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2011 DIGILAW 38 (MP)

Neo Teric Developers Pvt. Ltd. v. State of M. P.

2011-01-10

S.N.AGGARWAL

body2011
ORDER (ORAL) Heard on admission. With the consent of counsel for both the parties, this writ petition has been taken up for final disposal at motion stage itself. 1. The petitioners are alleged to have purchased the land in question from private parties by virtue of three different duly registered sale deeds dated 26th July, 2004, 16th July, 2009 and 7th August, 2009 respectively. After purchasing the said land, they took NOC from the Nazul Officer in respect of the land in question on 4th July, 2006 and 26th May, 2009 respectively. Thereafter, demarcation report was submitted by the Revenue Inspector before the Tahsildar, Gwalior (MP) on 10th August, 2009. Development permission approval was granted to the petitioners by Gwalior Development Authority, Gwalior in respect of land bearing Survey Nos. 25/2, 29/4, 36/2, 27/1, 38/1, 25/3, 29/1, 30/2, 31/1, 33/2, 36/1, 29/3, 37/2 and 38/2 situated at Village Kedarpur, District Gwalior (M.P.). Permission was granted by Town and Country Planning, Gwalior vide order dated 7th July, 2009 in respect of land of Survey Nos. 29/3, 38/2, 31/2, 25/2, 29/4, 36/2, 37/2, 38/1, 25/3, 29/1, 30/2, 33/2 and 36/1 at Village Kedarpur, District Gwalior (MP). Thereafter, order of diversion for residential use was passed by the SDO, Gwalior on 17th December, 2009 in respect of Survey Nos. 29/3, 37/2, 38/2, 25/2, 29/4, 36/2, 37/1, 38/1, 25/3, 29/1, 30/2, 31/1, 33/2 and 36/1 at Village Kedarpur, District Gwalior (MP). After all these were done, Commissioner Municipal Corporation, Gwalior vide its order dated 5th April, 2001 granted permission to the petitioners for development of colony and construction in respect of land of survey Nos. 29/3, 37/1, 31/1, 38/2, 2512, 29/4, 36/2, 37/2, 38/1, 25/3, 29/1, 30/2, 33/2 and 36/1 belonging to the petitioners at Village Kedarpur, District Gwalior (MP). 2. After permission for development of colony and construction was granted by the Commissioner, Municipal Corporation, Gwalior to the petitioners, the learned ADM vide one of the impugned orders dated 3rd December, 2010 directed to SDO, Gwalior to carry out necessary correction of entries in the Revenue record in respect of land of survey Nos. 25, 29, 30, 32, 33, 36, 37 and 38 with further directions to him to get the construction of illegal colony stopped and registry, mutation and diversion of the land of aforesaid Survey numbers also to get stopped in proceedings to he taken by him suo-moto. 25, 29, 30, 32, 33, 36, 37 and 38 with further directions to him to get the construction of illegal colony stopped and registry, mutation and diversion of the land of aforesaid Survey numbers also to get stopped in proceedings to he taken by him suo-moto. On 3rd December, 2010, ADM passed an order directing the Tehsildar, Gwalior that he should take necessary steps for removal of encroachment in respect of land of Survey Nos. 31/3 and 31/2-ka. Thereafter, on 9.12.2010, Tahsildar issued notices to the petitioners in respect of land of Survey Nos. 25, 29, 30, 32, 33, 36, 37 and 38 stating that the land of these khasras were recorded as Charnoi in Sammat 1997 and was got wrongly recorded by the petitioners as private land, putting them to notices for correction of entries in this regard. 3. Mr. V.K. Bharadwaj, learned Senior Advocate appearing on behalf of the petitioners has argued that the Revenue Authorities could not have passed the impugned orders because according to him NOC regarding character of land has already been issued to the petitioners by the Nazul Officer after the said land was purchased from private agriculturists. 4. On the other hand, Mr. P.N. Gupta, the learned Govt. Advocate appearing on behalf of the respondents, has submitted that the Commissioner, Municipal Corporation, Gwalior while granting permission to the petitioners for development of colony and construction seems to have ignored that the land in question in regard to which said permission was granted, was a Charnoi land. Further, submission of the learned Govt. Advocate is that the impugned orders have been passed by the Tahsildar exercising judicial authority and, appropriate remedy for the petitioners against the said orders is by way of appeal provided under the Land Revenue Code. 5. Mr. Bharadwaj, the learned Senior counsel appearing on behalf of the petitioners has countered the aforementioned objection of the learned Govt. Advocate by submitting that the impugned orders have been passed by the learned Tahsildar without affording any opportunity of hearing to the petitioners and, therefore, the petitioners have no opportunity before the Tahsildar to convince him that the land in question in regard to which permission for development and construction was granted by Commissioner, Municipal Corporation, Gwalior was not a Charnoi land and, therefore, development and construction can take place on the said land. 6. The learned Govt. 6. The learned Govt. Advocate in reply to the above submission of the petitioner's learned senior counsel, submits that before passing the impugned orders the Tahsildar had taken into account the reply submitted by the petitioners to the show cause notice and, therefore, according to him, it cannot be said that opportunity of hearing was not given to the petitioners. 7. I have given my anxious consideration to the above rival arguments advanced by learned counsel for both the parties and upon considering the same, I am of the view that only short issue arises for consideration is whether the land in question was a Charnoi land or whether construction and development for residential colony can take place on the said land or not? The case of the petitioners is that they have not been heard by the Tahsildar before passing the impugned orders. 8. Whether the land in question is Charnoi land or not can be taken care of by remanding the case back to the concerned Revenue Authority for passing a fresh specific order regarding character of the land in question as to whether the said land is Charnoi land or not after affording opportunity of hearing to the petitioners. By remanding the case to the concerned authorities of the respondents, the petitioners will get opportunity to show that the land in question is not a Charnoi land as claimed by them as they admittedly purchased the said land from private agriculturists and have also obtained NOC from Nazul Officers. 9. In view of the foregoing and having regard to the peculiar facts and circumstances of the present case, the impugned orders are hereby set aside. This writ petition is finally disposed of with liberty to the petitioners to make a comprehensive representation regarding their grievance in relation to the character of the land before the competent Revenue Authorities, i.e. Divisional Commissioner, Gwalior within ten days from today with directions to the Divisional Commissioner, Gwalior to decide the said representation of the petitioners regarding character of their land as to whether the said land is a Charnoi land or not by a speaking order after giving personal hearing to the petitioners in the matter as expeditiously as possible but not later than eight weeks of receipt of representation from them alongwith certified copy of this order. It is made clear that the Divisional Commissioner, Gwalior may either decide the representation of the petitioners himself or get it decided by any authority subordinate to him as per law. The petitioners shall not make any development or construction in the land in question till the time their representation is decided afresh. Parties are left to bear their own costs.