ORDER Navkar, J.- l. This is a petition under Article 226 of the Constitution of India for quashing the order of the Tahsildar (Nazul), Gwalior, dated 29-6-1970 in Case No. 4l4/415-A/68-69 Nazul. 2. The subject-matter of the dispute is a small strip of land situated in Mor Bazar, Lashkar. The plot lies by the side of the petitioner's Exchange Building and the plot is in its possession. It is alleged that it is in a Survey No. 274, but the dispute is with respect to the piece of land which is only 152.50 sq. ft. The petitioner has constructed a wall and latrine over this part of the land. This construction was done with the permission of the Municipal Corporation in file No. 526/66 x 3/3, on 8-11-1968. The dispute arose when the construction was completed. The Nazul Inspector after seeing the construction. Was of the opinion that this is encroachment over the Nazul land and the tenant Vishandas has trespassed over the land belonging to Nazul. He reported the matter to the Nazul Authorities and Tahsildar, Nazul, Gwalior started the proceedings in file No. 415/68-69, Appellant-68 and 415-68-69, A/68 against the tenant Vishandas and the petitioner. We are not concerned with the case of Vishandas, because the Nazul Officer dropped the proceedings against him when he came to know that he is only a tenant. The contention of the petitioner before the Nazul officer was that he has not trespassed over the land of Nazul and in fact, the land does not belong to Nazul at all. He submitted before the Nazul Officer how he acquired this land through different sale-deeds. The first sale-deed is dated 11-2-1948 and the second sale deed is dated 25-5-1965. 3. The case of the Nazul Department was that as the disputed land was an open land by the side of the road, it vested in the Nazul Department. The suit land which is in Survey No. 274 is also recorded as an 'Abadi'. The Nazul Officer after taking evidence, came to the conclusion that this plot does not belong to tbe petitioner and the permission given by the Municipal Corporation being without obtaining 'No objection Certificate' from the Nazul it is of no significance and because he has committed a trespass he asked for the removal of the trespass and fined the petitioner with Rs. 200. This order was passed on 29-6-1970. 200. This order was passed on 29-6-1970. An unsuccessful appeal was maintained by the petitioner in the Court of the Sub-Divisional Officer Nazul, Gwalior vide No. 40/69-70. Aggrieved by these two orders, the present petition is filed. 4. The petitioner has made one Raj Kumari as a party to the proceedings in this petition and certain objections have been filed by Rajkumari through her learned counsel Shri Balwant Singh. But, we are not called upon to decide those objections because the only point we have to decide in this petition is whether the property vests in Nazul and whether the order of Nazul Officer imposing fine and removal of trespass is correct or not. 5. The stand taken by the learned counsel for the State is that the property vests in the Corporation for management and as it vests for managements in the Corporation, basically, the State remains the owner of the land and as Government is the owner of the land, the Nazul Officer on the basis of the instructions issued by the Government is entitled to vacate a trespass. He has relied on a judgment of this Court in State of Madhaya Pradesh v. Atmaram 1970 RN 80, he also raised an objection before us that there is an alternative remedy of filing a suit under section 248 (3) of the M P. Land Revenue Code, 1959 and as such, the petition deserves to be rejected. As far as the second contention is concerned, we are of the opinion that when the jurisdiction of the Nazul Officer itself is challenged there is no need of filing a suit and it can be decided in a writ petition. Therefore, this objection of alternative remedy cannot by accepted. 6. It is admitted by the State that this land is an Abadi land and it is within municipal limits. The first Act which we have to consider is the Act Municipality hai, Gwalior, Samvat, 1969. Section 81 of this Act mentions what is the property of the Municipality. It also mentions that the property within the municipal limits will be in possession and use of the municipality and it will remain the property of the municipality. The section runs as under. Section 81 of this Act mentions what is the property of the Municipality. It also mentions that the property within the municipal limits will be in possession and use of the municipality and it will remain the property of the municipality. The section runs as under. nQk Šƒ& ¼ƒ½ fdlh ,slh [kkl eqLrfu;kr dh ikcUnh ds lkFk tks xoZesUV rtoht djs tk;nkn edcwtk desVh reke ,slh fdLe dh tk;nkn ftldks nQk gktk ds tsy esa r’kjhg dh xbZ gS vkSj tks E;wfufliyVh ds vUnj okys gks] desVh ds dCts o n[ky esa vk tk;xh vkSj mldh fefYd;r gksxhA^^ this Act was repealed by Kanun Municipality-hai, Riyasat Gwalior, Samvat 1993. Section 87 of the said Act mentions what will be the property of municipality. It say as under: nQk Š‰ & ¼ƒ½ fdlha ,slh [kkl eqLrfu;kr dh ikcUnh ds lkFk tks xouZesUV rtoht djs] reke ,slh fdLe dh tk;nkn ftldh nQk gktk gLc tsy esa r’kjhg dh xbZ gS] [okg og E;qfufliyVh ds vUnj gks ;k okgj desVh tk;nknds tks] mlds dCts o n[ky esa vk tkosxh vkSj mldh fefYd;r gksxh vkSj oxsj tk;nkn ds tks] mlds dCts o n[ky ds vk;s mlds v[r;kj o bUrtke vkSj fuxjkuh esa j[ksxh vkSj ;ksa og bl dkuwu dh vxjkt ds fy;sa j[ksxh vkSj lQZ djsxh-------------^^ This Act was repealed by M, B. Municipalities Act, 1954. The said Act says what will be the property of the municipality. It is mentioned in section 48 which reads as under: “48. All property of the nature hereinafter in this section specified, and not being specially reserved by the Government shall be vested in and belong to the municipality, and shall, together with all other property, of what nature or kind so ever not being specially reserved by the Government, which may become vested in the municipality, be under their direction, management and control, and shall be held and applied by them as trustees, subject to the provisions and for the purposes of this Act,......" This Act was repealed subsequently by M. P. Municipalities Act. 1961. Section 100 of the said Act mentions the property vested in municipal council and reads thus :- “100. 1961. Section 100 of the said Act mentions the property vested in municipal council and reads thus :- “100. Property vested in Council.-(1) Subject to any special reservation made or to any special conditions imposed by the State Government all property of the nature hereinafter in this section specified within the limits of the municipality, shall vest in and be under the control of the Council and with all other property which has already vested, or may hereafter vest in the Councils shall be held and applied by it as trustees for the purposes of this Act.........” Then came the M. P. Municipal Corporation Act. Section 82 of the said Act says what will be the property vested in the Corporation. The section runs as under :- "82. Property vested in Corporation-Subject to any special reservation made or to any special conditions imposed by the Government. all property of the nature hereinafter in this section specified and situated within the city, shall vest in and be under the control of the Corporation, and with all other property which has already vested, or may hereafter vest in the Corporation, shall be held and applied by it for the purposes of this Act..." So, from the narration of the change of law, it is clear that the property which vested in the municipality is now vested in Municipal Corporation, Gwalior and the property is to be utilised and used for the purposes mentioned in M. P. Corporation Act. To make it clear, the above provisions of law and changes therein go to show that open lauds which were not assessed to land revenue and which fell within the municipal limits were transferred to the municipal committee during the times of Gwalior State by the Circular No.3. Those properties continued to vest in the municipal committee under the Gwalior Act, M. B. Act and now under the M. P. Act. We are not to decide in this petition the extent of right over this open land vested in the municipality. There is no dispute that this property is not applied for the purposes mentioned in section 82. The only dispute before us is, what is the effect of Nazul rules over this land which vests in the Corporation. 7. We are not to decide in this petition the extent of right over this open land vested in the municipality. There is no dispute that this property is not applied for the purposes mentioned in section 82. The only dispute before us is, what is the effect of Nazul rules over this land which vests in the Corporation. 7. It will be better to mention here that Circular No. 3 was issued by Gwalior Government in Sam vat 1998 and it was about the municipalities in Gwalior State. The existence of the circular is not disputed. The relevant portion of that circular reads thus :- HINDI The Circular indicates that unoccupied lands lying within the municipal limits vested in the municipality and it was ordered that they should be so recorded in the revenue papers. The Circular indicates that it was intended that in the settlement papers, such land should be recorded as 'Milkiyat of the Municipality'. So, it cannot be disputed now that as this land is within the municipal area, the municipal corporation is the only competent person to raise any objection regarding the use to which the property should be put. In this case, the municipality has given a permission to the petitioner to construct over the disputed property. From the permission it can be held that the municipality regarded this piece of land as belonging to it. Under this position, we are to see whether Nazul Officer had any right to start the proceedings and decide that the petitioner has trespassed over the Nazul land and that he has to suffer penalty under section 248 of the M. P. Land Revenue Code, 1959. 8. The order given by the Tahsildar (Nazul) dated 29-6-1970 admits that the permission by the Corporation was given to the petitioner. The learned Tahsildar (Nazul) also held that the Sind Mahajan Exchange Ltd. is in possession of the property since 1952, but the possession is illegal. He also mentions that this land is a Nazul land, but how he came to that conclusion is not clear from the order. The appellate Court also has not said a word as to how this property is a Nazul land. He mentions that in 1964, the Collector bas declared that all the open lands in municipal limits will be Nazul lands and, therefore, he has treated this land as a Nazul land. The appellate Court also has not said a word as to how this property is a Nazul land. He mentions that in 1964, the Collector bas declared that all the open lands in municipal limits will be Nazul lands and, therefore, he has treated this land as a Nazul land. Whether these rules can make the open lands situated in the municipal area as Nazul land is considered in this Court's judgment in Municipal Council, Mandsaur v. State of Mudhya Pradesh 1972 JLJ 966 , This judgment also considered section 57 of the M. P. Land Revenue Code, 1959 and it is held as under: "These rights are conferred under a statute and have been saved and protected under the successive enactments enacted from time to time for the purposes of municipal administration Consequently, the right so vested under a statute and protected by a successive statute cannot be taken away by an executive order of the Government or anyone of its officers." We arc completely in agreement with the observations made in that judgment quoted above. 9. The learned counsel for the State cited before us this Court's decision in State of M. P. v. Atmaram 1970 RN 80=1970 JLJ 95. Suffice it to say that this ruling is also considered in Municipal Council, Mandsaur v. State of M. P. (supra). We can only mention the important portion of that ruling namely :- "Lastly it is contended that the power of the Tahsildar under section 248 of the Code is either taken away or controlled by the Nazul rules. It was however, conceded that the Nazul rules are not statutory, and, if that is so the positive provisions of a statutory enactment like section 248 of the Code cannot be negatived or controlled by such rules." 10. The extent of the rights of the municipal Corporation we need not decide, because that was not the dispute before us. 11. As we have come to the conclusion that the Nazul rules cannot affect the property vested in the Corporation the order passed by the Tahsildar (Nazul) and the appellant authority against the petitioner cannot be maintained. 12. The result is that the petition is allowed. The orders passed by the Tahsildar (Nazul) (Annexure-V) and the appellate order (Annexure VI) are hereby quashed as being without jurisdiction. 13. 12. The result is that the petition is allowed. The orders passed by the Tahsildar (Nazul) (Annexure-V) and the appellate order (Annexure VI) are hereby quashed as being without jurisdiction. 13. Here, we may mention that we are not deciding what are the interse rights of the petitioner Sind Mahajan Exchange, Ltd. and Rajkumari wife of Ravidatta. It was submitted before us that a civil litigation is going between these two parties. Their rights will be decided finally in that litigation. 14. Parties to bear their own costs. Amount of security be refunded to the petitioner.