Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 1251 (MP)

Poonamchand Mistri v. State of M. P.

2020-12-03

S.C.SHARMA, SHAILENDRA SHUKLA

body2020
ORDER 1. The present PIL has been filed by the petitioner who is claiming himself to be social worker and local resident of Thandala, stating that the Nagar Parishad Thandala, has constructed some shops over the land belonging to the State Government. 2. Learned counsel for the petitioner has stated before this Court that civil suit has also been filed by Nagar Parishad, Thandala, claiming title over the property and the same is pending. This Court cannot adjudicate the dispute in respect of title and once there is already a civil suit, the matter shall certainly be decided by the trial Court keeping in view the evidence adduced by the parties. The constructions made if any by Nagar Prishad, Thandala, shall certainly be subject to final outcome of the civil suit. 3. Another aspect of the case is that earlier also the matter has come up before this Court and Writ Appeal No.1365/2019, decided on 14.11.2019, a liberty was granted to file civil suit to Nagar Parishad Thandala and the same has been done. Order dated 14.11.2019 passed in W.A.No.1365/2020, reads as under :- "The present writ appeal is arising out of the order dated 3.7.2019 passed by the learned Single Judge in Writ Petition No.1207/2019 (Nagar Parishad Thandala v. State of M.P. & Ors.). The writ petition was preferred being aggrieved by the order dt.5.3.2019 (Annexure P/1) by which the Tehsildar, Thandala, Distt. Jhabua has directed the Nagar Parishad not to carry out any construction activities in respect of the Government land bearing Survey No.34 (area 0.486 hectares). The dispute before the learned Single Judge was whether it was a Government land or land under the ownership of Nagar Parishad, Thandala. The learned Single Judge in paragraphs 2 to 13 held as under :- "2. The petitioner - Nagar Parishad is duly constituted body under the provisions of Kanoon Municipality Riyasat Jhabua on 15.5.1930 and thereafter under the provisions of M.P. Municipalties Act, 1961. The Chief Municipal Of icer (CMO) appointed by the State Government has been authorised to file a petition on behalf of the petitioner Nagar Parishad. According to the petitioner, by virtue of section 43 of Kanoon Municipality Riyasat Jhabua, the open land within the territory of Thandala Municipality were managed by Municipal Council Thandala and all Revenue Department had no control or power to interfere in respect of management of these open lands. According to the petitioner, by virtue of section 43 of Kanoon Municipality Riyasat Jhabua, the open land within the territory of Thandala Municipality were managed by Municipal Council Thandala and all Revenue Department had no control or power to interfere in respect of management of these open lands. U/s. 85 of Kanoon Municipality Riyasat Jhabua, the boundaries of the territory of Municipal Council were demarcated by the then Revenue Of icer of erstwhile State of Jhabua. After coming into force of M.P. Municipalties Act, 1961, as per section 100, the open land situated within the municipal limits vested and came under the control of Municipal Council. 3. As per circular dt. 28.1.1994 issued by the State Government, the open Nazul land which is vested in Municipal Corporation/Municipality shall be recorded in the ownership of the State, but the land which was within the Municipal limits of such Municipality established prior to 1.11.1956, the ownership of Municipality shall be entered in the revenue record. The petitioner vide letter dt.13.7.2004 requested the Tehsildar Thandala to record its ownership over open land situated in the Municipal limits. Vide letter dated 24.7.2004, Commissioner, Land Record & Settlement, M.P. directed all the Collectors for correction of entries, but no such correction has been taken place so far. 4. Earlier, the Tahsildar issued show-cause notice dated 27.5.2008 restraining the petitioner from raising construction on open land bearing Survey No.49, 55 and 66. The aforesaid notice was challenged by the petitioner by filing W.P.No. 3772/2008 before this Court. By order dated 28.7.2008, said writ petition was disposed of by directing the State Government to examine the matter and take appropriate decision by passing a detailed and speaking order and the revenue authorities were restrained to initiate proceedings for dispossession of petitioner. According to the petitioner, the aforesaid order has not been complied so far by the State Government despite direction given Cont. Petition No.581/2009 as well. 5. Now, the petitioner Nagar Parishad Thandala has decided to construct 21 shops in Ward No.1 for which Resolution has been passed. Respondent No.5 has been engaged as Contractor for construction of said shops over land bearing Survey No.346 area 0.486 Hect. Petition No.581/2009 as well. 5. Now, the petitioner Nagar Parishad Thandala has decided to construct 21 shops in Ward No.1 for which Resolution has been passed. Respondent No.5 has been engaged as Contractor for construction of said shops over land bearing Survey No.346 area 0.486 Hect. The Tehsildar has again issued the notice dated 5.3.2019 (Annexure P/1) directing the CMO to appear on 8.3.2019 in the of ice along with all pertaining to allotment of the said land and till then, the construction work be stopped. Thereafter, vide order dated 8.3.2019, Tehsildar Thandala has stayed the construction work and threatened to initiate proceedings u/s. 248 of M.P. Land Revenue Code. 6. Being aggrieved by the aforesaid two proceedings of Tehsildar, Thandala, the petitioner has filed the present petition. 7. Shri V.P. Saraf, learned counsel appearing for the petitioner, submits that the Tehsildar has no authority to issue notice tot he petitioner for the land situated in the Municipal limits and hence, the order passed pursuant to the notice deserves to be quashed. In support of his contention, he has placed reliance over the judgment of Division Bench of this Court in the case of Bachharaj Factories Ltd. v. State of M.P.:1987 RN 422. 8. He further submits that earlier also, the Tahsildar issued a notice restraining the Municipal Council for raising construction over the land bearing Survey Nos. 49, 55 and 66 and this Court vide order dt.28.7.2008 passed in the writ petition as well as by order passed in the contempt petition directed the State Government to decide the controversy, but the same has not been decided so far. Therefore, the notice be issued to the respondents seeking explanation and till then, operation of Annexures P/1 and P/2 be stayed. 9. He further submits that the land situated within the territory of Municipal Council is deemed to have been vested in the Municipal Council by virtue of provisions of Kanoon Municipality Riyasat Jhabua. He has also placed reliance over two more decisions of Division Bench of this Court in the case of Municipal Council, Mandsaur v. State of M.P. & Others : 1972 JLJ 966 ; and Sind Mahajan Exchange Ltd. v. State of M.P. : 1980 JLJ 581 , in which writ petitions were entertained against the notices issued by Tehsildar u/s. 248 of M.P. Land Revenue Code, hence prays for stay of Annexure P/2. 10. 10. According to the petitioner, the land bearing Survey No.346 area 0.486 Hect. is situated within the territory of Municipal Council Thandala, therefore, the Tehsildar has no jurisdiction or authority to issue notice and pass the stay order. But, as per revenue records, the aforesaid land is recorded as Nazul land and in Column No.12, the word 'road' and 'nala' are mentioned. By this petition, the petitioner is not only praying for quashment of letter/order (Annexures P/1 and P/2), but also seeking direction to the respondents to correct the entries in the revenue record in respect of land bearing Survey No.346 area 0.486 Hect. Therefore, as on today, the said land is still recorded as a Government land in the revenue record. Since establishment of Municipality Thandla, the petitioner did not make any ef ort for correction of the entries in the revenue record. The petitioner did not pursue the earlier order passed by this Court and remained mum for so many years. After receipt of notice dated 5.3.2019, the petitioner has directly rushed to this Court without approaching the Tehsildar with records. If the petitioners are relying over the provisions of Kanoon Municipality Riyasat Jhabua and other provisions of M.P. Municipalities Act, 1960, then, CMO is required to appear before the Tahsildar with all necessary documents/record. 11. In the case of Municipal Council, Mandsaur (supra), the petitioner in the said case filed copies of Khasra entries, in which, all such open lands were recorded as Municipal property and this fact was not disputed by the State Government. Therefore, the Division Bench of this Court has held that the open lands which are not assessed to land revenue and which fell within the Municipal limits, were transferred to Municipal Committee during the time of Gwalior State and these properties continued to vest in the Municipal Committee under the statue and protected by successive statutes. 12. In the present case, the petitioner has not filed any record to show that the land of particular Survey numbers has been vested in the Municipal Council since the period of Kanoon Municipality Riyasat Jhabua, 1930. All these are disputed questions of fact which cannot be examined by this Court in a writ petition under Article 226 of the Constitution of India even after issuance of notice and filing of reply by the respondents. All these are disputed questions of fact which cannot be examined by this Court in a writ petition under Article 226 of the Constitution of India even after issuance of notice and filing of reply by the respondents. The petitioner is having opportunity to appear before the Tehsildar along with the necessary record. Unless and until the revenue entries in records are corrected, the land in question is recorded as Government land and in the opinion of this Court, the Tehsildar is having authority to issue notice to the petitioner. In view of the above, no case of interference with the impugned notice/order. 13. Consequently, this petition fails and is hereby dismissed in limine. The learned Single Judge has arrived at a conclusion that the issue of dispute and the disputed question of facts cannot be examined by the writ Court in a writ petition under Article 226 of the Constitution of India. In the considered opinion of this Court the disputed questions of facts cannot be decided in a writ petition and the issue of title has to be decided in a civil suit and therefore, this Court does not find any reason to interfere with the order passed by the learned Single Judge. Heavy reliance has been placed upon an earlier order passed in Writ Petition No. 3772/2008(s) dated 28.7.2008 and the order passed in Contempt Case No.581/2009 dated 15.11.2010. In the aforesaid cases, the only direction was to decide the representation and based upon the aforesaid direction, the learned counsel was claiming relief before the learned Single Judge. The aforesaid cases were in respect of dif erence survey numbers and the presence case is in respect of dif erent survey number and therefore no relief has been granted by the learned Single Judge to the petitioner. Resultantly, the admission is declined. The petitioner, if so advised shall certainly be free to file a civil suit and the order passed by this Court as well as by the learned Single Judge with not come in way of the petitioner in case a civil suit is filed. 4. Resultantly, the admission is declined. The petitioner, if so advised shall certainly be free to file a civil suit and the order passed by this Court as well as by the learned Single Judge with not come in way of the petitioner in case a civil suit is filed. 4. In light of the aforesaid order as a civil suit has already been filed in the matter, this Court is of the opinion that the State Government shall certainly be free to take appropriate action in accordance with law, if its a land belonging to the State Government and the State shall also be free to take appropriate action in respect of the construction made by the Nagar Parishad, Thandala depending upon the outcome of the civil suit. 5. It is further made clear that in case, any third party rights are created by Nagar Parishad, Thandala, in respect of the constructed shops, the same shall certainly be subject to outcome of the pending litigation. With the aforesaid observations, the Public Interest Litigation stands disposed of.