Madhya Pradesh High Court
State Of M.P. Thru Collector Gwalior vs Vijay Singh Dongra & Ors. on 1 May, 2018
1 F.A.Nos.276/2003, 277/2003 & 278/2003
High Court of Madhya Pradesh
Bench at Gwalior
SINGLE BENCH
: (Vivek Agarwal, J.)
First Appeal No.276/2003
State of M.P.
Vs.
Rajendra Singh Dongra and others
First Appeal No.277/2003
State of M.P.
Vs.
Tej Singh Dongra and others
&
First Appeal No.278/2003
State of M.P.
Vs.
Vijay Dongra and others
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Shri Yogesh Singhal, learned Govt. Advocate for the
appellant/State in all the appeals.
Shri Manish Nayak, learned counsel for the respondent
No.1 in F.A.No.276/2003.
Shri S.S.Gautam, learned counsel for the respondent No.2
- Municipal Corporation in all the appeals.
Shri Rajendra Sagoria, learned counsel for the respondent
No.3 Gwalior Development Authority in all the appeals.
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JUDGMENT
(01/05/2018) All these three first appeals involve similar issue and therefore, they are being decided by this common judgment.
2. These First Appeals have been filed by the appellant/State of M.P. through Collector Gwalior being aggrieved by the judgments and decree dt.07.07.2003 passed by the 10th Additional District Judge (Fast Track Court) Gwalior, whereby the suits filed by the different 2 F.A.Nos.276/2003, 277/2003 & 278/2003 plaintiffs against the appellant/State for recovery of certain amount, alleging that they are the owners of the plots at Anand Nagar Residential Scheme, Gwalior allotted to them by Gwalior Housing Cooperative Societies Ltd. developed by Gwalior Development Authority (GDA), on which certain construction was made after obtaining permission from the competent authority but same has been demolished illegally by the respondent No.1, who is appellant and the Municipal Corporation on account of the dispute between the State Government and the Gwalior Development Authority in regard to certain payments, have been decreed.
3. It is the contention of the appellant/State that judgments and decree passed by the court below suffer from illegality and deserve to be set aside. It is also submitted that the learned trial court did not go into the basis of the allotment to the plaintiffs, inasmuch as land was allotted by the State Government in favour of the GDA for development and since the land belongs to the appellant as per the revenue record, therefore, the plaintiffs were treated as encroachers and demolition was carried out. It is submitted that trial court has not taken into consideration the revenue records which were placed before it and proceedings were initiated under Section 248 of the Madhya Pradesh Land Revenue Code 1959 (hereinafter shall be referred to as the MPLRC) for the purpose of protecting the government property and encroachment was demolished. Therefore, the impugned judgments are not sustainable and the action of the State Government and the Municipal Corporation can not be termed as illegal and arbitrary.
4. The admitted position in this case is that the State Government had allotted the land in favour of GDA for the purpose of development of a colony under Anand Nagar Housing Project. GDA is the instrumentality of the State and had allotted such land in favour of respondent No.4 Society. Thereafter said society namely Gwalior Grah 3 F.A.Nos.276/2003, 277/2003 & 278/2003 Nirman Sahkari Sansthan Maryadit had allotted the plots in favour of the plaintiffs and thereafter GDA had accepted mutation in the name of the plaintiffs and had handed over possession of the respective plots in favour of the plaintiffs. Plaintiffs had moved an application for sanctioning the map/building plan to the Chief Executive Officer of the GDA Gwalior, which was sanctioned by the authorities. When construction was going on, a dispute occurred between the State Government and the GDA in regard to recovery of premium, licence fee and lease rent as a result impugned action of the demolition was taken necessitating filing of the civil suits for recovery of damages.
5. Learned Additional District Judge framed four issues; namely whether the disputed property is of the ownership and possession of the plaintiffs and recorded a finding in affirmative. Similarly, another issue was framed as to whether the act of the appellant/State Govt. and the Municipal Corporation in demolition of the structure was illegal and again recorded a finding in affirmative against the appellant No.1 - State Government and held that as per the finding of the suit, plaintiffs are entitled to recover damages alongwith interest from the respondents, who are the appellants before this court.
6. The main limb of the grievance of the appellant/ State is that they had given notice under Section 248 of MPLRC before beginning such act of demolition but no such notices were brought on record and now they have been filed alongwith an application under Order 41 Rule 27 of CPC. Though, such application has been rejected through a speaking order assigning the reasons for its rejection but the legal question which subsists that whether such notice even if issued authorises the appellant/State to carry out demolition merely because GDA had not paid them premium of the land and lease rent.
4 F.A.Nos.276/2003, 277/2003 & 278/20037. Section 248 of the MPLRC deals with penalty for unauthorisedly taking possession of the land. It provides that any person who unauthorisedly takes or remains in possession of any unoccupied land, abadi, service land or any other, which has been set apart for any special purpose under Section 237 or upon any land, which is the property of Government, may be summarily ejected by order of the Tahsildar. Therefore, the first requirement was on the part of the State Govt. to show that there was unauthorized possession of the plaintiffs on the suit land.
8. The admitted position is that land was allotted in favour of GDA by the State Government and the communication dt.5.1.2000 reveals that the land was already in possession of the GDA and it was given this land for development of a residential colony under Anand Nagar Project. On the basis of such advance possession given by the State Government, GDA had already allotted the land in favour of the respondent No.4 Society, which in turn had allotted plots in favour of the plaintiffs and plaintiffs had obtained mutation of their names in the records of GDA. Therefore, by no stretch of imagination plaintiffs were in unauthorized occupation of the plots allotted to them and therefore provisions of Section 248 of the MPLRC did not attract to the facts and circumstances of the case, yet, instead of sorting out the dispute between two instrumentalists of the State, demolition drive was under taken.
9. Learned trial court has rightly recorded a finding that plaintiffs were put into possession after registration of a sale deed and their names were mutated in the revenue records. There was no dispute as to the fact that any of the documents produced by the plaintiffs were not genuine. It has come on record that Nazul Officer appearing for the defendant State Government did not deny the documents produced by the plaintiffs but had only shown his ignorance. It is settled principle of law that ignorance is not a denial and in fact is a tacit admission.
5 F.A.Nos.276/2003, 277/2003 & 278/2003Trial court has also discussed the issue that GDA acquires the land through Collector and after development of such land, plots are distributed amongst the beneficiaries and they purchase such plots from the GDA having belief about the bonafide of the title of the land. It is not the case that GDA had not received any consideration towards premium or lease rent from the plaintiffs/ allottees and therefore if there was some dispute in regard to payment between GDA and the State Government, then the officers of the State Government were not authorized to demolish the construction with the help of 3D machine.
10. Rambabu Jakheniya (D.W.2) and S.S.Trivedi (D.W.1) admitted the act of demolition. In fact Rambabu Jakheniya (D.W.2) admitted that such demolition drive was undertaken at the instance of Nazul Tahsildar who had given a letter dt.15.7.1998 (Ex.D/1). There was no material on record to demonstrate that how the construction was treated to be an encroachment and what was the basis for such finding necessitating the demolition drive in the hands of the State Government with the help and aid of Municipal Corporation. Even if it is presumed that some notice was given under Section 248 of the MPLRC, which has not been accepted by the trial court, the fact remains that the onus was still on the appellant to show that how the plaintiff was an encroacher on a government land after he had taken possession of the said plot being allotted by the respodnent No.4 Society after getting it from GDA on payment of sale consideration recovered by the Society and in this manner when GDA was an agent of the State Government for development of a colony and in turn had sub delegated work to society, which in turn had allotted the plots in favour of the plaintiffs, then it can not be said that the plaintiffs, who were given possession of the plots after registering a sale deed were encroachers on the government land. Therefore, even if plea of the State is 6 F.A.Nos.276/2003, 277/2003 & 278/2003 accepted that some notices were issued under Section 248 of the MPLRC, then even such notices are not maintainable as plaintiffs could not have been treated as encroachers over the government land as they were in peaceful possession of the land as legal allottees in the hands of the GDA.
11. Thus, for a dispute between the State Government and the GDA, the plaintiffs could not have been treated as encroachers and the demolition drive which was undertaken was definitely in excess of the authority vested in the State Government. Therefore, the compensation awarded by the trial court decreeing the suit in favour of the plaintiffs and against the State Government can not be said to be arbitrary illegal or unjust. All the parameters of the evidence have been taken into consideration and rival evidence has been appreciated by the trial court. There was since no evidence to show that the plaintiff was an encroacher, therefore, drive udner Section 248 of the MPLRC was illegal and was an act of overreach by the Collector of the District for which plaintiffs have been rightly compensated. Thus, all the appeal fails and are dismissed and the judgment passed by the trial court is confirmed.
(Vivek Agarwal) Judge SP Digitally signed by SANJEEV KUMAR PHANSE Date: 2018.05.02 16:26:25 +05'30'