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2014 DIGILAW 455 (MP)

Krishnanand v. State of M. P.

2014-04-24

A.M.KHANWILKAR, K.K.TRIVEDI

body2014
ORDER (Oral) Khanwilkar, C.J. -- 1. This review petition has been filed by seven petitioners, out of whom first six petitioners, first approached the apex Court challenging the order passed by the Division Bench of this Court on 27th January, 2014 in Public Interest Litigation bearing Writ Petition No.957/2014 (Vijay Kumar Khandelwal v. State of M.P. and others). The said Special Leave Petition, however, has been dismissed with liberty to the review petitionera No.1 to 6 to approach this Court by way of review petition, if so advised. Accordingly, this review petition has been filed. 2. As aforesaid, review petitioner No.7 was not party to the Special Leave Petition filed before the apex Court. As regards that petitioner, we have our own doubt whether it could pursue remedy of review petition after rejection of Special Leave Petition upholding the order dated 27th January, 2014 passed by this Court in Writ Petition No.957/2014 (PIL), assuming that the said petitioner was competent to file review petition being affected by the outcome of order dated 27th January, 2014. 3. It is noticed that the said petitioner was allotted land bearing Khasra No.7/1 admeasuring 40,000 square feet vide order dated 10th May, 2007 by the Sub-Divisional Officer, Khandwa for the limited purpose of undertaking tree plantation in the said land. The said order is at page No.87 of the review petition paper book. In that case, the review petitioner No.7, by no stretch of imagination, can justify erection of any structure on the land so allotted on strict condition of using it only for plantation of trees and no other activity. 4. It is also noticed that each of the petitioners have been served with show cause notices both by the authority under the Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Act, 1964 (hereinafter referred to as “the Act of 1964”) as also under the provisions of the M.P. Land Revenue Code, 1959 (in short “the Code of 1959”). Without responding to the said notices these review petitioners have directly approached this Court by way of review petition. 5. Considering the allotment of land for specific purpose to review petitioner No.7 and the non-conforming user by it, both authorities were justified in proceeding against the structures erected on such land under section 248 of the Code of 1959 and Section 19 of the Act of 1964, as the case may be. 6. 5. Considering the allotment of land for specific purpose to review petitioner No.7 and the non-conforming user by it, both authorities were justified in proceeding against the structures erected on such land under section 248 of the Code of 1959 and Section 19 of the Act of 1964, as the case may be. 6. The argument of the petitioners, however, is that, section 248 of the Code of 1959 cannot be invoked in view of the recent amendment being Act No.34 of 2013, which has come into force with effect from 16th September, 2013 whereby section 162 has been inserted in the Code of 1959. According to the review petitioners, after coming into force of section 162, the authorities can proceed to take action only after exploring the possibility of disposing of the land in the manner prescribed by the said provision and the Rules framed thereunder. In other words, it is not open to the State Government to straightway disposes the review petitioners from the land, although it is the land owned by the State Government. To buttress this argument, reliance is placed on the Statement of Objects and Reasons of the Amending Act No.34 of 2013 . 7. For analysing this contention, we may first reproduce section 248 of the Code of 1959, as is applicable to the present case. The same reads, thus : “248. Penalty for unauthorisedly taking possession of land. -- (1) Any person who unauthorisedly takes or remains in possession of any unoccupied land, abadi, service land or any other which has been set apart for any special purpose under section 237 or upon any land which is the property of Government [or any authority, body corporate, or institution constituted or established under any State enactment] may be summarily ejected by order of the Tahsildar and any crop which may be standing on the land and any building or other work which he may have constructed thereon, if not removed by him within such time as the Tahsildar may fix shall be liable to forfeiture. Any property so forfeited shall be disposed of as the Tahsildar may direct and the cost of removal of any crop, building or other work and of all works necessary, to restore the land to its original condition shall be recoverable as an arrear of land revenue from him. Any property so forfeited shall be disposed of as the Tahsildar may direct and the cost of removal of any crop, building or other work and of all works necessary, to restore the land to its original condition shall be recoverable as an arrear of land revenue from him. Such person shall also be liable at the discretion of the Tahsildar to pay the rent of the land for the period of unauthorised occupation at twice the rate admissible for such land in locality and to a fine which may extend to [twenty percentum of the market value of such encroached land]/[twenty five thousand rupees] and to a further fine which may extend to [five hundred rupees in non urban area and two thousand rupees in urban area]/[two hundred rupees] or every day on which such unauthorised occupation or possession continues after the date of first ejectment. The Tahsildar may apply the whole or any part of the fine to compensate persons, who may in his opinion, have suffered loss or injury from the encroachment : Provided that the Tahsildar shall not exercise the powers conferred by this Subsection in regard to encroachment made by buildings or works constructed -- (i) in the Mahakoshal Region : (a) in areas other than the Merged States, before the first day of September, 1917; (b) in the Merged States, before the third day of April, 1950; (ii) In the Madhya Bharat Region, before the fifteenth day of August, 1950; (iii) in the Vindhya Pradesh Region, before the first day of April, 1955; (iv) in the Bhopal Region, before the eighth day of November, 1933; and (v) in the Sironj region, before the first day of July, 1958. Explanation : For the purposes of this subsection “Merged States” shall have the meaning assigned to it in the Madhya Pradesh Merged States Laws (States) Act, 1950 (XII of 1950). [(1-A) On a resolution duly passed by the Gram Panchayat in respect of any unauthorised possession, the Tehsildar shall start and complete the proceedings under this section within thirty days from the date of receipt of the information of such resolution and shall communicate the action taken by him to the Gram Panchayat.] (2) [xxx] [Omitted in M.P. by M.P. Act 42 of 2011]. Sub-section (2) as applicable in Chhattisgarh only -- “(2) It shall not be competent to the Tahsildar to impose a fine of amount exceeding [one thousand five hundred] rupees/ [ten thousand rupees] but if in any case he considers that circumstances of the case warrant imposition of a higher fine, he may refer the case to the Sub-Divisional Officer who shall, then, after giving the party concerned an opportunity of being heard, pass such orders in respect of fine as he may deem fit.” [(2-A) If any person continues in unauthorised occupation or possession of land for more than seven days after the date of order of ejectment under sub-section (1), then without prejudice to the fine that may be imposed thereunder the Sub-Divisional Officer shall cause him to be apprehended and shall send him with a warrant to be confined in a civil prison for a period of fifteen days in case of first ejectment and [six months]/[three months] in case of second or subsequent ejectment : Provided that no action under this subsection shall be taken -- (i) unless a notice is issued calling upon such person to appear before the Sub-Divisional Officer on a day to be specified in the notice and to show cause why he should not be committed to the civil prison; (ii) in respect of encroachments on Government and Nazul lands for the settlement of which the Government have issued orders from time-to-time : Provided further that the Sub-Divisional Officer may order the release of such person from detention before the expiry of the period mentioned in the warrant if he is satisfied that the unauthorized possession has been vacated : Provided also that no woman shall be arrested or detained under this sub-section. (2B) The State Government may make rules for the purpose of carrying into effect the provisions of sub-section (2A))]. (3) (xxx) (4) (xxx)” 8. We may now turn to Section 162 of the Code of 1959, as inserted by Amending Act No.34 of 2013. The same reads, thus : “162. (2B) The State Government may make rules for the purpose of carrying into effect the provisions of sub-section (2A))]. (3) (xxx) (4) (xxx)” 8. We may now turn to Section 162 of the Code of 1959, as inserted by Amending Act No.34 of 2013. The same reads, thus : “162. Disposal of certain land in unauthorised possession.-- (1) Notwithstanding anything contained in section 248 and subject to rules made in this behalf, any land belonging to the State Government in such areas as notified in the official Gazette by the State Government, which is in unauthorised possession, shall be disposed of for agricultural and residential purposes, in government lessee rights by the Collector to such extent and on payment of such amount of premium and lease rent as may be prescribed. (2) If any land is disposed of under sub-section (1), all proceedings pending in any Revenue Court under section 248 in respect of such land shall stand abated.” We may also advert to the Statement of Objects and Reasons for which this Amending Act No.34 of 2013 came into being. The same reads, thus : “Statement of Objects and Reasons. -- It is experienced that in some areas, a large number of people are in unauthorised possession of Government land for a long time which is causing hardship to them. It has been decided by the Government that such land shall be identified and notified in the official Gazette and shall be allotted in government lessee rights in such manner as may be prescribed. Therefore, a new section 162 is proposed to be inserted in the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959).” 9. Reverting to Section 248 of the Code of 1959, there is hardly any doubt that any person occupying the Government land unauthorizedly can be summarily ejected by order of the Tahsildar. Admittedly, except review petitioner No.7 none of the other review petitioners are in a position to point out that they are in possession of the land bearing Khasra No.7 or Khasra No.2, as the case may be, because of allotment of that land in their favour by way of sale, lease or licence, etc. In that sense, each of those petitioners are in unauthorized occupation of the land, be it Khasra No.7 or part thereof as also Khasra No.2. In that sense, each of those petitioners are in unauthorized occupation of the land, be it Khasra No.7 or part thereof as also Khasra No.2. That indisputable fact empowers the Tahsildar to eject the review petitioners from the Government land occupied by them. 10. As regards review petitioner No.7 is concerned, since it has breached the condition on which the land was allotted, has made itself liable for order of eviction. In any case, no protection is available to the structure constructed by review petitioner No.7 relying on the allotment dated 10th May, 2007. 11. It is in this backdrop, the review petitioners have invoked section 162 of the Code, which has come into force by virtue of Amending Act No. 34 of 2013. No doubt section 162 opens with the non-obstante clause. However, the said provision would come into play only in respect of lands belonging to the State Government, which have been notified in the official Gazette by the State Government for that purpose. It is nobody’s case that Khasra No.7 or Khasra No.2, which are the subject matter of this proceeding, has been notified for the purposes of section 162 of the Code. In absence of such Notification, section 162 will have no application to such land. Further, section162 is applicable only to rights of occupants in the specified land and not to the unauthorized structures erected thereon. 12. Counsel for the review petitioners relying on the Statement of Objects and Reasons, would then contend that until such Notification is issued, action under section 248 of the Code of 1959 cannot be resorted to by the authority. We are afraid, the scheme of section 162, as enacted, does not permit us to take such a view. Accepting this argument will be nothing short of rewriting section 162 of the Code. No doubt, the Statement of Objects and Reasons predicates that the Government has decided that land shall be identified and notified in the official Gazette and shall be allotted in Government lessee rights in such manner as may be prescribed. However, that would be in respect of some areas where large number of people are in unauthorized possession of Government land “for a long time” and their eviction may result in hardship to them. That is a matter of policy decision of the Government to identify and notify lands on case to case basis. However, that would be in respect of some areas where large number of people are in unauthorized possession of Government land “for a long time” and their eviction may result in hardship to them. That is a matter of policy decision of the Government to identify and notify lands on case to case basis. Section 162 cannot be invoked as a general rule that “every” Government land across the State should be notified before initiating action under section 248 of the Code or for that matter to put on hold proceedings under section 248 of the Code until issuance of notification under section 162 of the Code in respect of the land on which such unauthorized structure is standing. Suffice it to observe that section 162 of the Code, as introduced by Amending Act No.34 of 2013, would come into play only upon issuance of Notification in the official Gazette concerning the specified land and not to other lands belonging to the State Government. In our opinion, therefore, no fault can be found with the action initiated by the Naib Tahsildar under section 248 of the Code for removal of all the encroachments and summarily ejecting the unauthorized occupants on the subject lands. 13. Counsel for the review petitioners then placed reliance on the provisions of Act of 1964 to contend that the Notification under section 3(1) and at best 3(3) of that Act has been issued only in respect of Khasra No.7. In the first place, that Notification is not the subject matter of challenge in the present review petition or for that matter by way of any other appropriate proceeding. The fact that the said Notifications are vague or that are expansive and transcend beyond the parameters specified by section 3 of the Act, this grievance, therefore, cannot be tested in the present proceeding. 14. The fact remains that at least Khasra No.7 has been notified as ‘State protected site’. To get over this position, counsel for the review petitioner would then rely on section 16 of the Act of 1964 to contend that in absence of Notification under section 16 of that Act, the authority could not have proceeded with the action of removal of structures and dispossessing the review petitioners from the land in question. To get over this position, counsel for the review petitioner would then rely on section 16 of the Act of 1964 to contend that in absence of Notification under section 16 of that Act, the authority could not have proceeded with the action of removal of structures and dispossessing the review petitioners from the land in question. In other words, action under section 19 of the Act cannot be resorted to until issuance of Notification under section 16 of the Act of 1964. In the first place, even if this argument of the review petitioners is to be accepted as correct, the fact remains that the Notification under section 3(1) has been issued in the year 1984, section 3(3) Notification has been issued in the year 1995 and the final Notification has been issued in the year 2005. 15. No doubt, section 19 of the Act of 1964 has prospective application to the construction of any building erected after coming into force of such Notification. In the present case, although the petitioners have asserted in the review petition that they are in possession for quite some time and in some cases for more than 50 years, have not produced any documentary evidence to substantiate that claim. The oldest document which has been produced on record pertaining to the concerned review petitioner is of the year 1995. On the other hand, inspection report prepared by the Archaeological Office, unambiguously mentions that all the structures in the area have been erected in last 4-5 years by influential persons. The fact remains that the review petitioners have not been able to prima facie establish their claim that they are in possession of the disputed structures for more than 50 years, as is asserted in the review petition. In our opinion, therefore, there is no merit in the submission advanced on behalf of the review petitioners that the competent authority under the Act of 1964 cannot proceed in the matter or take any further precipitative action. 16. In our opinion, therefore, there is no merit in the submission advanced on behalf of the review petitioners that the competent authority under the Act of 1964 cannot proceed in the matter or take any further precipitative action. 16. Assuming for the sake of argument that the competence of the appropriate Authority under the Act of 1964 is in doubt, no express provision in the Act of 1964 has been brought to our notice, which curtails the authority of the Tahsildar invested by virtue of section 248 of the Code of 1959 to proceed in the matter against unauthorized occupants and to summarily eject them from the land belonging to the State Government. Indisputably, even the Tahsildar has issued notices to the petitioners for removing the structures from the land and to vacate the land belonging to the State Government forthwith. That process, in any case, can be taken forward to its logical end. 17. Learned counsel for the review petitioners then relied on the proviso to sub-section (1) of section 248 of the Code of 1959 to contend that the spirit behind the Act No.34 of 2013 is analogous to the spirit contained in proviso to sub-section (1) of section 248 of the Code. Moreover, the structures erected by the review petitioners will have to be treated as protected and falling in the excepted category provided in the said proviso. As aforesaid, none of the petitioners have been able to even prima facie substantiate by producing any official document disclosing the fact that their structure was in existence at least prior to April, 1955. In absence thereof, even the proviso under sub-section (1) of section 248 pressed into service will be of no avail to the review petitioners. 18. It was also argued that the competent authority has issued eviction notices in respect of structures standing on land bearing Khasra No.2 which was not the subject matter of Writ Petition No.957/2014. The argument though attractive at the first blush, will have to be stated to be rejected. It would have been a different matter if the argument was that the Tahsildar could not have proceeded in respect of structures standing on Khasra No.2 being a non-State Government land. Indisputably, even that land belongs to the State Government. The argument though attractive at the first blush, will have to be stated to be rejected. It would have been a different matter if the argument was that the Tahsildar could not have proceeded in respect of structures standing on Khasra No.2 being a non-State Government land. Indisputably, even that land belongs to the State Government. If so, the Tahsildar is competent to initiate action even in respect of that land, rather he is under legal obligation to summarily eject all the unauthorized occupants thereon. If that is the course of action adopted by the Tahsildar in Public Interest Litigation, such action should not only be upheld, but, also appreciated. Hence, this contention also fails and is rejected. 19. No other contention has been raised before us. 20. As a result, this review petition ought to fail, hence the same is rejected. .............