Sageer Ali vs State Of Madhya Pradesh

K.K. Trivedi, J.—Heard on admission.

These writ petitions are directed against the action initiated by respondents on 3.9.2014 by which it is directed that the petitioners to remove the structures made after encroachment on the nazul land within 24 hours or else the respondent No. 6-Municipal Council, Mandla will take steps for removal of the said structures.

While entertaining these writ petitions an interim stay was granted by this Court to the effect that no coercive steps be taken against the petitioners pursuant to the impugned notice/order dated 3.9.2014, if not already taken.

A return has been filed by the respondent No. 6 contending specifically that the petitioners were the encroacher and they have made unauthorized structures over the nazul land. They were creating nuisance and, therefore, after receipt of the complaints, action was taken by the respondent for removal of such an unauthorized construction. Alongwith the return an application for vacating stay was also filed by the respondent No. 6. However, since the documents were not filed alongwith the return or with the aforesaid application, IA No. 15600/2014 was filed by the respondent No. 6 for taking additional documents on record. These applications were served on the petitioners, but the replies of the said applications have not been filed as yet.

Today, at the course of hearing, it is contended by the learned counsel for the petitioners that for the many years petitioners were in possession of the land, which in fact is a nazul land. They made the applications before the competent authority for grant of lease of the said land. The petitioners were called upon to deposit certain amount towards premium for the purpose of consideration of their applications and since such a deposit is made, their applications are pending consideration. In between this period, all of a sudden, the notice/order impugned has been issued to the petitioners that too without affording an opportunity of hearing to remove the structures. This being so, it is contended that the action taken by the respondents is per se illegal and as such the notice/order impugned is liable to be quashed.

Per contra, it is contended by learned counsel appearing for the respondent No. 6 that on the nazul land unauthorized construction is made by the petitioners. Complaints were made by the residents of the area that the encroachment is made in such a place on the nazul land by the petitioners which is creating hurdle in the way of moving of the local residents. Not only this, the shop keepers are involved in atrocities to the young girls going to the school from the said area. On the complaints of the local residents, it appears that the matter was referred to the Sub Divisional Officer, who directed the Tehsildar to conduct an enquiry in that respect. Thereafter, various persons, who have illegally made encroachment on the nazul land, were issued notices to remove the said encroachment or else action was to be taken against them. Particularly for the petitioner in W.P. No. 14101/2014, it is pointed out that the show cause notice was issued to the petitioner way back on 6.4.2003 to remove unauthorized encroachment from the nazul land, but the encroachment was not removed. It is pointed out that because of that activities of the petitioners, complaints have been made by the residents and to protect their interest, action in the public interest is taken by the Municipal Council, Mandla. According to the learned counsel for the respondent No. 6, such action need no interference by this Court.

True it is that the petitioners have no right to make any construction on the land which is not specifically allotted or granted on lease to them for that purpose. Unless the lease is granted on a government land, the petitioners would not be entitled to remain in occupation of the said land. However, the enquiry in that respect is to be conducted by the District Magistrate or on his instructions or authorization by any competent authority and if the land is falling within the municipal area, then, only after affording an opportunity of hearing, action can be taken by the Municipal Council to remove such persons. This view has been expressed by the Division Bench of this Court in the case of Srinath Awas Vikas Pvt. Ltd. Vs. State of M.P., . The petitioners would not be granted a license to continue their unauthorized occupation on the land, if the same is not allotted to them by due process of law by the competent authority. However, it would be appropriate to issue notices to the petitioners asking them to remove the encroachment on their own or else the competent authority would be free to take steps against the petitioners in accordance to law. The petitioners would be liable to satisfy the authorities that their occupation on the land is in terms of the law or by the orders of the competent authority under a valid license or lease, failing which the respondents would be free to remove the petitioners in accordance to law.

In view of the discussion made hereinabove, the writ petitions are disposed of. The respondents would be free to take action against the petitioners for their removal in case it is found that the petitioners were nothing but the encroacher, after affording them an opportunity of hearing. There shall be no order as to costs.