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Madhya Pradesh High Court · body

2013 DIGILAW 1385 (MP)

Harak Singh Chouhan v. State of M. P.

2013-11-13

N.K.MODY

body2013
ORDER This order shall also govern the disposal of R.P. No. 148/12 and W.P. Nos. 2180/12, 2240/12, 3219/12, 3584/12, 3586/12, 3587/12, 3704/12, 3705/12, 3706/12, 3792/12, 3895/12, 3896/12 and 3911/12. 2. In all the petitions the relief prayed is identical and respondents are also one and the same. In the petition the prayer is to quash the notice dated 22-2-2012 issued by Tehsildar Nazool under section 248 of MPLRC. 3. Learned counsel for the petitioner submits that petitioner in all the petitions are in occupation of the property in dispute which they have purchased from one Satya Narayan Kashyap vide registered sale-deed in the year 2002. It is submitted that since then petitioners are in occupation of the property in dispute as owner, therefore petitioners are not the encroachers. It is submitted that since the petitioners are the owners of the property in question, therefore respondents be restrained to take action on the basis of notice issued under section 248 of MPLRC. 4. Reply has been filed by the respondents, wherein it is alleged that the land bearing various survey Nos. situated at Village Sukhaliya was acquired by the State in the year 1963 for Industrial Training Institute. The total land which was acquired was 15.01 Acres. Award was passed in Case No. 02/62 and the compensation was paid by the State. It is submitted that initially Bhagirath was the owner of the property while petitioners are alleging that petitioners have purchased the property from Satya Narayan Kashyap while Satya Narayan Kashyap was never the owner of the property. It is alleged that Satya Narayan filed the civil suit in the Court of 7th Civil Judge, Class-I, Indore which was numbered as 105-A/03 which was dismissed vide judgment dated 13-1-2004, against which an appeal was filed which was pending in the Court of 13th ADJ Indore as regular Appeal No. 3-A/04 and was dismissed vide judgment dated 4-2-2004. It is further submitted that second appeal No. 130/04 was also dismissed by this Court vide judgment dated 19-7-2004. It is submitted that earlier also Satya Narayan filed a suit through power of attorney in the year 1989 which was numbered as 25-A/89 in the Court of 5th Civil Judge, Class-II, Indore and was dismissed vide judgment dated 5-8-1994. It is submitted that petitioners are having no title over the property in question. It is submitted that earlier also Satya Narayan filed a suit through power of attorney in the year 1989 which was numbered as 25-A/89 in the Court of 5th Civil Judge, Class-II, Indore and was dismissed vide judgment dated 5-8-1994. It is submitted that petitioners are having no title over the property in question. It is submitted that after issuance of notice issued under section 248 of MPLRC orders were passed and in compliance of that possession was also taken, but thereafter again the petitioners have encroached. It is submitted that petition be dismissed. 5. Learned counsel for the petitioner argued at length and submits that since the petitioners are in settled possession, therefore the petitioners cannot be dispossessed illegally. It is submitted that since the State Government has legalized number of illegal colonies, therefore the petitioners are entitled to get the benefit of that scheme. It is submitted that petition be allowed and necessary directions be issued. 6. Learned counsel for the respondents submit that respondent No. 3 has got the properties inspected which are in dispute in all the petitions and it is found that petitioners in some of the petitions are residing and in some of the petitions, tenants are in occupation from where they are carrying their business. It is submitted that occupation of the petitioners are illegal as after removal, they have again encroached, therefore the respondents are free to take appropriate action in accordance with law. 7. In the matter of State of U.P. vs. Manohar, (2005) 2 SCC 126 while dealing with Article300-A of Constitution of India Hon'ble Apex Court observed that deprivation of property in a manner unknown to law. It was also observed that State is unable to produce even a scrap of evidence including that land of respondent had been taken over or acquired in any manner known to law or that he had been paid any compensation in respect of such acquisition. It was also observed that despite suggestion to the contrary, State persisting in opposing claim of respondent, which appeared to be just and reasonable. It was also observed by the Hon'ble Apex Court that in the light of attitude of State and the evidence, appeal filed by the State is dismissed with exemplary costs against State and interest @ 9% P.A. was directed to be paid on compensation payable to the claimant. It was also observed by the Hon'ble Apex Court that in the light of attitude of State and the evidence, appeal filed by the State is dismissed with exemplary costs against State and interest @ 9% P.A. was directed to be paid on compensation payable to the claimant. In the matter of Avinash Pathak vs. State of M.P., 2012(2) MPLJ 195 in a case where the intention of the State was to store water and preserve it for supply to the public at large during summer period, this Court observed that it was not permissible to enter over the land of the petitioner by starting construction over it without its acquisition. 8. At the time of hearing more than 200 persons were present in Court who are resident of the same locality which is under encroachment. Number of photographs are filed, which shows that in the locality well constructed houses are situated. From the photographs it appears that all the houses are having electrical connection. Electrical poles are also installed. List of occupiers has been filed and it is alleged that all of them are having Ration Card. Name of petitioners/occupiers are finding place in the voter list. Water connection has been provided by the Local Government. House number has also been give to each of the occupiers. Property tax is being collected. Adhar Card has also been issued. Similarly BPL Cards have also been issued to the occupier of which documents are filed. 9. In the City of Indore there are 437 colonies which have been identified by the Local Administration as illegal colonies. Name of the petitioner's colony which is known as Ambe Nagar is shown at Sr. No. 254. 10. The petition has been filed by 15 petitioners. Tehsildar Nazool has also informed that most of the petitioners were evicted, but they have again occupied the premises, which shows that the State is not in a position to protect the property which was acquired for Educational Institute, which has already been established. It is surprising that the property which was acquired under the provisions of Land Acquisition Act after payment of compensation cannot be saved. In the facts and circumstances of the case petition filed by the petitioners is disposed of with the following directions:-- 1. It is surprising that the property which was acquired under the provisions of Land Acquisition Act after payment of compensation cannot be saved. In the facts and circumstances of the case petition filed by the petitioners is disposed of with the following directions:-- 1. If the respondents are of the view that petitioners and other occupiers of the said colony are encroaches and encroachment has to be removed, then one type treatment shall be given to all the encroachers and no pick and choose method should be adopted. 2. If the State is of the view that it is impossible or impracticable for the State to remove the encroachment as has been stated by Smt. Purnima Singhi, Tehsildar Nazool that petitioner in all 15 petitions were removed, but again encroachment has been made by the same petitioners, then the State should formulate the scheme to regularize the encroachment, for which State can charge the value of the land occupied by each of the occupier on the basis of current market value. 3. For taking a decision before taking any further action, matter shall be placed before the Revenue Commissioner, who shall take the final decision in consultation with the Government. 11. With the aforesaid, petition stands disposed of. Copy of the order be placed in the record of connected cases.