The central legal point established in the judgment is that the settlement of Nazul land in favor of an encroacher is permissible under certain conditions as provided in the Revenue Book Circular Chapter IV(1) Clause 13.

A.K. Shrivastava, J.

1. The Petitioner submitted an application before Collector and Nazul Officer, Khandwa on 8-3-1995 praying to allot the land of Nazul to the Petitioner admeasuring 10' x 45' total area 540 square feet which is adjoining to Plot No. 73 in the township of Khandwa. It has also been pleaded in the application that except Petitioner this land cannot be used by any other person for the simple reason that adjoining to this land Petitioner is having his four-storied building. In para-6 of the application it has been pleaded that since that portion of land is lying idle and is on the rear side of his building and is being used by the public at large as an open public urinal, therefore, if the said land is allotted to the Petitioner on Patta, it can be utilised for fruitful purpose. Hence, it has been prayed in the application that the premium as well as the rent be settled and the said land which is of Nazul, be allotted in favour of the Petitioner by granting a Patta to him. A map has also been attached along with the application.

2. The Nazul Officer called the recommendation of Town and Country Planning, Khandwa and also of the Municipal Corporation.

3. On bare perusal of Annexure P-4 dated 28-7-1995 which is the recommendation of the Executive Engineer of the Municipal Corporation, this Court finds that on certain conditions the land was recommended for allotment to the Petitioner. In similar manner vide Annexure P-2 the Town and Country Planning Department also gave its recommendation in favour of the Petitioner. However, the Collector did not allow the application and rejected the same on 13-9-1999 as a result of which Petitioner submitted an appeal before Commissioner, Indore Division at Indore. The Revenue Commissioner, Indore vide its order dated 24-1-2001 (Annexure P-7) dismissed the appeal of Petitioner by affirming the order of the Collector. Against the said order, Petitioner submitted a representation before the State Government who vide order dated 25-10-2001 (Annexure P-8) did not allow the application of the Petitioner and affirmed the order passed by the Collector and Commissioner.

4. In this manner this petition has been filed by the Petitioner.

5. The contention of Shri Avinash Zargar, learned Counsel for the Petitioner is that the Collector, Revenue Commissioner as well as the State Government has not taken into account the merit of the application of the Petitioner and has rejected his application solely on the ground that Petitioner is an encroacher on the said land, although the Town and Country Planning as well as the Municipal Corporation recommended to allot the land in favour of the Petitioner. By inviting my attention to Revenue Book Circular Chapter IV(1) Clause 13 it has been put forth by learned Counsel that the Nazul land can be allotted to the Petitioner even though he is an encroacher on the said land. Hence it has been put forth by him that in complete derogation to the aforesaid provision, his application which has been rejected, be allowed by allowing this petition.

6. On the other hand, Shri Shroti, learned Panel Lawyer for the Respondents/State argued in support of the impugned orders and submitted that since Petitioner is an encroacher, therefore, Nazul land cannot be settled in his favour.

7. Having heard learned Counsel for the parties I am of the view that this petition deserves to be allowed.

8. On bare perusal of the order (Annexure P-5) dated 13-9-1999 of the Collector, (Annexure P-7) dated 24-1-2001, order of the Revenue Commissioner as well as the order (Annexure P-8) dated 25-10-2001 of the State Government this Court finds that the application of the Petitioner was not considered on its own merit but has been simply dismissed on the ground that Petitioner is an encroacher on the said land and therefore, the land in question which is of Nazul cannot be settled in his name. According to me, there is no bar under the aforesaid provision of the Revenue Book Circular that