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Madhya Pradesh High Court · body

2017 DIGILAW 64 (MP)

Asha Barjatya v. State of M. P.

2017-01-12

VIVEK RUSIA

body2017
ORDER 1. The petitioner has filed this present writ petition being aggrieved by the action of the respondent/s by which, the land being Survey No.104 area 1.004 hector situated at village Bhorasla, Tahsil Sanwer, District Indore has been included for industrial purpose as also the allotment of plot No.- C Area 2130 Sq. Mtrs in favour of the respondent No.6. The petitioner has also challenged the order dated 4.10.2013 (Annexure P-4) issued by the Industries Department, Government of M.P. 2. The facts of the case in short are as under : That, the petitioner is the owner of the land bearing Survey No.105/2 area 6.25 hectors situated at Patwari Halka No.9 of Village Bhorasala, Tahsil Sawer, District Indore. The name of the petitioner has already been recorded in the revenue records. According to the petitioner, at the southern side of her land, there is Sarakari Nala, which was subsequently converted into the Gochar/Charnoi land in the Khasra Entry 2014-15 as Survey No.104 having area 5.828 hectors. Initially, part of the said land i.e. Survey No.104 was given to GAIL (India) Ltd. for laying down pipeline. The GAIL (India) Ltd. has used only 0.09 hector of the Survey No.104 for laying down the pipeline. 3. On 15.1.2016, when the officers of respondents No.4 and 6 came to the land being Survey No.104 for reassessment and demarcation, then the petitioner came to know that the said land has been transferred by revenue department to the industries department for expansion of industries area, Sanwer by notification dated 4.10.2013. After further enquiry, the petitioner came to know that vide order dated 6.5.2015, the Joint Director, Town and Country Planning has sanctioned the lay-out plan of the Survey No.104 in exercise of powers conferred under section 28 of the M.P. Nagar Tatha Gram Nivesh Adhiniya, 1973 and four plots bearing No. A.B.C and D have been curved out in the said land. Vide allotment order dated 19.10.2015, the plot No.-C has been allotted to the respondent for industries purpose. 4. The petitioner raised objection to the General Manager, District Trade and Industries Center that she is the owner of the land Survey No.105. Vide allotment order dated 19.10.2015, the plot No.-C has been allotted to the respondent for industries purpose. 4. The petitioner raised objection to the General Manager, District Trade and Industries Center that she is the owner of the land Survey No.105. If the construction is made over the Survey No.104, then she would not have any alternate way to approach her land and if further construction are made over the Survey No.104, then the water which was flowing from the Nala, would enter into her field and she would not be in the position to cultivate the same. She has also objected that the gas pipeline is passing through the Survey No.104 and if any construction is made, there is possibility of damage to the said land. Similar representation is made to the GAIL (India) Ltd, the Collector and all other authorities. When the objection of the petitioner was not considered, then the present petition is filed. 5. After notice, respondents No.1 to 4 filed return and submitted that way back in the year 2009, the District Trade and Industries Center vide letter dated 17.4.2009 requested the revenue department to transfer the area 1.004 hector land of Survey No.104 for expansion of the industries area. The Collector, Indore, vide order dated 30.9.2011, under the provisions of Revenue Book Circular declared the land being Survey No.104 as Nazul Land. Before transferring the said land to the industries department, the objections were invited from general public by way of paper publications. Since no objection was received, the Town and Country Planning issued NOC for the said transfer. Vide order dated 30.9.2011, the land was transferred to the District Trade and Industries Center, Indore. Thereafter, the Joint Director has granted sanction for the layout of four plots bearing No.A to D. It is further submitted that so far as the allotment of plot to respondent No.6 is concerned, that was done in compliance of the directions given by the High Court in Writ Petition No.8895/2009 and in Contempt Petition No.887/2013 and at present, only plot No.C has been allotted and plots No.A, B and D are laying vacant. Possession of Plot No.C has been given to respondent No.6. 6. Respondent No.6 has filed return, in which, it is submitted that he applied in the year 1997 for allotment of Government land to establish manufacturing unit in the industrial area. Possession of Plot No.C has been given to respondent No.6. 6. Respondent No.6 has filed return, in which, it is submitted that he applied in the year 1997 for allotment of Government land to establish manufacturing unit in the industrial area. Respondent No.4 issued letter of allotment, but the land was not allotted to him, thereafter, he approached this Court twice by way of writ petition, in which, the Court has directed the government to allot the land to him to establish industrial unit. Now, after 20 years of his persuasion, finally, he got the plot No.C of industrial Area, Sawer to establish the manufacturing unit, thereafter, the lease deed has also been executed. He has paid stamp duty to the tune of Rs.2,41,322/- and registration charges of Rs.1,76,577/-. He got possession and constructed boundary walls and because of the stay order granted in this petition, he is not in a position to utilize the said land after incurring so much expenditure. He has also challenged the locus of the petition to challenge the order dated 4.10.2013. 7. I have heard the learned counsel for the parties. 8. Shri A.K. Sethi, learned senior counsel for the petitioner at the very outset submits that the petitioner is not claiming any relief on the basis of easementary rights, for which, he is having remedy to approach the civil Court, but he has challenged the action of the respondent/s, by which, they had allotted the land to the industrial department in violation of section 237 of the MPLR Code. Under sub-section (3) of section 237 of the MPLR Code, the procedure has been prescribed and without following the said procedure, the land cannot be diverted. The Collector can exercise the power of unoccupied land only for the purpose mentioned in sub-section (1) and that too only 2% of the total agricultural land of that village. In support of his contention, he has placed reliance over the judgment of this Court in the case of Gangaram Loniya Chouhan and others v. State of M.P., reported in 2016(1) RN 214=2016(1) MPLJ 386, in which in similar facts and circumstances of the case, action of the respondent/s for allotment of the land to the District Trade and Industries Department was set aside. He has also submitted that if the said land is used for industrial purpose, the natural flow of the Nala over the land bearing survey No.104 would be obstructed and then the water of the Nala would flow from the petitioner's land and she would not be in a position to use the land for cultivation, therefore, she has right to challenge the action of the respondent/s. The construction work and the industrial unit may also damage the pipeline installed by the GAIL (India) Ltd. 9. Per contra, Shri Romesh Dave, Government Advocate for the respondent/State submits that the amendment in section 237(3) of the MPLR Code came into force w.e.f. 30.12.2011 and in the present case, by order dated 30.9.2011 i.e. Annexure R-1, the said land has also been declared as Nazul Land and allotted to the Industrial Department much prior to the amendment, therefore, the amended provision would not apply in the present case. The petitioner has not challenged the order dated 30.9.2011, by which, the land being Survey No.104 was transferred to the District Trade and Industries Center. 10. Shri Manuraj Singh, learned counsel for respondent No.6 has argued in support of the State Government and supplemented that after 20 years of legal battle, he got the plot to establish the industrial unit. Because of the obstructions created by the petitioner, he is not in a position to establish the unit. He is in possession after execution of the lease deed with the Government and he has constructed boundary wall also. No easementary right is effected and she is having alternate way to approach this land. It is further submitted that there is no Nala over Survey No.104 and the petitioner has no locus to challenge the action of the State Government. 11. Counsel appearing for the GAIL (India) Ltd, though has not filed return, but submitted on instruction that there is no danger to their gas pipeline because of the establishment of the industrial area over Survey No.104. ORDER 12. That, admittedly, the State Government has allotted the land being Survey No.104 to the industries department. It is not the case of the petitioner that any part of her land has been illegally allotted by the respondent/s to the Industries Department. ORDER 12. That, admittedly, the State Government has allotted the land being Survey No.104 to the industries department. It is not the case of the petitioner that any part of her land has been illegally allotted by the respondent/s to the Industries Department. The only grievance of the petitioner is that the Survey No.104 is situated at southern side of her land and if any construction activity are started or any industrial unit is established, that may affect her agricultural work. The petitioner has already been given up her easementary rights to challenge the impugned action of the respondent. So far as the allegation that the said allotment to respondent No.6 may affect the gas pipeline of GAIL (India) Ltd, the petitioner should not have grievance for that, because the GAIL (India) Ltds has no objection for establishment of the industrial units at Survey No.104. The petitioner has no authority to raise objection on behalf of the GAIL (India) Ltd. The GAIL (India) Ltd. is competent to raise objection, if their rights are affected. 13. So far as the allotment of the land to the Industries Department in violation of section 237(3) of the MPLR Code is concerned, section 237 was amended w.e.f 30.12.2011. Sub-section (3) of section 237 as substituted by M.P. Act of 42 of 2011 reads as under : Sub-section (3) as applicable in M.P. Only. [(3) Subject to the rules made under this Code, the Collector after securing the land mentioned in Clause (b) of sub-section (1) to minimum two percent of the total agriculture land of that village, may divert such unoccupied land as mentioned in sub-section (1) into abadi or for construction of roads, state highways, national highways, canals, tanks hospitals, schools, colleges, Goshalas and any other public utility projects as may be determined by the State Government : Provided that the land set apart for the purposes mentioned in sub-section (1) shall not be diverted and allotted to any person for agriculture purpose] ? (Emphasis supplied). Prior to the deletion, the said provision reads thus : 237. Collector to set apart land for exercise of Nistar rights. (Emphasis supplied). Prior to the deletion, the said provision reads thus : 237. Collector to set apart land for exercise of Nistar rights. - (1) ---------- (2) --------- (3) Subject to the rules made under this Code, the Collector may divert such unoccupied land, which is set apart for the purposes mentioned in clause(b) of sub-section (1) subject to secure minimum five percent of agriculture land of that village for the said purposes into abadi or for agricultural purposes ? (Emphasis supplied ) 14. Before the year 2011, the Collector was competent to divert the land and the order was passed by the Collector on 30.9.2011 i.e. prior to the amendment in section 237. The petitioner has not challenged the order dated 30.9.2011 in the present petition. He has only challenged the Annexure P-4, by which, the certain land of Survey No.104 was included in the industrial area of Sawer Road, Indore by the District Trade and Industries Center. The petitioner amended the writ petition by challenging the order dated 4.10.2013, but did not challenge the order dated 30.9.2011 despite filing its copy by the respondent along with their return. The order dated 4.10.2013 is a consequential order passed by the Department of Industries nor under the provisions of MPLR Code and the order dated 30.9.2011 was passed prior to the amendment in section 237, therefore, the provision of section 237 and the law laid down in the case of Gangaram v. State of M.P. (supra), would not apply. 15. So far as the allotment of plot No.C to respondent No.6 is concerned, the same was allotted by the respondent/s after due process of law. It is correct that this Court in writ petition filed by respondent No.6 has directed the State Government to allot the plot, but it was the choice of respondents No.1 to 4 to allot the plot available with them. The plot No.C of Survey No.104 industrial area was available and the same was allotted to respondent No.6, therefore, no fault can be found in the allotment of the said plot to respondent No.6. 16. The petitioner has not pleaded any violation of statutory or fundamental rights for diversion of the land being Survey No.104, then allotment to the industrial department, then inclusion into the industrial area and thereafter, allotment to respondent No.6. 16. The petitioner has not pleaded any violation of statutory or fundamental rights for diversion of the land being Survey No.104, then allotment to the industrial department, then inclusion into the industrial area and thereafter, allotment to respondent No.6. Admittedly, the land being Survey No.104 is a Government land and the petitioner has simply made representation to the authorities objecting the allotment of the land to respondent No.6. That would not give locus to the petitioner to file present writ petition. In the case of Gangaram v. State of M.P. (supra), the writ petition was entertained because it was filed in the nature of Public Interest Litigation, but here the petitioner has not filed any Public Interest Litigation. 17. In the case of Ayaaubkhan Noorkhan Pathan, v. State of Maharashtra and others, reported in (2013)4 SCC 465 , the Hon'ble apex Court has considered the locus stadi of the petitioner to file writ petition. Relevant Paras No.19 to 23 is reproduced below : 19. This Court in Ravi Yashwant Bhoir v. District Collector, Raigad and others, (2012) 4 SCC 407 , held as under : “58. Shri Chintaman Raghunath Gharat, Ex. President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria. 59. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justifiable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. In case he has no legal peg for a justifiable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons. 60. Under the garb of being a necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person who wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party.” 20. A similar view has been reiterated by this Court in K. Manjusree v. State of Andhra Pradesh and another, (2008)3 SCC 512 , wherein it was held that, the applicant before the High Court could not challenge the appointment of a person as she was in no way aggrieved, for she herself could not have been selected by adopting either method. Morever, the appointment cannot be challenged at a belated stage and, hence, the petition should have been rejected by the High Court, on the grounds of delay and non-maintainability, alone. 21. In Balbir Kaur and another v. Uttar Pradesh Secondary Education Services Selection Board, Allahabad and others, (2008)12 SCC 1 , it has been held that a violation of the equality clauses, enshrined in Articles 14 and 16 of the Constitution, or discrimination in any form, can be alleged, provided that, the writ petitioner demonstrates a certain appreciable disadvantage qua other similarly situated persons. While dealing with the similar issue, this Court in Raju Ramsingh Vasave v. Mahesh Deorao Bhiavapurkar and others [ (2008)9 SCC 54 held : “We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. While dealing with the similar issue, this Court in Raju Ramsingh Vasave v. Mahesh Deorao Bhiavapurkar and others [ (2008)9 SCC 54 held : “We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the Court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the Court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far-reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so.” (See also: Manohar Joshi v. State of Maharashtra and others [ (2012) 3 SCC 619 )]. 22. In Vinoy Kumar v. State of U.P., AIR 2001 SC 1739 , this Court held : “Even in cases filed in public interest, the Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of person is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief.” 23. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus standi to raise any grievance whatsoever. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, in articulation or poverty, are unable to approach the Court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the Court, then the Court may examine the issue and in exceptional circumstances, even if his bonafides are doubted, but the issue raised by him, in the opinion of the Court, requires consideration, the Court may proceed suo motu, in such respect. Therefore, in view of the above, no case is made out for interfering with the order dated 4.10.2013. 18. Accordingly, present writ petition fails and is hereby dismissed. The interim relief granted on 24.2.2016 shall stand vacated.