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2025 DIGILAW 185 (MP)

Neeraj v. State of Madhya Pradesh

2025-03-11

SUBODH ABHYANKAR

body2025
ORDER : 1. Heard. 2. Regard being had to the similitude of the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. For the sake of convenience, the facts as narrated in W.P. No.21948 of 2019 are being taken into consideration. 3. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India seeking the following reliefs:- “7.1 quash the Notices no.82/Nazul/Reader/2019 dated 18.01.2019 and the order proceedings initiated by the respondents in furtherance thereof. 7.2 To award costs of this petition from the respondents. 7.3 Any other reliefs, which this Hon’ble Court may deem fit in the facts and circumstances of the case, in favour of the Petitioners and against the respondents.” 4. The petitioner is aggrieved by the notice dated 18.01.2019, issued by the respondent No.2, the Tehsildar, District Dewas, wherein, the petitioner has been informed that he has encroached upon certain (Nazul) land by constructing a house, which has been found in an inspection by the Revenue Inspector, and has been directed to submit his response within three days’ time. 5. In brief, the facts of the case are that the petitioner is the lawful owner of the aforesaid land situated at Survey No.64/1/min-2, admeasuring 8.10 x 16.50=133.65 sq.m., and has made the construction in accordance with law, after taking due permission from the Municipal Corporation, Dewas, way back on 22.09.1970. It is also submitted that the original land belonged to Dr. Chandrashekhar Pandey S/o Damodarji Pandey, who was granted patta by the then Dewas ruler in the year 1944, and his name was also mutated in the year 1945, and after acquiring the bhumiswami rights, the land was diverted on 09.11.1960 by Dr. Chandrashekhar Pandey, as provided under Section 172 of M.P. Land Revenue Code, 1959 (hereinafter referred to as ‘the Code of 1959’) and after his death, his legal representative sold a part of the land to the present petitioner through a registered sale deed dated 21.05.1968. Thus, the petitioner and his predecessors in interest are residing on the said land since last around 48 years, but still, the impugned notice has been issued to his utter surprise. 6. Thus, the petitioner and his predecessors in interest are residing on the said land since last around 48 years, but still, the impugned notice has been issued to his utter surprise. 6. Counsel for the petitioner has submitted that the petitioner has all the relevant title documents to demonstrate that he is the legal owner of the land, and merely by issuance of show cause notice, he cannot be dispossessed by the respondent/State without proper adjudication by the Civil Court, if the respondents contend that the land belongs to the State. 7. In support of his submissions, Shri Ayushyaman Choudhary, learned counsel for the petitioner has relied upon certain decisions rendered by the Supreme Court in the cases of Kaikhosrou (Chick) Kavasji Framji Vs. Union of India and another, (2019) 20 SCC 705; paras 51 & 59 and Government of Andhra Pradesh Vs. Thummala Krishna Rao and another, (1982) 2 SCC 134 paras 8, 9 and 10. 8. Counsel for the State, on the other hand, has opposed the prayer, and a reply has also been filed. The case of the respondents is that the land occupied by the petitioner does not bear any survey number. It is submitted that the land on which the petitioner has constructed his house, is a Nazul land and belongs to the State, hence the Tehsildar has issued the notice under Section 248 of the Code of 1959, and without even filing reply to the notice, the present petition has been filed, which is not maintainable, as the petitioner is only apprehending that he would be dispossessed. 9. Counsel for the State has also drawn the attention of this Court to the revenue entries in respect of the said land. It is also submitted that in the report of the Revenue Inspector, it is clearly mentioned that the land belongs to the State only. It is further submitted that the land did not belong to Dr. Chandrashekhar Pandey, as has been contended by the petitioner, and the mutation was on account of a wrong entry made in favour of Dr. Pandey, which has been subsequently corrected, which has also been affirmed by the Board of Revenue. Copy of the order passed by the Board of Revenue dated 19.12.2018 is also filed on record. Chandrashekhar Pandey, as has been contended by the petitioner, and the mutation was on account of a wrong entry made in favour of Dr. Pandey, which has been subsequently corrected, which has also been affirmed by the Board of Revenue. Copy of the order passed by the Board of Revenue dated 19.12.2018 is also filed on record. It is further submitted that the aforesaid land has already been assigned to the Election Commission of India for construction of godown for storage of EVMs and VVPD. 10. A rejoinder to the petition has also been filed. It is submitted that a serious dispute regarding the title of the land is involved in the case, and thus, the respondents may be asked to establish its ownership in accordance with law, as the petitioners are also in possession of the property on the basis of the valid documents, which have not been challenged by the State till date. It is also submitted that the survey numbers involved in the case have also been subjected to variance during the last more than 2-3 decades, and the effect of the same is also required to be seen which can only be done in a Civil Court. 11. Heard counsel for the parties and perused the record. 12. On due consideration of submissions, and on perusal of the documents filed on record, it is found that the disputed land was purchased by the father of the present petitioner from the legal representative of Dr. Chandrashekhar Pandey, through a registered sale deed dated 21.05.1968. Thereafter, the construction has also been carried out by the father of the petitioner after obtaining due permission from the Municipal Corporation, Dewas, way back in the year 1970, whereas, the impugned notice has been issued to the petitioner only on 18.01.2019, i.e., after a period of around 48 years, informing that the petitioner’s construction is an encroachment. 13. It is also found that the respondents have relied upon a report of the Revenue Inspector dated 03.02.2018 holding the land in question to be Nazul land. 13. It is also found that the respondents have relied upon a report of the Revenue Inspector dated 03.02.2018 holding the land in question to be Nazul land. It is also the case of the respondents that the land occupied by the petitioner does not bear any survey number, and in fact, he has encroached upon Survey No.64/1/min-2, which belonged to the Government, whereas, in the sale deed executed in favour of the petitioner it is mentioned as survey No. 65/1 of Village Dewas Junior, but the petitioner is not in possession of any plot on Survey No.65/1 of Dewas Junior, and in fact, he has encroached upon Survey No.64/1/min-2. Thus, admittedly, there is also a dispute in respect of the survey number on which the petitioner’s land is situated. 14. At this juncture, it would also be apt to refer to the decision rendered by the Supreme Court in the case of Thummala Krishna Rao and Another (Supra), which related to the Tenants AP Land Encroachment Act, 1905, wherein, the Government sought to evict the respondents by taking recourse to the aforesaid Act, and while dismissing the State’s appeal, the Supreme Court observed as under:- “8. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is “the property of the Government”. In regard to property described in sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by Section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6(1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land “for which he is liable to pay assessment under Section 3”. Section 3, in turn, refers to unauthorised occupation of any land “which is the property of the Government”. If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than 12 years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents. 9. The view of the Division Bench that the summary remedy provided for by Section 6 cannot be resorted to unless the alleged encroachment is of “a very recent origin”, cannot be stretched too far. That procedure is, therefore, not the due process of law for evicting the respondents. 9. The view of the Division Bench that the summary remedy provided for by Section 6 cannot be resorted to unless the alleged encroachment is of “a very recent origin”, cannot be stretched too far. That was also the view taken by the learned Single Judge himself in another case which is reported in Meharunnissa Begum v. State of A.P. (1970) 1 Andh LT 88 which was affirmed by a Division Bench [Meherunnissa Begum v. Govt. of A.P. AIR 1971 AP 382 : (1971) 1 Andh LT 292 : ILR 1972 AP 44] . It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law. 10. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary enquiry contemplated by Sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. Maybe, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.” (Emphasis Supplied) 15. So far as the order passed by the Board of Revenue is concerned, it is found that the said order has been passed in a revision under Section 50 of the Code of 1959, which was preferred by one JSJ Real Estate Private Ltd., and in the said revision, the State’s contention was that the disputed land is a Nazul land, which has been sold fraudulently by the private party (the predecessor of the petitioner), and thus, the mutation in his name has been cancelled. It is apparent that in the said order, the present petitioner was not a party, and merely on the basis of the said order, he cannot be dispossessed from the land, which was lawfully purchased by him through a registered sale deed dated 21.05.1968, whereas, Section 248 of the Code of 1959, under which the impugned notice has been issued, it is clearly provided that it is a summary procedure for ejecting an encroacher, who has unauthorisedly remained in possession of the property, but in the present case, the petitioner is in occupation of the said land on the strength of valid documents, and has also carried out construction after obtaining permission from the Municipal Corporation, Dewas. 16. 16. Thus, when the facts of the case in hand are considered on the anvil of the aforesaid dictum of the Supreme Court in the case of Thummala Krishna Rao (supra), in the considered opinion of this Court, when the petitioner is in long possession of the disputed land on the basis of the valid legal documents, which have not been challenged by any of the parties, and has also constructed the house after obtaining due legal permission, whereas, the State is disputing the survey number of the land, it is a case of disputed question of facts and cannot be decided summarily. 17. In the aforesaid facts and circumstances of the case, this Court has no hesitation to hold that it is not a case where the petitioner can be evicted simply by issuing a notice for removal of encroachment. 18. Accordingly, the impugned notice dated 18.01.2019 cannot be sustained in the eyes of law, and is hereby quashed. However, with liberty reserved to the respondents to establish its claim by filing a civil suit. 19. Needless to say, the time spent by the parties in prosecuting this petition shall be excluded from any period of limitation. 20. With the aforesaid, the petitions stand allowed and disposed of.