SUSHRUT ARVIND DHARMADHIKARI, J.

1. Heard finally with the consent of both the parties.

2. The petitioner before this Court has filed this present writ petition under Article 226 of the Constitution of India, being aggrieved by the orders dated 27.06.2020 (Annexure P-27), 25.07.2020 (Annexure P-28), 28.07.2020 (Annexure P-29) and 22.10.2020 (Annexure P-32) passed by the respondents.

3. The brief facts leading to the filing of this writ petition is that the petitioner is a registered limited liability partnership firm registered under the provisions of the Limited Liabilities Partnership Act, 2008 (hereinafter referred to as “The Act of 2008). All the partners of the petitioner firm are residents of Indore and are law abiding citizens of India. Therefore, they are entitled to all legal and constitutional remedies under the law and the Constitution of India. The present petition has been filed on behalf of one of the partners namely Mr. Vikas Choudhery, who has been duly authorized to file the present petition as well as he is well conversant with the facts of the case.

4. That, the respondent No.1 is a Municipal Corporation constituted under the provisions of M.P. Municipal Corporation Act, 1956 (hereinafter referred to as “The Act of 1956) and the respondent No.2 is the authority constituted under the provisions of Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as “The Act of 1973) and the respondent No.3 is the competent authority under the M.P. Lok Parisar Bedakhali Adhiniyam, 1974 (hereinafter referred to as “The Act of 1974), thus all are State within the meaning and definition of Article 12 of the Constitution of India, therefore, are amenable to the writ jurisdiction of this Court.

5. Brief facts of the case relevant to decide the controversy, are that one Captain H.C. Dhanda, was the then Commerce Minister of the Princely “Holkar State”. His highness the Maharaja Holkar of Indore vide gift deed dated 22.04.1946 by “Huzur Shree Shankar” Order No. 58, had gifted the land in question to him. The gift deed also contains the annexed map alongwith it. The total area of land in question is 1,08,900 Sq. Ft. At present the aforesaid land comprises of and is identified as bearing Municipal No. 28, Yeshwant Niwas Road, Indore. The said gift deed was also published in the official gazette by the Holkar State, meaning thereby the land was gifted to the predecessor-in-title of the petitioner during preindependence era by the then Ruler of the erstwhile Holkar State. The contents of the Gift deed dated 22.04.1946 (Annexure P-2) is reproduced below:

“His Highness the Maharaja has been pleased to order that, in recognition of the loyal and highly meritorious services rendered by Musahib-i-Khas Bahadur Capt. H.C. Dhanda, Commerce Minister, the northern portion of the open land lying between the Yeshwant Club and the Yeshwant Niwas Guest House be given to Capt. Dhanda as a free gift to be enjoyed by him, his heirs or assigns in perpetuity. The land given to him in indicated by A B C D on the attached plan approved and initialed by His Highness. The area of this land is 1,08,900 square feet.”

6. That, pursuant to the said gift and gazette notification, Captain H.C. Dhanda became the absolute owner and possessor of the land admeasuring 1,08,900 sq. ft. Since Capt. H.C. Dhanda had proposed to construct a hotel (namely Lantern Hotel) in the year 1949 on a portion of the subject land, therefore, he had applied for grant of permission to raise construction. Building permission dated 03.04.1949 (Annexure P-4) was granted. Second permission was granted on 15.10.1952, the building permission clearly reveals that they were addressed to 'Capt. H.C. Dhanda'. Accordingly, Hotel Lantern was constructed over the portion of the subject land since there was some additional/ unauthorized construction beyond the prescribed limits, therefore, Capt. H.C. Dhanda received notice. Thereafter, he applied for compounding vide (Annexure P-5) which was duly accepted by passing an order of compounding (Annexure P-7) which was also approved by the State Government. The compounding fee of Rs. 207. 75 paise was deposited vide (Annexure P-8). Thereafter, additional permission for further construction was sought by Capt. H.C. Dhanda on 09.09.1957 which was also granted vide (Annexure P-11) dated 02.09.1964. Thereafter, he applied to the Municipality Indore on 18.09.1957 seeking permission to establish an Open Air Cinema (Theater) on a portion of the land in question. The Commissioner, Municipality Indore, granted permission for construction of an Open Air Cinema. Again Capt. Dhanda wanted some alterations/ modifications/ amendments in the construction, therefore, sought approval which was granted by the competent authority as such a theater in the name of “Starlit Cinema” was constructed and made operational. Again, due to certain statutory requirement, Capt. Dhanda applied for modification of “ Starlit Cinema Hall” under the M.P. Cinema Hall Rules, 1972. Again, the District Magistrate vide his letter dated 22.07.1976 granted permission to carry out necessary amendments/ modifications in the “Starlit Cinema Hall” (Annexure P-13). On constitution of the Town and Country Planning Department, the Asst. City Civil Engineer, Indore Municipal Corporation by his letter dated 22.09.1977 addressed to the Joint Director, Town and Country Planning, Indore informed them about handing over/ delivery of maps of “Starlit Cinema” with a copy marked to Capt. H.C. Dhanda for information. All these permissions and sanctions goes to show that the respondent No. 1 always recognized and admitted the ownership on the said land in the name of Capt. Dhanda.

7. During lifetime, Capt. Dhanda closed the cinema hall namely “Starlit Cinema” and subsequently sold the said portion admeasuring 24,570 sq. ft. by means of a registered sale deed dated 04.07.2002 to Shri Sharad Doshi. Thereafter, the subsequent purchaser obtained permissions from the Respondent Nos. 1 and 2 and had constructed a commercial complex namely “Starlit Tower” in the year 2002-03. Capt. H.C. Dhanda died on 05.07.2003. Before his death, he executed a WILL in the name of his two sons namely Jogesh Dhanda, Ishan Dhanda and one daughter. For better management of the other properties he also created a private trust for the benefit of beneficiaries. According to the said WILL, the properties were vested in the beneficiaries and not in the trust.

8. After the death of Capt. H.C. Dhanda and after a long time when the object of the said Trust was fulfilled, the Trustees had executed an “Assent Deed”. Since there were objections to the “Assent Deed” the Additional Commissioner, Indore Municipal Corporation held the transfer to be illegal. Being aggrieved, an appeal was filed and the Appeal Committee of the Indore Municipal Corporation set aside the order of the Additional Commissioner, however directed the property to be mutated in the name of “H.C. Dhanda Trust” alone. Being aggrieved the order passed by the Appeal Committee, W.P. No 5111/2011 was filed. This Court vide order dated 26.08.2009 set aside the order of the Appeal Committee and allowed the writ petition. Even at this stage, the Municipal Corporation acknowledged the said land/ property to be that of the ownership of the Trust and never claimed itself to be the owner of the property. Thereafter, while transferring the property in the name of the Trust, the Collector of Stamps imposed a stamp duty of Rs. 1,28,09,700/- and had also imposed a maximum penalty of 10 times to the tune of Rs. 12,80,97,000/- and raised a demand of a total sum of Rs. 14,09,06,725/-.

9. Ultimately, the said demand and penalty was challenged by the Trustees before the Hon'ble Apex Court by filing SLP being SLP (Civil) Diary No. 30539/2017. The Apex Court entertained the SLP and issued notice to the respondents and also passed an interim order staying the recovery of penalty amount subject to deposit of the amount of stamp duty only within a period of one month. Since the Trustees/ the petitioner had no source to deposit the amount, the interim order was vacated. Thereafter, the SLP came to be finally decided on 17.09.2020 and the appeals were allowed and the order of the Collector of Stamps dated 22.09.2008 was modified to the extent of penalty imposed of 10 times of Rs. 12,80,97,000/- into 5 times penalty i.e. Rs. 6,40,48,500/-.

10. Meanwhile, during the pendency of the SLP the beneficiaries i.e. the owners of the properties being in need of money and were to discharge several liabilities, decided to sell the properties known as “Lantern Hotel” to the present petitioners, therefore, the petitioner became the owner. The present petitioner approached the Collector of Stamps and deposited the amount of stamp duty. The petitioner was allowed to deposit the stamp duty and the remaining amount of penalty. Consequently, a sale deed for an area comprising 76,210 sq. ft. alongwith the construction was executed by the then owners in favor of the petitioner for a consideration of Rs. 65 crores. The subject land was unequivocally owned by Late Captain H.C. Dhanda which was duly transferred in favor of the petitioner by means of a registered sale deed duly executed by his legal heirs upon following the legal procedure, therefore the title, rights and ownership in the subject land was validly transferred to the present petitioner.

11. Thereafter, the petitioner applied for grant of development permission (approval of site plan) before the Joint Director, Town & Country Planning. The said development permission was granted vide (Annexure P-19). Two cheques dated 25.02.2020 and 25.05.2020 for a total sum of Rs. 4 crores were encashed towards payment of penalty as per the agreed terms and conditions. The respondent No.1 holding Capt. Dhanda as the owner, had illegally raised an exorbitant demand of municipal taxes against the previous owner to the tune of Rs. 3 crores (approximately). The said order is under challenged in SLP before the Apex Court and the same is still pending. The Apex Court had granted interim order restraining the recovery of said demand.

12. The petitioner being the owner of the property in question, approached the Municipal Corporation seeking mutation of the property in their favor, the Municipal Corporation insisted that unless the entire amount of the demand of dues are paid, even though there is a stay order from the Apex Court, they will neither effect the mutation nor shall grant any building permission. The respondent No.1 insisted that the petitioner should deposit the amount under protest which shall be subject to the result of pending SLP. The petitioner on 07.02.2020 submitted an application and had deposited an amount of Rs. 3 crores (approximately) with the respondent Municipal Corporation subject to the outcome of the SLP. Upon deposit of the entire amount, the property in question was duly mutated and recorded in the name of the petitioner on the basis of duly executed registered sale deed dated 23.11.2019. Thereafter, the petitioner applied for building permission dated 11.02.2020. The said permission was granted. The petitioner made a substantial part payment and the balance amount could not be paid instantly because of unavoidable situation, however, the petitioner was always prepared to pay the balance amount.

13. Thereafter, to the utter surprise of the petitioner, the District Registrar and Additional Tehsildar issued an order dated 04.06.2020 in the name of previous owner (Mr. Jogesh Dhanda, who is a resident of Australia) under Section 147 of the MPLRC whereby calling upon him to deposit the entire amount of Rs. 8.8 crores within 7 days of the issuance of the said order, failing which the said property shall be auctioned. A copy of the said order was also sent to the Respondent Municipal Corporation with a direction to cancel the building permission granted to the petitioner. Being aggrieved, a Writ Petition No. 8145/2020 was filed challenging the said orders on the grounds that there was no valid reason for issuance of such orders and the Collector of Stamp himself had permitted the petitioner to deposit the amount of stamp duty, which was duly deposited. For the reasons best known to him the building permission was canceled, however, the writ petition was dismissed vide order dated 10.06.2020 against which a Special Leave Petition being SLP No. 7990/2020 was preferred. By an order dated 07.07.2020 interim protection was granted by staying the impugned order dated 04.06.2020. On 16.06.2020 a show cause notice was issued to the petitioner to show cause as to why the part property situated at 28, Y.N. Road in the name of the petitioner be not canceled for reasons of furnishing false and incomplete information. The petitioner preferred a representation before the respondent No.1 and explained the fact situation. The Joint Director, Town and Country Planning also issued a show cause notice intending to cancel the site plan by means of an ex-parte order dated 27.06.2020 and revoked the site plan approval as granted to the petitioner. However, during pendency of the SLP, the respondent No.1 by its order No. 50 dated 25.07.2020 (Annexure P-28) canceled the mutation. Surprisingly, vide order dated 28.07.2020 the Respondent No.1 recalled its own order dated 25.07.2020, meaning thereby, the mutation of the petitioner was restored. However, to the utter surprise of the petitioner the Municipal Corporation, Respondent No. 3 competent authority issued a show cause/ order under Section 4 (1) of the Act of 1974 to the petitioner taking a stand after about 74 years that the property belongs to the Indore Municipal Corporation and therefore, why you should not be dispossessed from the property in question.

14. Being aggrieved, the present writ petition has been filed on various grounds.

15. Learned Senior counsel for the petitioner, Shri Veer Kumar Jain with Ms. Vaishali Jain raised the following predominant questions involved in this case:-

"(1) Whether the proceedings/ show cause notice under the M.P. Lok Parisar Bedhakli Adhiniyam, 1974 is maintainable

(2) Whether the respondent Municipal Corporation could have assumed the ownership of the land in question on its own after a lapse of 74 years by merely passing an executive order and also on the basis of the revenue entries

(3) Whether the ownership can be claimed on the basis of revenue entries and whether the Municipal Corporation had maintained the record of immovable property as envisaged under Section 83 of the Act of 1956"

16. Learned counsel for the petitioner further contended that the Municipal Corporation claimed its ownership on the basis of missalbandobast of the year1925-26, wherein the name of Municipality was recorded. As per Section 27 of the Indore Land Revenue and Tenancy Act, 1931 (hereinafter referred to as “The Act of 1931”, “All the property vested with the Maharaja” before insertion of Section 36 (1) (H) of the Indore Municipality Act, 1909, the Maharaja had already executed a gift deed in favor of Capt. Dhanda, therefore, applicability of Section 36 (1) (H) of the Act of 1909 cannot be said to have been vested with the Government.

17. Another contention raised by the learned counsel for the petitioner is that that there is no dispute with the ownership or with the identity of the land in question, since when the property in question vested with the properties of “Holkar State” were identified and shown in the map as plot belonging to Capt. Dhanda, from which the ownership continues to be that of the successors of the Capt. Dhanda, which is absolutely clear from the map annexed with letter dated 07.05.1949 (Annexure P-31).

18. Learned counsel for the petitioner contended that in respect of the maintainability of the writ petition to the effect that basically it is true that the present petition has been filed against a show cause notice issued under the Adhiniyam of 1974, but the fact remains that the said notice has been issued only after the Indore Municipal Corporation has assumed the title of the property on its own, meaning thereby, declaring themselves to be the title holder of the property, which could not have been done. Therefore, the proceedings itself is vitiated and not maintainable, therefore, the petition would lie.

19. Learned counsel for the petitioner contended that the impugned show cause notice has been issued on the behest of the Collector Indore, by the respondent No.3 by conducting preliminary enquiry on his own and then issuing notice under the Act of 1974, would amount to be a judge in his own cause which violates the principle of natural justice. The proper remedy at the most could have been to file a civil suit for declaration of title before initiating such kind of proceedings. The Collector had no source of power to initiate enquiry of the property in question.

20. Lastly, learned counsel for the petitioner contended that when the R.T.I. application was filed before the competent authority, the documents demanded were not supplied stating that the record itself is not available. On the aforesaid grounds, learned counsel for the petitioner submitted that the petition deserves to be allowed.

21. Per contra, Shri Aniket Naik, learned Dy. Advocate General appearing for the State vehemently opposed the prayer and supported the orders impugned. The Collector had the full authority to initiate the action as the State is the custodian of public property and as per doctrine of Public Trust enshrined under Article 51 of the Constitution of India as well as under Section 79-A of the Act of 1956, the Collector has power to initiate lawful formal enquiry where any immovable property or any right in or any such property is claimed by or on behalf of the Corporation. After the inquiry report the dispute arose between the Indore Municipal Corporation and the petitioner, therefore, it cannot be said that Collector had no authority to initiate the inquiry by directing the SDO to submit the report.

22. Shri Sethi, learned Senior Advocate appearing for the respondent No.1 Municipal Corporation Indore contended that:-

"(1) The title cannot be gone into a writ petition, therefore, the present petition is not maintainable and the same is liable to be dismissed.

(2) Writ is not maintainable against the show cause/ order dated 22.10.2020 (Annexure P-32) since statutory appeal under Section 9 of the M.P. Lok Parisar Bedakhali Adhiniyam, 1974 is available. Moreover, as per show cause notice dated 22.10.2020, the land in question undisputedly belongs to the ownership and possession of respondent No.1."

23. Learned counsel for respondent further contended that the petitioner has not raised any ground with regard to ownership of the property in question, therefore, cancellation of mutation cannot be a ground to quash the show cause notice. The petitioner has not challenged the findings that the Municipal Corporation is the owner of the land in question,therefore, (Annexure P-32) dated 22.10.2020 cannot be disturbed. In view of the aforesaid findings, the petitioner ought to have filed a civil suit seeking declaration of title when the mutation was canceled. He further contended that several orders have been challenged in one writ petition with multiple 

24. Learned Senior Counsel placed reliance in the case of Y. Abraham Ajith vs. Inspector of Police, Chennai and Another reported in (2004) 8 SCC which held as under:-

"14. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.

15. That the expression cause of action means forming the infraction of the right or the immediate occasion for the action. In the wider sense,it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action"."

25. Learned counsel further contended that the petitioner has not come with clean hands and have suppressed the material information that the alleged layout in terms of “Huzur Shree Shakar” order dated 22.04.1946, the said layout where title “Lantern Hotel” North Tukoganj Indore, there is also a dispute with regard to location of the property in question.

26. Learned counsel contended that the subject land was within Indore Municipal Area which ran from Gram Palasia Hana to Mumbai Agra National Highway as was published in the Notification (Annexure R1/1). It would not be out of place to mention here that the Survey No. 31/3/1 and Survey No. 46/1/1 Gram Palasia Hana Indore was of the ownership of Indore Municipality which is depicted in Missal Bandobast Year 1925-26. The said Survey Number was subsequently changed as Survey No. 122 Palasia Hana Indore. The location of the property is in dispute.

27. Learned counsel further contended that the respondents have rightly initiated action under the Act of 1974 and therefore, the proceedings arising out of the same can be very well decided in the writ petition filed under Article 226 of the Constitution of India. The Additional Collector after a factual enquiry submitted the final report which clearly goes to show that the petitioner is in illegal possession of the property. Moreover, the writ petition against the show cause ought not to have been entertained.

28. Learned Senior counsel placed reliance on the Apex Court judgment in the case of Union of India and Another vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, has held as under:

"The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or chargesheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance."

In view of the aforesaid alone, this petition deserves to be dismissed.

29. Heard the learned counsel for the parties and also perused the original record.

30. It is not in dispute that “His Highness the Maharaja Holkar of Indore has gifted the property in question vide gift deed dated 22.04.1946 by whom “Huzur Shree Shankar” order No. 58, alongwith enclosed map. The total area is 1,08,900 sq. ft. This finds place in the official gazette notification of the Holkar State meaning thereby, the land was given to the predecessor-in-title of the petitioner during pre-independence era. Atleast dozen times the respondents have granted the building permission on some part of the land over which the “Starlit Cinema” and “Starlit Tower” have already been constructed. Even hotel known as “Lantern Hotel” has been constructed in the year 1949. Thereafter in 1952 building permission was granted and in the year 1954 compounding was also carried out. It is an admitted fact that Jogesh Dhanda had sold the property later on to the petitioner company vide sale deed dated 23.11.2019. Thereafter, mutation was also carried out in favor of the petitioner company. There was a dispute in respect of the stamp duty as well which traveled up to the Supreme Court. Thereafter, the petitioners have already complied with the order by depositing the entire amount. It is only while issuing the notice dated 22.10.2020, the respondent No.1 Municipal Corporation Indore had claimed the ownership of the property on its own alternatively, on the basis of some enquiry report filed by the Additional Collector. Admittedly, Additional Collector had no authority to decide the title of the property in question, that too after about 74 years when the property was gifted to Late. Capt. Dhanda. It is also not in dispute that a valid gift deed was executed by the erstwhile “Holkar State”. The title cannot be decided by passing an order and therefore, the Municipal Corporation does not become the title holder of the property. The main question to be decided is whether the proceedings under the Act of 1974 would be maintainable. Admittedly, the respondents could not produce any title deeds to show the ownership of the land in question. The Additional Commissioner is not empowered to decide the title.

31. So far as the question of alternative remedy is concerned, though the learned counsel for the respondent has raised a specific objection, this Court vide order dated 06.11.2020 has already dealt with the aforesaid question and has held that the judgment of the Apex Court in the Kunisetty Satyanarayana (supra) is of no help to the respondent.

32. So far as power of the District Collector and the Additional Collector to direct or to conduct any enquiry is concerned, the source of power is derived from Article 51-A of the Constitution of India as well as Section 79-A(1) of the Act of 1956, meaning thereby the Collector is fully empowered to conduct an enquiry or call for a report with regard to encroachment on the Government land.

33. The predominant question would be whether the respondent Municipal Corporation could have assumed the ownership of the land in question on its own without even seeking a declaration of title, that too after a lapse of 74 years by merely passing an executive order and also on the basis of revenue entries, the Municipal Corporation could have derived the title. It is settled legal position of law that no authority can decide the title and the competent authority under the said Adhiniyam also cannot decide the title. Where the title is disputed, the proceedings under the Act of 1974 cannot be initiated. In the present case apart from a valid gift made by the Maharaja, and the legality thereof is not disputed by the Respondents. The Respondents have also admitted that Captain H.C. Dhanda, his successors and transferees are in continuous uninterrupted possession of the said land since 1946, therefore, impugned action is impermissible under the law. The Additional Collector had conducted an ex-parte inquiry without notice, without hearing and without recording any evidence. The said report has been tried to be projected as sacrosanct and has been made a basis of the present proceedings under challenge.

34. This Court in the case of Kushal Chand vs. State of M.P. and others reported in 2001 (1) M.P.L.J. 680 has held as under:-

“12. In the case of Government of Andhra Pradesh vs. Thummala Krishna Rao and another reported in (1982) 2 SCC 134, it is held that the summary remedy for eviction can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is “the property of Government”. But when there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take unilateral decision in its own favor that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. Therefore, it was held that summary remedy cannot be resorted to in a case where the title is disputed.

13. In the present case also, question of title is disputed and competent authority is of the opinion that there is a dispute of the title and, has rightly not proceeded with the case. It is for the parties to establish their title before the Competent Court. The order, Annexure P/2 cannot be said to be an order appealable under Section 9 of the Adhiniyam. Section 5 of the Adhiniyam contemplates only one type of order, i.e. order of eviction. Thus, interpreting the word "every order" in section 9 of the Adhiniyam it is not clear that the order would mean the order of eviction. When no orders pertaining to eviction are passed under section 5 of the Adhiniyam, appeal under section 9 of the Adhiniyam will not be maintainable.”

35. The next question which crops up for consideration is whether the Municipal Corporation had the authority to claim ownership on the basis of revenue entries and whether it had maintained the record of immovable property as envisaged under Section 83 of the Act of 1956. Admittedly in the records of respondent No.1, the name of Capt. H.C. Dhanda, his successors and transferees are recorded as the owner of the said land. It is not open for the respondent No.1 to dispute or to disown its own record. Section 83 of the Act of 1956 provides as under:-

“83. Record of immovable property.-

(1) The Corporation shall maintain a register and a map of all immovable property of which it is the proprietor or which vests in it otherwise or which it holds in trust of the Government.

(2) The Commissioner, after having demarcated every land, building establishment and plant etc. in the ownership of the Corporation, shall arrange to affix therein the boards showing that the said property is in the ownership of Corporation.

(3) The Commissioner at each year in the budget meeting of the Corporation shall publish the details of all immovable property of the Corporation and send its copy along with the agenda to the members.

(4) The Commissioner shall, from time to time, in order to save from encroachment on the property of the Corporation inspect and take action to remove the encroachment if found.”

36. In view of the aforesaid statutory provision, the Respondent No. 1 is required to maintain the record and map of its properties and this could have been a good proof to claim the ownership of any land or property. In the present case, it is an admitted position that in the record maintained under Section 83 of the Act, 1956, the said property is not recorded of the ownership of the Respondent No. 1. It is an admitted position because in the record of the Respondent No. 1, the said property has always been recorded of the ownership of Captain H.C. Danda, his successor and transferees. No such record or maps have been produced in support of its claim by the Respondent No.1. In this regard, various judgments like Dharamchand vs. Municipal Corporation reported in 1972 JLJ Note 109 and RamswaroopTripathi vs. City Administrator reported in AIR 1988 MP 264 wherein it has been held that for claiming the ownership of any property, Municipal Corporation is required to produce the register maintained under Section 83 of the Act.

37. In the present case, the Petitioner has produced documents of title of its predecessor in title i.e. Captain H.C. Dhanda. Under Section 110 of the Evidence Act, it is provided that when the title of any person, who is in possession is sought to be disputed, the burden to proof that such person is not the owner thereof is on the person, who disputes the title of the person in possession. In the present case, admittedly Captain H. C. Danda, his successors and transferees including the Petitioner are in possession of the said land since 1946 i.e. since last more than 74 years. Hence apart from their title documents, they are having legal possessory title of the land. This law even applies against the government also. Counsel for the petitioner in this regard has placed reliance on a judgment of the Apex Court in the matter of Chief Conservator of Forest vs. Collector & Ors. reported in (2003) 3 SCC 472 wherein it has been held as under :-

“19. Section 110 of the Evidence Act reads thus:

"110. Burden of proof as to ownership.-When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."

20. It embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.

21. This Court in Nair Service Society Limited v. K.C. Alexander and Ors., A.I.R. (1968) S.C. 1165 observed, "the possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known, when the facts disclose no title in either party, possession alone decides."

22. The pattedars proved their possession of the lands in question from 1312 Fasli (1902 A.D.) as pattedars. There is long and peaceful enjoyment of the lands in question but no proof of conferment of patta on the late Raja and the facts relating to acquisition of title are not known. The appellantState could not prove its title to the lands. On these facts, the presumption under Section 110 of the Evidence Act applies and the appellants have to prove that the pattedars are not the owners. The appellants placed no evidence on record to rebut the presumption. Consequently, the pattedars, title to the land in question has to be upheld.”

38. Another judgment of this Court in the matter of Ramkrishna vs. State of M.P. reported in 2022(3) MPLJ 229 is relevant. The Court in the said case relying upon the judgments reported in AIR 1990 SC 2220, AIR 2003 SC 1805, 2014(2) MPLJ (Cri.) (SC) 103 and (2020) 1 SCC 1 has held as under :-

“51. Therefore, it is well established proposition of law that shebait relationship with the debutter property is not that of trustees of trust property as under English Law. If this proposition of law as discussed above is seen in juxtaposition to Section 110 of Indian Evidence Act read with Section 27 and Article 65 of Indian Limitation Act, case of plaintiff gets strength further. Section 110 of Indian Evidence Act give effect to a well known principle of law, common to all system of jurisprudence, that possession is prima facie evidence of title. A long, peaceful and lawful possession of the plaintiff lends presumption of title {AIR 1990 SC 2220 (State of Gujarat Vs. Allauddin Babumiya Shaikh)}.

52. Presumption under Section 110 of Indian Evidence Act would apply only if two conditions are specified viz. that possession of plaintiff is not prima facie wrongful and secondary title of defendants is not proved and this presumption under Section 110 can be availed of even against the Government.

53. 54. In the case of State of Andhra Pradesh and others Vs. Star Bone Mill and Fertiliser Company, (2013) 9 SCC 319, this principle has been reiterated by the Apex Court and declared the principle enshrined in Section 110 of Evidence Act on the anvil of Public Policy: "The principle enshrined in Section 110 of the Evidence Act, is based on public policy with the object of preventing persons from committing breach of peace by taking law into their own hands, however good their title over the land in question may be. It is for this purpose, that the provisions of Section 6 of the Specific Relief Act, 1963, Section 145 of Code of Criminal Procedure, 1973, and Sections 154 and 158 of the Penal Code, 1860, were enacted. All the aforesaid provisions have the same object. The said presumption is read under Section 114 of the Evidence Act, and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim "possession follows title" is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of waste lands, or where nothing is known about possession one-way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment etc. Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act."

54. Later on, in the case of M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) Vs. Mahant Suresh Das and others, (2020) 1 SCC 1 the Apex Court held as under:

"1193. Section 110 of the Evidence Act, 1872 provides thus: 110. Burden of proof as to ownership.--When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Section 110 deals with the burden of proof. Where the provision applies, the burden of proving that another person who is in possession is not the owner lies on the person who affirms against the ownership of that other person. But, for Section 110 to be attracted, there must be a question as to whether any person is the owner of anything and the ownership claimed must be that of which he is shown to be in possession. Section 110 is based on the principle that title follows possession. That is why the provision postulates that where a person is shown to be in possession, and a question arises as to whether that person is shown to be in possession, and a question arises as to whether that person is the owner, the law casts the burden of disproving ownership on the individual who affirms that the person in possession is not the owner."

39. Lastly, the question which crops up for consideration is whether the proceedings/ show cause notice under the Act of 1974 is maintainable in the facts and circumstances of the case. It is pertinent to note that the provisions of 1974 are pari-materia with the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The object of the said two acts is to provide a speedy remedy for eviction of unauthorized occupant in place of regular proceedings in Civil Courts. The object of the said act cannot be adopted as a tool to harass the persons having title and decades old peaceful and uninterrupted possession of the land. The question would be that whether the Respondent No. 1 could have claimed and declared its own title and seek possession of the land in question after lapse of more than 74 years. The settled legal position in this regard came up for consideration before the various High Courts and before the Hon'ble Apex Court in number of cases. In the matter of Kaikhosrou Vs. Union of India reported in AIR 2019 SC 1692 wherein the Apex Court has held as under :-

“60. In that case also, the question arose as to whether the State Government can take recourse to a summary remedy of eviction of a person under the State Revenue Laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. Their Lordship held that in such a situation, the summary remedy to evict such person under the Act couldn’t be resorted to.

63. At this stage we consider apposite to take note of the Constitution Bench decision of this Court wherein this Court after examining and upholding the constitutional validity of the PP Act in Kaiser-I-Hind Pvt. Ltd. vs. National Textile Corp. (Maharashtra North) Ltd. [(2002) 8 SCC 182] reiterated the view taken by this Court in an earlier decision of Northern India Caterers (P) Ltd. vs. State of Punjab (AIR 1967 SC 1581) that the PP Act does not create any new right of eviction but it only creates a remedy for a right which already exists under the general law. In other words, it was held that it only provides a remedy which is speedier than the remedy of a suit under the general law.

65. A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellant’s eviction from the suit property. This we say for the following six reasons.

77. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act.

78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-IHind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act.

80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1].”

40. The Apex Court in the matter of Khushal Chand vs. State of MP reported in 2001 (1) MPLJ 680 has held that :-

“12. In the case of Government of Andhra Pradesh vs. Thummala Krishna Rao and another reported in (1982) 2 SCC 134, it is held that the summary remedy for eviction can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is “the property of Government”. But when there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take unilateral decision in its own favor that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. Therefore, it was held that summary remedy cannot be resorted to in a case where the title is disputed.

13. In the present case also, question of title is disputed and competent authority is of the opinion that there is a dispute of the title and, has rightly not proceeded with the case. It is for the parties to establish their title before the Competent Court. The order, Annexure P/2 cannot be said to be an order appealable under Section 9 of the Adhiniyam. Section 5 of the Adhiniyam contemplates only one type of order, i.e. order of eviction. Thus, interpreting the word "every order" in section 9 of the Adhiniyam it is not clear that the order would mean the order of eviction. When no orders pertaining to eviction are passed under section 5 of the Adhiniyam, appeal under section 9 of the Adhiniyam will not be maintainable.”

41. The Apex Court in the matter of State of Rajasthan vs. Padmavati Devi reported in 1995 Supp (2) SCC 290 has held that:-

“6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bonafide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Government of Andhra Pradesh v. Thummala Krishna Rao and Anr. 1982 (3) SCR 5000, has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bonafide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bonafide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.

7. In the present case, respondent No. 1 has put forward a bonafide claim about her right to remain in occupation over the land. The said claim raises questions involving applicability and interpretation of various laws and documents as well as investigation into disputed questions of fact involving recording of evidence. These matters could not be satisfactorily adjudicated in summary proceedings under Section 91 of the Act and can be more properly considered in regular proceedings in the appropriate forum.

9. In the circumstances it is held that proceedings under Section 91 of the Act could not be validly initiated against respondent No. 1 and as a result the orders that have been passed in these proceedings by the Tehsildar, the Collector, the Revenue Appellate Authority and the Board of Revenue are set aside. The impugned judgment of the High Court, insofar as it quashes the order of the Board of Revenue dated June 18, 1973 is maintained but the further direction confirming the order of the Revenue Appellate Authority dated January 1, 1971 is set aside. The findings and observations of the High Court in the impugned judgment on the matters in controversy between the parties are also set aside. It will be open to the appellant to pursue the appropriate remedy available in law before the competent forum for establishing its rights over the land in question.”

42. The Apex Court in the matter of Express Newspapers vs. Union of India reported in AIR 1986 SC 872 has held as under :-

“87. The Express Buildings constructed by Express Newspapers Pvt. Ltd., with the sanction of Works & Housing on Plots Nos, 9 and 10, Bahadurshah Zafar Marg demised on perpetual lease by registered lease-deed dt. March 17, 1958 can, by no process of reasoning be regarded as public premises belonging to the Central Government under S. 2(e). That being so, there is no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd., under S. 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under sub-s. (2) thereof by summary process. Due process of law in case like the present necessarily implies the filing of suit by the lessor ie. The Union of India, Ministry of Works & Housing for the enforcement of the alleged right of re-entry, if any, upon forfeiture of lease due to breach of the terms of the lease.

43. In the matter of Government of A.P. vs. T. Krishna Rao reported in AIR 1982 SC 1081, wherein it has been held as under :-

“7. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". In regard to properly described in sub- sections (I) and (2) of section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously which can only be done by resorting to the summary remedy provided by the Act. But section 6 (1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment under section 3. Section 3, in turn, refers to unauthorised occupation of any land "which is the property of Government" If there is a bond dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between The State Government and the respondents as to whether The three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad and whether the osmania University. for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the properly more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. Having tailed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents.

8. The view of the Division Bench that the summary remedy provided for by section 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far That was also the view taken by the learned single Judge him self in another case which is reported in Meherunnissa Begum v. State of A.P. which was affirmed by a Division Bench.(2) It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts" which raise a bond fide dispute of title between the Government and the occupant must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is hl occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bonafide claim to the property requiring an impartial adjudication according to the established procedure of law.

9. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-intitle of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddio from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.”

44. In the matter of State of U.P. vs. Zia Khan reported in (1998) 8 SCC 483 wherein it has been held that the question of title. cannot be decided by the authority under the Public Premises Eviction Act and it has been held as under :-

“3. It cannot be disputed that the question of title cannot be decided under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 and the decision on the subject had either to be made by the revenue court or the civil court, as the case may be. Here, the High Court has asserted that principle in coming to the rescue of the respondent. Having gone through the judgment of the High Court carefully, we find no ground to differ from the view taken. The order of the High Court must therefore sustain. The appeal is consequentially dismissed. No costs.”

45. In view of the aforesaid discussion the respondent authorities, without declaring the petitioner to be an unauthorized occupant could not have proceeded further. Admittedly, the title being under dispute, summary proceedings under the Act of 1974 itself was not maintainable.

46. In view of the legal conspectus on the point in issue the orders impugned dated 27.06.2020 (Annexure P-27) and 22.10.2020 (Annexure P-32) are hereby quashed and set aside alongwith all the consequential actions arising thereto from the effect of impugned order. It is pertinent to mention at this stage that though prayer for quashing the orders dated 25.07.2020 (Annexure P-28) as well as 28.07.2020 (Annexure P-29) has been made, the order dated 25.07.2020 stands withdrawn by the order dated 28.07.2020, therefore, the same does not require any interference.

47. The petition is allowed to the extent indicated herein above.

48. No order as to costs.