Srishti Shivhare vs State Of Madhya Pradesh And Others

Gurpal Singh Ahluwalia, J

Today, this Special Bench has been constituted for hearing of this petition.

This petition under Article 226 of the Constitution of India has been filed assailing the order dated 13.4.2023 passed by the Naib Tahsildar, Lakhnadon Circle Dhuma, District Seoni. By order dated 12-4-2023, the Sub Divisional Officer (Revenue), Tahsil Lakhnadon, District Seoni has held that the petitioner after encroaching upon the Govt. land is running a liquor shop. Accordingly, Naib Tahsildar, Dhuma was directed to take action against the petitioner under section 248(1) of the M.P.L.R. Code. At the same time, Sarpanch/Secretary of Gram Panchayat Dhuma, Tahsil Lakhnadon, District Seoni were issued strict warning for passing a resolution which is beyond the jurisdiction of the Gram Panchayat/Sabha. In compliance of order dated 12-4-2023, passed by S.D.O., Lakhnadon, Distt. Seoni, the Naib-Tahsildar, circle Dhuma, Tahsil Lakhnadon, Distt. Seoni has passed the impugned order on 13-4-2023 and has directed the petitioner to vacate the shop by 16-4-2023.

It is submitted by counsel for the petitioner that on 28.3.2022 a rent-note was executed between the petitioner and the Gram Panchayat Dhuma by which Gram Panchayat building was let out for running a liquor shop on monthly rent of Rs.9,000/-. This rent agreement was valid upto 31.3.2023. It is submitted that in clause 5 of the rent note, it was provided that in case if licence is granted to the petitioner to run the liquor shop for the next year then this agreement/rent note shall be extended. Accordingly, a resolution has been passed by the Gram Sabha on 14.4.2023 for extending rent-note/agreement.

It is submitted that prior to the expiry of tenancy, one complaint was made in the name of Sarpanch against the letting out of the premises to the petitioner. The said complaint was made to the Collector. The Collector forwarded the same to the S.D.O. (R) Lakhnadon, District Seoni for further action. By order dated 12.4.2023, passed by the S.D.O. (R) Lakhnadon, District Seoni in Revenue Case No.150/B-121/2022-23 it has been held that the premises was illegally let out to the petitioner by a resolution which is beyond the jurisdiction of the Gram Panchayat and accordingly Naib Tahsildar Dhuma, Tahsil Lakhnadon, District Seoni has been directed to take action against the petitioner under section 248 of the M.P.L.R. Code.

It is submitted by counsel for the petitioner that in fact the shop in question is situated on Abadi land and it was let out by the Gram Panchayat on a resolution passed by the Gram Sabha. It is true that the rent agreement has come to an end on 31.3.2023 but the licence to run the liquor shop for the next financial year has been awarded to the petitioner, therefore, in the light of clause 5 of the rent note, a fresh resolution has been passed on 14.4.2023. However, it is fairly conceded that fresh rent note has not been executed so far.

Considered the submissions made by counsel for the petitioner.

The M.P. Panchayat (Transfer of Immovable Property) Rules, 1994, (hereinafter referred to as ‘the 1994 Rules’) provides for the authority and procedure for transfer of immovable property either by sale, gift, mortgage, exchange or by lease. Rule 5 of the 1994 Rules provides that “no transfer of immovable property by sale or lease shall be made except by public auction provided that if the Panchayat is of the opinion that it is not desirable to transfer such property by public auction it may with the previous sanction of the State Govt. or the Officer authorized by it under section 65, effect such transfer without public auction for a consideration which shall not be less than the prevalent market value of such property”.

Rules 6, 7, 8, 9 and 10 of the 1994 Rules provides for conduct of auction, annual rent to be payable in advance, publication of notice of auction and the conditions of lease or sale, supervision of auction and conditions of auction.

It is not the case of the petitioner that in the previous year, the rent note was executed by the Gram Panchayat after public auction. Therefore, the rent note could not have been executed by the Gram Panchayat without previous sanction of the State Govt. as provided in Rule 5 of the 1994 Rules. Thus, the rent note/agreement executed by the Gram Panchayat Dhuma, Tahsil Lakhnadon, District Seoni was without jurisdiction. Since the period of said rent note has already come to an end, therefore, the only question for consideration is as to whether the petitioner can continue to maintain her possession even if absence of the fresh rent note.

It is contended by the counsel for the petitioner that the Gram Sabha has passed a resolution on 14.4.2023 thereby deciding to let out the building in question to the petitioner for the next year also, i.e. from 1.4.2023 to 31.3.2024. However, it is fairly conceded that no fresh rent note has been executed so far.

The S.D.O. (R) Tahsil Lakhnadon, District Seoni has passed the impugned order on 12.4.2023. He had already come to a conclusion that the Gram Panchayat had passed a resolution which was beyond its jurisdiction. A strict warning was also issued to the Sarpanch/Secretary of the Gram Panchayat thereby advising them to refrain from passing such void/illegal resolutions. However, it appears that Gram Panchayat Dhuma, Tahsil Lakhnadon, District Seoni was out and out to show undue favour to the petitioner and in spite of strict warning already issued by the S.D.O. (R) Tahsil Lakhnadon on 12.4.2023 again dared to pass a similar resolution on 14.4.2023. Even assuming that the Gram Panchayat wants to let out its Panchayat building to the petitioner, still it cannot enter into an agreement/rent note with the petitioner in the light of the bar as contained in Rule 5 of the Rules of 1994. Undisputedly, the resolution dated 14.4.2023 has been passed without any public auction and, therefore, no rent note /agreement can be executed without previous sanction of the State Govt.

Be that as it may be.

According to the petitioner the shop is situated on a Abadi land. Abadi land is reserved for residential purposes. Abadi has been defined in section 2(1)(a) of the M.P.Land Revenue code which reads as under :-

“(a) "abadi" means the area reserved from time to time in a village for the residence of the inhabitants thereof or for purposes ancillary thereto, and any other cognate variation of this expression such as "village site" or "gaonsthan" shall also be construed accordingly.

Thus, it is clear that opening of a liquor shop in a Abadi land was also not a proper step by the Gram Panchayat. Abadi land can be used for the residence of the inhabitants thereof or for purposes ancillary thereto and any other cognate variation of this expression such as village site or gaonsthan but running a liquor shop would not be covered under the definition of Abadi as given under section 2(1)(a) of the M.P.L.R.C.

It is submitted by counsel for the petitioner that since the order passed by the S.D.O. (R) Lakhnadon, District Seoni is not in conformity with law and the provisions of section 248 of the M.P.L.R.Code would not apply, therefore, whether induction of the petitioner as a tenant was correct or not is immaterial specifically when the petitioner is in possession of the land in dispute. It is submitted that even if the petitioner is treated to be an encroacher still he cannot be dispossessed without following the due process of law.

Considered the submissions made by counsel for the petitioner.

Any person approaching this Court under Article 226 of the Constitution of India has to establish his/her right. Since the petitioner has failed to prove that the Gram Panchayat had any right/authority to let out the Gram Panchayat building to the petitioner without any public auction or without any sanction by the State Govt. and that too on abadi land, this Court is of the considered opinion that the possession of the petitioner cannot be protected specifically when the initial illegal resolution/rent note had already come to an end. Even if a fresh resolution has been passed in favour of the petitioner, still it cannot be given effect to unless and until the sanction from the State Govt. is obtained as per provision of Rule 5 of the 1994 Rules.

At this stage it is submitted by counsel for the petitioner that since the petitioner is in possession of the liquor shop and some breathing time may be granted to shift the shop to another place after taking due sanction from the competent authority as required under the M.P. Excise Act.

Considered the submissions made by counsel for the petitioner.

According to the petitioner the respondents have already reached on the spot along with JCB Machine to demolish the shop. The order was passed by the S.D.O. (R) Lakhnadon, District Seoni on 12.4.2023 and impugned order has been passed by Naib-Tahsildar, Circle Dhuma Tahsil Lakhnadon, Distt. Seoni on 13-4-2023. Counsel for the petitioner is right in making a submission that some breathing time may be granted to the petitioner to shift the shop to any other place. Although the petitioner was illegally inducted but since he is in possession of the shop in question, therefore, a week’s time is granted to the petitioner to vacate the shop and hand over the possession to the competent authority. In case if the petitioner fails to vacate the shop latest by 23.4.2023, then apart from other coercive steps, the petitioner shall make herself liable for her prosecution for contempt of this court.

With aforesaid observations, this petition is dismissed.