Turabali And Others v. State Of M.P. And Another

1. These writ petitions, entailing common question of fact and law, are heard analogously and are being disposed of by this common order.

2. The petitioners, four in number in Misc. Petition No. 715 of 1990 and eight in number in Misc. Petition No. 716 of 1990, have filed these writ petitions under Article 226 and 227 of the Constitution of India, 1950 praying for quashment of notices dated 12.6.1990 (collectively marked as Annexure-'C' in Misc. Petition No. 715 of 1990) and notice dated 13.6.1990 (Annexure-'C' in Misc. Petition No. 716 of 1990) issued by the Sub-Divisional Officer-cwm-Additional Tehsildar, Public Works Department, National Highway, Sub Division, Shajapur (M.P.) to all the petitioners under section 248 of the M.P. Land Revenue Code, 1959 (for short 'the MPLR Code') on the ground that the petitioners have made encroachments over the National Highway which were illegal and therefore, directions were given that the encroachments made in the nature of construction of Pucca Orals and Gallary, construction of Pucca shops be get demolished within a period of three days otherwise the same shall be demolished by the authority and the cost thereof shall be recovered from the petitioners and a fine of Rs. 1,000/- on such petitioners shall also be imposed.

3. For challenging the aforesaid notices, the contentions of the petitioners are that the petitioners are the owners of the aforesaid lands and buildings situated on Agra-Bombay Road in the Municipality Town at Shajapur. The petitioners further submission is that originally lands formed a single piece of land and carried buildings and a Cotton Ginning Factory is situated thereon since about 1910. The petitioners have purchased the aforesaid land by registered sale-deed dated 24.9.1945 from Amarchand and Mangilal and thereafter there was a partition between the partners of the land. The partition deed is dated 19.1.1985. This is also the submission of the petitioners that the land is situated within the Municipal Area of Shajapur and also recorded in their names in property tax register and the properties are also being assessed to property tax by the Municipality. The case of the petitioners is also that they are not the encroachers and since they are the owners, they cannot be evicted under section 248 of the MPLR Code and as per the provisions of National Highways Act, 1956 the land and property being situated within the Municipal Area, does not form part of land belonging to the National Highway. Therefore, neither the provisions of section 248 of the MPLR Code nor the provisions of National Highway Act, 1956 are applicable and the constructions of the petitioners cannot be demolished. Therefore, those notices are absolutely illegal, arbitrary and high-handed and without authority of law and are issued in violation of the provisions of Article 14 and 300A of the Constitution of India, 1950.

4. In reply of the petitions, the submission of the respondents is that it is a Government land and it was allotted for establishment of a Ginning Factory by the Government, therefore, the nature of the land cannot be converted into and the petitioners cannot be treated as owners of the land and since they have changed its nature, they are encroachers and the land being situated on the National Highway, the respondents were entitled to remove the encroachments.

5.I have heard the learned counsel for the parties and perused the records.

6. The submission of the learned counsel for the petitioners is that the four notices issued by respondent No. 2 Sub-Divisional Officer-cum-Additional Tehsildar, Public Works Department, National Highway, Sub-Division, Shajapur on 12.6.1990 to all the petitioners are illegal on the grounds that firstly, the provisions of section 248 of the MPLR Code are not applicable because the possession of the petitioners are prior to fifteenth day of August, 1950 in Madhya a Bharat area; secondly, the powers under section 248 are given to the Tehsildar and not to the Sub-Divisional Officer; thirdly, the lands and buildings being situated within the Municipal Area, the provisions of the National High ways Act, 1956 are not applicable, fourthly, the petitioners are the owners of the land and they have purchased it by way of registered sale-deed on 24.9.1945; and lastly, the action of respondent No. 2 is highly arbitrary, illegal, without jurisdiction, against all canons of fair play and also against the principles of natural justice. The petitioners cannot be evicted without following recourse to due process of law.

7. The first proviso of section 248 of the MPLR Code clearly provides that. the Tehsildar shall not exercise the powers conferred by this sub-section in regard to encroachment made by buildings or works constructed — (ii) in the Madhya Bharat region, before the fifteenth day of August, 1950, which clearly mean that if any encroachment is made before the fifteenth day of August, 1950, provisions of section 248 of the MPLR Code shall not be applicable. In this case since the petitioners are in possession, prior to the aforesaid date, therefore, the provisions of section 248 shall not be applicable. Therefore, all the notices issued under section 248 of the MPLR Code are illegal. It is also true that section 248 of the MPLR Code also contemplates an enquiry before the removal of encroachment.

8. So far as the question of applicability of the provisions of National Highways Act, 1956 are concerned, no doubt under sub-section (1) of section 2, as per the Schedule Agra-Bombay Road is a National Highway No. 3 but sub-section (1) of section 2 clearly provides that each of the highways specified in the Schedule except such parts thereof as are situated within any municipal area, is hereby declared to be a national highway. From this provision it is very much clear that any part of National Highway situated within municipal area will not come within the purview of National Highway and that such areas are excluded. Therefore, from the aforesaid provisions it is clear that the disputed lands are situated within the municipal area of the Shajapur Town and, therefore, they are governed by the provisions of the Local Act, that is M.P. Municipality Act, 1961. Therefore, the notices Annexure-'C' for demolition cannot be given on the ground that it is the land belonging to the National Highway or the land comes within the area of National Highway.

9. It is also clear from the notices Annexure-'C' that by these notices respondent No. 2 clearly gave a direction that the encroachments be got removed within a period of three days, otherwise, they shall be got removed by the authorities and the cost shall be recovered from the petitioners and fine of Rs. 1,000/- shall also be imposed. Even assuming for the sake of arguments that the notices Annexure-'C' were legal and proper notices to the petitioners, even then the authority has clearly violated the principles of natural justice and has not granted reasonable time to the petitioners for reply. Three days time to remove the 45 years old encroachment in the shape of Pucca construction was absolutely insufficient, therefore, the petitioners were fully justified in approaching the Court. It is very much clear that the petitioners appear to be in possession since 1945 and, therefore, they were having every right to protect their property right and possession over the land and could not have been treated as encroachers. Even if they were encroachers, then, it was for the competent authority to give them proper notice, applying proper law and providing them a reasonable time to file reply and also an opportunity of hearing. From the notices it appears that this was not intended.

10. Learned Deputy Government Advocate for the respondents submitted that it was basically a Government land and allotted for the purpose of establishment of a Ginning Factory and the original lessee was having no right to transfer the same to the petitioners and since the land was allotted for a particular purpose, therefore, its transfer is illegal and notices under section 248 of the MPLR Code were rightly and legally issued to the petitioners.

11. As held above, that, as per the first proviso of section 248 of the MPLR Code, the provisions are not applicable on the land which are encroached for construction of buildings or works prior to the fifteenth day of August, 1950 in the Madhya Bharat Region, therefore, clearly the notices under section 248 are bad-in-law. Even, if it is accepted that the petitioners predecessors were the Government lessee and the transfer of land is illegal, even then the provisions of section 181 and 182 of the MPLR Code would come into play and not the provisions of section 248 of the MPLR Code. The learned Deputy Government Advocate for the respondents conceds this position during the course of the argument that the provisions of section 248 of the MPLR Code would not be applicable in view of the provisions of section 181 and 182 of the MPLR Code which were available to the authorities. It is also the uncontested position that when the shops and buildings are situated within the municipal area, the provisions of National Highways Act, 1956 shall not be applicable.

12. So far as the question of grant of lease by the Government is concerned, the respondents have not placed any documents on record alongwith the return that when the lease was granted to the petitioners' predecessors and what were the terms and conditions of the aforesaid grant. However, as per the settled position of law, that the petitioners are in possession over the properties for a very long time, therefore, they cannot be evicted without following recourse and due process of law. Since the eviction notices Annexure-'C' are not proper and legal, therefore, all the notices Annexure-'C' dated 12.6.1990 and 13.6.1990 issued to the petitioners are hereby quashed being illegal. If the. petitioners are the encroachers or they are Government lessees, respondents can take appropriate legal action after holding proper enquiry and providing opportunity of hearing to the petitioners if they are able to establish that the provisions of sections 181 and 182 of the MPLR Code are applicable.

13. In view of the aforesaid findings, both the petitions are allowed and the aforesaid show-cause notices are hereby and accordingly quashed. The respondents shall have liberty to take appropriate action in accordance with law if they are able to prove that the petitioners were Government lessees. There shall be no order as to costs of these petitions. The security amount, if any, shall be refunded to the petitioners after due verification.

14. This order shall be retained in the record of Misc. Petition No. 715 of 1990 and a copy thereof shall be placed in the record of Misc. Petition No. 716 of 1990.