Decided on February 08,2018

Satish Bhaya And Others Appellant
State Of M P And Others Respondents


Vandana Kasrekar, J. - (1.) The petitioners have filed the present petition, under Article 226 of the Constitution of India, challenging the orders dated 09/05/2011 and 04/06/2011 passed by respondents No. 2 and 4 respectively.
(2.) Brief facts of the case are that the petitioners have purchased a house No.1047/K-A situated at Chitranjan Ward, Jabalpur on the part of Khasra No.31/3 ad-measuring 3750 sq. ft. from one Smt. Chaterjee w/o Shri R. N. Chatterjee vide registered sale deed dated 15/12/2004. After purchasing the land, the petitioners have submitted an application for mutating their names in the land record. The Tahsildar has passed an order dated 19/12/2006 thereby recording the names of the petitioners No. 2 & 3 in the land record. However, in the record of Municipal Corporation also, the names of the petitioners No. 2 & 3 have been mutated as owners in respect of house No.1047/K-A. Thereafter, the petitioners No. 2 & 3 had submitted an application for raising construction over the property and the said permission was granted by the Municipal Corporation. A map was also sanctioned, accordingly, the petitioners have constructed the hospital over the said property. On 07/12/2009 a show cause notice was issued under Section 248 of Land Revenue Code by Tahsildar and SDO, Department of Water Resources, Sub Division No.1 Jabalpur for removal of house and boundary wall over Khasra Nos.26/2 and 27/2. The petitioners have filed the reply to the said show cause notice on 26/12/2009 stating that the construction on Khasra No.31/3 which is a diverted private land purchased from Smt. Chatterjee by registered sale deed in the year 2004. On 29/04/2011 petitioners have again submitted detailed reply along with all relevant documents. However, the Tahsildar has passed an order dated 09/05/2011 holding that the petitioners are encroachers on the ground that no document was produced to show that they are not encroachers on the government land. Respondent No.2 has not considered the documents produced by the petitioners along with reply. Being aggrieved by the said order, the petitioners have preferred an appeal before the SDO. In the said appeal, the petitioners have filed all the documents on which they are relying and a prayer was also made to provide them an opportunity of hearing and leading the evidence. In the said appeal, the petitioners have raised the ground that while passing the order, Tahsildar has not considered the reply submitted by the petitioner on 29/04/2011 and no opportunity was given to them for leading the evidence, therefore, the impugned orders dated 09/05/2011 and 04/06/2011 are liable to be set aside.
(3.) Respondent No.4 instead of deciding the appeal on merits has disallowed the application for stay vide order dated 04/06/2011 on the ground that the case is related to W.P.No.8880/2009 (PIL). The petitioners submit that the petitioners are not a party in the said writ petition and they have not received any notice and, therefore, it was obligatory in respect of respondents No. 2 to 4 to decide the issue after taking into consideration the reply submitted by the petitioners. Respondent No.2 has also passed consequent order for eviction on 26/05/2011. Being aggrieved by that order, the petitioners have filed the present writ petition.;

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