P.K. Jaiswal, JThis intra Court appeal under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 has been filed against the order dated 19.12.2017 passed in W.P. No.3529 of 2017, whereby writ petition has been allowed and appellant - Indore Development Authority is directed not to encroach upon the land as it is a private land of the respondent No.1 and to remove encroachment, as the land is owned by the respondent No.1.

2. The facts of the case are that the respondent No.1 is owner of land comprised in various survey numbers including survey Nos.214/1 and 214/2, total area 3.765 hectares, Village Niranjanpur, Tehsil and District Indore.

3. The respondent No.1 had preferred an application for demarcation of land of Survey Nos.214/1 and 214/2 before Revenue Inspector Tehsil Indore, thereafter demarcation was done and after such demarcation, the respondent No.1 came to know that appellant Indore Development Authority has encroached upon 0.287 hectare land of Survey No.241/1.

4. As per record, the land of 0.287 hectare was agricultural land in the Master Plan. On 17.1.2007 a certificate to that effect has been issued by the Joint Director, Town and Country Planning Department. A ceiling proceeding took place in the matter under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (for short, " the of 1976") and the land was declared as surplus land. A notification was published under Section 10(1) of theof 1976 on 20th September, 1985 and thereafter, a notification was published under Section 10(3) of theof 1976. After publication of notice under Section 10(3) of theof 1976, a notice under Section 10(5) of theof 1976 was served upon the land owners Kunwar Ji Jaggannath, Moti Ram and Hiralal S/o Bapuji for delivery of possession. At the relevant point of time Moti Ram was no more and the contention of the Indore Development Authority is that a possession Panchnama was prepared on 11.07.1986.

5. An appeal was preferred against the order passed by the competent authority and the appellant authority by an order dated 01.04.1987 has allowed the appeal and has directed the competent authority to re-inquire the matter. It is also not in dispute that before conclusion of the inquiry and after remand by the appellate authority, the of 1976 was repealed and the competent authority has passed an order for abating the proceedings.

6. The State Government on 20.11.2006 directed the competent authority to correct the mistake in the revenue record and thereafter, the competent authority has passed an order dated 27.02.2007 confirming that the possession was never taken and the proceedings were abated and directed the revenue authorities to correct the land records and the land records were corrected. The State Government vide order dated 18.05.2007 directed the Collector to decide the case of the respondent No.1 and to inform the Government. Thereafter, the Tehsildar, as there was no order in existence declaring the land as surplus, has corrected the record on 22.05.2007.

7. The appellant has suppressed this material fact while writing letter dated 13.11.2017 to the Collector, Indore about the order passed by the Additional Commissioner by which the order of the competent authority declaring the land as surplus was set aside.

8. The Collector pursuant to the letter of the Indore Development Authority has acted upon and has issued show cause notice dated 13.11.2017 to the respondent No.1 for reviewing the order of the Tehsildar.

9. The appellant suppressed the order dated 01.04.1987 passed by the Additional Commissioner (Appellate Authority) and started claiming the ownership of the land in question on the ground that at the time of framing of Scheme No.136 the land was recorded as Government land. According to the appellant at the time of framing of Scheme, the land was recorded as Government land and in order to implement the Scheme No.136, a notification under Section 4(1) of the Land Acquisition Act was published in the official gazette in respect of private land including the land of the respondent No.1 which is being claimed by the respondent No.1 and government land was included in the scheme.

10. The contention of the respondent No.1 before the learned Writ Court was that without acquiring the land which is a private land, no development can be carried out by the appellant and the appellant cannot be permitted to encroach upon private land without acquiring it and without paying compensation to the land owners.

11. As per additional rejoinder filed by the respondent No.1, the land use of the land in question was agriculture in Master Plan and a certificate in this regard has been filed as Annexure-P/7. The ceiling proceeding was set aside in appeal by the appellate authority by order dated 01.04.1987 (Annexure-P/8), meaning thereby, the order declaring the land as surplus land was set aside and the matter was remanded back.

12. The case of respondent No.1 that before conclusion of inquiry after remand by the appellate authority, the of 1976 was got repealed and order of closing/abating the proceedings was passed vide Annexure-P/9. The proceedings as stood abated, the State Government vide letter dated 20.11.2006 directed the competent authority to correct the mistake in the revenue record and thereafter, competent authority has passed the order dated 27.02.2007 confirming that the possession was never taken and the proceedings were abated and directed the revenue authorities to correct the land records by mutating the names of land owners.

13. On 13.04.2007, the Competent Authority confirmed that no possession was taken and directed the Tehsildar to decide the application of land owners for correction/mutation of land records. The State Government vide order dated 18.05.2007 directed the Collector to decide the case and to inform the Government and the Tehsildar as there was no order in existence to declare the land as surplus, corrected the revenue record on 22.05.2007.

14. In the light of aforesaid, the private land of the respondent No.1 cannot be included in the scheme and the respondent No.1 cannot be thrown out without acquiring the land and without paying the compensation.

15. During pendency of the present writ petition, the Chief Executive Officer, Indore Development Authority on 13.11.2017 wrote a letter to the Collector, Indore to correct the revenue record and to review the order passed by the Tehsildar on 22.05.2007, suppressing the order dated 1.4.1987 passed by the Additional Commissioner.

16. The learned Writ Court has observed that suppression made by the appellant is a serious matter and held that at no point of time any notification was issued under any provision of law of Land Acquisition Act in respect of land bearing survey Nos.214/1 and 214/2 ad-measuring 0.287 hectares. No document or order was produced by the appellant- Indore Development Authority regarding transferring the land in question.

17. Considering these facts, learned Writ Court came to the conclusion that the respondent No.1 is the title holder of the property in question, the appellant cannot be permitted to encroach upon the land belonging to the respondent No.1 and the respondent No.1 is free to develop the land keeping in view the statutory provisions as contained under the Bhumi Vikas Rules and in accordance with law. The subsequent notice issued by the Collector is bad in law and allowed the writ petition.

18. Counsel for the appellant has submitted that learned Writ Court committed an error in allowing the writ petition. He during the course of argument failed to point out any document / any order by which land in question has been transferred in favour of the appellant. He has not disputed about the order dated 1.4.1987 passed by the appellate authority by which appeal has been allowed and the competent authority was directed to re-inquire the matter. He also not disputed the letter dated 20.11.2006 of the State Government by which State Government directed the competent authority to correct the mistake and the competent authority by an order dated 27.2.2007 has stated that possession was never taken and the proceedings abated and the land records were corrected.

19. Considering these facts, we are of the view that the learned Writ Court has not committed any legal error in passing the impugned order. Paras 30 to 38 of the order passed by the learned Writ Court reads as under:-

"30- In the present case, the facts reveal that the land was agriculture land in the Master Plan. A certificate to that effect has been issued by the Joint Director, Town and Country Planning Department on 17/01/2007. It is true that ceiling proceeding took place in the matter under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 and the land in question was declared as surplus land. A notification was published under Section 10(1) of the Urban Land (Ceiling and Regulation) Act, 1976 on 20/09/1985 and thereafter, a notification was published under Section 10(3) of theof 1976. It is also true that after publication of notice under Section 10(3) of theof 1976, a notice under Section 10(5) of the Adhiniyam was served upon the land owners Kunwar Ji Jaggannath, Moti Ram and Hiralal S/o Bapuji for delivery of possession. At the relevant point of time Moti Ram was no more and the contention of the Indore Development Authority is that a possession Panchnama was prepared on 11/07/1986.

31- The undisputed facts reveal that an appeal was preferred against the order passed by the competent authority and the appellant authority (the Additional Commissioner) by an order dated 01/04/1987 has allowed the appeal and has directed the competent authority to re-inquire the matter (Annex.-P/8). It is also an undisputed fact that before conclusion of the inquiry and after remand by the appellate authority under the Urban Land (Ceiling and Regulation) Act, 1976 was repealed and the competent authority has passed an order for closing / abating the proceedings.

32- It is also an undisputed fact that State Government on 20/11/2006 has directed the competent authority to correct the mistake and the competent authority by an order dated 27/02/2007 has gone to the extent in stating that possession was never taken and the proceedings abated and the land records were corrected. The State Government on 18/05/2007 has directed the Collector to decide the case of the petitioner and to inform the Government. Thereafter, the Tehsildar, as there was no order in existence declaring the land as surplus, has corrected the record on 22/05/2007, meaning thereby, for all purposes the petitioner is a title holder.

33- The Indore Development Authority has suppressed this material fact while writing letter dated 13/11/2017 to the Collector, Indore about the order passed by the Additional Commissioner by which the order of the competent authority declaring the land as surplus was set aside.

34- The suppression by the Indore Development Authority about the order dated 01/04/1987 passed by the Additional Commissioner (Appellate Authority) is a serious matter, as the learned Collector pursuant to the letter of the Indore Development Authority has acted upon it. He has issued show cause notice dated 13/11/2017 to the petitioner for reviewing the order of the Tehsildar and the show cause notice dated 13/11/2017 is the subject matter of Writ Petition No.21044/2017.

35- This Court really fails to understand as to how the Indore Development Authority is claiming the ownership of the land in question. It has been stated in the writ petition and it has been argued before this Court that at the time scheme was initiated and notifications were issued in the official gazette in respect of the scheme under Section 50(4) of the Adhiniyam on 02/09/2002, the land was declared as "Ceiling Surplus" and its a government land it was not included in the notification issued under Section 4(1) of the Land Acquisition Act which was published in official gazette on 17/10/2003.

36- The respondents have admitted in the return that at no point of time any notification was issued under any provision of law of Land Acquisition Act in respect of land bearing survey No.214/1 and 214/2 ad-measuring 0.287 hectares. During the course of arguments, a specific question was asked to learned counsel for the Indore Development Authority i.e. whether, at any point of time, the State Government has transferred the land bearing Survey No.21/1 and 214/2 in favour of the Indore Development Authority. Learned counsel has categorically stated that there is no such order transferring the land in respect of Survey No.214/1 and 214/2. Not only this, there can be no order otherwise also as the land in question is a private land.

37- The present case reflects a very sorry state of affairs prevailing in Indore Development Authority, in respect of the private land where no proceeding under the Land Acquisition Act has taken place, the Indore Development Authority is trying to evict the petitioner forcefully. In spite of the fact that the petitioner is the title holder of the property and the name of the petitioner finds place in the revenue records. Such type of highhandedness cannot be permitted as it is in violation of the constitutional rights guaranteed under Article 300-A of the Constitution of India.

38- In the considered opinion of this Court, as the petitioner is a title holder of the property in question, the Indore Development Authority cannot be permitted to encroach upon the land belonging to the petitioner and the petitioner is free to develop the land keeping in view the statutory provisions as contained under the Bhumi Vikas Rules and in accordance with law. Not only this, the subsequent notice issued by the Collector, which is the subject matter of Writ Petition No.21044/2017, is again bad in law. The petitioner has established before this Court that the land is not a surplus land, as the order of the competent authority was set aside.

Resultantly, the writ petitions are allowed with the following directions:-

a) The respondent Indore Development Authority is directed not to encroach upon the land bearing Survey No.214/1 and 214/2 as its a private land of the petitioner and to remove encroachment, as the land comprised in Survey No.214, Village Niranjanpur is owned by the petitioner.

b) The Indore Development Authority will not carry out any development work in respect of the petitioners land and shall not allot any part of the petitioners land and allotment, if any, done by the Indore Development Authority shall be void ab initio.

c) The petitioner shall be free to utilize the land and shall be free to take all steps in the matter of development of land and in respect of its utilization as per Master Plan framed in the township of Indore in accordance with law.

d) Show cause notice issued by the respondents dated 13/11/2017 issued by the Collector, Indore which is the subject matter of Writ petition No.21044/2017 is also stands quashed. With the aforesaid, both the writ petitions stand allowed."

20. On due consideration of the aforesaid, we are of the view that the findings given by the learned Writ Court with regard to the action taken by the Collector on the letter of the appellant contained in paras 31, 32, 33, 34 and 35 are fully justified and it has been rightly held that the action of the Collector issuing notice to the respondent No.1 and other land owners is wholly illegal. The learned Writ Court has considered each and every aspect of the matter, no case is made out to interfere with the impugned order passed by the learned writ Court on 19.12.2017.

21. The writ appeal has no merit and is, accordingly, dismissed but without any order as to costs.