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Judgment
R.S. Jha
The petitioners have filed this petition being aggrieved by order dated 21.06.2006 passed by the Building Officer, respondent No. 5, u/s 307 (3) of the M.P. Municipal Corporation Act, 1956 directing the petitioners to remove the alleged encroachment made by them by constructing the boundary wall on the area reserved for a park. It is submitted by the learned counsel for the petitioners that they are the owners of the area admeasuring 1950 Sq. Ft. situated near the old diversion plot No. 13, Mouza Katanga, Jabalpur as well as area 1650 sq. ft. falling in diversion sheet No. 277 which they have purchased through registered sale deeds dated 05.09.1998 and 16.02.2000 respectively. It is stated that inspite of the fact that they are the owners of the said lands, respondents No. 6 to 18 who are residents of Pragatisheel Housing Society, Jabalpur, filed an application before the authorities of the Municipal Corporation Jabalpur claiming that the aforesaid lands belong to them and the petitioners had made encroachment thereon, pursuant to which the Dy. Collector undertook demarcation proceedings and thereafter forwarded his report to the Municipal Corporation for taking action to remove the encroachments made by the petitioners, pursuant to which the impugned order dated 21.06.2006 has been issued by the officer of the Municipal Corporation u/s 307(3) of the M.P. Municipal Corporation, Act, 1956 directing the petitioners to remove the encroachments made by them.
It is submitted by the learned senior counsel for the petitioners that as the land belongs to the petitioners on which the respondent/Pragatisheel Society is claiming a rival title, no proceedings u/s 307 of the Act could have been initiated nor can the said provisions be misused in this manner to dispossess the petitioners ignoring their valid title as such a dispute, if any, can only be decided by a competent Civil Court in a properly instituted civil suit.
From a perusal of the record of the present petition, it is apparent that this court by an interim order dated 05.07.2006 directed the parties to maintain status quo as it existed on that date in respect of the property for which the impugned notice Annexure P/11 dated 21.6.2006 was issued. Thereafter by another interim order dated 29.12.2008, on the application filed by the petitioners that inspite of the order of status quo the respondents had started work on the property in question by levelling the land by using heavy machinery, this court further directed the respondents not to raise any construction on the land in question.
It is pertinent to take note of the fact that the petitioners, alleging that the respondents continued to violate the interim order passed by this court, have filed a contempt petition No. 899/2011 in which notices were issued by this court, pursuant to which the respondent/ Corporation authorities have filed a return and stated that the respondents/authorities have not taken any steps in respect of the land admeasuring 2800 sq. ft. in the occupation of the petitioners and the order of status quo and stay passed by this court has been duly complied with and is operating in the said area. The respondent/Corporation, in the return has further stated that the remaining open area admeasuring 7400 sq ft. has been taken up for developing a public park, however, on receiving a notice from this court in the present contempt petition, the work has been stopped. The respondent/Corporation has further stated that they are taking up proceedings to develop a public park on the aforesaid 7400 sq. ft. of land by undertaking tender proceedings and a work order only in respect of the remaining area admeasuring 7400 sq. ft. has been issued by them on 16.05.2011. The respondent/Corporation has specifically stated that in view of the order passed by this court no steps have been taken to violate the same and status quo in respect of the possession of the petitioners on the disputed property has been maintained by them.
Looking to the controversy involved in the present petition, this Court by an interim order dated 01.03.2012, had further directed the Tahsildar, Nazul, Jabalpur to conduct demarcation of the disputed land said to have been purchased by the petitioners vide sale deeds dated 05.09.98 and 16.02.2000 and submit a report after giving notice and hearing the petitioners, objectors and the Corporation who were also directed to remain present at the time of the demarcation proceedings.
Pursuant to the order passed by this court, the Tahsildar, Nazul has field a report dated 26.03.2012 before this court in which the following report has been submitted:
A perusal of the report submitted by the authority indicates that the land in question was purchased by the petitioners vide aforesaid sale deeds dated 05.09.1998 and 16.02.2000 and that there is no dispute regarding the sale deed dated 16.02.2000. It is further clear that as far as the land admeasuring 1950 sq. ft. purchased by the petitioners by sale deed dated 05.09.1998 is concerned, the said land is situated on the border of khasra No. 10 and old diversion plot No. 13, however, khasra nos. 10,11,12 are recorded in the name of Pragtisheel Housing Society in the Patwari record. It is also clear from a perusal of the report that the petitioners are in possession of the land purchased by them vide sale deed Annexure P/2.
As there was no clear finding in the report regarding possession of the land purchased by the petitioners, vide Annexure P/1 dated 05.09.1998, therefore, this court by order dated 10.07.2012 had directed the learned Government Advocate appearing for the State to clarify and make statement as to whether the petitioners are in possession of the land in excess of the sale deed in their favour or otherwise pursuant to which the Government Advocate appearing for the State, on the basis of the instructions received by him from the concerned officer, stated on 19.07.2012 that the land in question is in possession of the petitioners and the boundary wall is also standing.
The respondents No. 6 to 18 have filed a response to the demarcation report and submitted that the land in question is in fact recorded in the name of Pragtisheel Housing Society as per the registered sale deed dated 28.02.1976 executed in its favour. It is also submitted that the dispute between the petitioners and respondents No. 6 to 18 only relates to land admeasuring 1950 sq. ft., which the petitioners claim to have purchased vide sale deed dated 05.09.1998 however, it is stated that the land in question belongs to the Society and is clearly a part of public garden of the society as is evident from a perusal of the report and forms part of khasra No. 10 and is in possession of the Society since 1976. On the basis of the aforesaid averments, the report as well as the stand of the petitioners is vehemently opposed by the learned counsel for the respondents No. 6 to 18.
I have heard the learned counsel for the parties at length.
Apparently, as stated by the learned counsel for the respondents No. 6 to 18, there appears to be a dispute in respect of the land admeasuring 1950 sq. ft. between the petitioners and the said respondents and both of them are claiming title on the basis of the sale deeds executed in their respective favours. As this court under Articles 226/227 of the Constitution of India is not required to go into or decide disputed questions of fact or to pass a decree of declaration in favour of any person and as the aforesaid dispute can only be gone into and decided by a competent civil court duly instituted by either of the parties, I am of the considered opinion that no decision in respect of the said dispute is required to be nor can be rendered by this court in the present petition. I am also of the considered opinion, on the basis of a perusal of the order sheets, return filed by the respondents and the demarcation report submitted by the Tahsildar as well as the statements of the Government Advocate appearing for the State that as on date, status quo in respect of the land which is in dispute has been maintained by the parties and the possession of the land admeasuring 1950 sq. ft. continues to remain with the petitioners. As the petitioners have claimed title over the land in question on the basis of a sale deed executed in their favour, at this stage, neither the State nor the Corporation can say or hold the petitioner to be an encroacher till a decision is rendered in respect of the dispute in question by a competent civil court, therefore, till the matter is adjudicated by a competent court of law, no steps can be taken by the respondent/Corporation in respect of the land in dispute u/s 307(3) of the M.P. Municipal Corporation Act, 1956.
In the circumstances, without expressing any opinion on the entitlement or title of either of the parties in respect of the disputed land admeasuring 1950 sq. ft., the petition filed by the petitioners is partly allowed to the extent that while the impugned order dated 21.06.2006 passed by the respondents/authorities u/s 307(3) of the Act is quashed, the parties are directed to maintain status quo till their rights are decided by the competent civil court on a civil suit being filed by either of the parties, if so advised. It is also clarified on a request being made by the learned counsel for the Corporation that they would be at liberty to move ahead with the construction of a public park on the open space admeasuring 7400 sq. ft. available on the spot except the area in possession of the petitioners mentioned in the sale deeds dated 05.09.1998 and 16.02.2000 which is in possession of the petitioners. It is also made clear that nothing mentioned in this order or the findings recorded herein would have any binding effect on the proceedings, if any, taken up by either of the parties for getting their rights adjudicated by filing a civil suit before a competent civil court. With the aforesaid directions/observations, the petition stands allowed to the extent indicated above.