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2002 DIGILAW 78 (CHH)

Krishna Bihari Gupta v. State of Chhattisgarh

2002-09-06

FAKHRUDDIN

body2002
JUDGMENT Fakhruddin, J. 1. The appellant has preferred this appeal against the judgment and decree dated 7-9-2001 passed by the Additional District Judge, Dhamtari in Civil Suit No. 44-A/91. Briefly stated facts are that the plaintiff filed a suit for declaration of title and permanent injunction along with an application under Order 39 Rules 1 and 2, CPC contending that the appellant was serving in the education department on the post of Principal. When he was transferred from Nawapara (Rajim) to Dhamtari, no Govt. accommodation was allotted to him at Dham-tari. It was contended that on the suggestion of the Sub-Divisional Officer he made construction of the suit house sometimes in the month of June, 1977 by spending about Rs. 15,000/-. In November, 1979 he was transferred to Boys Higher Secondary School, Dhamtari but he remained in occupation of the suit house. Ultimately since it was a Govt. land he was sought to be evicted from the suit house. By memo dated 10-9-85 the Joint Director, Public Instructions, Raipur directed the appellant/plaintiff to deposit arrears of rent for using the Govt. land with the instruction that the plaintiff shall not be allowed to draw his salary unless arrears of rent are paid. Being aggrieved by the said memo dated 10-9-85 the appellant/plaintiff preferred a writ petition bearing M.P. No. 3316/85 in the High Court of Madhya Pradesh, Jabalpur. The Division Bench of M.P. High Court vide order dated 27-4-86 disposed of the petition granting liberty to the petitioner to approach the Government. On 25-11-1988 a notice was issued by the Sub-Divisional Officer, Dhamtari to the appellant/plaintiff under Sub-clause (1) Clause (b) (ii) of Sub-section (2) of Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Another notice dated 26-11-88 was also issued to the plaintiff/appellant by the Additional Tehsildar, Dhamtari under Section 248 of the M.P. Land Revenue Code for removal of encroachment. Thereafter the appellant/plaintiff filed another writ petition bearing M.P. No. 579/91 in the High Court of Madhya Pradesh, Jabalpur which was disposed of by the Division Bench vide order dated 22-2-91 and declined to decide the right and title of the petitioner (appellant/plaintiff) over the suit house but liberty was granted to take recourse to the proper remedy. Ultimately the appellant/plaintiff filed the civil suit in the Court of Additional District Judge, Dhamtari. 2. The Trial Court framed following issues:-- 3. Ultimately the appellant/plaintiff filed the civil suit in the Court of Additional District Judge, Dhamtari. 2. The Trial Court framed following issues:-- 3. The Court below having considered the facts and circumstances of the case and material on record dismissed the suit, and against the dismissal order, the appellant has preferred this appeal. 4. The plaintiff contended that he took oral permission from the then Sub-Divisional Officer to construct the house on his own expenses. The Trial Court has observed that the plaintiff in his evidence has not disclosed as to who was the Sub-Divisional Officer and when and before whom he discussed with the Sub-Divisional Officer about construction. He has also not got examined the Sub-Divisional Officer. The land is a Government Nazul land and it does not appear that a responsible officer like Sub-Divisional Officer will give oral suggestion. It is observed that in the circumstances, it does not appear that the then Sub-Divisional Officer has given the permission to the plaintiff to construct house over Government land and even if the suggestion was given by the then Sub-Divisional Officer, it may be his personal view and it has no legal effect: Regarding the contention that the plaintiff made construction on his own expenses, the learned Court below has observed that the plaintiff has not examined any independent witness in this regard. Only a cash memo Ex. P-8 of Rs. 9400/- has been filed and even the person issuing the cash memo has not been examined. While deciding the issue No. 1 whether the plaintiff constructed the suit house over the Government land in the year 1977, the Court below has discussed the evidence of Surjit Navdeep (D.W. 1), Smt. Dadar (D.W. 2) and Smt. S. Jaggi (D.W. 3). D.W. 1 has stated in his evidence that when he was posted in 1968 in the school, Smt. Dadar was residing in the suit house. Smt. Dadar (D.W. 2) in her evidence has stated that she resided in the suit house from 1965 to 1968. Therefore, it cannot be said that the suit house was constructed in the year 1977 by the plaintiff. It was already in existence. 5. It is admitted that the disputed land is a Government land. The Government property is to be dealt with in accordance with the provision of Article 299 of the Constitution of India. Therefore, it cannot be said that the suit house was constructed in the year 1977 by the plaintiff. It was already in existence. 5. It is admitted that the disputed land is a Government land. The Government property is to be dealt with in accordance with the provision of Article 299 of the Constitution of India. Article 299 of the Constitution is relevant and quoted below :-- "Article 299. (1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power, shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorize. (2) Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof." 6. In A.P. Pollution Control Board II v. Prof. M. V. Nayudu (Retd.) and Ors., reported in (2001) 2 SCC 62, it was held by Hon'ble Supreme Court that "Exercising a power, such as that under Section 19 of Water Act, to show favour to a particular industry and granting it exemption from the provisions of a prohibitory order under Section 3(2)(v) of Environment (Protection) Act against establishment of polluting industries in an area, would be a violation of the right to clean water under Article 21 besides being arbitrary and contrary to public interest". The relevant Paragraphs 44, 45, 46 and 69 of the aforesaid judgment are quoted below:-- "44. Coming to the provisions of the Water Act, 1974, it is clear that in view of Sub-sections 29(e), 2(k) read with Sections 17 and 18 of the Water Act, the fundamental objective of the statute is to provide clean drinking water to the citizens. The relevant Paragraphs 44, 45, 46 and 69 of the aforesaid judgment are quoted below:-- "44. Coming to the provisions of the Water Act, 1974, it is clear that in view of Sub-sections 29(e), 2(k) read with Sections 17 and 18 of the Water Act, the fundamental objective of the statute is to provide clean drinking water to the citizens. Having laid down the policy prohibiting location of any industries within 10 km under GO No. 111, dated 8-3-1996, the State could not have granted exemption to the 7th respondent Industry, nor to any other industry, from any part of the main GO No. 111 dated 8-3-1996, Section 19 permitted the State to restrict the application of the Water Act, 1974 to a particular area, if need be, but it did not enable the State to grant exemption to a particular industry within the area prohibited for location of polluting industries. Exercise of such a power in favour of a particular industry must be treated as arbitrary and contrary to public interest and in violation of the right to clean water under Article 21 of the Constitution of India. 45. The above reasoning given by us does not mean that exemption can be given to all industries within a particular radius of the reservoirs unmindful of the possible danger of pollution to the lakes. If fact, exemption granted even to a single major hazardous industry may itself be sufficient to make the water in the reservoirs totally unsafe for drinking water purposes. The Government could not pass such orders of exemption having dangerous potential, unmindful of the fate of lakhs of citizens of the twin cities to whom drinking water is supplied from these lakes. Such an order of exemption carelessly passed, ignoring the "precautionary principle", could be catastrophic. 46. Therefore, GO No. 153 dated 3-7-1997 granting exemption must be held to be without statutory backing and also wholly arbitrary and violative of Article 21. Points 1 and 2 are decided against the 7th respondent. 69. The learned appellate authority erred in thinking that because of the approval of plan by the Panchayat, or conversion of land use by the Collector or grant of letter of intent by the Central Government, a case for applying principle of "promissory estoppel" applied to the facts of this case. There could be no estoppel against the statute. 69. The learned appellate authority erred in thinking that because of the approval of plan by the Panchayat, or conversion of land use by the Collector or grant of letter of intent by the Central Government, a case for applying principle of "promissory estoppel" applied to the facts of this case. There could be no estoppel against the statute. The industry could not therefore seek an NOC after violating decision of the Government. Point 4 is decided against the 7th respondent accordingly." 7. Learned Counsel for the appellant relied on the decision of the Hon'ble Supreme Court in the case of Gulam Rasool and Anr. v. State of Jammu and Kashmir and Anr., reported in AIR 1983 SC 1188, where the suit was filed for injunction against State and plaintiff was in possession of land belonging to State and growing trees thereon and though not perfected his title till date of suit, the Hon'ble Supreme Court held that the petitioner was entitled to remove the trees and six months' time was given to him to cut and remove trees and to deliver vacant possession to State. 8. This Court has gone through the pleadings as well as the evidence adduced by the parties along with learned Counsel for the parties. 9. Admittedly, the land is a Govt. land and the matter has been dealt with by the Court below in detail. The Sub- Divisional Officer concerned has not been joined as party. It has also not been shown that he was competent. The plaintiffs case is that he has been merely suggested by the Sub-Divisional Officer. The Govt. land is allotted under the Revenue Book Circular Part 4. Even if the Govt. land is transferred to the Municipal Corporation, such land can be dealt with only in accordance with law and not otherwise. The Court below has found that the premises was already in existence. If some repairs etc. are made, they do not confer any right on the appellant. The Court below has found that the plaintiff has failed to prove that the SDO concerned has given any permission or could give any permission. The Court below has considered the matter regarding construction of the premises in paras 15 to 20 of the order and has discussed the evidence of Surjit Navdeep (D.W. 1), Smt. Stuti Dadar (D.W. 2) and Smt. S. Jaggi (D.W. 3). The Court below has considered the matter regarding construction of the premises in paras 15 to 20 of the order and has discussed the evidence of Surjit Navdeep (D.W. 1), Smt. Stuti Dadar (D.W. 2) and Smt. S. Jaggi (D.W. 3). Smt. Dadar (D.W. 2) in her statement stated that she was posted as Asstt. Teacher and resided in the suit premises from 1965 to 1968. Her statement has been corroborated by Surjit Navdeep (D.W. 1) who stated that when he was posted in the school in the year 1968, Smt. Dadar was residing in the suit premises. The statement Smt. Dadar (D.W. 2) has also been corroborated by Smt. Jaggi (D.W. 3) who in her statement stated that when she was posted in the School as Lecturer in the year 1966, Smt. Dadar was residing in the suit premises. The Court below found that the house was already in existence and it was not constructed by the plaintiff. 10. The issue Nos. 2 and 4 have been considered by the Court below in paras 21 and 22 of the order. It is stated that in para 15 of the evidence of the plaintiff, the plaintiff himself has admitted that he raised a demand of Rs. 20,000/- as damages for leaving the house which goes to show that the plaintiff wants to retain the possession on one count or other. 11. Issue Nos. 5 and 8 have been considered in para 23 of the order. The Court below has found that since neither the suit land has been allotted to the plaintiff nor the construction of the suit premises has been made by him, there is no illegality in recovering the amount of rent from the salary of the plaintiff. The Court below also found that the plaintiff was not entitled to receive Rs. 15,015/- from the defendants. 12. While deciding issue No. 7, the Court below has considered the judgment of the Hon'ble Supreme Court in Gulam Rasool and Anr. (supra) and has found that since the plaintiff has not been able to get title on the basis of adverse possession over the suit premises which is situated over the Govt. land, he is not entitled for decree of injunction. 13. In view of the discussion made hereinabove, in the opinion of this Court, there is no infirmity in the impugned judgment. The appeal fails and is dismissed. 14. land, he is not entitled for decree of injunction. 13. In view of the discussion made hereinabove, in the opinion of this Court, there is no infirmity in the impugned judgment. The appeal fails and is dismissed. 14. However, in the ends of justice, time till 30-11-2002 is given to the appellant to deliver the possession of the suit house, failing which coercive steps will be taken.