Raju Sharma vs State of M. P. - 2014 Supreme(MP) 52

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(MP) 52

(HIGH COURT)
S. K. Gangele and D. K. Paliwal, JJ.
Raju Sharma and another v. State of M.P. and others
Writ Petition No.1582 of 2013 (Gwalior); Decided on 17.1.2014.

Advocates:
A. V. Bhardwaj with Sanjay Dwivedi for petitioners;
Vivek Khedkar, Dy. Advocate General for respondents/State.

Headnote: ¼1½ Hkw-jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 248 & vf/kdkfjrk & ;fn ljdkjh Hkwfe ij dksbZ vf/kØe.k gS & ek= lhekadu ny dh fjiksVZ ij & fof/k dk voyac fy, fcuk fdlh izkf/kdkjh }kjk ugha gVk;k tk ldrk & ;g rglhynkj }kjk /kkjk 248 ds mica/kksa ds vuqlkj gVk;k tk ldrk gSA

       izR;FkhZx.k us vfHkopu fd;k gS fd lhekadu esa] ;g ik;k x;k Fkk fd ;kphx.k }kjk ljdkjh Hkwfe ds dqN Hkkx ij vf/kØe.k fd;k x;k Fkk vkSj mls rksM+k x;k FkkA

       vfHkfu/kkZfjr% ;fn ;kphx.k }kjk dksbZ vf/kØe.k fd;k x;k Fkk] rc ;kphx.k dh csn[kyh dk vkns’k djus ds fy, lafgrk dh /kkjk 248 ds micaèkksa ds vuqlkj mfpr izkf/kdkjh rglhynkj Fkk] fQj Hkh] izR;FkhZx.k }kjk ;g jhfr ugha viukbZ xbZ D;ksafd bl laca/k esa ,slk dksbZ vfHkopu ugha gSA blds izfrdwy] ;kphx.k }kjk bl rF; dk mYys[k djrs gq, dyDVj ds le{k vH;kosnu fd;k x;k fd os Hkwfe ds HkwfeLokeh gSa fdarq ml vH;kosnu ij fopkj ugha fd;k x;kA

       ;g Li”V gS fd izkf/kdkjh vius Lo;a ds fy, fof/k ugha cuk ldrkA izkfèkdkfj;ksa ls fof/k ds vuqlkj dk;Z djuk visf{kr gSA bl izdj.k esa] ;fn lhekadu ny }kjk dksbZ vf/kØe.k gksuk izfrosfnr fd;k Fkk] rc izkf/kdkfj;ksa dh vksj ls ck/;dj Fkk fd rkfRod rglhynkj ds le{k j[krs vkSj og ;kphx.k dh csn[kyh dk vkns’k dj ldrk FkkA ,slh izfØ;k ugha viukbZ xbZA blfy,] ;kphx.k dh lhek nhoky rksM+us dh izR;FkhZx.k dh dk;Zokgh izFken`”V~;k voS/k gSA 2012 jk fu 226 ¼mPp U;k-½ voyafcrA ¼2002½3 ,l lh lh 137 rFkk ¼2010½8 ,l lh lh 383 vuqlfjrA 2002¼2½ e iz ohDyh uksV~l 22] ¼2005½2 ,l lh lh 126] 2009¼1½ ,e ih ,p Vh 442 rFkk ¼2008½13 ,l lh lh 506 fufnZ”VA

       ¼2½ Hkkjr dk lafo/kku & vuq-226 & ‘kfDr;ksa dh O;kfIr & vf/kØe.k vkSj Hkwfe ds LokfeRo ds laca/k esa rF;ksa ds fookfnr iz’u & fjV vf/kdkfjrk ds v/khu fofuf’pr ugha fd, tk ldrs & fdarq fof/k dk voyac fy, fcuk lhek nhoky rksM+ nh xbZ & ,slh dk;Zokgh fof/k ds izfrdwy vkSj euekuh gS & izfrdj #-1]00]000@& vf/kfu.khZr fd;k x;k & ;kfpdk [kpsZ lfgr eatwj dh xbZ & leqfpr mipkj miyH; djus ds fy, i{kdkj funsf’krA ¼iSjk 16 ,oa 17
       (1) Land Revenue Code, 1959 (M.P.) -- S.248 -- jurisdiction -- if any encroachment is on Government land -- mere on report of demarcation team -- cannot be removed by any authority without taking recourse of law -- it can be removed by Tahsildar according to provisions of section 248.
       The respondents pleaded that in the demarcation, it was found that the petitioners had made encroachment over some portion of the government land and that was demolished.
       Held : If there was any encroachment by the petitioners, then the proper authority to order ejectment of the petitioners was the Tahsildar in accordance with the provisions of section 248 of the Code, however, that mode has not been adopted by the respondents because there is no such pleading in this regard. Contrary to this, the petitioners made representation to the Collector mentioning the fact that they are the owners of the land but that representation was not considered.
        It is clear that the authority cannot became the law unto themselves. The authorities are expected to act in accordance with law. In the present case, if there was any encroachment reported by the demarcation team, then it was obligatory on the part of the authorities to place the material before the Tahsildar and he could order ejectment of the petitioners. No such procedure has been adopted. Hence, action of the respondents in regard to demolition of boundary wall of the petitioners is prima facie illegal. 2012 RN 226 (HC) relied on. (2002)3 SCC 137 and (2010)8 SCC 383 followed. 2002 (II) MPWN 22, (2005)2 SCC 126, 2009(1) MPHT 442 and (2008)13 SCC 506 referred to.
       (2) Constitution of India -- Art.226 -- scope of powers -- disputed question of facts regarding encroachment and ownership of land -- cannot be decided in writ jurisdiction -- but boundary wall demolished without taking recourse of law -- such action is contrary to law and is arbitrary -- compensation of Rs.1,00,000/- awarded -- petition allowed with cost -- parties directed for availing appropriate remedy. [Paras 16 & 17

ORDER

1. Heard.

2. The petitioners have filed this petition against demolition of their boundary wall. The petitioners further prayed a relief that an adequate compensation be awarded to the petitioners for the loss caused to them due to illegal demolition of boundary wall.

3. The petitioners purchased a land of survey No.24 area 0.215 hectare vide registered sale deed dated 8.11.2001. They also purchased another piece of land area 0.125 hectare of same survey number situate at village Sirol, Block Morar, Tahsil and District Gwalior on the same date vide registered sale deed. After purchase of the land, names of the petitioners were mutated in the revenue record. They constructed a six feet high brick boundary wall surrounding the said land in the year 2002.

4. The petitioners pleaded that officers of the Public Works Department marked a sign against the boundary wall, then they submitted representation to the respondent No.2 Collector Gwalior pleading the fact that they are the owners of the land and they have not made any encroachment over the government land. Without considering that representation, the boundary wall of the petitioners was demolished on 1st March 2013 and the authorities had taken the land of the petitioner, area 11 × 190 feet, for the purpose of laying down the road. Before that, no notice was issued to the petitioner neither any proceeding under section 248 of the M.P.Land Revenue Code, 1959 (hereinafter referred to the ‘Code’) was initiated against the petitioners.

5. Respondents No.1 to 3/State in the return pleaded that at the time of construction of four lane road, a spot inspection was carried out and after demarcation, it was found that the petitioners had encroached over 3 mtr. of government land after constructing the boundary wall over the aforesaid land. A joint inspection was also conducted. The petitioners were called on the spot at the time of inspection showing status of the land, however, the petitioners did not turn up and in the joint demarcation again it was found that the petitioners had made encroachment over the Government land, hence, the boundary wall constructed by the petitioners was demolished, which was a hurdle for construction of 20 mtr. wide road.

6. The petitioners denied the fact in the rejoinder that they had given any notice in accordance with the provisions of the Code in regard to the demolition of the boundary wall. The petitioners further denied the fact that any case under section 248 of the Code was registered against the petitioners.

7. Learned senior counsel appearing on behalf of the petitioners has contended that the action of the authorities in regard to demolition of boundary wall of the petitioners is arbitrary, illegal and against the provisions of law. It is further contended by the learned senior counsel that no proceeding for encroachment has been initiated by the respondents against the petitioners and without following the provisions of law, the respondents demolished the boundary wall of the petitioners and had taken possession of certain piece of land, which is of the ownership of the petitioners. Hence, the action of the respondents is arbitrary and illegal and the proper compensation be awarded in favour of the petitioners. In support of his contentions, learned senior counsel relied on the following judgments :

(i) S.R.Ejaz v. T.N. Handloom Weavers’ Cooperative Society Ltd. - (2002) 3 SCC 137.

(ii) Ram Bharose Soni v. State of M.P. - 2002 (II) MPWN SN 22.

(iii) State of UP v. Manohar – (2005) 2 SCC 126.

(iv) Jaswant Bhai Doshi v. Indore Municipal Corporation – 2009 (1) MPHT 442.

(v) Municipal Corporation v. Inderjit Singh – (2008) 13 SCC 506.

(vi) Maa Kaila Devi Enterprises v. State of M.P. - 2012 (2) MPLJ 562.

(vii) Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation – (2013) 1 SCC 353.

8. Contrary to this, learned Dy.Advocate General appearing for the respondents/State has contended that the petitioners had made encroachment over

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Judicial Analysis

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2014 Supreme(MP) 52

(HIGH COURT)S. K. Gangele and D. K. Paliwal, JJ.Raju Sharma and another v. State of M.P. and othersWrit Petition No.1582 of 2013 (Gwalior); Decided on 17.1.2014.

Judicial Analysis

(HIGH COURT)
S. K. Gangele and D. K. Paliwal, JJ.
Raju Sharma and another v. State of M.P. and others
Writ Petition No.1582 of 2013 (Gwalior); Decided on 17.1.2014.