Mahendra Kumar Gupta v. State Of M.P. And Others

V.D. Gyani, J :--

1. Both these petitions are closely interconnected involving common questions of law and the basic facts are substantially the same. The arguments advanced being common in both these petitions, they are decided by this common order,

2. The City of Indore has seen a rapid growth of building and construction activities with new colonies coming up in and around the city during the past few years. One such colony is the Moon Palace Colony developed by Shri Nav Anand Griha Nirman Sanstha Maryadit, Indore in Dashera Maidan. The petitioners own plot No.89 in the said colony, which was purchased by them from one Smt. Rani Devi wife of Gopaldas. It is petitioners' case that as per layout (Ann. P.I) of the colony, sanctioned by the Joint Director, there were 88 plots; but one extra plot admeasuring 60' x 60' was sanctioned and marked as plot No.89. It was this plot of land which the above named society sold to Smt. Rani Devi, Smt. Rani Devi constructed house thereon after obtaining all necessary sanctions from the authorities concerned. This house was standing on plot No.89, was purchased by petitioner Mahendra Kumar (a registered sale deed filed as Ann. P. 7 in M.P. No.772/90). His name has also been mutated in the Municipal record on the basis of this sale deed.

3. It was on 21st of June, 1990 that a team of officers belonging to the Nazul and Revenue Department of the district, alongwith police and Municipal Officers, descended upon the petitioners' property and they were forcibly dispossessed of the same. It is this action of the State which the petitioners challenge inter alia on the ground that they were not afforded any opportunity whatsoever of being heard and the action is denounced as wholly illegal and without jurisdiction. In simple terms their case is that when every-thing had been done openly with sanction or permission of the concerned authority, such as Municipal Corporation and the Director, Town and Country Planning, taking all precautions, the petitioners and their predecessors were legitimately entitled to expect that the land plot No.89 belongs to the society and not to the Government, in any case they could not be dispossessed in the manner it was done. As if it were not enough, having taken possession of the building they were immediately allotted to one police officer, Shri C.L. Raj, a Dy. Superintendent of Police, S.P.E, Indore and a Civil Judge Shri Arvind Srivastava posted at Indore.

Subsequently one Om Prakash Sisodia was inducted in place of Shri C.L. Raj. Both of them are parties to this petition. Shri P.K. Saxena, learned counsel appears for Shri Sisodia while Shri Arvind Srivastava has not chosen to enter appearance despite service of notice on him.

4: Going through the returns filed by the respondents 2, 5 and 6 it would be seen that while these respondents have denounced the according of necessary sanctions by the respondent No.3, by wrongful means" the respondent No.3 Joint Director Town and Country Planning is totally silent about it in his return filed on 7.12.1990, who has admitted having accorded sanction on the basis of documents placed before him. It is equally interesting to note that the return as filed by the respondents No.2, 5 and 6 and by respondent No.3 are supported by affidavits sworn by the same individual i.e. Shri Prakash Chandra Rathi, but we are not required to go into this aspect of the matter at this stage as several disputed questions of facts arose during the course of hearing. We are restricting ' ourselves to the question of violation of principles of natural justice.

5. The matter was heard for quite a number of days and it was on 25.8.92 when Shri Singh, learned Additional Advocate General raised question about actual area of land in question purchased by the Housing Society and the parties were directed to submit their respective statement in this behalf during the course of the day, which they had filed. It is not clear from this statement whether the extra plot created, was included in the piece of land actually purchased. But this controversy should not detain us any longer. The respondents have taken shelter behind Sec. 248 of the M.P. Land Revenue Code, 1959 (for short 'the Code') and sought to justify the State action in dispossessing the petitioners.

6. The Main thrust of Shri Chafekar's arguments is that the respondents have violated rules of natural justice with impunity. No notice, muchless any opportunity of being heard was given to the petitioners against the action contemplated by the State and translated into against in an unlawful manner. Learned counsel highlighted the high handedness by pointing out that having dispossessed the petitioners' the houses in question have been allotted to a Civil Judge and a police officer which further aggravates the respondents action.

7. Rules of natural justice encapsulates two elementary ideas (i) that the individual sought to be proceeded against is given adequate notice of the charge or allegations against him and consequent upon such notice, as an integral part thereof, is also given an adequate hearing which in a given case may include even adducing of evidence (audi alteram partem) and (ii) that the adjudicator must by unbiased (Nemo judex in causa sua).

8. Shri Chafekar learned counsel appearing for the petitioners has confined his arguments to the violation of principles of natural justice. To meet his argument, Shri Singh learned Addl. Advocate General placed before us the record of two revenue cases, for our inspection, as per application dt. 25.8.92. The petitioners have denounced the record as fabricated. We do not propose to go that far, as to enquire into the charge, as it is not necessary nor desirable in proceeding under Art. 226, but what we find is that a case initiated as back as 1981-82 against Shankar Lai Billore was suddenly revived and decided by order dt. 2.5.90 vide Ann. R. 2 after having remained dormanted for almost seven years as is evident from the order itself. It is also significant to note that while releasing remaining 26 properties allegedly encroached, the order is restricted to the properties involved in the present petition.

9. Sec. 248 of the Code envisaged a notice to the person in unauthorised possession, at the time of taking action. It was pointed out from the order R. 2 that one Prakash Total holding a general power of attorney had appeared before the Tahsildar on 2.4.90. This fact has been denied by the petitioner in his rejoinder filed on 15.2.1991, alongwith two certificates showing Prakash Total’s presence else-where in the school, busy with the Census work. It cannot be gainsaid that these highly controversial questions which again cannot be gone into, in a writ petition.

10. It is a basic principle of natural justice that before adjudication proceedings start, the authority concerned must give a notice to the affected party. Any proceeding without such notice which is the sine qua non of for opportunity of hearing, would be violative of natural justice. And a notice to be valid and effective must be property served on the person concerned who was sought to be ejected. Notice is not an empty formality, the person sought to be proceeded against has the right to know the material on which the proposed action by the authority is based. It is a fundamental principle of natural justice.

11. It must be said to the credit of learned Advocate General that he fairly conceded to the compliance of principle of natural justice as a proposition of law, but Maintained and with certain amount of emphasis, that notwithstanding of the documentation of sanctions in favour of the petitioners, they are not entitled to remain and retain possession of the property in question as their title is shrouded in suspicion. Seeking support from the following expression as occurring in sub-clause (1) of Sec. 248 of the Code:

"(1).....A person who unauthorisedly takes or remains in possession of any unoccupied land...... ... or upon any land which is the property of Government may .... be summarily ejected by order of the Tahsildar........”

12. Shri Singh contended that the petitioners are in unauthorised occupation. Sec ton 248 of the Code, pre-supposes determination of the question whether the person sought to be proceeded against is in unauthorised possession of the land in question, it calls for an enquiry, and indisputably no such enquiry nor any such notice as envisaged by Sec. 248 of the Code is shown to have been given to the petitioners as contended by them.

13. Durng the course of hearng of this petition original record of the case was produced for our inspection but we do not propose to make any comments at this stage in view of the conclusion arrived at any enquiry in accordance with law is called for. On the basis of material placed on record we have no doubt in our minds that principles of natural justice has been followed in ejecting the petitioners.

14. The respondents' action denounced as high-handed by the petitioners in dispossessing the petitioners, is liable to be quashed and is accordingly quashed.

15. The basic condition for attracting the provisions of Sec. 248 of the Code are unauthorised taking of possession or remaining in possession. The proceedings are summary in nature but they do not dispense with notice, or holding of a summary enquiry and the notice to the person in unauthorised possession. As the penalty as provided under this section is very severe, it is equally necessary that an impartial and thorough enquiry should be held.

16. Having quashed the respondents' action in dispossessing the petitioners we direct an enquiry to be held in accordance with Jaw which must be concluded within two months from today.

17. A question arose as to who should remain in possession of the houses during the pendency of the enquiry. Shri Singh, learned Additional Advocate General placing reliance on a decision of the Supreme Court in M/s. Hindustan Steel Ltd. Rourkela v. Smt. Kalvani Banerjee and ors. (AIR 1973 Supreme Court 408), submitted that where a serious question as to the validity of the petitioner's title has been raised as in the instant case and there is no conclusive evidence on the point, the petitioners cannot be put into possession by dispossessing the respondents.

18. Shri Chafekar learned counsel tried to distinguish this case on facts and strenuously urged that it is not the quashing of a particular order but the primary object of a writ of certiorari is to have the illegal public action and the orders controlled by the Courts. It cannot be overlooked that it is an equitable remedy. Even while quashing the impugned order as passed by the Tahsildar and the State action in dispossessing the petitioner taking into account the facts as placed by the parties, we do not at this stage think it proper to put the petitioners in possession as their title is clouded.

19. Even if Sec. 248 of the Code is interpreted in the most liberal way and applied to the case and the respondents' action of dispossessing the petitioners cannot be justified they have been dispossessed in a manner not known to law. What Sec. 248 of the Code and the rules framed thereunder permit is only summary ejectment of the person who unauthorisedly takes or remains in possession upon any land which is the property of the Government. At best, the property can be forfeited and if the person continues in unauthorised occupation or possession of the land for more than seven days, after the order of ejectment under Sub- sec. (1) of Sec. 248 of the Code, then without prejudice to the fine that may be imposed by the Tahsildar, it is the Sub-Divisional Officer who is authorised to take action under sub- sec. (2-A) of Sec. 248 of the Code. Here again the powers to be exercised by the Sub-Divisional Officer are conditioned by the issuance of a notice calling upon such person to show cause as to why he should not be committed to civil prison. All these provisions of law have been given a convenient go-by,, while dispossessing the petitioners of their property and to further aggravate the situation allottees have been inducted in the property. One of them Atmaram Sisodiaya has infact been allotted and inducted in property in utter disregard of this Court's order dt. 21.8.90, whereby status-quo as it obtained on that day was directed to be Maintained by the parties until further orders. It is this order which has been violated by the respondents. Such allottees inducted in utter violation of law without any legal sanction, authority or jurisdiction, cannot be allowed to remain in possession.

20. In such circumstances, while the petitioners are not directed-to be put in possession of the property, the respondents can also not be allowed to retain or remain in possession of the property in question. In the fitness of things and on equitable consideration it is not only desirable but also found just and convenient that a receiver should be appointed to hold the property and remain in possession thereof during the pendency of the enquiry, till such time it is decided. The name of the receiver, his remuneration and his other terms shall be settled after hearing the parties on this point by a separate order.

21. Respondents State's action of allotting property to Atmaram Sisodia and Arvind Shrivastava is wholly without jurisdiction and absolutely lacks in legal sanction or authority of law. Such allottees cannot be allowed to remain in possession of property. Ours is a society governed by rule of law. Let alone such a society, even the King cannot confer a favour on one subject to the injury and damage of others. It is here that the maxim Non Potest Rext Gratiam Facere Cum Injuria Et Damno Aliorum' comes into play. As a necessary corrolary of the aforesaid direction appointing a receiver, respondent Atmaram Sisodia who was allotted and inducted in violation of this Court order dt. 21.8.90 and respondent Arvind Shrivastava another allottee be evicted from the property by the respondents-State, by 31st of this month, and vacant physical possession of the property be handed-over to the receiver.

22. As a result of the foregoing discussion both these petitions are allowed, presently without restoration of property. The respondents action in dispossessing the petitioners is held to be illegal and without jurisdiction. The order dated 2.5.1990 passed by the Tahsildar Nazul (Ann. R. 2) is quashed and it is directed that an enquiry into the question of petitioners 'being unauthorisedly taking possession' is to be held in accordance with law by competent authority, to be completed within two months from today. The properties be got evicted from the allottees by the State by 31st of this month and compliance be reported to this Court by 2.11.92. Although the petitions stand allowed, except for restoration of possession to the petitioners, instead a receiver is directed to be appointed; we do not propose to pass any order as to costs at this stage, in view of the enquiry as ordered above. Security costs be refunded to the petitioners, after verification.