Madhya Pradesh High Court
Khushal Chand vs State Of M.P. on 9 January, 2001
Equivalent citations: AIR2001MP187, 2001(3)MPHT174, AIR 2001 MADHYA PRADESH 187, (2001) 1 MPLJ 680
ORDER Shri S.S. Jha, J.
1. Petitioner was served with a notice under Section 4 of the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974 (hereinafter referred to as the 'Adhiniyam'), specifying therein that the petitioner is in an unauthorised occupation of a public premises. It was specifically mentioned that the house No. 34-D is under the control of Public Works Department of the State Government. After issuance of show-cause notice, the petitioner has shown the cause and claimed that he is not in an unauthorised occupation of the premises. He raised a dispute and submitted that he is the owner of the property. He has submitted his evidence and, on examination of evidence the Competent Authority found that the Public Works Department has not been able to demonstrate its title over the disputed house and dropped the proceedings.
2. The house was claimed to be the property under the control of Public Works Department. The petitioner had filed a sale-deed dated 22-2-1958 to demonstrate that the disputed property was sold by one Mohd. Ulhaq to Gulabchand and Khushalchand, sons of Roop Chand Jain. The petitioner contended that he is the owner of the property. The Sub-Divisional Officer dropped the proceedings.
3. It appears that the proceedings were initiated on the application of Public Works Department, which shows that the proceedings initiated were not proper. The proceedings were registered on the application of Public Works Department.
4. Section 4 of the Adhiniyam provides that if the competent authority is of the opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the competent authority shall issue a notice in writing calling upon all persons concerned to show cause on the specified date why an order of eviction should not be made.
5. From perusal of order, Annexure P-4, it is apparent that the competent authority has not satisfied itself before issuing notice under Section 4 of the Adhiniyam. It has simply acted on the application of the Public Works Department.
6. Rules have been framed under the Adhiniyam, which are known as Madhya Pradesh Lok Parisar (Bedakhali) Niyam, 1975 (hereinafter referred to as the 'Rules'). Rule 3 of the Rules provides Form of notices. On perusal of 'Form A', it is clear when the competent authority has received information that a person is in unauthorised possession of the public premises specified in the Schedule, then a notice under Section 4 of the Adhiniyam is required to be issued to show cause why the order of eviction be not passed.
7. The Sub-Divisional Officer, treating it as personal dispute between Public Works Department and petitioner, has dismissed the petition holding therein that Public Works Department has failed to prove that the premises is a public premises.
8. Be it may, on perusal of the language of Section 5 of the Adhiniyam, it is apparent that no order on the application has been passed. On bare reading of Sections 4 and 5 of the Adhiniyam it is clear that the show-cause notice is issued why the order of eviction should not be made. Section 5 provides that if the competent authority is satisfied that the public premises are in unauthorised occupation, the competent authority may make an order of eviction. Thus, Section 5 contemplates only one order, i.e., order of eviction-Dropping of the proceedings will not be an order under Section 5 of the Adhiniyam. On bare perusal of the language of Section 5 of the Adhiniyam it is clear that the order would mean the order of eviction.
9. Learned counsel for the petitioner submitted that since no order has been passed, the appeal by the State under Section 9 of the Adhiniyam is not maintainable.
10. Section 9 of the Adhiniyam provides for an appeal from every order of the competent authority made in respect of any public premises under Section 5 or 7 to the appellate authority. Section 7 of the Adhiniyam relates to passing an order of payment of rent or damages for unauthorised occupation of public premises. On bare reading of sub-section (3) of Section 7 it is clear that no order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the competent authority. Sub-sections (1) and (2) of Section 7 relate to order, directing the person in unauthorised occupation to pay arrears of rent or damages. Therefore, the orders for eviction or orders passed under Section 5 or 7 alone are appellable under Section 9 of the Adhiniyam. Since no orders on application have been passed, appeal under Section 9 of the Adhiniyam itself was not maintainable. The appellate authority has wrongly entertained the appeal.
11. Since no orders have been passed, Section 10 of the Adhiniyam will not be attracted pertaining to disputed premises and the question of finality of order does not arise.
12. In the case of Government of Andhra Pradesh Vs. Thummala Krishna Rao and another, reported in (1982) 2 SCC 134, it is held that the summary remedy for eviction can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is "the property of Government". But when there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. Therefore, it was held that summary remedy cannot be resorted to in a case where the title is disputed.
13. In the present case also, question of title is disputed and competent authority is of the opinion that there is a dispute of the title and, has rightly not proceeded with the case. It is for the parties to establish their title before the Competent Court. The order, Annexure P-2 cannot be said to be an order appellable under Section 9 of the Adhiniyam. Section 5 of the Adhiniyam contemplates only one type of order, i.e., order of eviction. Thus, interpreting the word "every order" in Section 9 of the Adhiniyam it is not clear that the order would mean the order of eviction. When no orders pertaining to eviction are passed under Section 5 of the Adhiniyam, appeal under Section 9 of the Adhiniyam will not be maintainable.
14. In the result, the appeal filed by the respondent- State before the Commissioner, Bhopal Division, Bhopal is not maintainable and the proceedings are without jurisdiction. As such, the order, Annexure P-1, is quashed and the appeal filed before Commissioner, Bhopal Division, Bhopal is dismissed as not maintainable. However, it is open for the parties to approach the appropriate forum for establishing their title.
15. Petition succeeds and is allowed. There shall be no order as to costs.
16. Writ Petition allowed.