Madhya Pradesh High Court
Dharmendra Singh Bhadoriya vs The State Of Madhya Pradesh on 1 October, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
THE HIGH COURT OF MADHYA PRADESH
WP.23124.2017
[Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors]
1
Gwalior, Dated:- 01.10.2019
Shri S.K. Sharma, learned counsel for the petitioner.
Shri Pratip Visoriya, learned Government Advocate, for the
respondents/State.
Shri A.K. Nirankari, learned counsel for respondent No.3. This Public Interest Litigation takes exception to inaction on the part of the respondents, more particularly respondent No.3 in not removing encroachment over Public Park and as to action of respondent No.2 Registrar, Public Trust in wrongly acknowledging the action of private person in getting a trust created over Nazul land earmarked as Park.
Respondents No.1 & 2, and 3 and 5 have filed their response. Respondent No.5 against whom there are allegations of converting a public park into a private property by including it within the fold of Trust in its return submits that the land in question remains a Park; however, as there was an old building existing, thus renovated and a temple was constructed with the condition that as and when the Municipality wants the construction will be demolished. A reference is made to an order passed by the Sub-Divisional Officer, Bhind on 20.09.2017; wherein, following findings are adverted at:
^^f'kdk;rh vkosnu dh tkap jktLo fujh{kd utwy fHk.M ls djk;h x;hA muds }kjk LFky o vfHkys[k dh tkap dj izfrosnu fd;k gSA fookfnr Hkwfe Øekad 98 fjdkMZ esa vkcknh ¼xkWoBku½ ntZ gSA mDr loZs uacj ij ekSds ij 14 nqdkusa THE HIGH COURT OF MADHYA PRADESH WP.23124.2017 [Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors] 2 cuh gq;h gS] ftlesa 11 nqdkusa if'pe fn'kk esa 130 ckbZ 22 QhV ij cuh gSaA nqdkuksa ds chp esa eafnj dks tkus dk ,d xsV tkrk gSA mDr nqdkuksa dks f'kdk;rdrkZx.k lapkfyr dj jgs gSaA ftl Hkwfe dk VªLV xfBr djk;k x;k gS ogka ekSds ij eafnj cuk gS ewfrZ;kas dh LFkkiuk dh tkuk gSA blh loZs uacj esa 150 ckbZ 60 esa /keZ'kkyk Xokfy;j LVsV ds le; ls cuh gSA LFkYk fujh{k.k ,oa nLrkostksa ds vk/kkj ij mDr Hkwfe ekStk foØeiqjk fLFkr losZ uacj 98 uksbZ;r vkcknh ¼xkWoBku½ utwy Hkwfe gSA ftl ij eafnj] nqdkusa o /keZ'kkyk cuh gSA^^ Thus, evident it is that the land bearing Survey No.98 is a Nazul Land and 14 shops, temple and Dharmshala are unauthorizedly constructed thereover.
Respondent No.3, Municipal Council, Bhind, in its return, filed on 22.10.2018, supported by an affidavit of the Chief Municipal Officer, Shri Jai Narayan Para, has taken strange stand while not disputing that the land in question is a Nazul Land and that after independence in 1947 was given to one Gulab Chand Maya Chand for developing park, shirks its responsibility to take action against unauthorized structures citing that there are disputed questions of title. Whereas the fact remains, as borne out from the order passed by Sub- Divisional Officer that there are no disputed questions of title. Since it was observed that the Municipal Council is protecting the encroachers and unauthorized occupants over public property, we called upon the Municipal Council, Bhind by order dated 09.07.2019 as to what action they propose to take. Response is filed on 23.09.2019 wherein it is stated that in response to notice issued by the answering respondents, THE HIGH COURT OF MADHYA PRADESH WP.23124.2017 [Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors] 3 Sumer Chand Agrawal filed his detailed reply. It is stated that earlier on the application of Shri Shyam Sunder Singh Jadon the Sub Division Officer being the Registrar of Public Trust passed an order dated 08.01.2001 and constituted a trust for maintenance and taking care of Dharamshala. Against said order a civil suit bearing civil suit No.2/2008 (Sumer Chand Agrawal Vs. State of M.P. & Ors) has been filed before the First Additional District Judge Bhind District Bhind (MP) and the same was partly decreed vide Judgment and Decree dated 08.07.2008 by which the order of SDO has been set-aside and it is held that said Dharamshala properly maintained by the said trust after proper registration for public utility and restrained the SDO to not to interfere in the peaceful activities of the said trust, said judgment and decree became final in-absence of further challenge before any higher authority. It is further stated that Sumer Chand Agrawal Managing Trustee/secretary of the Gulabchand Maayachand Agrawal Trust by filing the reply of notice in respect of land measuring area 130 x 70 Square feet which is reserved for the park, but now he became the owner and possession holder of said land. The shopkeepers also jointly filed the reply of said notices and stated that they have encroached the park land or the part of any road, they are in possession over the land bearing survey No.98 of village Vikrampur, Tahsil and District Bhind (MP) which is a government land and THE HIGH COURT OF MADHYA PRADESH WP.23124.2017 [Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors] 4 recorded as Gaouthan (Aabadi) in revenue land, and they are in possession over said land since Samvat 2010 (Year 1953) and their possession was recorded in revenue record and they have filed a civil suit before the competent Civil Court which against the cancellation of trust as well as declaring them as owner and possession holder on the basis of the interrupted possession on the said shops which is still pending before the First Civil Judge Class-1, Bhind, District Bhind (MP) bearing civil suit No.58/2018 RCS-A (Brahmlal Shivhare & Ors Vs. State of M.P. & Ors.).
However, when specifically asked for as to whether there is any injunction in respect of removal of unauthorized shops over land in question belonging to Nazul, no such order has been commended at. Thus, apparently, the Municipal Council, Bhind is tacitly supporting the breach-mongers, reason best known to the officials of Municipal Council. But such inaction is not appreciated. Today also, when the matter is taken up in personal presence of the Chief Municipal Officer, two applications IA.4711/2019 and IA.4712/2019 are adverted. Whereon IA.4712/2019 is for exemption from personal appearance, which apparently is rendered redundant as the Chief Municipal Officer is personally appearing. Therefore, it stands disposed of as infructuous. That vide IA.4711/2019, the Municipal Council Bhind seeks extension of time to take action against the shop-keepers and THE HIGH COURT OF MADHYA PRADESH WP.23124.2017 [Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors] 5 Dharmshala; wherein, it is stated that vide said gazette notification dated 13.09.1947 the land bearing measuring area 130x70 feet situated at Railway Station Bhind was allotted to Gulabchand Mayachand for construction of park. At present on said land a Dharamshala is situated and temple was situated and management of said Dharamshala and temple a public trust in the name of Gulabchand Mayachand Trust was constituted and registered vide order dated 19.05.2017 (P-3). It is further submitted that in response to said notice issued by the answering respondents two reply have been filed by the trust; first reply in respect of the Dharamshala property therein it is stated that the said Dharamshala was constructed on the land measuring area 150x60 feet which was managed by trust which was held by the learned First Additional District Judge Bhind vide judgment and decree dated 08.07.2008 in the Civil Suit No.02/2008 (instituted on 23.06.2001) and in respect of said land a civil case bearing Civil Suit No.08/2018 is pending before the Additional Civil Judge Class - II, Bhind District Bhind (MP) for declaration of title and permanent injunction in which all shopkeepers are party. In said civil suit the question of property of park in question was also involved. In second reply filed by the trust, the trust stated that the trust is owner and possession holder of park's land and said park was duly established and managed by the trust and number of THE HIGH COURT OF MADHYA PRADESH WP.23124.2017 [Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors] 6 persons are daily visiting in said park. It is submitted that shopkeepers by filing their joint reply stated that their shops are constructed on land bearing Survey No.98 which is a nazul land. Said shops are not situated on any part of public road or any part of land which is reserved for public park and their names were recorded in the revenue record. It is submitted that in view of the above the municipal Council has to get demarcated the said land in order to find out that what is the actual size of the park land, Dharamshala land and shopkeepers land, by the revenue officers as well as officers of the land record, said proceeding will take some time.
We are not convinced with the stand taken by the Municipal Council, Bhind, in the teeth of fact adverted to by the Sub-Divisional Officer, in his order dated 20/09/2017 that land bearing Survey No.98 is a Nazul Land and the fact that there is no injunction order by any Court of Law and that the shops constructed unauthorizedly.
At this stage, we intend to take note of the stand taken by the State of M.P. and its functionaries/ Respondents No.1 and 2. It is stated by them in the return filed on 04.12.2018 supported by an affidavit of one Shri H.B. Sharma, Sub-Divisional Magistrate, Bhind:
"2. That, with respect to the aforesaid it is respectfully submitted that the land situated in District Bhind is given to the father of Respondent No.4 for constructing the park without cost on 11.08.1947 and the notification is also published in Gazette on 13.09.1947, which has been filed by petitioner as per Annexure P/1.
THE HIGH COURT OF MADHYA PRADESH WP.23124.2017 [Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors] 7
3. That, answering respondents have not given permission to Respondent No.4 for constructing shops. Respondent No.4 wrongly constructed shops and also constructed Temple on the park land.
4. That, Respondent No.4 filed an application before the answering authority No.2 for constituting a Trust on the park land and it is mentioned in the application that Trust may be constituted and also enclosed the map in which temple and shops were shown. Copy of application as well as map are annexed herewith and marked as Annexure R-1 and Annexure R/2 respectively.
5. That, answering respondent no.2 vide order dated 22.02.2017 directed to issue publication in the gazette notification. Thereafter no objections were submitted by any of the person, therefore trust has been registered on the park land.
6. That, Respondent No.4 also filed one Civil Suit against one shopkeeper Brahm Shivhare bearing Civil Suit No.87-A/06 in which ex-parte judgment has been passed by II Civil Judge Class -I Bhind on 22.2.2006 by which civil suit has been dismissed. From the judgment para-9 it has been found that Respondent No.4 has not proved ownership on the land. It is clear that petitioner claims ownership on the park land, therefore, he filed civil suit. Respondent No.5 is not obeying condition of using of land which was given only for the constructing park. Copy of judgment dated 22.2.2006 is annexed herewith and marked as Annexure R/3.
7. That, answering respondents fairly submit that on the park land, no trust can be constituted and purpose of park cannot be changed, as held by Hon'ble Division Bench of this Court in case of Municipal Corporation, Gwalior & Ors. Vs. Anil Sharma & Ors. reported in 2002(2) MPLJ-595.
Therefore, in view of the aforesaid present petition filed by the petitioner against the answering respondents being wholly misconceived deserves to be dismissed.
3.2 That, contents of para 3.2 of this petition, it is THE HIGH COURT OF MADHYA PRADESH WP.23124.2017 [Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors] 8 submitted that Respondent No.4 after death of Mayachand, captured the park and changed the nature of park by constructing shops and temple over the park. That Municipality Committee Bhind on 18.07.1960 given permission for constructing the shops, but it is mentioned that construction of shops is against the order of Gwalior Government given in the year 1947 and if any shop is constructed, same is on his own risk. Copy of order dated 18.07.1960 is annexed herewith and marked as Annexure R/4."
In view of these facts, there remains no iota of doubt that the unauthorized construction is raised over Government land being tacitly protected by the Municipal Council, Bhind. As the unauthorized construction is reportedly over Government land, it deserves to be removed. The petition is accordingly disposed of with direction that:
(1) The Collector, Bhind shall take action against the encroachers and unauthorized structures, for their removal, on subject land, which is a Government land/public property, Survey No.98 of village Vikrampur, Tahsil and District Bhind (MP).
(ii) If the Collector has any difficulty in taking follow-up action as per the direction issued by him, must report that fact to this Court forthwith and seek appropriate directions, as may be required.
(iii) If Revenue Authority intends to proceed to remove/demolish unauthorized structure standing on the public property and apprehends any threat from the encroachers with regard to that action, may request Superintendent of Police, Bhind to provide sufficient THE HIGH COURT OF MADHYA PRADESH WP.23124.2017 [Dharmendra Singh Bhadoriya Vs. State of Madhya Pradesh & Ors] 9 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 Revenue Authority for proceeding with the removal/demolition of unauthorized structure(s) standing on the public property.
Action taken report be filed by the Collector in this Court on or before 06.01.2020. If such report is not filed, the matter be notified on 06.01.2020 under caption "Directions" for passing appropriate orders. Liberty is given to the petitioner to 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.
Before parting with the matter, taking into consideration the conduct of Municipal Council, Bhind in supporting the unauthorized occupants, we intend to impose a cost of Rs.One Lac on respondent No.3 to be deposited with the High Court Legal Services Committee within 30 days.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
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PAWAN
DHARKAR
2019.10.06
10:42:33
+05'30'