AI Structured Summary
Not yet generated for this judgment
Judgment
This order shall govern disposal of aforesaid Writ Petition No. (s) 18150/2024; W.P. No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 and Contempt Petition No.(s) 109/2024, 2907/2024 and 3112/2024.
Regard being had to the similitude of the controversy involved in the aforesaid writ petition(s), they have been heard analogously and disposed off by this singular order.
For the sake of convenience, facts of W.P. No.18150/2024 are taken . However, the reliefs of each writ petition has been reproduced separately for convenience.
2 . The present batch of petitions viz W.P.No. (s) 18150/2024; W.P. No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 has been filed by the petitioner(s) under Article 226 of the Constitution of India praying for the following reliefs:
W.P. No. 18150/2024
"7. RELIEF SOUGHT:
On facts narrated above and the grounds raised in the petition, the petitioner prays for the following' reliefs :
a. This Hon'ble Court be pleased to allow this petition and be pleased to issue a writ in the nature of mandamus/certiorari or any other appropriate writ, direction or order in exercise of writ jurisdiction for quashment of the orders dated 11.03.2024 (Annexure P/14) passed by the respondent no. 1.
b. Costs of the petition be awarded to the petitioner from the respondents.
C. Any other relief, as this Hon'ble Court may deem fit in the facts and circumstances of the case, be granted to the petitioner."
W.P. No. 16249/2024
"7. RELIEF PRAYED FOR:
The petitioner therefore, pray that this Hon'ble Court may be pleased to
(a)Issue appropriate writ direction or order or direction to the respondents, not to take any coercive action/ demolition activity against the petitioners' possession and their constructed houses.
(b)Issue appropriate writ direction or order or direction to quash the public notice dated 16.05.2024 numbered as 866/Readar/2024. (Annexure P/1)
(c)Issue appropriate writ direction to the respondents to follow the principles of natural justice.
(d)Any other relief which the Hon'ble Court deems fit, just and proper looking to the facts and circumstances of the case."
W.P. No. 16676/2024
"7. RELIEF PRAYED FOR:
The petitioner therefore, pray that this Hon'ble Court may be pleased to
(a)Issue appropriate writ direction or order or direction to quash the impugned eviction order dated 16.05.2024 (Annexure P/1).
(b)Issue appropriate writ direction or order or direction to the respondents, not to take any coercive action/ demolition activity against the petitioners' possession and their constructed houses.
(c)Issue appropriate writ direction to the respondents to follow the principles of natural justice.
(d)Any other relief which the Hon'ble Court deems fit, just and proper looking to the facts and circumstances of the case."
W.P. No. 16752/2024
"7. RELIEF PRAYED FOR:
The petitioner therefore, pray that this Hon'ble Court may be pleased to
(a)Issue appropriate writ direction or order or direction to the respondents, not to take any coercive action/ demolition activity against the petitioners' possession and their constructed houses..
(b)Issue appropriate writ direction or order or direction to quash the public notice dated 16.05.2024 (Annexure P/1) numbered as 866/Readar/2024.(Annexure P/1).
(c)Issue appropriate writ direction to the respondents to follow the principles of natural justice.
(d)Any other relief which the Hon'ble Court deems fit, just and proper looking to the facts and circumstances of the case."
W.P. No. 17231/2024
"7. RELIEF PRAYED FOR:
The petitioner therefore, pray that this Hon'ble Court may be pleased to
(a)Issue appropriate writ direction or order or direction to quash the impugned eviction order dated 16.05.2024 (Annexure P/1).
(b)Issue appropriate writ direction or order or direction to the respondents, not to take any coercive action/ demolition activity against the petitioners' possession and their constructed houses.
(c)Issue appropriate writ direction to the respondents to follow the principles of natural justice.
(d)Any other relief which the Hon'ble Court deems fit, just and proper looking to the facts and circumstances of the case."
W.P. No. 17241/2024
"7. RELIEF PRAYED FOR:
The petitioner therefore, pray that this Hon'ble Court may be pleased to
(a)Issue appropriate writ direction or order or direction to the respondents, not to take any coercive action/ demolition activity against the petitioners' possession and their constructed houses..
(b)Issue appropriate writ direction or order or direction to quash the public notice dated 16.05.2024 (Annexure P/1) numbered as 866/Readar/2024.(Annexure P/1).
(c)Issue appropriate writ direction to the respondents to follow the principles of natural justice.
(d)Any other relief which the Hon'ble Court deems fit, just and proper looking to the facts and circumstances of the case."
3. BRIEF FACTS IN NUTSHELL
As per the case of petitioner, he is the owner and recorded bhumiswami of land bearing Survey No. 66/2(k) admeasuring 0.720 hectare situated at village Khajrana Tahsil and District Indore. In the year 2017 the revenue authorities conducted demarcation of the aforesaid land in which the aforesaid land was found to have been encroached by 70 encroachers. The petitioner thereupon initiated proceedings under Section 250 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as "the MPLR Code") before the Tehsildar for restoration of possession after removal of encroachments. The aforesaid application filed by the petitioner was registered as Case No. 4/A-70/2017-18 and after affording due opportunity of hearing the Tehsildar passed an order dated 25.06.2018 whereby the application under Section 250 of the MPLR Code was allowed and directions were issued to reinstate the petitioner in possession of the aforesaid land after removal of the encroachments. The order of the Tehsildar dated 25.06.2018 was assailed by encroachers by filing appeal, firstly, before the SDO and thereafter before the Additional Commissioner, which too were dismissed vide orders dated 04.04.2019 and 08.08.2019 and thereafter, the aforesaid encroachers assailed the orders passed by the revenue authorities by filing M.P. No. 5156/2019 before this Court, which was dismissed vide order dated 01.10.2020. Being aggrieved by the dismissal of Miscell. Petition, writ appeal being W.A. 1233/2020, was preferred by the aforesaid persons, which too was dismissed by the Division Bench vide order dated 16.12.2020. The order passed in favour of the petitioner under Section 250 of the MPLR Code thus stood affirmed by the Division Bench of this Court. The petitioner thereupon repeatedly requested the revenue authorities to remove the encroachments and to deliver the vacant position of the aforesaid land but all the requests made by the petitioner proved to be futile as the authorities gave a cold shoulder to the aforesaid request. The petitioner, therefore, filed W.P. No. 5857/2021 before this Court and made a prayer for directing the revenue authorities to comply with the order passed in proceedings under Section 250 of the MPLR Code which was upheld by the Division Bench of this Court. The aforesaid writ petition filed by the petitioner was however, dismissed by the Single Bench whereupon W.A. No. 1224/2023 was filed by the petitioner before the Division Bench which was allowed by the Division Bench vide order dated 25.10.2023 by giving directions to the authority i.e. the respondents No.2, 4 and 5 to remove the encroachments with the assistance of respondent No.3 and to reinstate the petitioner in vacant possession of the land bearing survey no.66/2(k) area 0.720 hectare of village Khajrana in terms of the are orders dated 01.10.2020 and 16.12.2020 within a period of 45 days from the date of receipt of the certified copy of the order. Thereafter, some of the encroachers and third parties have challenged the order dated 25.10.2023 by filing SLP No. 22314/24 before the Hon'ble Supreme Court which was dismissed vide an order dated 18.06.2024. In spite of the clear directions issued by the Hon'ble Division Bench vide order dated 25.10.2023, no steps have been taken by the revenue authorities for its compliance whereupon the petitioner has filed a CONC No. 109/2024 before the Division Bench in which an undertaking was given by the Collector, District Indore on 12.04.2024, to comply with the order dated 25.10.2023 by 30.06.2024. However, with a view to frustrate the compliance of the order dated 25.10.2023, certain objectors popped up by the encroachers by filing W.P. No. 3337/2024 and W.P. No. 4854/2024 by making a false claim that their houses are situated on the land bearing survey number 66/2(k) of village Khajrana and that they are being sought to be dispossessed in compliance of the order dated 25.10.2023 passed by the Division Bench of this Court. The aforesaid writ petitions were disposed of by this Court vide orders dated 17.02.2024 and 01.03.2024 with certain directions whereby it was directed that the petitioners shall approach the SDO, Indore within a period of seven days with all the requisite documents to demonstrate that their property is not covered within the purview of the order passed in the aforesaid Writ Appeal, then the respondent No. 3 shall examine the matter and consider the application made by each of the petitioner. Thereafter, the order dated 17.02.2024 passed and W.P. No. 3337/2024 was modified by the Division Bench vide order dated 20.02.2024 passed in W.A. No.424/2024 and pursuant to the said orders, the representation submitted by the private respondents have been decided by the respondent no.1 vide order dated 11.03.2024 with a view to frustrate the compliance of the order dated 25.10.2023 passed in W.A. No. 1224/2023. Thus, the impugned orders have been passed by the respondent no.1 in utter breach of principles of natural justice, without affording any opportunity of hearing to the petitioner as the petitioner came to know about the said orders in the month of June, 2024 when the private respondents have filed the writ petitions. Hence, the present petition is filed by the petitioner.
4. CONTENTION RAISED BY PETITIONER[W.P. NO. 18150/2024]
It is contended that non-compliance of the order passed on 25.10.2023 in favour of petitioner for restoration of possession of Survey No. 66/2(k) is getting frustrated, which is resulting not only in grave miscarriage and travesty of justice, but is also resulting in violation of the constitutional rights guaranteed under Article 226 of the Constitution of India.
It is further contended that the impugned orders passed by the respondent no.1 is contrary to the constitutional mandate of rule and law, in as much as the impugned orders tantamount to executive overreach over judicial verdicts and the impugned orders have been issued by way of an administrative exercise with a view to set at naught the compliance of the judicial order dated 25.10.2023 passed by the Division bench.
It is also contended that the respondent no.1 had passed the orders impugned, without application of mind and only with a view to complicate and frustrate the compliance of the order dated 25.10.2023.
It is contended that the respondent no.1 has not made any discussion as regards the identity or location of the properties and has recorded, an altogether baseless and arbitrary finding that the private respondents are not covered by the order passed by the Division Bench of this Court on the ground that they were not parties , whereas the direction was issued by this Court for ascertaining the location/identity of the properties and there was no direction for ascertaining the identity of the parties.
The petitioner has been the recorded bhumiswami of the land bearing Survey No. 66/2(k) from the year 2003-04 and in such circumstances, the respondent no.1 ought to have afforded an opportunity of hearing to the petitioner, particularly in view of the mention made in the impugned order itself regarding submission of representations against the petitioner, thereby violating the principles of natural justice.
It is also submitted that since respondents have failed to comply with the order passed by the division bench in writ appeal, which is confirmed by the Apex Court, contempt petition is filed. If this petition is allowed, then nothing survive in the contempt petition and the same may be disposed off, after considering the submission that the respondents/authority has filed to comply with the order passed by the Division Bench.
5. CONTENTION RAISED BY PETITIONERS [W.P. NO. 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024]
It is submitted that the petitioners in aforesaid petitions were labelled as 'encroachers' who have filed the proceedings before this Court by way of earlier petitions and thereafter, by way of representations before the SDO whereby the impugned order which is the subject matter of challenge in W.P. no. 18150/2024 is passed by the authority.
It is further submitted that pursuant to that order passed by the respondent no.1, further exercise is carried out and being aggrieved by the further proceedings, the petition which are filed before this Court by the said encroachers are having almost similar reliefs claiming themselves to be in settled possession and without following due process of law, they are evicted under the guise of order dated 25.10.2023, passed in W.A. No. 1224/2023.
It is further contended that these orders are passed by this Court qua only 70 encroachers, who were found as encroachers at the time of demarcation of Survey No. 66/2(k) and unless any further proceedings are initiated u/S 250 of the MPLR Code, the present petitioners cannot be evicted under the guise of that order.
It is also submitted that petitioner in W.P. No. 18150/2024 misusing the order passed in W.A. No. 1224/2023 has intended to evict the petitioners in W . P . No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 and, therefore, the petitions are required to be allowed.
6. CONTENTION RAISED ON BEHALF OF PRIVATE RESPONDENT IN W.P. NO. 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024/
ORIGINAL PETITIONER IN W.P. NO. 18150/2024].
It is submitted that when the demarcation procedure is carried out, the possession was found qua only 70 persons, against whom orders were passed and appropriate action is required to be taken.
It is further submitted that in the order passed in the writ appeal by the Division Bench and earlier orders passed nomenclature used is regarding 'qua the land in question' and not for the persons. Though, at the relevant point of time, 70 encroachers were found on the premises by the authority in the process of demarcation.
It is also submitted that even looking to the cause titles of the writ petitions, addresses of petitioners are mentioned other than the place i.e. Survey no. 66/2(k), Village Khajrana and they are residing in different towns and cities in the State of Madhya Pradesh and, therefore, the entire claim is filed with a view to get the fruits of legitimate right by travelling upto Supreme Court, more particularly to frustrate the compliance of the order dated 25.10.2023 passed by the Division Bench in W.A. No. 1224/2023. Hence, the all the writ petitions v i z No(s) 16249/2024,16676/2024,16752/2024,17231/2024 are liable to be dismissed.
7. CONTENTIONS RAISED ON BEHALF OF RESPONDENT/ STATE
Learned counsel for the respondent/State submitted that State has no reason to take action pursuant to the order passed in writ appeal. Since in the other petitions i . e . N o ( s ) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 petitioners have approached this Court and this Court has granted interim protection, therefore the State is not in a position to take action on the land in question for dispossessing the persons who are identified as 'enroachers' and hand over possession of the land to the petitioner of W.P. No. 16676/2024. Though earlier, assurance is given by the Collector in view of pendency of proceedings and if the Court vacates such stay, the respondent authority shall certainly go ahead for necessary action and take appropriate steps in accordance with law, as there is no intention or deliberate disobedience on the part of State authorities, but due to pendency of subsequent proceedings, the orders could not be complied with.
8. FINDINGS
I have heard, rival contentions advanced by the parties made at the Bar and perused the record.
The orders passed by various authorities as well as by this court in W.P. No. 5156/2019, W.A. No. 1233/2020, W.P. No. 5857/2021 and W.A. No. 1224/2023 as well as the order passed by the Hon'ble Supreme Court in SLP(Civil) No. 13284/2024 are required to be taken into consideration.
It is relevant to note that the petitioner of W.P. No. 18150/2024 had purchased the land by way of registered sale deed dated 31.03.2003 and land is also mutated in favour of petitioner. It transpires that the petitioner is the recorded 'bhumiswami' of the subject land and since the year 2006, the subject land was included firstly in Scheme No. 132 and then Scheme No. 171 and consequently, the land acquisition proceedings were quashed in W.P. No. 14605/2006 and was affirmed by a Full Bench in W.A. No. 1455/2007. The IDA moved to the Supreme Court in SLP, which was dismissed and thereafter the land was included again in Scheme No. 171. On 08.04.2015, in a revision filed by the petitioner, the revisionary authority directed exclusion of land in question from the Scheme No. 171 and thereafter the Indore Development Authority has also granted permission to the petitioner - M/s Shree Ram Builders for development of the land. It further transpires that as per the existing Section 250 of the MPLR Code, which stood amended on 27.07.2018 before the order was passed by the Tehsildar on 25.06.2018, as per the provisions of Section 250(1-a)(b) of the MPLR Code. It also transpires that demarcation dated 17.01.2017 establishes that 70 persons have encroached upon the portion of Survey no. 66/2/A and thereafter the petitioner has filed proceedings u/S 250 of the MPLR Code on 17.01.2017. It transpires that in the proceedings u/S 250 of the MPLR Code, out of 70 persons, only 06 persons have filed copies of sale deeds executed in their favour and those sale deeds are also considered in earlier round of litigation which is mentioned earlier where the Court has found that the title of vendors of the sale deed which is executed in favour of 06 encroachers has not been mentioned whether the same been acquired by way of succession or purchased by way of any registered document.
1 2 . For this purpose, Section 250 of the MPLR Code is required to be reproduced, which is as under:
"250.Reinstatement of bhumiswami improperly dispossessed.- (1) For the purpose of this section and section 250-A bhumiswami shall include occupancy tenant and Government lessee.]
(1-a) If a bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the bhumiswami to the use of which such per son has ceased to be entitled under any provision of this Code, the bhumi- swami or his süccessor-in-interest may apply. to the Tahsildar for restoration of the possession,
(a)in case of bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165-
(i)before the Ist July 1978 in cases of unauthorized dispossession prior to the 1st July,
(ii)in any other cases within five years from the date of dispossession or from the date on which the possession of such person becomes unauthorized, as the case may be
(b)in case of a bhumiswami not covered by clause (a), within two years from the date of dispossession or from the date on which possession of such person becomes unauthorised as the case may be.
(1-b) The Tahsildar shall on coming; to know that a bhumiswami has been dispossessed of his land otherwise than in due course of law, suo motu start proceedings under this section.
(2)The Tahsildar shall, after making an enquiry into the respective claims of the par ties, decide the application and when he order s the restoration of the possession to the bhumiswami, put him in possession of the land.
(2-a) The proceedings started under this section shall after receipt of reply from the other party, continue from day to day unless for reasons to be recorded in writing a longer adjournment is considered necessary and in that case a copy of the order sheet containing the reasons for such adjournment shall be sent to the Collector.
(3)The Tahsildar may at any stage of the enquiry pass an interim order for handing over the possession of the land to the bhumiswami, occupancy tenant or Government lessee, as the case may be, if he finds that he was dispossessed by the opposite party within six months prior to the submission of the application or commencement of suo motu proceedings under this section. In such case the opposite party shall, if necessary, be ejected under orders of the Tahsildar.]
(4)When an interim order has been pas sed under sub- section (3) the opposite party may be required by the Tahsildar to execute a bond for such sum as the. Tahsildar may deem fit for abstaining from taking possession of land until the final order is passed by the Tahsildar.
(5)If the per son executing a bond is found to have entered into or taken po taken possession of the land in contravention of the bond, the Tahsildar may forfeit the bond in whole or in part and may recover such recover such amount as an arrear of land revenue.
(6)If the order pas sed under sub-section (2) is in favour of the applicant the Tahsildar shall also award compensation to be paid to the applicant by the opposite party which shall be at the prorata rate of two thousand rupees per hectare per year.
(7)The compensation awarded under this section shall be recoverable as an arrear of land revenue.
(8)when an order has been passed for the restoration of the possession to the bhumiswami , the Tahsildar may require the opposite. Party to execute a bond for such sum as the Tahsildar may deem fit for abstaining from taking possession of the land and contravention of order.
(9)Where an order has been passed under sub-section (2) for the restoration of the possession of the bhumiswami, the opposite party shall also be liable to fine which may extend to [twenty per centum of the market value of such land] : [Proviso Omitted]."
Now it is required to be considered that whether the respondent authority has failed to implement the order passed by the Division Bench in its true letter and spirit or not and whether the petitioners o f W.P.No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024, who had approached the Court subsequently have any locus and having any real possession on the land in question or not and whether the authority pursuant to the representation made after the order passed by the Division Bench by giving certain directions and on that direction, the authority had directed to initiate proceedings u/S 250 of the MPLR Code, which would amount to over reaching the order passed by the judicial authority or not.
Considering this aspect, it is required to be noted that there is no dispute in the fact that in W.A. No. 1224/2023, the Court has given specific direction to the respondent authority. In this regard, para 31-37 of the order is required to be reproduce below:
"31.In these circumstances, we do not find any merit in the contention of the respondents that the title of the appellant has come under a cloud on account of the order dated 22.03.2021, particularly in view of the fact that the operation of the aforesaid order has been stayed by this Court
32.The other two writ petitions, i.e. W.P. Nos. 16802/2020 and 11059/2021 have been filed filed by one Smt. Parvinder Kaur and one Khemraj Joshi in respect of an altogether different issue, which has no bearing on the issue involved in the present writ petition which had been filed by the appellant for removal of illegal occupants from the subject land and for restoration of its possession in terms of the orders passed by this Court. The respondents cannot defy the conclusive orders passed by this Court on the pretext of pendency of the aforesaid petitions.
33.The learned Single Judge has taken note of the Judgment of the Hon'ble Supreme Court in the case of Bal Kishan and another vs. Satya Prakash and others reported in (2001)2 SCC 498. However, we find that the aforesaid decision has turned upon its own facts and has no of the present case. applicability in the fach
34.In the present case the inaction of the respondents in complying with the orders passed by this Court is glaring on the face of record. The failure of the respondents to act in terms of the orders passed by this Court clearly amounts to to discharge their statutory obligations/duty. In these circumstances, we find that the appellant was entitled for the relief prayed for in the writ petition and the learned Single Judge was not justified in dismissing the writ petition filed by the appellant. failure their part on
35.The Hon'ble Supreme Court in the case of Hari Krishna Mandir Trust (Supra) has laid down the law regarding issuance of writ of Mandamus in following terms :-
"102.In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion. In Directors of Settlements, Anadhra Pradesh vs. M.R. Apparao, Pattanaik J. observed:
"One of the conditions for exercising power under Article 226 issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus, "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty."
"A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law.
(Emphasis
supplied)
36.In our considered opinion, the learned Single Judge has fallen into a serious error in not considering the manifest injustice suffered by the appellant and in dismissing the writ petition filed by the appellant, whereas the present case is fit case for issuance of a writ of Mandamus for directing the respondents to perform their statutory obligations/duty.
In view of the foregoing discussion, this writ appeal succeeds and is hereby allowed. The impugned order dated 03.08.2023 passed by the learned Single Judge is set aside and the writ petition filed by the appellant is ordered to be allowed. The respondents No.2, 4 and 5 are directed to remove the encroachments with the help of respondent No.3 and to reinstate the appellant in vacant possession of the land bearing survey no.66/2(k) area 0.720 hectare of village Khajrana in terms of the orders dated 01.10.2020 and 16.12.2020 within a period of 45 days from the date of receipt of the certified copy of this order."
1 5 . It is also are required to be noted that in the earlier round of litigation also, out of 62 petitioners and occupants who have approached this Court, only 06 petitioners have produced the registered sale deeds and those sale deeds are also found under a cloud, as observed in the judgment passed in M.P. No. 5156/2019 by the co-ordinate Bench of this Court. Para 31- 34 of the judgment is reproduced below for ready reference:
"The second controversy between the petitioners and the respondent No. 4 who is in possession of the land in question. The respondent No.3 applied for demarcation before the Revenue Inspector in respect of the land in question and other survey numbers. During the demarcation proceeding, it came to the knowledge of the Revenue authorities that certain construction's have been raised on survey No.66/2/K and he prepared the list of 62 occupants.
Vide order dated 17.01.2017 the Revenue Inspector has concluded the demarcation proceeding by mentioning the possession of the 62 occupants including present petitioners. The aforesaid demarcation proceeding has not been challenged by any of the petitioners, therefore, the petitioners are in possession over the land bearing survey No.66/2/K. Now the issue comes for the consideration of whether the petitioners were, required to be heard in the demarcation proceedings This issue has also been considered by this High Court in the case of Baba Gyandas Vs Tehsildar Sheorpur reported in 2018 RN 185 ad it has been held that in absence of any legal right to the land or as Bhumiswami such person cannot be held tožbe patty interested for the purpose of raising objection to the demarcation proceedings hence there is no substance in the arguments of Shri Jain learned senior counsel that an the demarcatiom proceedings the petitioners were not heard.
32.The third issue which is under consideration before this Court is in respect of the scope of section 250 of the MPLRC. Shri Jain, learned Senior Counsel appearing for the petitioners has vehemently argued that the land in question is though recorded as agricultural land but no agricultural activities have ever taken place either by the petitioners, respondent no.4 or their predecessor-in-title. The present respondent No.4 is a developer and purchased the land for development and not for agricultural purposes, therefore, section 250 proceeding ought not to have been invoked. For ready reference section 250 MPLRC is reproduced below:
250.Reinstatement of bhumiswami improperly dispossessed. (1) For the purpose of this section ind section 250-A bhumiswami shall include occupancy tenant and Government lesson.)
(1-a) If a bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the bhumiswami to the use of which such person has ceased to be entitled under under any provision of Code, the bhumiswami or his successor-in-interest may apply, to the Tahsildar for restoration of the possession.
(a)in Case of bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub- section (6) of Section 165 -
(i)before the July 1978 in cases unauthorized dispossession prior to the 1st July. 1976, and
(ii)in any other cases within five years from the date of dispossession or from the date on which the possession of such person becomes unauthorized; as the case may be
(b)in case of a bhumiswami not covered by clause (a) within two years from the date on which possession of such person
(1-b) The Tahsildar shall on coming, to know that a bhumiswami has been dispossessed of his land otherwise than in due course of law, suo motu start proceedings under this section.
(2)The Tahsildar shall, after making an enquiry into respective claims of the par ties, claims of the parties, decide the application and when he orders the restoration of the possession to bhumiwami, put him in possession of the land
(2-4) The proceedings started under thin Section shall shall after receipt of reply from the other party, continue from day to day unless for reasons to be recorded in writing a longer adjournment is considered necessary and in that case a copy of the order sheet containing the reasons for such adjournment shall be sent to the Collector
(3)The Tahsildar may it any stage of the enquiry pass interim order for banding over the possession of the land to the bhumiswami, occupancy tenant or Government lessee, as the case may be, if he finds that he was dispossessed by the opposite party within six months prior to the submission of the application commencement of suo motu proceedings under this section. In such case the opposite party shall, if necessary, be ejected under orders of the Tahsildar
(4)When an interim order has been passed under sub- section (3) the opposite party may be required by the Tahsildar to execute a bond for such sum as the Tahsildar may deem fit for abstaining from taking possession of land until the final orders passed by the Tahsildar
(5)If the person executing a bond is found to have entered into or taken possession of the land in contravention of the bond, the Tahsildar may forfeit bond in whole or in part and may recover such amount as an arrear of land revenue.
(6)If the order passed under sub-section (2) is in favour of the applicant the Tahsildar shall also award compensation to be paid to the applicant by the opposite party which shall be at the prorate rate of two thousand rupees per hectare per year.
(7)The compensation awarded under this section shall be recoverable as an arrear of land revenue.
(8)when an order has been passed under sub-section (2) for restoration of the possession to the bhumiswami, the Tahsildar may require the opposite party to execute bond for such sum as the Tahsildar may deem f it for abstaining from taking possession of the land and contravention of the order.
(9)Where an order has been passed under sub-section(2) for the restoration of the possession of the bhumiswami, the opposite party shall also be liable to fine which may extend to [twenty per cetnum of the market value of such land][Proviso Omitted]
Section 250 (1-a) provides that if a Bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorizedly continues in possession of any land of the Bhumiswami to the use of which such person has ceased to be entitled under any provision of this Code the Bhumiswami or his successor-in-interest may apply to the Tahsildar for restoration of the possession. Section 250 (1-b) gives power to the Tahsildar to initiate suo moto proceeding under this section on coming to know that the Bhumiswami has been dispossessed of his land. After making any enquiry into the respective claims of the parties the Tahsildar under section (2) of section 250 may order for restoration of the possession to the Bhumiswami and put him into the possession of the land. Section 250 (3) gives power to the Tahsildar to, pass an interini order for handing over the possession of thbhand to the Bhumiswami, to the Bhumiswami, Occupancy tenant of Govt. lessee, as the case may be Sub section (9) gives power to the Tahsildar in addition to the order of restoration of possession to impose fine.. Learned Revenue authorities have placed reliance over the definition of the land' given in section 2(1) of the Code and according to which the means a portion of the earth's surface whether land whether or not under water, and where, land is, referred to-in his Code it shall be deemed to include all things attached to or permanently fastened to anything attached to such land. In the case of Narayan Vyankatrao vs. Nagubai Balaji and others reported 1977 MPLJ 578 this Court had an occasion to deal with this definition of land and observed that the term refers not only to open land but also to everything permanently fastened to the earth. The provisions of the Code apply equally to agricultural as well as non-agricultural land.
It is also not disputed that the land in question is situated within the limits of Municipal Corporation, Indore but still recorded as agricultural land and no order for diversion has ever been passed. Even the land is diverted or used for other than agricultural purpose it is mandatory to maintain the revenue record by the Tahsdilar in which the nature of the land is to be mentioned and in the present case same is recorded as agricultural land, were fore, as per the simple and plain definition of section 250 if the Bhumiswami approaches the Tahsildar that the complainant is dispossessed the land otherwise than in the due course of law then the Tahsildar is bound to entertain the application under section 250 MPERC, hence the application filed by the respondent No 4 before the Tahsildar is maintainable and the Tahsildar has not committed any error of law while entertaining the said application.
33.Shri VK Jain, learned Senior Counsel has raised the issue of limitation and according to him by virtue of section 250 (1-a) (b) the period of limitation is 2 years from the date of dispossession in the case of Bhumiswami who is not covered by clause (a) or from the date on which the possession of such person became unauthorized, as the case may be As per clause 250 (1-a) if a Bhumiswami is dispossessed of the land otherwise than in due course of law then under clause (b) he has to approach the Tahsildar within a period of 2 years and if any person unauthorizedly continues in possession of the land as Bhumiswami to the use of which such person has ceased to be entitled under any provision of this Code and his possession became authorized then also the limitation is 2 years for the Bhumiswami to approach the Tahsildar. In the present case, the respondent No.4 purchased the land in the year 2003 and got mutated its name in the revenue record. Thereafter, the land in question was included in the Scheme: No.132 framed by the Indore Development Authority and the land was sought to be acquired by the State Govt. Only the respondent No.4 being the owner of the land challenged the notification by way of WIP No.14065/2006 65/2006 and succeeded up to the Supreme Court and finally got released the land by way of NOC dated 20.09.2016 for private development. This the date when the possession of the petitioners became became unauthorized and they ceased to be d to be entitled not to use the land under the provision of this Code, and from this date, the limitation of 2 years would start, hence the respondent No.4 rightly filed an application under section 250 OMPLRG MPLRG before before the Tahsildar within two years. After succeeding up to the Supreme Court and getting the land released the respondent No.4 applied for demarcation on 26.12.2016 and vide order dated 17.01.2017 the demarcation proceedings were concluded by disclosing the name of 60 occupants to be in possession of the land in question. The fact of the aforesaid possession by the 62 occupants came to the knowledge of the respondent No.4 during the demarcation proceeding and in view of the law I laid down by this Court in the case of Murlidhar vs. Board of Revenue (supra) the starting point for consideration of the period of limitation would be when the person found to be in authorized possession i.e. the date of order passed under section 129 of the Code. In view of the aforesaid, the application filed by the respondent No.4 is not barred by limitation and the learned authorities have not committed any error of law while,entertaining the application.
34.Shri V.K Jain learned- Senior Counsel has raised the issue that the petitioners have been found in possession of the land and without demolishing the construction the vacant possession of the land cannot be handed over to the fespondent No.4 which is not within the domain of the Tahsildar to pass the order for removal of the possession for handing over the vacant possession to the Bhumiswami i.e. respondent No.4. This point might have substance and weightage for consideration but non of the petitioners is in a position to place on record the document to establish his clear title or the building permission. Out of 62 petitioners and occupants only 6 petitioners have produced the registered sale deeds and as per the aforesaid discussion, those sale deeds are also under a cloud. The remaining petitioners and other occupants have no title document in their favour despite that they have constructed houses therein without obtaining building permission from the Municipal Corporation, Indore under the Municipal Corporation Act. 1- found Merely paying property tax or obtaining electricity connection therein would not legalize their construction or would not confer any title to them. If the construction is illegal that too on land without title then that cannot come in the way of exercising the statutory power of Tahsildar under section 250 of the MPLRC. In order to defeat the provisions of MPLRC anybody can make illegal construction on the land and stall the proceeding of section 250 MPLRC. This is not the intention of the Legislature. If the Bhumiswami has been dispossessed or the possession of any person has been unauthorized then such a person is legally bound to hand over the vacant possession to the Bhumiswami, under Section 250 of MPLRC With full conscious the legislature has drafted the definition of the 'land' in the MPERC in which, all the things permanently fastened with the land have been fictionally treated as the land, therefore, mere construction on any land by a person who is unauthorisedly in possession cannot resist the proceeding under section 250. Even otherwise, the Municipal Corporation has ample power under section 299 of the Municipal Corporation Act to demolish the illegal construction at any point of time. Since the petitioners are not title holders of the land and made entire construction without permission hence the such illegal construction cannot be compounded under section 308 of the Municipal Corporation and rules made thereunder. The respondent No.4 cannot be relegated to the civil court to obtain possession or decree of declaration in respect of the construction as void and claim the possession. That out of 62 petitioner illegal occupants only one has filed a civil suit before the civil court. Therefore, when all the 3 authorities by way of concurrent finding have held that the petitioners' possession is unauthorized then they are liable to be removed by way of an order under section 250 MPLRC. The copy of this order be sent to the Commissioner Municipal Corporation Indore also for examining the construction of houses over the land in question and for taking appropriate action in accordance with law. In the result, I do not find any ground to interfere with the impugned orders, hence the petition is dismissed."
Considering the above observation made by the learned Single Judge in M.P. No. 5156/2019, I found the locus of the petitioners of W.P.N o ( s ) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 under cloud, as they were not found in possession of the land in question at the time of demarcation proceedings on the land in question, as Revenue Inspector has recorded the name of 70 encroachers and out of that 62 encroachers have earlier approached this Court by way of earlier round of litigation, which concluded by way of directions given in W.A. No. 1224/2023. Their rights were refused to be accepted. However, by way of subsequent order passed in writ petition, under the garb of representation, the SDO instead of deciding any entitlement of such petitioners by verifying their documents has initiated proceedings u/S 250 of the MPLR Code by initiating new round of litigation by giving opportunity to such new encroachers who were not on record at the time of demarcation proceedings conducted by the Revenue Officers. Therefore, the said exercise is sought to be carried out by the Revenue Officers by misusing the direction issued by this Court in the subsequent order. From the above observation made in M.P. 5156/2019, it clearly transpires that only 62 persons were found in possession, pursuant to demarcation of the land and the petitioners of W.P. No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 were not there at all. It is also relevant to note that none of the petitioners were found at the place of land in question when the demarcation proceedings have taken place. Not only that, in earlier round of litigation also, they were not party. It seems that in earlier round of litigation, the proceeding has arisen pursuant to the demarcation, it is found that 62 encroachers are existing on the land in question and therefore, the application is filed by the original land owner u/S 250 of the MPLR Code and thereafter, after further litigation , the Hon'ble Apex Court has confirmed the order by holding all the 62 persons as encroachers and are liable to vacate the land in question. However, in the present case, from the description mentioned in the respective petitions, i.e. W.P.No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 the addresses of most of the petitioners other than the place situated in Indore and even failed to show their uninterrupted long possession on the land, that too hostile to the original land owner.
It is also required to be noted that W.A. No. 1487/2024 was filed by the petitioner of W.P. No. 18150/2024 herein assailing the order passed in W.P. No. 16752/2024 restraining any coercive action against the petitioners wherein the Division Bench of this Court in Para 15,16,17,18 and 19 of the order has held as under:
"15.Having heard the learned counsel for the parties and on perusal of the record, this Court is inclined to overrule the objection regarding the maintainability of this appeal and to allow this appeal for following reasons, which are more than one:
(i)Firstly, on perusal of the documents submitted by the respondents no.5-20 in support of their petition, it is seen that the claim of the ten of the petitioners is based on agreements of sale. It is trite proposition of law that an agreement of sale does not confer any title or interest in any property, as is clear from the provisions of Section 54 of the Transfer of Property Act, 1882. It is equally well settled that mutation in the municipal records does not confer any title.
(ii)Secondly, three of the respondents are relying upon registered sale deeds but out of the aforesaid three sale deeds, two have been executed recently on 03.01.2024 and 23.03.2024 while the third sale deed is dated 12.04.2018. It is noteworthy that no survey number is mentioned in any of the three sale deeds. Admittedly, the aforesaid sale deeds have been executed by third parties and not by the appellant, who is the recorded owner of survey no. 66/2(k). As such there is a serious dispute regarding the execution, validity and veracity of the aforesaid documents.
(iii)Thirdly, three of the respondents have not filed any document in support of the rights claimed by them.
(iv)Lastly, none of the respondents have filed any building permission or sanctioned map in respect of the houses allegedly belonging to them. There is nothing on record to show that the alleged houses have been constructed in an authorized manner.
16.In the above mentioned circumstances, the decision in respect of veracity of the documents relied upon by the respondents no.5 to 20 is essentially is a title dispute involving adjudication of various disputed questions of fact, which would require evidence for which the petitioners ought to have availed appropriate remedy before the appropriate forum for adjudication of the aforesaid disputed questions of fact and to establish their title in respect in respect of the disputed constructions on the basis of the aforesaid documents.
17.In the considered view of this Court, the respondents are not entitled to any interim protection in exercise of writ jurisdiction of this Court on the basis of such disputed documents more so in the absence of any map or building permission to show the legality of the disputed constructions.
18.It is also worth nothing that the respondents have filed the writ petition merely on the basis of an apprehension which is based on a public notice dated 16.05.2024 issued by the Tehsildar, Tehsil Juni Indore. However, the aforesaid notice appears to be a general notice and has not been issued in the name of any of the respondents. In view of the cumulative analysis of all the above circumstances we find force in the contention of the appellant that the writ petition has been filed by the respondents no.5 to 20 with an oblique purpose at the instance of the encroachers, who have suffered the order of ejectment and whose encroachments are to be removed in pursuance of the order passed by this Court, which has been upheld by the Hon'ble Supreme Court. 19. In view of the aforesaid analysis, we find that the respondents no 5 to 20 are not entitled to the interim relief sought by them, which is also the final relief sought in the petition. 20. Consequently, this appeal is allowed and the impugned order dated 24.06.2024 is hereby set aside. There shall, however, be no order as to costs"
The said order recorded that all the respondents of that petitions and petitioners of petition n o . No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 are not having any valid document of title or valid building permission and, therefore, they should be considered as encroachers on the land in question. It can be considered as travesty of justice that though the petitioner i.e. M/s Ram Builders has contested the proceedings from the Court of SDO till the Supreme Court is not able to reap the fruits by getting possession of the property in question despite specific direction given by the Division Bench in W.A. No. 1224/2023, due to further proceedings initiated by way of filing other writ petitions by other so-called petitioners, who even in this proceeding have failed to produce any documents regarding their title or regarding valid occupation on the land in question of Survey no. 66/2(k) . Not only that, the addresses of petitioners in W.P. . No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 mentioned in the petitions speaks in volume about itself and it seems that attempt is made to abuse the process of law by the petitioners who were recorded as encroachers at the time when the demarcation had taken place and in earlier round of litigation, wherein petition was filed by 62 petitioners. The petitions were disposed off by this Court and in writ appeal also, the orders were passed, which were also against the encroachers and thereafter, in the Supreme Court also, the encroachers have faced dismissal of the SLP filed by them. Moreso, pursuant to the direction in the earlier round of litigation, the Collector has given assurance for implementation of the direction given by this Court, but due to such frivolous litigation which are filed with a view to abuse the process of law and to frustrate the legitimate right to hold the property of petitioner in W.P. No. 18150/2024, who is having a valid title in his favour by way of registered sale deed is certainly hit by the provisions of Article 19 and 300 A of the Constitution of India i.e. right to own property and the impugned action of the respondent/authority for initiating further proceedings pursuant to representation by mis-interpreting the directions given by this Court while directing to make representation which certainly contends to produce relevant documents to establish their case. When the petitioners of W.P. .No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 have failed to produce documents to show their title , there is no question to initiate proceedings u/S 250 of the MPLR Code and, therefore, on that count also their case cannot be considered and also on the ground that further orders passed on the administrative side I found that proceedings in all the five petitions i.e. W.P. .No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 are filed without any valid documents of title, with a view to frustrate implementation of the earlier order passed in favour of the petitioner and with a clear intention to abuse the process of law.
19. CONCLUSION
Considering the fact that the original land owner has not filed proceedings at the relevant point of time u/S 250 of the MPLR Code as the petitioner in W.P. no. 18150/2024 was never found to be an encroacher on the land in question, therefore there is no question of filing any such proceedings. It also transpired that the order passed by the co-ordinate Bench on the basis of which, the representation is made and it is also misconstrued by the concerned authority to initiate proceedings , though none of the petitioners of W.P.No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 are able to produce any documents in support of their case regarding valid possession or any document regarding valid sale deed or title in their favour for the land in question. Therefore, considering this aspect no relief as prayed for in the Bunch of petitioners in W.P. No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 who allegedly projected themselves as encroachers of the land will amount to giving premium to the dishonest intention to such litigants. On that count also, jurisdiction under Article 226 of the Constitution which is required to be exercised to do justice to the parties and not to be exercised in cases where parties are trying to take indue advantage of the process of law. Therefore, the W.P. No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 are required to be dismissed and W.P. No. 18150/2024 filed by the original petitioner is required to be allowed by considering the provision of Article 14, 19, 300-A of the Constitution of India in favour of the original land owner.
(A) W.P. NO. 18150/2024
Considering the prayers made in W.P. No. 18150/2024, it is found that though fruits are required to be reaped by the petitioner who has fought such a long battle of litigation upto the Supreme Court, but due to such frivolous and vexatious litigation initiated by the so-called petitioners in W.P. No. (s)No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024, he is denied the legitimate right to own and enjoy the property in question for such a long period. Such attempts are required to be deprecated as there is clear abuse of process of law by exercising jurisdiction under Section 250 of the MPLR Code by the respondent no.1/authority. The impugned order is not tenable in the eyes of law and can be considered totally illegal, arbitrary and has been passed by not properly considering the directions given in the earlier round of litigation. It is also required to be considered that the proceedings were initiated by the respondent no.1/authority by mis-interpreting the order passed by this Court while directing such petitioners to make representation and in absence of any documents of title or showing their valid possession at the time of earlier demarcation proceedings where certain encroachers were found, but where the petitioners of W.P. . No(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 were not found. The present petition i.e. W.P. No. 18150/2024 is allowed and the impugned orders dated 11.03.2024 are hereby set aside by granting the reliefs as sought in the petition.
W.P. No(s) 18150/2024 stands allowed.
( B ) W.P. NO(s) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024.
The petitioners in aforementioned petitions have failed to produce and valid documents of title as discussed above. Moreso, the addresses shown in their respective petitions clearly indicates that they are not residing on the land in question and therefore, no case is made out for exercising jurisdiction under Article 226 of the Constitution of India by this Court in case of aforementioned petitions.
W.P. No(s) 16249/2024,16676/2024,16752/2024,17231/2024 and 17241/2024 are hereby dismissed.
(C) CONTEMPT PETITIONS 109/2024
In view of the above discussion and conclusion, the proceedings of the contempt petition[Conc. P. No. 109/2024] is not required to be considered any further and no further order is required to be passed as the respondent authority will now do the needful to expeditiously implement the earlier order passed by removing the encroachment, if any found on the land in question as expeditiously as possible, preferably within a period of 30 days from the date of receipt of certified copy of this order and do the needful to handover possession of the land bearing Survey No. 66/2(k) situated at Village Khajrana, to the petitioner M/s Ram Builder in compliance of earlier order passed by this Court by expediting proceedings for eviction of such illegal occupants(if any). CONTEMPT PETITIONS 109/2024 stands disposed off.
(D) CONTEMPT PETITIONS 2907/2024 and 3112/2024
In view of the above discussion and conclusion, the proceedings of contempt petitions[Conc.P. No.(s) 2907/2024 and 3112/2024 are not required to be considered any further and no further orders are required to be passed as nothing survives in these contempt petitions to address upon and the same are hereby dismissed.
CONTEMPT PETITIONS 2907/2024 and 3112/2024 stand dismissed.
Let a copy of this order be kept in W. P. N o ( s ) 16249/2024,16676/2024,16752/2024,17231/2024 & 17241/2024 and Contempt Petition No.(s). 109/2024, 2907/2024 and 3112/2024.