Madhya Pradesh High Court
Miss Harpal Kaur vs The State Of Madhya Pradesh on 25 August, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 25 th OF AUGUST, 2023
WRIT PETITION No. 3010 of 2017
BETWEEN:-
1. MISS HARPAL KAUR D/O LATE SWARNA SINGH,
AGED ABOUT 61 YEARS
2. DALVEER SINGH S/O LATE SWARNA SINGH,
AGED ABOUT 66 YEARS
3. SARDAR RANVEER SINGH D/O LATE SWARNA
SINGH, AGED ABOUT 58 YEARS,
ALL R/O GOUREYAGHAT DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI J.P.AGRAWAL - ADVOCATE WITH SHRI VASANT RONAND
DANIEL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY, REVENUE DEPTT
MINISTRY, VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. MEMBER, REVENUE BOARD MADHYA PRADESH
GWALIOR PRESIDED BY SHRI M.K.SINGH
3. COMMISSIONER REVENUE JABALPUR DIVISION
JABALPUR (MADHYA PRADESH)
4. SUB DIVISIONAL MAGISTRATE ANUBHAG
GORAKHPUR JABALPUR (MADHYA PRADESH)
5. TEHSILDAR CANT JABALPUR DISTT JABALPUR
(MADHYA PRADESH)
6. J.S. ANAND S/O LATE NATTHA SINGH ANAND R/O
243, NAPIER TOWN, JABALPUR (MADHYA
PRADESH)
Signature Not Verified
Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
2
.....RESPONDENTS
(BY SHRI GIRISH KEKRE - GOVERNMENT ADVOCATE)
(BY SHRI BRIAN D'SILVA - SENIOR ADVOCATE WITH SHRI S.S.OBEROI -
ADVOCATE)
Reserved on 19/07/2023
Delivered on :25/08/2023
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
T his petition is filed under Article 226/227 of Constitution of India
challenging the validity of the order of the Board of Revenue. The dispute
arising out of the proceedings initiated by the respondent by filing an application
under section 250 of M.P Land Revenue Code (hereinafter referred to as 'Code
1959') seeking dispossession of the petitioner over land said to have been
encroached by them. The encroachment has been shown on the basis of the
demarcation got done at the instance of the respondent. The petitioner is
disputing the application filed under Section 250 of 'Code 1959' mainly on the
ground that the same is not applicable upon the land of the petitioner because
that land does not fall within the definition of vacant land, which is covered
under section 250 of 'Code 1959'.
Shri Agrawal submits that originally the land was agricultural land but
thereafter the use of the land was changed and now construction has been
raised by the petitioner all over the land. Shri Agrawal also submits that there
have been 3 demarcations done and the last demarcation got done in June, 2012
but was conducted behind the back of the petitioner. She was not present
before the revenue authorities at the time of preparing the panchnama and
demarcation report. It is also contended by Shri Agrawal, that Board of
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Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
Revenue has not given proper opportunity of hearing to the petitioner. The case
had been fixed for calling record of the revenue authorities but without calling
and examining the same final order has been passed. He submits that the
statement of the witnesses have been produced before this Court but those have
been manipulated. The correctness of the statement filed by the respondent
along with their reply can only be ascertained by comparing the same with the
record of State Government but that has not come therefore, adverse inference
should be drawn against the State. According to Shri Agrawal, the order of the
Board of Revenue is liable to be set aside mainly on the ground that it violates
the principle of natural justice and the action taken by the respondent Revenue
Authorities under section 250 of M.PLRC is not applicable on the land of the
petitioner.
Shri Brian D'Silava on the other hand opposed the submission made by
the counsel for the petitioner and submits that the respondent purchased the
land in the year 2003, and first demarcation was done by predecessor of the
respondent in the year 2003, but later on at his instance two demarcations got
done i.e in the month of February, 2012 and in the month of June 2012. In both
demarcation, it was found that the land of the respondent has been encroached
by the petitioner. He also submits that as per statement of the petitioner, she has
admitted that at the time of demarcation she was very much present on the spot
but she refused to sign the demarcation report. Shri Brian D'Silava submits that
the land which is said to have been encroached is still vacant merely because
land is covered with the boundary wall that cannot be said that construction is
raised over there and section 250 is not applicable. Both the parties have relied
upon the decisions.
Shri Brian D'Silava submits boundary wall was constructed later on when
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Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
this fact came to the knowledge of the petitioner, that land has been encroached
and proceeding for their dispossession is being initiated by the respondent. Shri
Brian D'Silava submits that demarcations done at the instance of the respondent
have never been challenged, therefore that proceeding have attained finality. On
the basis of that demarcation report, proceeding under section 250 of M.PLR
Code can be initiated by the respondent. He also submits that proceeding under
section 250 is applicable in the facts and circumstances of the present case and
petitioner can be dispossessed from the encroached portion of the land.
According to him, that is vacant land. Shri Brian D'silava also relied upon the
sanction plan of the petitioner's land over which according to him only 1575
sq.feet of area construction can be raised.
Per Contra, counsel for the petitioner submits that the entire area of the
petitioner construction has been raised and according to him there is no vacant
land lying on the spot.
I have patiently heard counsel for parties at length and perused the
record.
The respondents have moved an application before the Tahsildar under
Section 250 of 'Code 1959' mentioning therein that the land situate at Mouja
Goreya, Pawarti Halka No.23/27 Khasra no.7/4 area measuring 0.186 hectare is
recorded as a bhoomiswami land in the revenue record. The petitioner has
encroached over the land unauthorizedly therefore, on 10/06/2012 after
completing all formalities the respondents got the land demarcated in which the
land of respondent no.6 was found to have been encroached by the petitioner.
The application therefore was filed seeking possession of the land which is in
unauthorized occupation of the petitioner.
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Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
In response to the application the petitioner filed reply refuting the
allegations made by the respondents regarding encroachment. It is also
submitted that the demarcation got done behind the back of the petitioner.
Furthermore, the petitioner contends that the application is barred by time, as it
was not filed within the stipulated period of limitation, and sought its dismissal.
From the order of Tahsildar which has been passed on 05/07/2014 it is
evident that an application had been submitted by the respondent on
24/03/2013. In this application respondent asserted that petitioner is raising
construction over the land by erecting boundary wall and as such they have
unauthorizedly occupied the same. Despite the injunction granted by Tahsildar
against construction, the petitioner proceeded to complete the same.
In the statement recorded before the Tahsildar, respondent no.6 has
explicitly stated that he got the land demarcated after paying all requisite fee and
completing formalities. The petitioner although present at the time of
demarcation, refused to sign the panchnama. It is also stated that in the said
demarcation it is found that petitioner has encroached 20 kadi of land belonging
to the respondent no.6. To substantiate this statement one Ramnarayan was
also examined who has supported the statement of the respondent.
Subsequently, statement of Revenue Inspector Shri Rajendra Sen was
recorded. In his statement he stated that the land got demarcated by him and at
the time of demarcation all adjoining owners of the land were noticed. In the
demarcation it was ascertained that the petitioner had encroached upon 20 kadi
of the land of respondent no.6.
The petitioner was also examined before the Tahsildar and in her
statement she refuted any allegations of encroachment and also denied her
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presence at the time of demarcation. The Tahsildar after hearing submissions
Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
made by parties and appreciating the statement of witnesses has observed that
20 kadi of land of the respondent no.6 has been encroached by the petitioner
unauthorizedly, therefore, it be handed over to him and fine of Rs.200/-was also
imposed upon the petitioner.
The said order was assailed before the Sub Divisional Officer. However,
the Sub Divisional Officer has affirmed the order passed by the Tahsildar.
Subsequently, second appeal was preferred before the Commissioner, Jabalpur
who in turn by order dated 22/09/2016 has reversed the order passed by the
Tahdilar and Sub Divisional Officer. The Commissioner in its order has
observed that at the time of passing an order under Section 250 of 'Code 1959'
authority must assess that as to what extent encroachment has been made by a
person and it has to be specified by the authority at the time of getting the land
demarcated. As per the Commissioner, the report of demarcation is not so
specific making the picture clear about encroachment over the land. The
Commissioner has further observed that the land though said to have been
unauthorizedly occupied but as to on which side it is done and how much area
is encroached is not clear from the demarcation report.
As per the Commissioner, the order should be very specific, so that there
may not be any ambiguity in taking possession of the land alleged to have been
encroached. The Commissioner has also observed that when the land got
purchased in the year 2003 by the respondent no.6 he took possession after
getting demarcation of the land and at that time no objection was raised
regarding fencing over the petitioner's land and he got the land demarcated after
10 years of purchase that too taking advantage of the fact that the petitioner was
posted at Bhopal. The order of Commissioner was assailed in a revision before
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Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
the Board of Revenue. The Board of Revenue allowed the revision vide order
dated 09/02/2017 and set-aside the order of Commissioner mainly on the
ground that the Commissioner has not given any opportunity to the respondent
no.6 and allowed the appeal without examining the record and the fact that the
demarcation proceeding got done in the presence of the petitioner because as
per the record, it is clear that she was present at the time of demarcation.
According to Board of Revenue the demarcation got done after following due
procedure and, therefore, nothing wrong has been committed by Tahsildar and
Sub Divisional Ofificer.
Hence, this petition challenging the order of Board of Revenue.
Shri J.P.Agrawal, counsel for the petitioner, has criticized the order of
Board of Revenue on two counts. Firstly, he argues that the Board of Revenue
did not afford adequate opportunities to the petitioners. Secondly, Section 250
of 'Code 1959' has no application in the facts and circumstances of the case
because the land of the petitioner is not a vacant land and construction over the
said land has already been raised and under Section 250 of 'Code 1959'
possession of vacant land can be taken but not of the land over which
construction is already raised. To substantiate his submission, he has placed
reliance upon a judgment reported in 2018 SAR (Civil) 305 (Harpal Singh Vs.
Ashok Kumar and another), in which the Supreme Court has observed that
once agricultural land loses its basic character and has been converted into
authorized/ unauthrozied colonies by dividing it into plots then dispute of plot
holders cannot be decided by revenue authorities and would be resolved by the
civil court.
According to Shri Agrawal though the land was an agricultural land but
later on it has been diverted in construction raised by the petitioner over there
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Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
and at present the land said to have been unauthorizedly occupied and
encroached, it is not a vacant land and, therefore, order passed under Section
250 of 'Code 1959' cannot be given effect.
Per contra, Shri D'silva appearing for the respondent has submitted that
the Board of Revenue has given opportunity to the petitioners. This fact is
evident from the order itself that the counsel for petitioner appeared before the
Board of Revenue. According to Shri D'Silva the land is still lying vacant. He
has also submitted that merely because land is covered through boundary wall
that does not mean that construction has been raised over there. He has further
submitted that the demarcation got done has never been assailed by the
petitioner and it is clear from the admission of the petitioner herself before the
Tahsildar while recording her statement that she was present at the time of
carrying out the demarcation. Shri D'Silva has placed reliance upon the
decision passed by High Court in number of cases especially the case reported
in 2022 SCC online MP 1344 (Garvit Khandelwal Vs. State of M.P), 2023 SCC
online MP 1823, (Shyamsunder and another Vs. Savitri Bai and another), order
passed in W.P.19269/2020 (Ramashankar Vs. State of M.P and others), and
order passed by Chhattisgarh High Court in W.A.No.107/2022 (Anil Kumar
Maurya and another Vs. State of Chhattisgarh and others).
From the record it is clear that the impugned demarcation got done on
10/06/2012. As per the report, the petitioner has encroached the land of
respondent no.6. The Commissioner while passing the order has not given any
opportunity to the respondent no.6 but considering the submissions made by
the petitioner had presumed certain things and found that the demarcation report
was defected whereas he had to consider whether the proceeding of Section
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Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
250 of 'Code 1959' was rightly dealt with by the authority and decided
correctly or not. Perusal of order of Commissioner, it reveals as if
Commissioner has decided the demarcation order as well as the proceeding of
Section 250 of 'Code 1959' which was beyond the scope of the appeal
decided by the Commissioner. If Commissioner was not satisfied with the fact
as to how possession of encroached land would be taken, he could remand the
matter to the revenue authority and could seek clarification that it be specified as
to which portion of the land is encroached but he has set-aside the orders
passed by the Tahsildar and Sub Divisional Officer and closed the matter.
In my opinion, order of Commissioner was not sustainable and it was
rightly set-aside by the Board of revenue. As has come from the order of
Tahsildar that during the pendency of litigation the petitioner started covering
the land by raising the boundary wall and stay was granted by the Tahsildar for
not raising any construction but even then the boundary wall was constructed
ignoring the interim direction. Thus, the boundary wall cannot be considered to
be construction and if encroached area is covered by raising a boundary wall,
that will not help the petitioner and will not make the order of revenue authority
under Section 250 of 'Code 1959' redundant. In this case, respondent moved
an application under Section 250 of 'Code 1959' getting limitation from the date
of demarcation i.e 10/06/2012. As per Section 250 of 'Code 1959' two years
limitation is available from the date of dispossession. As per the observation
made by the High Court in case of Garvit Khandelwal (supra) the provisions of
'Code 1959' will apply to all categories of land situated within the State of M.P.
In case of Anil Kumar Maurya (supra) the Division Bench of the High Court of
Chhattisgarh has observed as under:-
8 A perusal of the judgments in the case of Krishnakumar
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Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
Das (supra) and Asgar Ali (supra), would go to show that
the learned Single Judge had observed that if the dominant
purpose of a Bhumiswami is to recover possession of his
house from which he has been illegally dispossessed, his
house cannot come within the definition of word "Land" as
defined in the Code to give jurisdiction to a Tahsildar to
restore him his possession under Section 250 of 'Code
1959'.
The High Court in case of Ramshankar (supra) has also observed that
once the order passed by the authority under Section 129 of 'Code 1959' has
attained finality and action is taken on the basis of that order, no question arises
to interfere in the matter. In the present case also the order passed under
Section 129 of 'Code 1959' has attained finality and has not been challenged by
the petitioner at any point of time, therefore, in a proceeding of Section 250 of
'Code 1959' interference is not permissible.
However, in the facts and circumstances existing in this case, Collector
Jabalpur is directed to issue instructions to the respective revenue authority
while carrying out the order of Section 250 of 'Code 1959' if dispossession of
petitioner is made then authority should first ascertain whether any old
construction is situate over the encroached area or not. If area is covered only
by the boundary wall, the same cannot be protected and is not protection to
avoid the implementation of order of Section 250 of 'Code 1959' passed by the
revenue authority.
With the aforesaid observation this petition is dismissed as it has no
substance.
(SANJAY DWIVEDI)
JUDGE
Tarun/sushma
Signature Not Verified
Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
Signature Not Verified
Signed by: SUSHMA
KUSHWAHA
Signing time: 8/29/2023
2:36:53 PM
