RAJENDRA SINGH Vs. STATE OF M P

JUDGEMENT

(1.) LEARNED counsel for the respondents submit that petitioner has obtained an interim order on 17.3.2004 and is deliberately not appearing. On merit, it is submitted by Shri Sharma that no case is made out for interference in the matter. Considering the same record is being perused and the petition is disposed of on the basis of the material available on record. Petitioner contends that he has filed this petition being not aggrieved by any order but complains about illegal act of respondents in not stopping the illegal effort being made by the interested persons in making encroachment on the land bearing Survey No. 1207 situated in town Ihdergarh, District Datia (M.P.). It is the case of the petitioner that he is the owner of the land bearing Survey No. 122/07,123 and 124/1 situated in village Dariyapur, Tahsil Seondha, District Datia. Land of the petitioner was acquired by the State Government for the establishment of 132 K.B. Sub-sector. After acquisition of the land, petitioner applied for granting rights on Survey No. 1207 situated in village Indergarh, Tahsil Seondha, District Datia. According to the petitioner Collector vide order dated 10.6.1983 granted the land to the petitioner in Survey No. 990 and 996 instead of Survey No. 1207 vide Annexure P-1. As Survey No. 1207 was not granted to the petitioner, it is stated that he approached the higher authorities. Thereafter, series of correspondence took place and the State Government vide order dated 15.9.1989 passed an order for granting land of Survey No. 1207 situated in village Indergarh, Tahsil Seondha to petitioner vide Annexure P-2. It is the case of the petitioner that in pursuance to the order of the State Government District Collector Datia vide order dated 27.6.1991 has granted the Survey No. 1207 vide Annexure P-3. Order of Collector was challenged by one Shri Ataullah Khan by filing an appeal before the Commissioner Gwalior which was dismissed vide Annexure P-4 on 2.6.1992. It is the case of the petitioner that petitioner's brother Rajendra Singh has died who is the owner of the property and after his death petitioner's name has been entered in the Khasra entries in the year 1993 and petitioner is in continuous possession of the property. Revenue records in this regard are filed as Annexure P/5-A. It is the grievance of the petitioner that after lapse of all these years, District Wakf Board has filed a suit for declaring the land of the petitioner to be a Wakf property. The matter is pending before the Wakf s Tribunal. It is the case of the petitioner that by virtue of the order dated 15.9.1989 passed by the State Government granting land bearing Survey No. 1207 in village Indergarh Tahsil Seondha Distt. Datia, the order attained finality and petitioner has obtained Bhoomi Swami rights and the local residents belonging to a particular community under the political influences are encroaching on the land of the petitioner. Petitioner has sought a relief of restraining the respondents from interfering with his possession. On the basis of the aforesaid factual assertion, relief claimed for by the petitioner is a writ of mandamus or any other suitable writ or direction be given, the fact that petitioner's settled position be not disturbed and in case State Government is willing to acquire the land of the petitioner then a suitable award of the land in question as per market value be granted to the petitioner. Keeping in view the aforesaid assertions made by the petitioner an interim order directing the respondents not to disturb possession of the petitioner was passed by this Court on 17.3.2004 while issuing notice to the respondents.

(2.) ON notice being issued, respondents have filed the return and in the return filed by the State Government supported by the affidavit of Shri A.R. Dhok, SDO, Seondha it is submitted that petitioner had applied for obtaining the land bearing Survey No: 1207 in exchange of his land bearing Survey No. 990, 996 and 1907. However, it is stated by the respondents that even though petitioner had applied for exchange of land and grant of land bearing Survey No. 1207, the same was not granted. The prayer of the petitioner was rejected by the District Collector vide order dated 30.9.1985 Annexure R-1. Against this order Annexure R-1, petitioner preferred an appeal before the Commissioner which was dismissed on 5.9.1988. It is stated by the respondents that thereafter petitioner submitted a representation to the State Government and the State Government passed an order Annexure P-2 on 15.8.1989 directing the competent authority to take appropriate action in the matter of granting land bearing Survey No. 1207 and in case land is exchanged then difference of amount be taken from the petitioner. It is the case of the respondents that in pursuance to the order of the State Government, Collector passed an order Annexure P-3 granting Survey No. 1207 area 0.081 hectares to the petitioner. Respondents admitted the fact that appeal filed by Ataullah Khan has been dismissed. However, it is the case of the respondents that on the basis of various queries raised in the matter the entire records were again checked and on scrutiny of the records it was found that Survey No. 1207 has been recorded as a 'Marghat' and, therefore, under law it could not be allotted to the petitioner. That apart, it is stated by the respondents that when the allotment was made in the name of the petitioner vide Annexure P-3 pendency of the dispute before the wakfs Tribunal was also not brought to the notice of the competent authority. It is stated that it was only when certain members of a particular community made representation to the SDO, the entire old records from Samvat 2020 to 2024 and from Samvat 2031 to 2034 and again from Samvat 2036 to 2040 were seen and it was observed that the land is recorded as 'marghat' land and, therefore, such a land could not be given in exchange to any person. It is the case of the respondents that petitioner's father Himmat Singh was working as Reader in the Office of Nayab Tahsildar and petitioner's father in collusion with the Patwari Shri Om Prakash manipulated the entry of Survey No. 1207 as Kadim land without there being any order of the competent authority. The same has been done by manipulating the khasra entries for Samvat 2034 it was stated that benefit was granted to the petitioner illegally. Respondents contend that land bearing Survey No. 1207 on prima facie examination is found to be a 'marghat' (graveyard) land which could not be allotted in exchange to the petitioner and certain claims have been made by persons of a particular community claimed it to be a 'Marghat' land. It is the case of the respondents that because of illegality committed by the petitioner's father along with Patwari and because of wrong entries made in the land records, a mistake was committed in allotting land bearing survey No. 1207 to the petitioner. Accordingly it is stated that action is being taken for rectifying the mistake and no relief can now be granted to the petitioner in this petition.