Dr. Satish Bhaya & others vs State of M.P. & others

The petitioners have filed the present petition, under Article 226 of the Constitution of India, challenging the orders dated 09/05/2011 and

04/06/2011 passed by respondents No. 2 and 4 respectively.

Brief facts of the case are that the petitioners have purchased a house No.1047/K-A situated at Chitranjan Ward, Jabalpur on the part of

Khasra No.31/3 ad-measuring 3750 sq. ft. from one Smt. Chaterjee w/o Shri R. N. Chatterjee vide registered sale deed dated 15/12/2004. After

purchasing the land, the petitioners have submitted an application for mutating their names in the land record. The Tahsildar has passed an order

dated 19/12/2006 thereby recording the names of the petitioners No. 2 & 3 in the land record. However, in the record of Municipal Corporation

also, the names of the petitioners No. 2 & 3 have been mutated as owners in respect of house No.1047/K-A. Thereafter, the petitioners No. 2 &

3 had submitted an application for raising construction over the property and the said permission was granted by the Municipal Corporation. A

map was also sanctioned, accordingly, the petitioners have constructed the hospital over the said property. On 07/12/2009 a show cause notice

was issued under Section 248 of Land Revenue Code by Tahsildar and SDO, Department of Water Resources, Sub Division No.1 Jabalpur for

removal of house and boundary wall over Khasra Nos.26/2 and 27/2. The petitioners have filed the reply to the said show cause notice on

26/12/2009 stating that the construction on Khasra No.31/3 which is a diverted private land purchased from Smt. Chatterjee by registered sale

deed in the year 2004. On 29/04/2011 petitioners have again submitted detailed reply along with all relevant documents. However, the Tahsildar

has passed an order dated 09/05/2011 holding that the petitioners are encroachers on the ground that no document was produced to show that

they are not encroachers on the government land. Respondent No.2 has not considered the documents produced by the petitioners along with

reply. Being aggrieved by the said order, the petitioners have preferred an appeal before the SDO. In the said appeal, the petitioners have filed all

the documents on which they are relying and a prayer was also made to provide them an opportunity of hearing and leading the evidence. In the

said appeal, the petitioners have raised the ground that while passing the order, Tahsildar has not considered the reply submitted by the petitioner

on 29/04/2011 and no opportunity was given to them for leading the evidence, therefore, the impugned orders dated 09/05/2011 and 04/06/2011

are liable to be set aside.

Respondent No.4 instead of deciding the appeal on merits has disallowed the application for stay vide order dated 04/06/2011 on the ground

that the case is related to W.P.No.8880/2009 (PIL). The petitioners submit that the petitioners are not a party in the said writ petition and they

have not received any notice and, therefore, it was obligatory in respect of respondents No. 2 to 4 to decide the issue after taking into

consideration the reply submitted by the petitioners. Respondent No.2 has also passed consequent order for eviction on 26/05/2011. Being

aggrieved by that order, the petitioners have filed the present writ petition.

Learned senior counsel appearing on behalf of petitioners submits that the orders dated 09/05/2011 and 04/06/2011 are illegal and erroneous.

He submits that respondent No.2 has not extended any opportunity of hearing and leading the evidence to the petitioners before passing the

impugned order dated 09/05/2011. He submits that respondent No.2 has not considered the reply/objection submitted by the petitioners while

passing the impugned order dated 09/05/2011.

Learned counsel for the petitioners submits that the petitioners have purchased the said property by registered sale deed and thereafter their

names were recorded in the revenue record as well as Municipal Record. Before raising the construction, they submitted an application for getting

necessary sanction which are granted to them by the State Authority. Therefore, the findings given by the Tahsildar that the petitioners are

encroachers is not sustainable.

Respondents have filed their reply and submits that the petitioners have an alternate remedy of filing an appeal before the Collector against the

order dated 04/06/2011 passed by the SDO. Hence, the writ petition is deserves to be dismissed. It has further been submitted that the other

persons in respect of similar case notice have been issued, they have also filed an appeal before the SDO which was remanded by the appellate

authority to the Tahsildar. Thereafter Tahsildar has passed the order dated 02/05/2012 and same has not been challenged by the petitioners being

respondents therein. It has further been submitted that in pursuance to the direction issued in W.P.No.8880/2009 proceedings have been initiated

under Section 248 against the petitioners. The petitioners along with other encroachers filed reply to the Tahsildar for granting an opportunity of

adducing the evidence and Tahsildar has found that the petitioners along with 26 others have trace passes and imposed the penalty of Rs.1500/-

for unauthorizedly taking possession on government land. The petitioners preferred an appeal before the SDO and the SDO vide order dated

04/06/2011 dismissed the said appeal. The respondents have further stated that the present writ petition involves disputed questions of law and,

therefore, the present writ petition deserves to be dismissed. The respondents have also submitted that in the said writ petition, the petitioners have

also sought a relief for declaration of title which cannot be granted while exercising the power under Article 226 of the Constitution of India.

Heard learned counsel for the parties and perused the record. The petitioners have purchased the land bearing Khasra No.31/3 at measuring

3750 sq.ft. by registered sale deed dated 15/12/2004 from one Smt. Chatterjee w/o Shri R.N.Chatterjee. The predecessor of title of the

petitioners had obtained all NOCs from various authorities. The petitioners thereafter constructed a hospital and is running the same. Thereafter,

the Tahsildar has issued a notice under Section 248 of MPLRC to the petitioners. The petitioners have filed the detailed reply to the said show

cause notice along with all relevant documents. However, the Tahsildar has passed the order dated 09/05/2011 rejecting the objections submitted

by the petitioners stating that the petitioners have not filed any documents to show that they are not in possession of the government land.

However, from perusal of the order passed by the Tahsildar it reveals that the Tahsildar while passing the order dated 09/05/2011 has not at all

considered the objections as well as documents produced by the petitioners and have passed a cryptic order. Against the order passed by the

Tahsildar, the petitioners have preferred an appeal before the SDO. The SDO also vide order dated 04/06/2011 in stead of deciding the appeal

on merits has dismissed the same on the ground that due to the order passed by this Court in W.P.No.8880/2009 (PIL), this appeal is not

maintainable. W.P.No.8880/2009 (PIL) was filed by one Sushila Agrawal and others and in the said writ petition, the petitioners were not a party.

In the said writ petition, the Division Bench of this Court has issued a direction to the State Government to take a decision in the matter about

regularization and rejection of the proposal as the case may be. Thus, there is no such direction issued by the Division Bench for removal of any

encroachment of the petitioners. Thus, the SDO has also erred in passing the impugned order on the ground of orders passed in PIL. Thus, in light

of the aforesaid, as the authority has not decided the case on merits, I deem it fit to remand the matter back to the Tahsildar for deciding the same

on merits afresh.

Accordingly, the writ petition is allowed. The impugned orders dated 09/05/2011 and 04/06/2011 are hereby set aside and the matter is

remanded back to the Tahsildar to decide the case on merits after taking into consideration all the objections as well as documents produced by

the petitioners. The Tahsildar will also provide an opportunity of hearing to all the parties concerned. Let the aforesaid exercises be completed

within a period of six months from the date of received of certified copy of the order passed today.

However, till the decision of Tahsildar. Interim order passed by this Court on 13/06/2011 shall remain continue.

With the aforesaid observations, the petition stands allowed and disposed of, with no order as to costs.