Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 161 (HP)

Court On Its Own Motion v. State Of H. P.

2018-01-12

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT Sanjay Karol, ACJ. - On the basis of a letter petition, signed by several persons, this Court, taking suo moto cognizance, issued notice. 2. Allegedly, land comprising Khasra Nos. 108, 125 & 133, which is recorded under the ownership of Araji Matruka Bila Alaat as Gair Mumkin Kabrestan, is being encroached upon with the unauthorized construction being raised. 3. On 25.7.2017, this Court passed the following order: "As per office report, respondent No. 4 stands served, but none has entered appearance on its behalf. SDM, Nurpur is directed to inform the Executing Officer, Municipal Council, Nurpur, about the pendency of present proceedings, who shall also ensure that someone appears on their behalf. In the meanwhile, we direct SDM, Nurpur to visit the spot i.e. Khasra Nos. 108, 125, 133, village Chogan, Tehsil Nurpur, District Kangra, recorded as Araji Matruka Bila Alaat and Gair Mumkin Kabrestan and ascertain as to whether any illegal construction is being carried out at the graveyard or not. In any event, he shall ensure that the property of the graveyard is protected and no construction/v encroachment of any nature takes place. Affidavit of compliance be positively filed within a period of one week. Mr. Anup Rattan, learned Additional Advocate General, to ascertain the status. List on 1st August, 2017." 4. Pursuant thereto, Sub Divisional Officer (C), Nurpur, District Kangra, Himachal Pradesh, filed his personal affidavit, stating as under: "1. The contents of para No. 1 of the complaint are admitted being matter of record. It is submitted that land in Khata No. 291 min, Khatouni No. 390 min, Khasra No. 108-125-133 plots 3 measuring 2173-96 Sq. Mtr. situated in Upmohal Chougan Nurpur Tehsil Nurpur District Kangra HP is in the ownership of Aaraji Matruka Bill Allot and in possession of Ahale Aslam having the kind of Gair Mumkin Kabristhan as per Jamabandi for the year 2011-12. 2. The contents of para No. 2 of the complaint are admitted. It is submitted that the Khasra No. 108 and 125 having no encroachments and as per revenue record on the spot. Khasra No. 133 is on road side and the position of possession/encroachment is as under:- No. Khasra Area Kind of land Possession Encroacher Old New 133 min 133/1 131-00 Sq. Mtr. Giar Mumkin Kuman & Hotel Manohar Lal sonof Saran Dass r/o Upmohal Chougan Tehsil Nurpur 133 min 133/2 161-00 Sq. Mtr. Khasra No. 133 is on road side and the position of possession/encroachment is as under:- No. Khasra Area Kind of land Possession Encroacher Old New 133 min 133/1 131-00 Sq. Mtr. Giar Mumkin Kuman & Hotel Manohar Lal sonof Saran Dass r/o Upmohal Chougan Tehsil Nurpur 133 min 133/2 161-00 Sq. Mtr. Giar Mumkin Makan & Shehan Muhammad Amin s/o Abdul Salam r/o Upmohal Chougan Tehsil Nurpur 133 min 133/3 65-00 Sq. Mtr. Giar Mumkin Masjid (under construction) Muhammad Amin s/o Abdul Salam r/o Upmohal Chougan Tehsil Nurpur 133 min 133/4 64-50 Sq. mtr. Giar Mumkin Dukan Umesh Kumar son of Daya Krishan r/o ward No. 4 Nurpur Tehsil Nurpur 133 min 133/5 793-84 Sq. mtr. Giar Mumkin Kabristan Ahele Aslam 132 132 76-16 Sq. Mtr Gair Mumkin Masjid (old) Ahele Aslam The map and field book is prepared on the spot is enclosed herewith alongwith the report of Tehsildar Nurpur. The land belongs to Muslim community and one old Masjid existed on Khasra No. 132. Sh. Mohammad Amin son of Abdul Salam resident of Upmohal chougan, Ward No. 3 Npurpur Tehsil Nurpur, who is Moulavi at the old Masjid already constructed on Khasra No. 132 and he is further constructing a new MASJID in Khasra No. 133/3 above after dismantling the old MASJID. The above Moulvi is residing in a small room in Khasra No. 133/2 mentioned above. 3. The contents of para No. 3 of the complaint is wrong, hence denied. It is submitted that the land belongs to the Muslim community and used as Kabristan and one Masjid is already existing on it and Muslim community perform their worship rituals in it. That in compliance of order dated 08- 08-2017, the status quo is being maintained and the construction work of Masjid is stopped." 5. On 17.12.2017, the very same Officer filed another affidavit, stating that notices, dated 14.12.2017, were issued to the encroachers for removing the encroachment, failing which necessary action shall be taken. The date for removal of encroachments was fixed for 16.12.2017, when the functionaries of the State were directed to be present and the SHO, Police Station, Nurpur, directed to provide necessary security, while undertaking the process of removal of encroachments. However, at the time of actual removal of encroachments, 150-200 persons gathered on the spot and obstructed removal of encroachments, resulting into apprehension of law and order problem. However, at the time of actual removal of encroachments, 150-200 persons gathered on the spot and obstructed removal of encroachments, resulting into apprehension of law and order problem. The matter was immediately brought to the notice of the Additional District Magistrate, Kangra at Dharamshala, which resulted into the issuance of orders under the provisions of Section 144 of the Code of Criminal Procedure. Also, FIR No. 0376 dated 16.12.2017 was registered against the erring persons. However later on, with sufficient police assistance being made available, unauthorised construction was removed. On Khasra No. 132, as per the record, there is an old Masjid and one Muhammad Amin son of Abdul Salam resident of Upmohal Chougan, Tehsil Nurpur, who is a Moulavi, is residing in a small room, so constructed on Khasra No. 133/2. Crucially, Khasra No. 133, admeasuring 1215-84 Sq. Metres, situated in the very same Upmohal, is under the ownership of Aaraji Matruka Bill Allot and in possession of Ahale Aslam, having the kind of Gair Mumkin Kabristhan as per Jamabandi for year 2011-12. Over Khasra No. 133 there is a Kabristhan and Masjid exists over Khasra No. 132. 6. It be only observed that on 12.12.2017, this Court passed the following interim order: "From the affidavit filed by the S.D. M. Nurpur, Sub Division Nurpur, District Kangra, HP, it is apparent that one Manohar Lal son of Sh. Saran Dass resident of Upmohal Chougan Tehsil Nurpur, District Kangra, HP and Umesh Kumar son of Sh. Daya Krishan resident of ward No. 4, Tehsil Nurpur, District Kangra, HP have encroached upon the land so recorded as Kabristan. We direct the S.D.M. Nurpur, District Kangra, HP to have the encroachments over the Kabristan made by the said persons removed immediately. In so far as construction of Masjid is concerned, it stands clarified that it shall be carried out strictly in accordance with law. What is the status of the persons mentioned in the column of possession be ascertained and affidavit be filed within one week. List on 19th December, 2017." 7. On 22.12.2017, the Executive Officer of the Municipal Council, Nurpur, filed his personal affidavit, inter alia, stating as under: "1. That the land comprised in Khata No. 291 min, Khatauni No. 390, Khasra Nos. 108, 125 & 133, plots-3 measuring 2173-96 Sq. List on 19th December, 2017." 7. On 22.12.2017, the Executive Officer of the Municipal Council, Nurpur, filed his personal affidavit, inter alia, stating as under: "1. That the land comprised in Khata No. 291 min, Khatauni No. 390, Khasra Nos. 108, 125 & 133, plots-3 measuring 2173-96 Sq. Mts., situated in Up Mohal-Chaugan, Tehsil Nurpur, District Kangra (H.P.) is in the ownership of Aaraji Matruka Bill Allot and possession of Ahle Aslam and is of the nature of ''Gair Mumkin Kabristan'' as per Jamabandi for the year 2011-12. 2. That on Khasra No. 132, Shri Mohammad Amin, S/o Shri Abdul Salam, Resident of Up Mohal-Chogan Ward-3, Tehsil Nurpur, District Kangra (H.P.) has constructed the old Masjid, however, on Khasra No. 133/3, after dismantling old structure he had started construction without approval of any map from the Municipal Council, Npur, therefore, on receipt of report of construction from the concerned Junior Engineer on 11.6.2017, a notice dated 12.6.2017 under Section 211 of the H.P. Municipal Council Act, 1994 was served upon Mohammad Amin which was duly received by him. After issuance of the notice the concerned Junior Engineer of Municipal Council, Nurpur, again inspected the spot by visit on 29.6.2017 and it was found that illegal and unauthorized construction being raised by Mohammad Amin has been stopped, therefore, another notice, dated 30.6.2017 under section 211 of Municipal Council Act, 1994 was served upon him which was duly received by him. Thereafter the concerned Junior Engineer was again directed to inspect the spot and it was reported that construction has been stopped by Shri Mohammad Amin, Maulvi. Presently no construction is going on at the spot." 8. Today, when the matter was taken up, both the learned Advocate General and Mr. Adarsh Kumar Vashista, learned counsel appearing for Municipal Council, Nurpur, prayed that in view of the action having been taken and that in future no unauthorized construction shall be allowed to be raised and that appropriate action against Mohammad Amin shall be taken to its logical end at the earliest, the present proceedings be closed. 9. Adarsh Kumar Vashista, learned counsel appearing for Municipal Council, Nurpur, prayed that in view of the action having been taken and that in future no unauthorized construction shall be allowed to be raised and that appropriate action against Mohammad Amin shall be taken to its logical end at the earliest, the present proceedings be closed. 9. Taking the statement of the learned counsel on record, we close the present proceedings in the following terms: (a) The Sub Divisional Magistrate, Nurpur, as also the Executive Officer of the Municipal Council, Nurpur, shall ensure that no further construction takes place over land, which is termed as "Gair Mumkin Kabristan", save and except in accordance with law. (b) Proceedings against Mohammad Amin, against whom notice dated 12.6.2017, under the provisions of Section 211 of the Municipal Council Act, 1994 stands issued are expedited. The same be positively concluded, in accordance with law, within a period of two months and action for removal of encroachment taken. (c) If any construction is raised by anyone, more so by Mohammad Amin, liberty is reserved to the Officers to seek further appropriate orders from the Court. The Officers In-charge shall be personally responsible for ensuring compliance of the orders. Affidavit of compliance be filed within a period of two months. 10. We place on record our appreciation for the assistance rendered by Ms Vandana Mishra, learned Amicus, who, on the instructions of this Court, contacted the letter petitioners and obtained necessary feedback. 11. Registry is directed to send a copy of this judgment to the Deputy Commissioner, Kangra at Dharamshala, District Kangra, Himachal Pradesh; the Sub Divisional Magistrate, Nurpur, District Kangra; and the Executive Officer, Municipal Council, Nurpur, District Kangra, Himachal Pradesh for necessary action. Also, learned Amicus shall contact the letter petitioners and apprise them of the passing of this judgment, to enable them to take follow up action with the concerned authorities. 12. In view of the above we close the present proceedings. Pending application, if any, also stands disposed of. 13. Only for the purpose of compliance affidavits, the matter be listed before Additional Registrar (Judicial) of this Court, on 5.4.2018.