Madhya Pradesh High Court
Ganesh Prasad vs Additional ... on 14 March, 2023
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
WRIT PETITION No. 3343 of 2011
BETWEEN:-
GANESH PRASAD S/O HIRALAL, AGED ABOUT 65
YEARS, OCCUPATION: LABOUR, R/O 226/2,
PATNIPURA, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUMEET SAMVATSAR-ADVOCATE )
AND
ADDITIONAL COLLECTOR, DISTT- INDORE
1.
INDORE (MADHYA PRADESH)
COMPETENT AUTHORITY NAGARIYA KALYAN,
2.
INDORE (MADHYA PRADESH)
SUMAN PRASAD, AGED ABOUT 39 YEARS,
3. OCCUPATION: HOUSEWIFE 465, PATNIPURA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NITIN BHATI-GOVERNMENT ADVOCATE)
BY SHRI MANISH YADAV-ADVOCATE)
Heard & Reserved on : 23.02.2023
The order passed on : 14.03.2023
The petitioner has filed the present petition being aggrieved
by the order dated 09.03.2011 (Annexure P/8) passed by the
Additional Collector, District Indore whereby a direction is given
to remove the entry of the name of the petitioner at serial No.226/1
in the register in respect of allotment of a residential House
No.226/12, Patnipura, Indore.
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The facts of the case in short are as under:
[2] The complainant/respondent No.4 made complaint to the
Collector that the petitioner is in illegal possession of the
Government land on a forged lease. On said complaint, an enquiry
was ordered and the report was submitted by the revenue authority
to the effect that no such lease (Patta) was issued in favour of the
petitioner under the M.P. Nagariya Kshetron Ke Bhuihin Vyakti
(Pattadhruti Adhikaron Ka Pradan Kisya Jana) Adhiniyam, 1984
(hereinafter referred to as Adhiniyam, 1964). Accordingly, a show
cause notice dated 15.11.2010 was issued to the petitioner. The
petitioner submitted a reply that the land in question was in his
possession hence same was allotted to him by issuing a lease in his
favour but the copy was not provided to him. The petitioner applied
for the supply of a certified copy of the Patta but he was served
with the photocopy of the registered-A page No.177 to 380 in
which there is the entry of his name. It is further submitted that the
complaint is not maintainable as the same is not submitted within
30 days under the provision of Adhiniyam, 1984. Since the
complaint is filed after 26 years, hence, same is liable to be rejected
as time-barred.
[3] According to the complainant, she filed a case against
Laxman S/o Heeraji Junwal for eviction from house No.226/12
(new number 226), Nandanagar New Dewas Road before the Rent
Controlling Authority. According to the complainant she purchased
the aforesaid house vide registered sale deed dated 01.10.1959.
Vide order dated 22.10.2009 it has held that she is the owner of the
house. The petitioner filed Civil Suit No.17-A/2010 before the 5 th
Additional District Judge in which the petitioner has not been
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found the owner of house and shop number No.226 /12, Patnipura
and the suit was dismissed vide judgment dated 05.01.2011.
[4] After examining the contention of the petitioner and the
complainant the learned Collector has held that in the register the
date of issuance of the lease is not written and entry at serial
No.226/1 is forged entry and no such lease had ever been issued in
favour of Ganesh under the Adhiniyam, 1984. Vide order dated
09.03.2011 learned collector has directed for removal of the said
entry of the name of the petitioner, hence as a consequence of it the
petitioner is liable to be evicted from the house in question, hence
this writ petition.
[5] Learned counsel for the petitioner submitted that Annexure
P/1 register was prepared under the provision of Adhiniyam, 1984
in which undisputedly the name of the petitioner is written as
leaseholder at serial No.226/1 for allotment of house No. 226/12.
There is the signature of the Deputy Collector and prescribed
authority. Therefore, such entries cannot be doubted and
disbelieved merely on the ground that a lease is not available. The
petitioner is in possession of and obtained the electricity
connection in his name. The Collector has wrongly entertained the
complaint which was filed after 26 years, hence, the impugned
order is bad in law and liable to be set aside.
[6] Despite repeated opportunities, neither respondents No.1
and 2 nor respondent No.3 have filed the return to refute the facts
and grounds taken in the writ petition by the petitioner.
[7] The stay order was granted on 20.04.2011 in favour of the
petitioner and is still in force as the same has not been vacated so
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far. Vide order dated 16.12.2022, it was made clear that if the reply
is not filed by the State within a further six weeks, then the right to
file a reply shall stand forfeited and the petition shall be heard on
the basis of the documents filed on record. Although the learned
Government Advocate and learned counsel for respondent No. 3
have argued in support of the impugned order passed by the
collector and prayed for the dismissal of the writ petition
Appreciation and conclusion
[8] The entire order of the Collector is based on a report
submitted by the prescribed authority and Joint Collector but the
said report has not been filed by the State Government in this writ
petition. Therefore the validity of the so-called report cannot be
examined in this case on the basis of which, the prescribed
authority came to the conclusion that the entry of the name of the
petitioner in the register (Annexure P/1) is a forged entry, whereas,
in the same page, there is one more entry in respect of house
No.354 which the Collector is not disputing. The register is in
possession of the prescribed authority. It is important to note that
the petitioner had no access to the said register. The possession of
the petitioner on the land in question has not been disputed as he is
having electricity connection.
[9] Between the petitioner and respondent No.3, there is civil
litigation going on and the first appeal is pending before this Court.
Any finding given by Additional Collector will affect the
proceedings of the first appeal. Even the Additional Collector in the
impugned order has not mentioned the provision under which
revision has been entertained after the lapse of 26 years.
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Respondent No.3 has not explained the delay of 26 years from the
date of issuance of the lease. There are no definite findings given
by the Collector as to who made the entry in the register at serial
No.226/1. The entire order has passed on the basis of presumption.
The enquiry by the additional collector was done behind the back
of the petitioner and there are conclusive findings as to how the
forgery was done in the register and who did the same, the
impugned order is 09.03.2011 is unsustainable and hereby quashed.
However, findings recorded by this Court shall not come in the
way of deciding the first appeal between the parties. The petitioner
is free to establish his lease rights of Bhumiswami rights in
pending the first appeal.
Writ Petition is allowed, and the impugned order is quashed.
No order as to cost.
(VIVEK RUSIA)
JUDGE
praveen
Digitally signed by
PRAVEEN NAYAK
Date: 2023.03.14
18:16:39 +05'30'
