Zaheer Khan & Ors. vs The State Of Madhya Pradesh & Ors.

The present petition has been filed by the petitioners under Article 227 of the Constitution of India for following reliefs:-

It is the contention of the petitioners that the petitioners had submitted an application for declaration of the land of Fisheries Department as the Abadi land of the revenue District vide Letter -Annexure P/1 and P/2. On an application, certain proceedings have been initiated by the Tehsildar, Jatara, District Tikamgarh. Objections were invited. Advertisement was issued. No Objection Certificate from Fisheries Department was obtained. Resolution of the Gram Panchayat was also obtained. But thereafter, no final orders have been passed. It is further submitted that as the petitioners have been living on the said land by making construction over it, therefore, the State be directed to allot the said land to the petitioners.

To bolster his submissions, the Counsel for the petitioners has relied on the Judgments passed in the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, (1985) 3 SCC 545 and the Order dated 11.2.2010 passed by Delhi High Court in W.P. No.8904/2009 (Sudama Singh and Others Vs. Government of Delhi and Another) & other connected matters.

It is further submitted that initially the land having area 26 Acres was recorded in the name of Fisheries Department, out of which 24.5 Acres of land has been allotted to the Higher Education Department on which a permanent building of Government College has been constructed and out of the remaining 1 Acres of the land, 1/2 Acre of land has been given for construction of Canal and remaining 1 Acre of land was in possession of the petitioners and 25 other encroachers.

The reply has been filed by the respondents, wherein, it is categorically stated by the Counsel for the State that the document (Annexure P/6) of 'No Objection' issued by the Fisheries Department dated 11.9.2019 has never been issued by the Fisheries Department. To that effect, the response as Compliance Report dated 25.2.2026 has been placed in compliance of Order dated 23.2.2026.

It is further submitted that the petitioners and others are encroachers over the Government land. The land was allotted to Fisheries Department and Animal Husbandry Department. Mere continuous occupation does not confer any right on the petitioners. The fact of issuance of N.O.C. by the Fisheries Department is incorrect fact. Vide Letter dated 27.3.2011, the Fisheries Department had written a letter that letter (Annexure P/6) has never been issued by the Department. It is submitted that the encroachments were removed with due process of law, in support of which, the documents - Annexure AR/2 have been submitted.

It is further submitted that the contention of the petitioners that they were occupying the said land from last 26 years, itself does not confer on them any right to occupy the said land since it is an admitted position of facts that the said land was/is a government land allotted to the Fisheries department as well as the Animal Husbandry Department. The petitioners and others occupying the said land were admittedly encroachers.

In Additional Reply, it is further submitted that the petitioners are having other alternative lands and places and they have not come before this Court with clean hands seeking allotment of Government land, for which document of allotment in favour of the petitioners has been filed as Annexure AR/1.

From perusal of the pleadings of the parties and considering the rival submissions, it is apposite for this Court to first dwell upon the provisions of law under which such application was filed. The power to declare abadi land vests with the Collector of the Revenue District under Section 243 of the MPLRC. The allotment of the Abadi land is provided under Section 244 of the MPLRC. The State Government, while exercising the power under Section 244 of the MPLRC and Rule making power of the State Government under MPLRC, had framed rules regarding disposal of Abadi site vide Notification dated 6.1.1960, according to which the procedure for disposal of site for abadi area out of land acquiring for extension of abadi, and disposal of site in the abadi land out of land other than that required for extension of abadi is stipulated. The case of the petitioners falls in Part II of said Rules, where the land already exists and no acquisition is required.

From perusal of rules from Rule 9 to 24(C) of said Rules, relevant for the purpose of disposal of sites in the abadi land, which was acquired, it is evident that there is no provision of application by any individual for declaring such land to be abadi land. The said jurisdiction lies with the Collector. Once the abadi land is declared, then only the disposal of the sites can be done according to the rules, wherein the application can be filed by a third party on and after no objection by the Gram Panchayat or the Tehsildar. The allotment of such land is in preference provided under Rule 16 of said Rules and there are other provisions for auction of the land. Section 243 of MPLRC provides that where the area reserved for abadi is in the opinion of the Collector is insufficient, he may reserve such further area from the unoccupied land in the village, and when such land is not available, the State Government may acquire any land for extensions of which right to get compensation and transfer under 'The Land Acquisition, Rehabilitation and Resettlement Act, 2013' shall apply. The Board of Revenue, in the case of Udayjit Vs. Vijesingh and Others, 1994 RN 134, has held that the Collector is only having the jurisdiction to declare such abadi land.

In the present case in hand, the proceedings have been initiated at the behest of the petitioners by the Tehsildar. The Tehsildar is not having power to initiate such proceedings under Section 243 of the Code of 1959 (MPLRC). The petitioners under Section 243 may apprise the Collector for declaration of abadi land when the abadi land is insufficient in the opinion of the Collector. But in the present case in hand, the petitioners as alleged by the State in the Return are encroachers over the Government land, and cannot by way of any right, seek a government land to be declared as abadi land. The State Government has also taken categorical stand that NOC issued by Fisheries Department, on whose name, the land is recorded in the revenue records, has never given No Objection Certificate and the Document (Annexure P/6) dated 11.9.2009 is a forged document. As a categorical stand has been taken by the State in the reply as well as in affidavit filed in compliance of the order passed by this Court, therefore, the Collector, Tikamgarh, is directed to take note of the fact that how such forged document has been brought before the Tehsildar. The detailed enquiry be conducted in respect of whether such forged document has been prepared or not? Those who are found to be involved in preparing such forged document be suitably punished in accordance with law. In case it is found that such forged document is prepared, then necessary criminal action shall follow.

Counsel for the petitioners has prayed that in the light of the Judgments passed by Hon'ble Apex Court in the case of Olga Tellis (supra) and Delhi High Court in the case of Sudama Singh (supra), the petitioners' case be considered for allotment at an alternative site.

From perusal of both the judgments, it is found that the judgments relate to pavement dwellers and Jhuggi dwellers. The petitioners' case is that lands which they have been occupying be declared as abadi land and after declaration they should be allotted Patta of the land. The petitioners have nowhere sought any relief of that kind that their case be considered being Jhuggi dwellers.

In the Return, the State has taken a stand that the encroachment has already been removed. That has not been contradicted by the petitioners by filing a rejoinder. Therefore, when the petitioners have not cited and pleaded that they are Jhuggi dwellers or pavement dwellers and they be given alternative site, and their fundamental right to life under Section 21 of the Constitution of India be protected, cannot be extended in view of the view taken by this Court that the petitioners have encroached the Government land for which necessary action has been taken by the State and the petitioners are not having any right to get the land declared as abadi land. Therefore, the consequent prayer for allotment of Patta cannot be granted.

Accordingly the petition sans merits and is dismissed.