Smt. Urmila Phalke and another vs Sate of Madhya Pradesh and others

S.K. Gangele, J.—The petitioners have filed this petition against the order Annexure P/1 dated 11/2/2011 and also against the order of removal of encroachment Annexure P/2 dated 11/2/2011 issued by the Nazul Tahsildar. The petitioners purchased a piece of land vide two registered sale-deeds Annexures P/3 and P/4 from Ashok Dattarey Joshi, Smt. Anuradha, Dusyant, Devyani Joshi, Avinas Dattarey Joshi, Smt. Smita Avinas Joshi, Ravi Avinas Joshi, Shrikant Avinas Joshi for a consideration of Rs. 25.00 lac each. After purchase of the property, the petitioners applied to the Nazul Officer for grant of No Objection Certificate. A No Objection Certificate was granted in favour of the petitioners on 21/6/2005. Thereafter, the petitioners submitted an application for grant of permission for construction, that permission was also granted to the petitioner on 10/5/2006. The petitioners made construction and they had been paying the property tax to the Municipal Corporation.

The Tahsildar, Nazul Gwalior registered a Case No. 35/2010-11/A-68 against petitioner in regard to encroachment by constructing a shop having area 25''x40'' feet at Survey No. 635. It is alleged that the petitioners had made encroachment by way of constructing a shop on the aforesaid portion of land. Thereafter, the shop was demolished.

This Court has considered in detail the pleadings of the parties and return filed by the State also the legal position in W.P.No. 1379/2011 (Maa Kaila Devi Enterprises through its partners vs. State of Madhya Pradesh and others) and held that the Nazul Tahsildar had no power and jurisdiction to initiate proceedings u/s 248 of the Madhya Pradesh Land Revenue Code, 1939. This Court further held that the persons who had been in possession over the property could not be said to be encroachers. Hence, in view of the order passed by this Court and reasoning assign in detail in W.P.No. 1379/2011 (Maa Kaila Devi Enterprises through its partners vs. State of Madhya Pradesh and others), this petition is allowed in similar terms.

Consequently, the petition of the petitioner is allowed. The action of the respondents in regard to initiation of proceedings u/s 248 of the Code and recovery of possession are hereby quashed. Because, the construction has been demolished by the authorities and the area is now an open area, hence, possession of the petitioner over the land is hereby restored. The orders Annexure P/1 dated 11/2/2011 and Annexure P/2 dated 11/2/2011 and also the order dated 01st March, 2011 passed by the Collector Gwalior are hereby quashed.

5 This Court vide an interim order dated 17/2/2011 has ordered to maintain status quo in regard to status of the property. It is alleged by the petitioner that in spite of order of status quo, the respondents deliberately demolished the shop. This Court in W.P.No. 1171/2011 (Avi Smriti Patankar Pathology Laboratory vs. State of Madhya Pradesh and others) has already directed to the office to register a case for Contempt of Court Act, hence, violation of interim order passed by this Court in the present case shall also be considered along with that MCC which shall be registered against violation of interim order dated 17/2/2011 passed in W.P.No. 1171/2011. This Court is also directed the Chief Judicial Magistrate, Gwalior to conduct an inquiry in regard to fact whether any notice was served on the affected persons by the Tahsildar Nazul or not. After receipt of report from the Chief Judicial Magistrate, this Court shall pass appropriate order in regard to fact whether there is violation of the interim order dated 17/02/2011 passed by this Court or not. The order passed by this Court in W.P.No. 1379/2011 (Maa Kaila Devi Enterprises through its partners vs. State of Madhya Pradesh and others) shall be a part of this order. Office is directed to place a photocopy of the order passed by this Court in W.P.No. 1379/2011 in the file of the present case.

No order as to costs.