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2022 DIGILAW 967 (MP)

PRITAM KUMAR v. STATE OF MADHYA PRADESH

2022-07-22

SATYENDRA KUMAR SINGH, SUBODH ABHYANKAR

body2022
ORDER SUBODH ABHYANKAR, J. : – This order shall govern the disposal of Writ Appeal No. 704/2020 and Writ Appeal No. 706/2022, as both these appeals have arisen out of common order dated 26-5-2022 (Annexure A/1) passed in Writ Petition No. 12012/2022 and Writ Petition No. 12013/2022. For the sake of convenience, the facts as narrated in Writ Appeal No. 704/2022 are being taken into consideration. This writ appeal under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 has been preferred against common order dated 26-5-2022 (Annexure A/1) passed by the Writ Court in Writ Petition No. 12012/2022 (and Writ Petition No. 12013/2022), whereby the writ petition filed by the petitioners was dismissed in limine. 2. In the writ petition, the petitioners had sought the following relief : – “7. RELIEF PRAYED FOR : In the facts and circumstances of the case, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to : – (i) quash and set aside impugned demolition order/notice dated 14-5-2022 (Annexure P/8) passed by respondent No. 7: (ii) issue appropriate writ, order or direction mandating the respondents to consider the proposal of Bori Panchayat for construction of bypass: (iii) issue appropriate writ, order or direction to mandate the respondents to consider and abide the orders of the Hon’ble Minister, Government of Madhya Pradesh, P.W.D., recommending construction of bypass (Annexure P/5): (iv) Pass any other and further orders and or directions as deemed fit by this Hon’ble Court in the facts and circumstances of the case; (v) Allow this petition with costs.” 3. The Learned Judge of the Writ Court did not find favour with the petitioners; and disposed of the writ petition in the following manner : – “The petitioners have approached this Court being aggrieved by the notice issued by the Gram Panchayat, Bori Vikas Khand, Udaygarh directing the petitioners to remove the encroachment. According to the petitioners, Gram Panchayat has no jurisdiction to issue such type of notice to the petitioners. The petitioners are situated at both sides of the road passing through the Gram Panchayat. They are owner of the land and there is no such encroachment which is required to demolished. Hence, notices are liable to be quashed. According to the petitioners, Gram Panchayat has no jurisdiction to issue such type of notice to the petitioners. The petitioners are situated at both sides of the road passing through the Gram Panchayat. They are owner of the land and there is no such encroachment which is required to demolished. Hence, notices are liable to be quashed. The MPRDC is going to broadening the state highway up to 20.20 meter passing through Village – Bori (Abadi Khsetra) after receipt of letter No. 2383 dated 18-2-2021 from the MPRDC and letter No. 39633 dated 3-3-2021 from S.D.O., Revenue. The C.E.O., Gram Panchayat has issued notices to all the petitioners and other occupants calling upon them to submit documents within three days in respect of their properties. In pursuant to the notice, none of the petitioners appeared before the C.E.O. and now final notice for removing encroachment has been issued on 14-5-2022 and the petitioners have rushed to this Court. Learned counsel for the petitioners submits that the Gram Panchayat has no jurisdiction to issue such type of notice. The petitioners are residing in Gram Panchayat, Bori. The land or any property belongs to them is situated in the Gram Panchayat, being a local body, the Gram Panchayat has right to examine their documents in respect of ownership and encroachment, therefore, no illegality has been committed by the C.E.O. by issuing notices to the petitioners to examine whether they have encroached any government land or not? After examination of the documents, it can be decided whether there is any encroachment or the land is liable to be acquired for broadening of the state highway. There is a proposal of broadening of the road with V-shape drain on both sides of the road. The petitioners have rushed to this Court only after issuance of notice for demolition with the help of police and revenue team. Therefore, at this stage, no interference is liable to be made in these petitions by this Court. All the petitioners are directed to appear before the C.E.O. along with all the necessary documents in respect of their properties and after examining all these documents, the respondents shall proceed in accordance with law. With the aforesaid, both the Writ Petitions stand disposed of.” 4. All the petitioners are directed to appear before the C.E.O. along with all the necessary documents in respect of their properties and after examining all these documents, the respondents shall proceed in accordance with law. With the aforesaid, both the Writ Petitions stand disposed of.” 4. Shri Ajay Assudani, learned counsel for the appellants has submitted that the Writ Court has erred in not considering the fact that impugned notice dated 5-3-2021 (Annexure P/7) and the final notice regarding removal of encroachment dated 14-5-2022 (Annexure P/8) issued by the Chief Executive Officer (Secretary), Gram Panchayat, Bori, Block Development Udaigarh, District Alirajpur (MP), who was not competent to pass notice/order in a case which is related to the road construction under the provisions of Madhya Pradesh Raj Marg Adhiniyam, 2004 (herein after referred to as the Act of 2004). Section 34 of the Act of 2004 provides for removal of encroachment. It is further submitted that even an appeal lies against the order passed under section 34 of the Act of 2004, whereas in the impugned notice, it is not even mentioned as to under which provision of law, it has been issued by the Chief Executive Officer, Gram Panchayat, Bori, Block Development Udaigarh, District Alirajpur (MP). 5. In support of his contentions, Shri Assudani has also relied upon a decision rendered by the Supreme Court in the case of Atma Ram Properties Private Limited vs. Oriental Insurance Company Limited, reported as (2018) 2 SCC 27 (para 20) and the decision rendered by the Supreme Court in the case of Commercial Tax Officer, Rajasthan vs. Binani Cements Limited and another, reported as (2014) 8 SCC 319 (para 32 onward) wherein the Supreme Court has relied upon the maxim that “Generalia specialibus non derogant” i.e. general law yields to special law should they operate in the same field on the same subject. Thus, it is submitted that when the removal of encroachment is specifically provided under the Act of 2004, in such circumstances, the Chief Executive Officer, Gram Panchayat, Bori, Block Development Udaigarh, District Alirajpur (MP) would certainly not have any jurisdiction to ask the appellants/petitioners to remove their encroachment/vacant their land in the name of encroachment, especially when the appellants/petitioners are the owners of their respective properties. 6. 6. Counsel has also submitted that even otherwise, the order passed by the Writ Court has not been complied with by the respondents in its true letter and spirit, as the Writ Court had directed the respondents to decide their case, after examining all the documents, whereas vide order dated 8-6-2022, which is filed along with the reply as Annexure R/1, the Chief Executive Officer, Gram Panchayat, Bori, Block Development Udaigarh, District Alirajpur (MP) has simply asked the appellants/petitioners’ consent to remove the alleged encroachment and the Authority (CEO) has also directed the petitioners to remove the construction, failing which their encroachment shall be removed at their cost and consequences. 7. Learned counsel for the appellants has also submitted that if the respondents intend to acquire the appellants’ land, in that case, they are also required to pay compensation. 8. A reply has been filed by the respondents. 9. Shri Vivek Patwa, learned counsel appearing for the Madhya Pradesh Road Development Corporation (respondents No. 2 and 3) has submitted that no illegality has been committed by the respondents/Gram Panchayat in issuing notice and also passing the order/notice against the appellants/petitioners to remove their constructions. 10. Shri Patwa has also submitted that the provisions of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (herein after referred to as the Act of 1993) are in pari materia with the provisions of the Act of 2004, so far as it relates to removal of encroachment etc. is concerned. 11. Shri Patwa has also submitted that even under section 66 of the Act of 2004, it is provided that provisions of this Act or Rules shall prevail over inconsistent provisions in other laws; and so far as the provisions regarding removal of encroachment are concerned, they are not inconsistent with the aforesaid Act; and thus, there is no conflict in the two Acts, as is canvassed by the learned counsel for the appellants. 12. 12. In support of his contentions, Shri Patwa has also relied upon a decision rendered by the Supreme Court in the case of N. G. Projects Limited vs. Vinod Kumar Jain and others, reported as (2022) 6 SCC 127 ; and has also referred to section 41(ha) of the Specific Relief Act, 1963 (which is amended in the year 2018), which provides that no injunction can be granted, if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project. Thus, it is submitted that the appeal being devoid of merits, is liable to be dismissed. 13. Heard learned counsel for the parties and perused the record. 14. From perusal of the provisions of the Act of 2004, it is found that section 37 of the same provides for determination of amount of compensation by agreement, and section 39 provides for no compensation for unauthorized erection. However, such provision is not available under the provisions of the Act of 1993. 15. In reply, which has been filed for the first time by the respondent/MP Road Development Corporation (MPRDC) before this Court, as the appellants’/petitioners’ appeal was dismissed in limine, there is no reference at all regarding the compensation, which they are obliged to pay for acquiring the land, if it is found that the appellants/petitioners have not encroached upon the area under dispute. 16. Be that as it may. A perusal of the notice dated 5-3-2021 (Annexure P/7) which has been issued under the signatures of the Secretary/Chief Executive Officer, Gram Panchayat Bori, Block Development Udaigarh, District Alirajpur (MP), a reference to letter dated MPRDC No. 2383 dated 18-2-2021 has also been made in which the MPRDC has asked the Gram Panchayat to make available a stretch of land ad-measuring 20.20 meters for construction of road (This letter has also not been placed by the respondents with their reply). But, it appears that the Officers of MPRDC have acted in accordance with the provisions of section 34 of the Act of 2004 which provides that if it is found by the Highway Authority that there is some encroachment on a highway, the Highway Authority or any Officer authorized in this behalf shall serve a notice on the person responsible for the encroachment. In such circumstances, we do not find any illegality committed by the respondent/Gram Panchayat in issuing notice to the appellants/petitioners for removal of the encroachment. However, this Court also finds that subsequent order (s) passed by the respondent/Gram Panchayat on 08-6-2022 (Annexure R/1) in compliance with the order passed by this Court in Writ Petition No. 12012/2022 and Writ Petition No. 12013/2022 dated 16-5-2022 (which is under challenge before this Court) is not in accordance with the directions issued by this Court. In such circumstances, the respondents (MPRDC) are directed to reconsider the appellants’/petitioners’ representation/ reply and pass an appropriate order, in accordance with law; and if it is found that the appellants/petitioners have encroached upon the proposed road in question, their encroachment may be removed by giving them seven (7) days notice; failing which, the respondents shall proceed against the appellants/petitioners, in accordance with law for removal of encroachment; and if it is found that the appellants/petitioners have not encroached upon the land, then in such circumstances, respondents No. 2 and 3/MPRDC shall make the payment of compensation to the appellants/petitioners, as provided in accordance with the law including the provisions of Act of 2004. The respondent/MPRDC shall decide the appellants/petitioners’ representation/reply within a further period of seven (7) days from the date of receipt of certified copy of this order. 17. With the aforesaid modification of the order dated 26-5-2022 (Annexure A/1) passed in Writ Petition No. 12012/2022 and Writ Petition No. 12013/2022, Writ Appeal No. 704/2022 and Writ Appeal No. 706/2022 stand disposed of. All the other pending interlocutory applications, if any, shall stand disposed of.