Madhya Pradesh High Court
Miss Harpal Kaur vs The State Of Madhya Pradesh on 27 June, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WP No.3010 of 2017
(MISS HARPAL KAUR AND OTHERS Vs. THE STATE OF MADHYA PRADESH & OTHERS)
Dated : 27.06.2024
Shri Abhishek Gulatee - Advocate for the petitioners.
Shri Punit Shroti - Government Advocate for respondent Nos.1 to
5/State.
Shri Brian D'silva - Senior Advocate with Shri S.S. Oberoi -
Advocate for respondent No.6.
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Reserved on : 02.05.2024
Pronounced on : 27.06.2024
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ORDER
Heard on I.A. No.16664/2023, which is an application filed by respondent No.6 under Order 47 Rule 1 of the Code of Civil Procedure for modification in the final order dated 25.08.2023. In the aforesaid application, modification in the final order dated 25.08.2023 is being sought to the extent that while executing the order passed under Section 250 of the M.P. Land Revenue Code, 1959 (in short the 'Code, 1959') by the revenue authority, no protection should be provided to the structure, if any, is raised over the land which is under encroachment of the petitioners and as such, it is prayed that the order in the proceeding under Section 250 of the Code, 1959 be made effective after removing 2 the said construction found in the land under encroachment of the petitioners.
2. In the writ petition which has been decided vide order dated 25.08.2023 by this Court, the dispute was in respect of an order passed by the revenue authority under Section 250 of the Code, 1959, seeking dispossession of the petitioners over the land said to have been encroached by them. The order was passed by the revenue authority in favour of respondent No.6 under the proceeding initiated by him before the revenue authority by moving an application under Section 250 of the Code, 1959. Ultimately, this Court approving the order of the authority passed in favour of respondent No.6 has dismissed the petition with the following observation:-
'However, in the facts and circumstances existing in this case, Collector Jabalpur is directed to issue instructions to the respective revenue authority while carrying out the order of Section 250 of 'Code 1959' if dispossession of petitioner is made then authority should first ascertain whether any old construction is situate over the encroached area or not. If area is covered only by the boundary wall, the same cannot be protected and is no protection to avoid the implementation of order of Section 250 of 'Code 1959' passed by the revenue authority.'
3. Respondent No.6 is seeking review on the ground that the Division Bench of this Court in Writ Appeal No.1233/2020 [Sunita Bairagi and others Vs. State of Madhya Pradesh and others] in a similar circumstances, has considered this aspect that if any construction over the encroached area is raised, the same would not come in the way of implementing the order passed under Section 250 of the Code, 1959.
The observation made by the Division Bench in the aforesaid case reads as under:-
'34. Shri V.K. Jain, learned Senior Counsel has raised 3 the issue that the petitioners have been found in possession of the land and without demolishing the construction the vacant possession of the land cannot be handed over to the respondent No.4 which is not within the domain of the Tahsildar to pass the order for removal of the possession for handing over the vacant possession to the Bhumiswami i.e. respondent No.4. This point might have substance and weightage for consideration but non of the petitioners is in a position to place on record the document to establish his clear title or the building permission. Out of 62 petitioners and occupants only 6 petitioners have produced the registered sale deeds and as per the aforesaid discussion, those sale deeds are also under a cloud. The remaining petitioners and other occupants have no title document in their favour despite that they have constructed houses therein without obtaining building permission from the Municipal Corporation, Indore under the Municipal Corporation Act. Merely paying property tax or obtaining electricity connection therein would not legalize their construction or would not confer any title to them. If the construction is illegal that too on land without title then that cannot come in the way of exercising the statutory power of Tahsildar under section 250 of the MPLRC. In order to defeat the provisions of MPLRC anybody can make illegal construction on the land and stall the proceeding of section 250 MPLRC. This is not the intention of the Legislature. If the Bhumiswami has been dispossessed or the possession of any person has been found unauthorized then such a person is legally bound to hand over the Writ Appeal No.1233/2020 vacant possession to the Bhumiswami under section 250 of MPLRC. With full conscious the legislature has drafted the definition of the 'land' in the MPLRC in which all the things permanently fastened with the land have been fictionally treated as the land, therefore, mere construction on any land by a person who is unauthorisedly in possession cannot resist the proceeding under section 250. Even otherwise, the Municipal Corporation has ample power under section 299 of the Municipal Corporation Act to demolish the illegal construction at any point of time. Since the petitioners are not title holders of the land and made entire construction without permission hence the such illegal construction cannot be compounded under section 308 of the Municipal Corporation and rules made thereunder. The respondent No.4 cannot be relegated to the civil court to obtain possession or decree of declaration in respect of the construction as 4 void and claim the possession. That out of 62 illegal occupants only one has filed a civil suit before the civil court. Therefore, when all the 3 authorities by way of concurrent finding have held that the petitioners' possession is unauthorized then they are liable to be removed by way of an order under section 250 MPLRC.
The copy of this order be sent to the Commissioner Municipal Corporation Indore also for examining the construction of houses over the land in question and for taking appropriate action in accordance with law. In the result, I do not find any ground to interfere with the impugned orders, hence the petition is dismissed Likewise, in Writ Appeal No.909/2023 [Shyam Sunder and another Vs. Smt. Savitri Bai and others] vide order dated 07.12.2023, the Division Bench of this Court in similar circumstances has observed as under:-
'2.2 After the aforesaid remand, a team headed by the Assistant Superintendent conducted fresh demarcation after giving the opportunity of hearing to all the parties and owners of nearby land on 2.6.2018. In the said demarcation also land 0.310 Hect. of Survey No. 187/3/1, a boundary wall and a godown found in possession of the appellants. The signatures of all the parties were taken on panchnama report. Thereafter, the Tehsildar heard the matter finally and vide order dated 28.7.2018 dismissed the application u/s. 250 of the MPLRC on the ground maintainability as there is a construction of godown on the land and the same cannot be treated as vacant land.
* * * 4.2 Shri Baheti, learned counsel appearing for the respondents, submits that the demarcation was carried out under a direction given by the Board of Revenue, otherwise the proceedings were initiated u/s. 250 of the MPLRC because the demarcation had already been conducted on 1.11.2007, in which, encroachment by the appellants were found established. In support of his contention, he has placed reliance over the judgment passed in the case of Narayan V/s. Mst. Nagubai & others : 1978 ILR 178 in which it is held that the provisions of the M.P. Land Revenue Code, 1959 are not confined only to agricultural lands. they also deal with non-agricultural lands situated in urban area 5 also. It has also been held that according to the definition of land, it is apparent that the term 'land' does not only refer to open land but also includes every thing permanently fastened to earth and treated the same as a part of the land. He has also placed reliance over the order dated 22.3.1968 passed by this Court in the case of Krishnakumardas V/s. Balramdas:
MANU/MP/0121/1968 in which it is held that Section 250 of the MPLRC clearly provides a speedy and summary remedy when the possession of the Bhumiswami was to be restored and the land is fictionally meant to include even buildings on the land. He has also placed reliance over the order dated 1.10.2020 passed in Misc. Petition No. 5156/2019 (Smt. Sunita V/s. State of M.P.) in which it is held that if the construction is illegal that too on land without title, then it will not come in the way of exercise of powers of the Tehsildar u/s. 250 of the MPLRC.
We have heard the learned counsel for the parties at length and perused the record of the case.
* * *
6. So far as the construction on the land i.e. Survey No. 187/3/1 is concerned, the contention of Shri Veer Kumar Jain, learned senior counsel for the appellants/petitioners cannot be accepted in the light of the judgment passed in the case of Smt. Sunita V/s. State of M.P. (supra) that the construction is an illegal construction and no document or permission has been filed. According to Shri Baheti, learned counsel for the respondents, the said construction is not in existence and only the fencing is there. Even otherwise, the entire land bearing Survey No. 187/3/1 is open and agricultural land. The appellants had illegally encroached upon the said land and raised the construction which would not disentitle Late Savitri Bai, Bhumswami to invoke the provisions of Section 250 of the MPLRC. Otherwise, it would be very convenient for any person to encroach upon open land and raise construction to disentitle the Bhumiswami to invoke the provisions of Section 250 of the M.P. Land Revenue Code, 1959. Had it been a case that the Bhumiswami raised construction and thereafter the same was encroached by any other person, then the proceedings would not have been maintainable, but in the present case, Late Savitri Bai being a Bhumiswami of the open land did not raise any 6 construction, therefore, the proceedings initiated by her cannot be held to be not maintainable. We do not find any ground to interfere.'
4. Thus, it is clear that in a proceeding initiated under Section 250 of the Code, 1959, if it has already been determined that a particular area of land is under encroachment and any order for giving possession is passed by the revenue authority, then that order has to be implemented ignoring the fact that some construction is already raised over the said unauthorized occupied land and if any such construction is found, then that would not come in the way to give effect to the order of proceeding initiated under Section 250 of the Code, 1959. As has been observed by the Division Bench quoted hereinabove, it is clear that mere unauthorized construction raised over the encroached land does not make the proceeding initiated under Section 250 of the Code, 1959, redundant or ineffective. It is not the intention of the legislature empowering the authority to exercise power provided under Section 250 of the Code, 1959.
5. Though, Shri Gulatee, learned counsel for the petitioners has tried to establish that the proceeding initiated under Section 129 of the Code, 1959 which was the foundation of the order passed by the revenue authority in the proceeding initiated under Section 250 of the Code, 1959 is not proper and demarcation got done without giving any opportunity to the petitioners but this Court will not consider this aspect nor rehear the matter again because the submissions made by learned counsel for the petitioners in this regard on earlier occasion have already been taken note of by this Court while deciding the writ petition. That apart, as per learned counsel for the petitioners, challenging the order passed by the revenue authority in a proceeding initiated under Section 7 250 of the Code, 1959, though a civil suit has also been filed by the petitioners which is pending consideration but no order staying implementation of order passed by revenue authority has been granted and under such circumstances, I am of the opinion that merely because a civil suit is pending, the implementation of the order passed by the revenue authority under Section 250 of the Code, 1959 cannot be stayed by this Court. However, it is for the petitioners to approach the Civil Court by moving an appropriate application seeking stay and injunction for not giving effect to the order passed by the revenue authority in a proceeding initiated under Section 250 of the Code, 1959, but in absence of any such order of the Civil Court, this Court cannot keep the order passed by the revenue authority in abeyance and as such, this Court finds substance in the submission made by learned counsel for respondent No.6.
6. Accordingly, I.A. No.16664/2023 is allowed. Consequently, the final order dated 25.08.2023 passed by this Court is modified to the extent that merely because any construction is raised over the land in question (encroached area) and possession of the same is to be delivered to the person holding the order of revenue authority passed under Section 250 of the Code, 1959, would not come in the way and the order passed under Section 250 of the Code, 1959, be implemented ignoring any such construction. The order is modified to the above extent.
7. With the aforesaid, I.A. No.16664/2023 is allowed and disposed of.
(SANJAY DWIVEDI) JUDGE rao SATY Digitally signed by SATYA SAI RAO DN: c=IN, o=HIGHT COURT OF MADHYA PRADESH, ou=GOVRMENT, 2.5.4.20=fd8212036fdbf89fa7c A SAI a6dd1d45561a7803f38162f69 3a3cbabf7e416131fa7f, postalCode=482001, st=MADHYA PRADESH, serialNumber=D71B7C71D530 RAO E3C544E8EBF848D8818167BE CB37EB09E44776D0667970EE D1E9, cn=SATYA SAI RAO Date: 2024.06.28 18:51:37 +05'30'