Shri Goud Malwiya Brahman Samaj ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 9094 MP

                                                   Writ Petition No.27216/2021 (PIL)

                                      -1-
  HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
DIVISION BENCH :          HON'BLE MR. JUSTICE VIVEK RUSIA &
                          HON'BLE MR. JUSTICE PRANAY VERMA
                    Writ Petition No.27216/2021 (PIL)

Shri Goud Malwiya Brahman Samaj Barwani,
District Barwani through its President and
authorized signatory Shri Manish Purohit,
S/o Shri Sureshchandra Purohit,
Aged - 48 years, Occup.- Social Service,
R/o - Barwani, District Barwani (M.P.)                     - PETITIONER

                      Versus

1.   State of Madhya Pradesh,
     Through Principal Secretary,
     Revenue Department,
     Vallabh Bhawan, Bhopal (M.P.)
2.   Commissioner, Indore Division,
     Indore (M.P.)
3.   Collector, Barwani,
     District Barwani (M.P.)
4.   Public Land Protection Cell,
     Through Collector Barwani,
     District Barwani (M.P.)
5.   Municipal Corporation Barwani,
     Through Chief Municipal Officer,
     District Barwani (M.P.)
6.   Town and Country Planning,
     Through Director, Bhopal (M.P.)
7.   Shri Digamar Jain Siddh Kshatra
     Chulgiri Trust, Bavangaja Through its
     President Pawan Kumar Doshi,
     S/o Shri Trilokchandji Doshi,
     Add.: Bavangaja Trust Office,
     Bavangaja, Tehsil & District Barwani (M.P.)           - RESPONDENTS

Shri Harsh Virmani, learned counsel for the petitioner. Shri Pushyamitra Bhargava, learned Additional Advocate General for the respondent / State.

Indore, dated 22/12/2021 Heard on the question of admission and interim relief. The petitioner has filed present petition in the nature of "Public Interest Litigation" alleging that respondent No.7 is constructing a Writ Petition No.27216/2021 (PIL)

boundary wall unauthorizedly by encroaching the Nazul land and the respondents No.1 to 6 being competent authority are not taking any action for removal of such encroachment, which is being caused because of that encroachment.

The petitioner is a Society claiming to be engaged in welfare activities and concerned about the protection of the government land. However, the petitioner has not disclosed particulars of its antecedents and any activities carried out in public interest or for the benefit of Society. Although the petitioner has declared that it has no personal interest in this matter. Respondent No.7 is a Trust represented through its President Pawan Kumar Doshi. Before the filing of this petition, a resolution has been passed by the office bearers of the petitioner Society for filing this petition through Shri Manish Purohit.

Learned counsel for the petitioner submitted that the land ad- measuring 500 x 500 cubits on the western side of Barwani town, recorded as Survey Nos.1/95, 1/96, 1/97, 1/98, 1/100 and 1/101 in the revenue records in the name of the State Government. On 31/07/1867 the then Native Superintendent, Barwani Shri Maharana Sahab Bahadur permitted respondent No.7 to use the above Government land property for the specific purpose of constructing Hospice (Dharamshala) for the travellers who used to come to worship Bawangaja, also for repairing one old well (baodi) and for maintaining a garden consisting of some English flowers. Learned counsel further submitted that the permission was given for the specific purpose only for construction of hospice (Dharamshala) and for the repair of old well; without any development of right title or interest onto the land survey Nos.1/95, 1/96, 1/97, 1/98, 1/100 and 1/101 as it was shown in the name of State Government in the revenue records. As per the revenue records pertaining to the year 1998-99 to 2006 there is an endorsement pertaining to the aforesaid lands and the same has been acquired by the State Government. The land as per the revenue records upon to 2021- 22 continues to be in the name of the State Government.

Learned counsel further submitted that respondent No.7 has Writ Petition No.27216/2021 (PIL)

encroached the aforesaid lands by an illegal construction of boundary wall.

It is alleged that respondent No.7 with malafied intentions obtain permission to construct a boundary wall on the open land bearing survey No.1/98, the Sub Divisional Officer in the order dated 08/12/2017 has recorded it as an open land that too in the name of State Government.

Learned counsel further submits that since the very beginning from 1940 to 2003 the conduct of respondent No.7 is to usurp the land of the State Government which is being used by the public at large and which was given to respondent No.7 in the year 1867 for the public convenience. Respondent No.7 is now on one pretext or the other with manipulated tactics trying to convert the aforesaid land into its own private use and has illegal encroached and constructed the boundary walls and some shops on the land bearing survey Nos.1/95, 1/96, 1/97, 1/98, 1/100 and 1/101 as reveals from the photographs. It is further submitted by the learned counsel that construction of boundary wall was earlier refused in the year 1947 by the then President Municipality to which an appeal was preferred by respondent No.7 before the then Judicial Member who had permitted to construct boundary wall, which was, however, challenged before the then Judicial Minister, State Cabinet, Barwani who after considering the said fact refused to grant permission for construction of boundary wall as reveals from the order dated 08/06/1948.

Thereafter, on every occasion i.e. in the year 1998-99 and up to 2003 the permission to construct boundary wall was refused as revealed from the order dated 06/10/2003 passed by the Sub Divisional Officer and the lands be remained open. Because respondent No.7 has encroached on the lands which belong to the State government and have illegally constructed the boundary wall and some shops.

Learned counsel has placed reliance upon the judgment dated 09/06/2021 passed by this Court in Writ Petition Nos.7865/2021 and 8517/2021. In pursuant to the above judgment the petitioner through its counsel has sent the notice in the interest of the public at large on Writ Petition No.27216/2021 (PIL)

12/10/2021 to the District Collector, the Head of the Public Land Protection Cell to take actions against respondent No.7 but no action has been taken so far, hence the petitioner is before this Court with the present petition in the nature of PIL.

I have heard the learned counsel for the parties and perused the record.

In the entire petition, the petitioner has made all the allegations against respondent No.7 only about encroachment on Government land. It is not a case of this petitioner that in the entire Barwani city this is the only encroachment done by respondent No.7 and other Government lands are free from encroachment. The petitioner is only targeting respondent No.7 by way of this petition. If the petitioner is really interested in taking up the issue of release of government land from encroachment by way of this pro bono publico, then before filing the petition, a survey ought to have been carried out about the other lands under the encroachment.

The petitioner before the filing of this petition has collected all the documents in respect of allotment of land to respondent No.7 right from the year 1867, 1917, 1941-42, 1983, etc. from the revenue authorities. Therefore, the petitioner is only targeting respondents No.7. It appears that there is an inter se dispute between the petitioner and respondent No.7, which is projected in the name of public interest.

The petitioner is free to approach the forum available as per the judgment dated 09/06/2021 passed by this Court in Writ Petition Nos.7865/2021 and 8517/2021. In such case, any observation made hereinabove shall not come in the way of the petitioner.

With the aforesaid, writ petition stands disposed of. Certified copy as per rules.

                       (VIVEK RUSIA)                 (PRANAY VERMA)
                          JUDGE                         JUDGE
Tej
 Digitally signed by
 TEJPRAKASH VYAS
 Date: 2021.12.24
 16:51:03 -08'00'