Mehraj Beea vs State Of Madhya Pradesh And Others

Heard on the question of admission and interim relief.

By this petition the petitioner has challenged the notice dated 31.12.2019 (Annexure P/1) issued by the Secretary of the Gram Panchayat - Kanchan Khedi.

The case of the petitioner is that she is the owner of Survey No.100/1/2 situated at village Arniya Gurjar, Patwari Halka No.51 Tehsil Piploda. Further case of the petitioner is that a part of the land has been got diverted and a motel has been constructed by the petitioner thereon. By the impugned notice the petitioner is required to produce the building permission.

Learned counsel appearing for the petitioner submits that the order of the SDO dated 8.3.2018 diversion of the land was done and in terms of Rule 3 of the M.P. Gram Panchayat (Power Relating to Removal of Structure and Trees) Rules, 1999, at least 15 days notice was required to be given and that the Secretary of the Panchayat has no power to issue such a notice.

Having heard the learned counsel for the petitioner and on perusal of the record, it is noticed that prior to issuance of the impugned notice dated 31.12.2019, earlier notice dated 27.12.2019 was issued but there was some deformity in the notice, therefore, this fresh notice has been issued. By the impugned notice the petitioner has been required to produce the details of the building permission. Undisputedly the petitioner has not responded to the said notice till now. Before this Court also no building permission has been enclosed alongwith the writ petition. So far as Rule 3 of the Rules of 1999 relied upon by counsel for the petitioner is concerned, the said Rule reads as under:-

"3. Structures required to be removed.-Gram Panchayat may, by giving notice in writing, required the owner or the occupant or both of them to remove within fifteen days, any structure or any part of it which,-

(a) obstructs the regular building line;

(b) obstructs any public place, public street, market or any place of business, drain or house gully;

(c) has been constructed without permission or written sanction of the Gram Panchayat;

(d) is detrimental to public health point of view;

(e) is declared dangerous for human use;

(f) has been constructed on any public place, except private land or in the land of Gram Panchayat."

The Rule is applicable when notice is given to the owner or occupant for removal of structure. The impugned notice is in respect of furnishing the details of building permission. The impugned notice further states that if the requisite information is not furnished, then the authorities will be free to presume that the construction has been raised without permission and lawful action will be taken. Hence, the impugned notice is not under Rule 3 and the submission of counsel for the petitioner that 15 days notice was required, is found to be without substance.

So far as the order dated 8.3.2018 is concerned, a perusal of the said order reveals that the case was instituted before SDO on the ground that the petitioner had carried on the commercial activity by constructing a Dhaba on the agricultural land. In terms of Section 172(1) of the M.P. Land Revenue Code, the SDO has power to pass an order of diversion if the Bhumiswami of the land wishes to divert his land and makes an application in this regard, but the order dated 8.3.2018 passed by the SDO reveals that no such application was made by the petitioner, on the contrary in the proceedings initiated by the revenue authority itself, the SDO had passed the diversion order dated 8.3.2018, therefore, on the face of it the said order cannot withstand the scrutiny of law.

Counsel for the petitioner has also raised an issue of jurisdiction of the Secretary, Gram Panchayat - Kanchan Khedi to issue such a notice but the jurisdiction issue is first required to be raised before the authority, which had issued the notice, therefore, the petitioner cannot be permitted to raise such an issue for the first time before this Court.

In view of the aforesaid, I am of the opinion that no case for interference in the impugned notice dated 31.12.2019 is made out. The writ petition is found to be devoid of any merit, which is accordingly dismissed.