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Madhya Pradesh High Court · body

2016 DIGILAW 587 (MP)

Ashish Sharma v. Collector, Umaria

2016-07-21

ANURAG SHRIVASTAVA, RAJENDRA MENON

body2016
ORDER 1. This petition was filed by the petitioner in Public Interest and on 24.6.2015 the writ petition was disposed of with various directions which read as under : “We accordingly, pass following directions for disposing of this petition:- (i) The petition be treated as representation made to the Collector/Commissioner, Municipal Corporation, Umaria about encroachments on subject property. (ii) The Collector/Commissioner, Municipal Corporation, Umaria shall cause to make inquiry into this grievance and if they are convinced about the same, they will be obliged to take action against the encroachers and unauthorized structures to remove the said encroachments on the subject property with utmost dispatch by following due process and giving opportunity to all concerned. (iii) If the Collector/Commissioner, Municipal Corporation, Umaria have any difficulty in taking follow-up action as per the direction issued by them, they must report that fact to this Court forthwith and seek appropriate directions, as may be required. (iv) If the Authority intends to proceed to remove/demolish unauthorized structure(s) standing on the subject property and apprehends any threat from the encroachers with regard to that action, may request Superintendent of Police, Umaria to provide sufficient police force for security arrangement. If such request is made, the Superintendent of Police shall personally ensure that adequate police force is deputed on the site, on the date and time notified by the authority for proceeding with the removal/demolition of unauthorized structure(s) standing on the subject property. (v) Any person aggrieved by the decision or action of the authorities will be free to challenge the same by way of appropriate proceedings, if so advised, before the Court of competent jurisdiction. (vi) If any adverse order is passed by the Collector/Commissioner, Municipal Corporation, Umaria, the affected person(s) be given one week’s time before taking action on the basis of that order to enable the concerned person(s) to assail that order by way of appropriate proceedings before the Court of competent jurisdiction. (vii) After removal/demolition of unauthorized structure(s), the Collector/Commissioner, Municipal Corporation, Umaria shall cause to initiate proceedings for recovery of compensation/ damages for unauthorized user of the public property as per rules and recover that amount from the concerned occupant of the unauthorized structure, in accordance with law and as arrears of land revenue. Action taken report be filed by the Collector/Commissioner, Municipal Corporation, Umaria in this Court, on or before 27.8.2015. Action taken report be filed by the Collector/Commissioner, Municipal Corporation, Umaria in this Court, on or before 27.8.2015. If such report is not filed, the matter be notified on 10.9.2015 under caption “Directions” for passing appropriate orders. Liberty is given to the petitioner to move this Court if the action taken report is deficient or discloses that complete action has not been taken to remove all the unauthorized occupants/structures. This order shall be carried out promptly by all concerned in its letter and spirit. Subject to above, the petition and pending interim application(s) filed therein, be treated as disposed of.” 2. Thereafter reports were submitted by the State Government from time to time indicating the action taken, initially on 4.1.2016 by way of Action Taken Report, it was pointed out that the competent authority has decided to constitute a Joint Team to evaluate the aspects of encroachment. The Team conducted extensive survey of the area and on 19.12.2015 various discrepancies were found which was evidenced in the form of a Panchnama in document No.B, wherein existence of encroachment near Old Bus Stand to N.H.78 Road, Hospital Tiraha to N.H. 78 Road, Gandhi Chowk to Rampuri Tiraha Road and Ranvijay Chowk to N.H.78 Road were indicated and details of about 24 encroachments were pointed out and it was reported that action is being taken for removal of these encroachment. Thereafter on 11.2.2016 I.A. No.1922/2016 was filed seeking four weeks further time to take action for removing the encroachments. It was also indicated in the report vide page No.5 that certain encroachments detailed therein have been removed. In this document removal of about 12 encroachments have been indicated and at page No.6 details of about 13 encroachments which was still in existence were indicated and it was said that efforts are being made for removal of these encroachments after following the due process of law. In this document removal of about 12 encroachments have been indicated and at page No.6 details of about 13 encroachments which was still in existence were indicated and it was said that efforts are being made for removal of these encroachments after following the due process of law. Subsequently on 17.3.2016 vide I.A. No.3840/2016 another action taken report have been filed along with an affidavit of the Chief Municipal Officer, Municipal Council Umariya and in Annexure R-1 steps taken in the matter of 6 encroachments have been indicated; for example it is indicated that with regard to encroachments made by one Shri C.K. Dubey, which was between Old Bus Stand to N.H.78 Road, the matter is subjudice in the Court of Naib-Tahsildar in Revenue Case No.40/A-68-2015-2016, therefore, it was explained till finalization of this revenue proceedings no further action can be taken. With regard to one Kamaal Khan it was indicated that the encroachment had been removed. Similarly details in all the six cases were supplied by the competent authority in Annexure R-1 indicating to what extent encroachments have been removed and to what extent the encroachments could not be removed and the reasons for the same, being pendency of revenue proceedings before various statutory authorities or the Courts. 3. However, petitioner by filing two applications I.A.No.4079/2016 and another counter affidavit along with this application makes a serious complaint that encroachments have not been removed and with regard to encroachments made by Shri C.K. Dubey and making construction over a Nala, Photographs Annexure P-5 have been filed to say that the contention of the State Government that encroachments have now been removed is not correct. That apart, protection is sought for by the petitioner by saying that one Tehsildar Rakesh Chaurasia have initiated proceedings against the petitioner under section 248 of MPLR Code. It is stated that petitioner with his mother are staying in the house which is constructed 35 years back and therefore, the authorities are taking action with bias and prejudice against him. Accordingly, complaint now made by the petitioner in I.A. No.4079/2016 and the counter affidavit filed along with the said application are two, one with regard to non-removing of encroachment of C.K. Dubey and another about action taken against the petitioner under section 248 of MPLRC. 4. Accordingly, complaint now made by the petitioner in I.A. No.4079/2016 and the counter affidavit filed along with the said application are two, one with regard to non-removing of encroachment of C.K. Dubey and another about action taken against the petitioner under section 248 of MPLRC. 4. Shri Swapnil Ganguly, Government Advocate explains the position and points out that so far as C.K. Dubey is concerned, the encroachment cannot be removed for the present, until and unless the revenue case filed by him is not decided and with regard to counter action taken against petitioner, Shri Swapnil Ganguly invites our attention to the averment made by the petitioner in para 10 of his application I.A. No.4079/2016 and the counter affidavit filed goes to show that the petitioner has constructed the house on a patta granted to him which seems to have expired and it is petitioner’s own contention in this affidavit that he has applied for permanent lease for this area and, therefore, the removal of encroachment against the petitioner is said to have been tainted with mala fide. 5. We are not impressed with aforesaid complaint made by petitioner. On analysis of complaint and on perusal of material available on record we find that almost all the encroachments have been removed and in such cases were encroachments have not been removed they are pending consideration or subjudice before various statutory authorities on the basis of the objections and complaint raised by the persons concerned who has been noticed to remove the encroachments. This Court while passing the order on 24.6.2015 vide conditions as are detailed hereinabove in clause 5 and 6 have given liberty to the aggrieved person for initiating appropriate proceedings before the competent Court of jurisdiction in case they have any grievance with regard to removal process initiated and accordingly, if being aggrieved by this, the encroachers have initiated proceedings. Now ignoring the same, we cannot direct for removal of the encroachments. Removal of any further existing encroachment which is subjudice before any authority would be undertaken by the Corporation after the proceedings came to an end or attain finality. 6. Now ignoring the same, we cannot direct for removal of the encroachments. Removal of any further existing encroachment which is subjudice before any authority would be undertaken by the Corporation after the proceedings came to an end or attain finality. 6. As far as protection, and contention of the petitioner about mala fide and bias are concerned, on petitioner’s own showing he has constructed a house on temporary lease said to have been granted to him and now it has expired and an application for permanent lease is pending and only a show cause notice under section 248 of MPLRC issued to him, the petitioner should reply to the show-cause notice, and if any adverse order is passed, the petitioner has statutory remedy under section 44 to file first appeal and second appeal and thereafter under section 50 to file a revision before the board of revenue under the MPLRC and in view of above we see no case made out for indulgence into the matter now in these proceedings. 7. On analysis of the material we are satisfied that the State Government and the authorities of the Municipal Corporation, Umariya have taken action as directed by this Court on 24.6.2015 and for the present, in this petition no further indulgence is to be made, the proceedings accordingly stands disposed of.