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1978 Supreme(MP) 21
High Court Of Madhya Pradesh
K. K. Dube, and A. R. Navkar, JJ.
Sind Mahajan Exchange Ltd., Lashkar
v.
State of M. P. and another
M. P. No. 105 of 1973
Decided On : 7-2-1978
M. L. Gupta for petitioner;
S. N. Tandon, Deputy Government Advocate for State;
Balwant Singh for respondent No. 2.
Headnote:(1) Constitution of India - Art. 226-encroachment case-jurisdiction of Nazul Officer to start proceedings of eviction challanged - section 248 (3) of the M. P. Land Revenue Code, 1959 is no bar to hear writ petition. [Para 5
(2) Municipal Corporation Act. 1956 – S. 82 - Act Municipaliti-hai, Samvat 1969 (Gwalior State)-S. 81-Circular No.3-land vested in Lashkar Municipality by the Circular-continues to be so vested in under the M. P. Corporation Act-Nazul Tahsildar has no right to start encroachment proceedings in respect of such land.
(3) Land Revenue Code, 1959 (MP)-S. 248 (1)-land vested in Municipality-Nazul Officer cannot start proceedings.
The change in law since in the Gwalior Municipal Act of Samvat 1909 upto the enactment of the M. P. Municipal Corporation Act makes it clear that the property which ves1ed in the municipality is now vested in Municipal Corporation, Gwaliar and the property is to be utilised and used for the purposes mentioned in M. P. Corporation Act. To make it clear, the above provisions of law and changes therein go to show that open lands which were not assessed to land revenue and which fall within the municipal limits were transferred to the municipal committee during the times of Gwalior State by the Circular No.3. Those properties continued to vest in the municipal committee under the Gwalior Act, M. B. Act and now under the M. P. Act. [Para 6
It cannot be disputed now that as this land is within the municipal area, the municipal corporation is the only competent person to raise any objection regarding the use to which the property should be put. [Para 7
The Nazul rules cannot affect the property vested in the Corporation, the order passed by the Tahsildar (Nazul) and the appellate authority against the petitioner cannot be maintained. 1972 JLJ 966 relied on. 1970 RN 80= 1970 JLJ 95 overruled. [Para 11
Navkar, J.-
l. This is a petition under Article 226 of the Constitution of India for quashing the order of the Tahsildar (Nazul), Gwalior, dated 29-6-1970 in Case No. 4l4/415-A/68-69 Nazul.
2. The subject-matter of the dispute is a small strip of land situated in Mor Bazar, Lashkar. The plot lies by the side of the petitioner's Exchange Building and the plot is in its possession. It is alleged that it is in a Survey No. 274, but the dispute is with respect to the piece of land which is only 152.50 sq. ft. The petitioner has constructed a wall and latrine over this part of the land. This construction was done with the permission of the Municipal Corporation in file No. 526/66 x 3/3, on 8-11-1968. The dispute arose when the construction was completed. The Nazul Inspector after seeing the construction. Was of the opinion that this is encroachment over the Nazul land and the tenant Vishandas has trespassed over the land belonging to Nazul. He reported the matter to the Nazul Authorities and Tahsildar, Nazul, Gwalior started the proceedings in file No. 415/68-69, Appellant-68 and 415-68-69, A/68 against the tenant Vishandas and the petitioner. We are not concerned with the case of Vishandas, because the Nazul Officer dropped the proceedings against him when he came to know that he is only a tenant. The contention of the petitioner before the Nazul officer was that he has not trespassed over the land of Nazul and in fact, the land does not belong to Nazul at all. He submitted before the Nazul Officer how he acquired this land through different sale-deeds. The first sale-deed is dated 11-2-1948 and the second sale deed is dated 25-5-1965.
3. The case of the Nazul Department was that as the disputed land was an open land by the side of the road, it vested in the Nazul Department. The suit land which is in Survey No. 274 is also recorded as an 'Abadi'. The Nazul Officer after taking evidence, came to the conclusion that this plot does not belong to tbe petitioner and the permission given by the Municipal Corporation being without obtaining 'No objection Certificate' from the Nazul it is of no significance and because he has committed a trespass he asked for the removal of the trespass and fined the petitioner with Rs. 200. This order was passed on 29-6-1970. An unsuccessful appeal was maintained by the petitioner in the Court of the Sub-Divisional Officer Nazul, Gwalior vide No. 40/69-70. Aggrieved by these two orders, the present petition is filed.
4. The petitioner has made one Raj Kumari as a party to the proceedings in this petition and certain objections have been filed by Rajkumari through her learned counsel Shri Balwant Singh. But, we are not called upon to decide those objections because the only point we have to decide in this petition is whether the property vests in Nazul and whether the order of Nazul Officer imposing fine and removal of trespass is correct or not.
5. The stand taken by the learned counsel for the State is that the property vests in the Corporation for management and as it vests for managements in the Corporation, basically, the State remains the owner of the land and as Government is the owner of the land, the Nazul Officer on the basis of the instructions issued by the Government is entitled to vacate a trespass. He has relied on a judgment of this Court in State of Madhaya Pradesh v. Atmaram 1970 RN 80, he also raised an objection before us that there is an alternative remedy of filing a suit under section 248 (3) of the M P. Land Revenue Code, 1959 and as such, the petition deserves to be rejected. As far as the second contention is concerned, we are of the opinion that when the jurisdiction of the Nazul Officer itself is challenged there is no need of filing a suit and it can be decided in a writ petition. Therefore, this objection of alternative remedy cannot by accepted.
6. It is admitted by the State that this land is an Abadi land and it is within municipal limits. The first Act which we have to c
