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MADHYA PRADESH HIGH COURT BENCH AT GWALIOR
G.S. Ahluwalia, J.
Vinod Giri And Others - Appellants
Versus
Sachiv Gram Panchayat Malhargarh - Respondent
M.P. No.6693 of 2019
Decided On : 14-01-2020
Encroachment - Land Allotment - The Madhya Pradesh Panchayat (Transfer of Immovable Property) Rules, 1994 - Rule 3, Rule 5, Rule 6, Rule 7, Rule 10 - The court affirmed the orders passed by the Tribunals below, holding that the petitioners had encroached upon the land and directing them to remove the encroachments. The court found that the Gram Panchayat had not followed the mandatory provisions of The Madhya Pradesh Panchayat (Transfer of Immovable Property) Rules, 1994 before allotting the land to the petitioners, and therefore, any resolution or certificate for conferral of Bhumiswami rights would not confer any title on the petitioners.
Fact of the Case:
The petitioners challenged the order affirming their encroachment on land and directing them to remove the encroachments. They argued that the Tribunals did not give them sufficient opportunity to argue the appeal and that they had been allotted the land by the Gram Panchayat.
Finding of the Court:
The court found that the petitioners had encroached upon the land and directed them to remove the encroachments. It also held that the Gram Panchayat had not followed the mandatory provisions of The Madhya Pradesh Panchayat (Transfer of Immovable Property) Rules, 1994 before allotting the land to the petitioners.
Issues: 1. Whether the petitioners were granted Bhumiswami right or were allotted the plot by Gram Panchayat after following due procedure of law. 2. Whether the Tribunals below committed any mistake in treating the petitioners as encroachers.
Ratio Decidendi: The Gram Panchayat did not follow the mandatory provisions of The Madhya Pradesh Panchayat (Transfer of Immovable Property) Rules, 1994 before allotting the land to the petitioners, and therefore, any resolution or certificate for conferral of Bhumiswami rights would not confer any title on the petitioners.
Final Decision: The court affirmed the orders passed by the Tribunals below, holding that the petitioners had encroached upon the land and directing them to remove the encroachments.
JUDGMENT
1. Heard on I.A.No.226/2020. This is an application for impleading the State Government as respondent.
2. For the reasons mentioned in the application, the same is allowed. The necessary amendment be carried out within seven working days.
3. The petitioners are also heard on the question of admission.
4. By this petition, the petitioners have challenged the order dated 5.8.2019 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.550/2016-17/Appeal by which the appeal filed by the petitioners against the order dated 20.7.2017 passed by Sub Divisional Officer, Mungawali, District Ashoknagar, has been affirmed.
5. According to the petitioners, the necessary facts are that since the petitioner No.1 was a landless person, therefore, by resolution dated 5.10.2004 it was decided by the Gram Panchayat to allot a plot ad measuring 30x50 square feet to the petitioner No.1 and, accordingly, it was observed that the lease deed may be issued and the Bhumiswami rights were granted by the Gram Panchayat to the petitioner No.1. Prior to that, the Gram Panchayat had also conferred Bhumiswami right upon the petitioners No.2 and 3. Thereafter, the petitioners constructed the houses and they are residing. It appears that Principal, High School, Malhargarh and Secretary, Gram Panchayat Malhargarh made complaint to the Sub Divisional Officer, Mungawali, District Ashoknagar to the effect that certain encroachments are taking place on survey No.689/1 which is situated near the school building as well as Panchayat building and the said land is proposed for constructing the school building. It was alleged that certain persons are raising their permanent structure and the names of the petitioners were also mentioned as one of the encroachers and, accordingly, the Sub Divisional Officer, Mungawali, District Ashoknagar obtained the report from the Patwari and issued directions to the Tahsildar to take action. Tahsildar, Tahsil Mungawali, District Ashoknagar issued notice to the petitioners. The petitioners submitted their reply and pleaded that by resolution dated 5.10.2004, the petitioner No.1 has been allotted plot ad measuring 30x50 square feet. The Principal of Government High School, Malhargarh had also given his no objection as the land allotted to the petitioner No.1 was situated at a distance from the school building. It appears from the order of the Tahsildar that the encroachment done by the petitioner No.3 was removed by order dated 16.9.2012 passed by Sub Divisional Officer, Mungawali, District Ashoknagar. The evidence of the petitioners No.1 and 2 were recorded and thereafter the spot inspection report was called and it was found that the petitioners have made encroachment and, accordingly, by order dated 11.12.2012, the petitioners No.1 and 2 were directed to remove their encroachment and a fine of Rs.5000/- was also imposed and it was also held that the proposal by the Gram Panchayat in favour of the petitioner No.1 cannot be treated as a lease deed.
6. Being aggrieved by the order dated 11.12.2012, the petitioners filed an appeal. The appeal was dismissed by the Sub Divisional Officer, Mungawali, District Ashoknagar by order dated 20.7.2017 passed in Case No.64/2012-13/Appeal. The order of Sub Divisional Officer, Mungawali, District Ashoknagar was challenged by the petitioner before the Additional Commissioner, Gwalior Division, Gwalior, however, the said appeal has been dismissed by order dated 5.8.2019 passed in Case No.550/2016-17/Appeal.
7. Challenging the orders passed by the Tribunals below, it is submitted by the counsel for the petitioners that the Sub Divisional Officer, Mungawali, District Ashoknagar did not give sufficient opportunity to argue on the appeal and the appeal was dismissed in a very haphazard manner. The Tribunals failed to see that the petitioner No.1 was allotted plot by Panchayat by resolution dated 5.10.2004 and, therefore, it cannot be said that he had encroached upon the land in que
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