PURSHOTTAM SARIN Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THE above petitions are being disposed of by this common order, as the petitioners herein have impugned the action initiated by the respondents whereby they are being dispossessed from the lawful possession of the Nazul lands by demolishing their shops/residential houses constructed over the land. Case of the petitioners namely Purshottam Sareen & Kum. Urvashi Agarwal, in brief, is that the petitioners and other shopkeepers have constructed their shops on Subhash Marg between Railway Station and Telgahani Naka, Raipur. They are in peaceful and settled possession over their shops since decades and the said shops are their sole means of livelihood. In the year 1940 a dispute arose about the ownership of the disputed land between the then Malgujars and the Government of C.P. & Berar with respect to the ownership of the disputed land and the Nagpur High Court held that the State of Madhya Pradesh is the exclusive owner of the land. After the aforesaid decision the Government of Madhya Pradesh legalized the possession of the petitioners & the petitioners' ancestral interest & title and agreed to give permanent lease to each person for a period of 30 years on a condition of payment of premium as determined by the concerned authority after they complied with the condition. Recommendations were made for permanent Patta for 30 years with renewal clause for another 30 years. Misc. Petition No. 1231/92 was filed in the High Court of Madhya Pradesh and in the said petition an interim order was passed on 8.4.1992 in favour of the petitioners. The then Additional Collector and the Administrator of the Municipal Corporation addressed a letter (Annexure P-2) to the association categorically mentioning therein that the encroachments within 65 ft. width over the road in question shall only be removed. The above miscellaneous petition was disposed of vide order dated 7.12.1994 (Annexure P-3), as no reply was filed by the respondents, with a direction that if the respondents wants this land for widening the road, they should proceed in accordance with law and should not use high-handed practice.

(2.) HOWEVER, the State Government did not issue any renewed lease deed despite they had completed requisite formalities for the same. On the other hand, the petitioners were served with a notice under Section 133 of the C.G. Land Revenue Code, 1959 (for brevity 'Code, 1959') mentioning the petitioners as encroachers, whereas, the petitioners are having permissive possession. However, the proceedings under Section 133 of the Code, 1959 was dropped vide order dated 11.2.2009 (Annexure P-4). W.P. (c) No. 1676/09 was again filed by the other similarly situated inhabitants of the locality and the same was disposed of by this Court vide order dated 9.2.2009 (Annexure P-5). In pursuance of the order dated 9.2.2009 a notice under Sections 322 & 323 of the Municipal Corporation Act, 1956 (for brevity 'Act, 1956') was issued to the petitioners, which was never served on the petitioners and the same was affixed on their boundary walls. The petitioners and other traders went to the office of the respondent Municipal Corporation with reply to the said notice, however, since no one was prepared to accept the reply, they handed over the same to one Kamaldeep, Caretaker. However, respondent No. 5 in a most autocrat manner demolished the entire buildings only by giving half-an hour notice to the occupants in utter disregard of the rule of law and ignoring earlier protective order passed by this Court. With the above averments the petitioners have prayed that the respondents be restrained from disturbing peaceful possession of the petitioners over the Nazul land; declare that the petitioners are in lawful possession over the Nazul land in question; direct the respondent authorities to reconstruct the structure of the petitioners, as it originally existed, at their cost; and further direct them to pay suitable compensation for the acts of omission and commission of demolition of structure. It has been further prayed that the petitioners be allowed to carry on the business from the said premises after reconstruction without any interference and in case land is actually required for widening of road, alternate reasonable suitable site be provided. Case of petitioner namely Jeev Rakhan Pansari (W.P. (c) No. 1086/09), in brief, is that he is running a betel shop and general stores near Railway Station, Subhash Road, Raipur after purchasing the same from Arun Parmaar and others vide registered sale deed dated 31.3.1999 for a consideration of Rs. 90,000/- (Annexure P-2). His name has been duly mutated in the municipal records (Annexure P-3). He is registered shopkeeper under the Shops and Establishment Act, 1958 and his registration certificate is Annexure P-4. He has also obtained tobacco license (Annexure P-5). The petitioner was served with a notice dated 13.2.2009 (Annexure P-6) whereby he was asked to vacate the said shop within two days, failing which he shall be removed by the authorities under the purported exercise of powers under Sections 322 & 323 of the Act, 1956 and in pursuance of the said notice, major portion of the shop of the petitioner was demolished.

(3.) THE petitioners are in settled possession and their possession in the said premises relates to decades back even before coming into force of the Abolition of Proprietary Rights Act. The lands in question were recorded as abadi/maurasi lands in the revenue record. Referring to Part-IV, Sr. No. 1 of the Revenue Book Circulars, it was argued that the lands described as 'abadi land' under the Code, 1959 were to be included as Nazul land after declaration of such villages as town and the persons, who are legally occupying such lands by constructing their dwelling houses, have been declared as Bhumiswamis of the Nazul land. The Act, 1956 came into force in the city of Raipur only on 26.8.1967 and therefore, the persons in possession of the lands prior to coming into force of the Act, 1956 cannot be treated as illegal, trespassers and encroachers, as the laws made thereafter cannot be applied to such persons retrospectively. The occupants of the area were given Bhumiswami rights, they were also asked to deposit premium etc. for granting formal documents for their possession in the shape of lease deeds etc. and in some cases lease deeds have also been executed. The petitioners have entered into various transactions with regard to the said property and registered deeds have been filed to demonstrate that they are in settled possession. Respondent Corporation also accorded sanction to the petitioners to construct buildings. Petition bearing M.P. No. 1231/92 was filed by various persons in the High Court of M.P. and the same was disposed of vide order dated 07.12.1994 with a direction that "if the respondents want this land for widening the road, they should proceed in accordance with law and should not use highhanded practice". After W.P. (c) No. 1676/09 was disposed of by this Court on 9.2.2009, a notice dated 13.2.2009 was issued in purported exercise of powers under Sections 322 & 323 of the Act, 1956 and the petitioners were called upon to remove their encroachments within two days, failing which the same shall be got removed by the Corporation at their expenses. The notice was deliberately issued on Friday evening, with a direction to remove the encroachments by 15.2.2009 i.e. Sunday, in order to prevent the petitioners from approaching the Court and structures were demolished by the use of 3D machines and bulldozers on Sunday when respondent No. 5 personally came with the demolition squad and asked the occupants to vacate the premises within half- an hour. A bare perusal of show cause notice would reveal that it is not a notice but an order of removal of possession.