Decided on December 24,1969



- (1.) THIS appeal is by the plaintiffs. The relevant facts are that there are a number of tenants who are in occupation of sheds constructed on the land belonging to the plaintiffs. Notices were issued by the Municipal board, Bhopal on 6th and 9th December, 1958 to the tenants as also to the plaintiffs under section 175 of the Bhopal State Municipalities Act, 1955 alleging that the constructions were made without sanction and directing them to demolish the constructions and intimating that if they were not demolished, action would be taken for their demolition under section 317 of the Act. The plaintiffs and the tenants went up in appeal to the District Judge Bhopal under section 328 of the Act, but the appeals were dismissed on 27th March, 1952. Later on, another notice was issued to the plaintiffs under Rule 17 of the Nazul rules alleging encroachment on Government land under the management of the Board measuring 68 'x 34' and intimating that in case the encroachment was not removed within fifteen days, action will be taken for removal of the same under section 317 of the Act. The plaintiffs then commenced the suit giving rise to this appeal for issue of permanent injunction against the Board to prevent it from disturbing the plaintiffs' possession and removing the sheds and other constructions. The plaintiffs pleaded that the land over which the sheds of the tenants stood, as also the land which was alleged to have been encroached upon, belonged to them and the notices issued by the Board were invalid being in excess of jurisdiction. The suit was decreed by the trial Court, but was dismissed in first appeal. The plaintiffs have, therefore, come up in second appeal to this Court.
(2.) THE case of the plaintiffs-appellants in respect of the notice issued under the Nazul Rules may first be examined. The finding of the Additional district Judge is that the plaintiffs failed to prove that the land alleged to be encroached upon belonged to them and, therefore, their challenge to the notice must fail. This line of reasoning cannot be supported. The plaintiffs are in possession of the land and the defendant-Board cannot take any action except by a suit to dispossess them unless the action taken is justified under some law. In the present case, the notice was issued by the Board under Rule 17 of the nazul Rules. The question to be determined, therefore, is whether the notice issued to the plaintiffs could be issued under Rule 17 or whether the Board had no jurisdiction to issue the same. A copy of Rule 17, which has been made available to me by the learned counsel appearing for the Board, shows that the rule applies only when the encroachment is on a public street or public place. It is only when this condition is satisfied that the Municipal Board can issue a notice under the rule for removal of the encroachment. The notice issued to the plaintiffs, which is Ex. P /3, states that the land encroached upon is Government land under the management of the Board. Now, the notice itself does not State that the land over which the encroachment has been made forms part of a public street or public place. Even in the written statement it is not pleaded that the land encroached upon by the plaintiffs is part of a public street or public place. The expressions "public place" and "public street" are defined in clauses (16) and (17) of section 2 of the Act. The definitions clearly show that simply because certain land is owned by the Government and is vested in the Board for management, it does not become public place or public street. In the circumstances, it must be held that the notice issued by the board under rule 17 of the Nazul rules was clearly unauthorised and the Board must be restrained from giving effect to that notice.
(3.) AS regards the validity of notices issued under section 175 of the bhopal State Municipalities Act, the learned Additional District Judge was of the view that the suit was barred by section 330 of the Act.;

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