
(MADHYA PRADESH)
CHIEF MUNICIPAL OFFICER NAGAR PARISHAD, NAMLI
3.
(MADHYA PRADESH)
SUB DIVISIONAL OFFICER PUBLIC WORKS DEPTT. SUB-
4.
DIVISION,RATLAM (MADHYA PRADESH)
5. COLLECTOR, DISTT-RATLAM (MADHYA PRADESH)
6. PRINCIPAL GOVT. H.S SCHOOL, NAMLI, RATLAM (M.P.)
DISTRICT EDUCATION OFFICER DISTT-RATLAM (MADHYA
7.
PRADESH)
.....RESPONDENTS
(BY SHRI UMESH GAJANKUSH, ADDITIONAL ADVOCATE
GENERAL FOR THE RESPONDENT/STATE)
(BY MS. HEMLATA GUPTA, LEARNED COUNSEL FOR
RESPONDENT NO.3.)
PER: VIVEK RUSIA, J.
(Heard on 26.04.2022) (Order passed on 12.05.2022) The petitioner has filed this present writ petition (Public Interest Litigation) alleging that land survey no.231, 232, 233/2
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and 690 is recorded as government land in the khasra panchsala and the same was allotted by respondent no.1 for the construction of school building and playground. On 22.5.2012 the petitioner has received information that Nagar Parishad, Namli, District Ratlam has been granted permission for the construction of gumtis/ shops on the said land. The petitioner submitted an objection regarding the said construction within the school campus. Thereafter, respondent no.4 Sub-Divisional Officer has passed an order dated 17.10.2013 directing respondent no.3 to the remove of the illegal construction. When Nagar Parishad did not stop with the construction the petitioner filed the writ petition.
Vide order dated 20.07.2012 Writ petition No.6518/2012 was disposed of with a direction to the Collector Ratlam to consider and decide the representation of the petitioner. Thereafter, again the petitioner has approached this court by way of writ petition seeking directions to the respondent no.3 to stop and demolish the construction. Vide order dated 02.09.2013 writ petition was disposed of with a direction to comply with order dated 20.07.2012. Nagar Parishad Namli filed a Writ Appeal No.1086/2013 that the aforesaid order has been passed without giving any opportunity of hearing. Hence, vide order dated 10.01.2014 the Division Bench has remitted back the matter to the writ court.
Meanwhile, vide order dated 08.05.2013 the Collector District Ratlam in case No.55/A-20(3)2012-13 has allotted 587.73 sq. mt. land out of survey no.690 to the Nagar Parishad, Namli for construction of shops on a premium to the tune of Rs.57,30,367/- and annual lease rent of Rs.4,29,778/-. The petitioner has filed an application for amendment to challenge the validity of the aforesaid order on the ground that under the
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provisions of Section 237 of the M.P. Land Revenue Code, 1959 . According to the petitioner , respondent no.5 has no authority or jurisdiction to change the use of the land from road to any commercial purpose. The purpose for which the land in question has been diverted and allotted is not covered under the provisions of section 237 of the M.P. Land Revenue Code, 1959 hence, such an allotment is illegal and the shops are constructed on the school land are liable to be demolished.
After notice, respondent no.3 has filed the reply by submitting that the petitioner is the son of Smt. Ayodhaya Bai who is a Councilor of Ward no.10 Namli is interested in obtaining the shops in question. After construction of the shop but before allotment on 15.07.2013 the petitioner broke the lock and forcibly occupied the three shops for which the CMO has lodged a report. Therefore, the petitioner has approached this court with malafide intention hence the petition is liable to be dismissed.
Thereafter, the Sub-Divisional Officer has filed the reply by submitting that after allotment of the land Dy. Director Nagar Thatha Gram Nivesh Adhiniyam has granted NOC for construction of the shop thereafter, the Public Works Department, Ratlam has also granted NOC with the condition of leaving 40-40 feet of land for construction of road from the center point of the road, thereafter, the Principal of Government Boys Higher Secondary School has also granted NOC thereafter, the shops have been constructed and allotted and all the allottees have not been made a party in this writ petition.
Respondents have also additional reply by submitting that the land in dispute is not NISTAR land therefore, the procedure prescribed under the provision of section 237 of the M.P. Land Revenue Code, 1959 does not apply. It is further submitted by the
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learned Government Advocate that Land bearing survey no.690 is a government land recorded for the road. But since last 30 to 50 years 40 Gumtis were existing and therefore, the corporation took a decision to regulate these Gumtis by construction of permanent Pakka shops therein. After allotment of land NOC was taken from various authorities, now after construction this shopping complex is not obstructing any free flow of the traffic.
Hence the petition is liable to be dismissed.
We have heard learned counsel for the parties. Initially this petition was listed before the single bench as it was not filed under the category of Public Interest Litigation (PIL) thereafter, office has examined the nature of relief claimed in this petition and treated this petition as PIL and listed before the Division Bench. Since 2013 this petition is pending. On 24.02.2016 Shri A.K. Sethi, learned senior counsel has filed an application (I.A. No.862/2016) seeking withdrawal of this petition but since it is a Public Interest Litigation this court did not permit petitioner to withdraw this petition.
So far the merit of the this case is concerned initially the petitioner has alleged that Municipal Council has illegally constructed shops on government land. Thereafter, vide order dated 08.05.2013 Collector has allotted the land to the Municipal Council. Then the petitioner has amended the petitioner challenging the validity of order passed by the Collector on the ground that it is an illegal diversion of the land use from road to commercial purpose.
State has filed the reply stating that section 237 of the MP Land Revenue Code, 1959 applied to NISTAR land but the land in question was recorded as a Road where temporary Gumtis were already there since last 30 to 35 years and Municipal
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Council passed the resolution to remove the Ghumtis and construct shopping complex as per law. The petitioner has not amended the petition by challenging the allotments made to individuals and the allottees have not been made parties in this petition. Rather the petitioner has filed an application for withdrawal of this petition.
In case of Gangaram Loniya Chohan & others Vs. Sate of M.P. & others reported in the year 2016 Vol.1 M.P.L.J. 386 the Division Bench of this Court has held that Collector is competent authority to record tangible reasons for accepting the proposal for diversion of the said land. After filing of the petition no additional material has been placed on record that construction of shops is affecting the day to day function of the school reduced the area of playground or obstructing any traffic of the road or causing any inconvenience to the public. The Nagar Parishad is getting the revenue as rent from these shops which is being used to provide public utility services. The Parishad was not in a position to remove the Gumaties since last 40 years hence decided to make shopping complex to earn revenue. Now more than 9 years have been lapsed therefore, were do not find any reason to interfere and accordingly this petition is dismissed.
(VIVEK RUSIA) (AMAR NATH KESHARWANI))
JUDGE JUDGE
Ajit/-
AJIT
Digitally signed by AJIT KAMALASANAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH INDORE, ou=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, KAMALASA 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba 241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1E E901C09EF29, NAN serialNumber=7F0BEE2D78BD57DA058F3247441C 87E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.05.13 13:40:29 +05'30'