ORDER
Arun Mishra, J.
1. The writ appeal has been preferred by Greater Gwalior Shmashan Jeernoddhar Trust through its Secretary Mohan Singh Mathur. The petitioner trust claimed the relief that area in question is cremation (Marghat), the allotment if any made with respect to any part to survey No. 2216 in area 3 Bighas 4 Biswas be quashed and respondents be ordered not to make allotment out of survey No. 2216. The cremation ground is owned by Municipal Corporation, Gwalior and a direction be issued to remove all the encroachment from the cremation/burial ground (Marghat) situated at Morar managed by trust.
2. The petitioner trust averred in the petition that petitioner is a registered trust as apparent from agreement (P-1). Survey No. 2216 has been mentioned as cremation ground (Marghat) in the khasra entries (P-5) collectively filed for Samvat years 2032 to 2039. It has been recorded in the name of “Municipal Corporation Gwalior Abadi Marghat” admeasuring 3 Bighas 4 Biswas. The area is necessary for cremation of dead bodies. Time to time effort had been made to encroach upon the land in question. The demarcation was made, Panchnama (P-10) was prepared an encroachment was found. One Munni Lal has filed a suit, that had been dismissed and the decision was affirmed in Second Appeal No. 439/2000 decided in the year 2003 by this Court as per order (P-11), without recourse to the provisions of Section 237 of M.P. Land Revenue Code, 1959 the nature of cremation/burial ground could not have been changed. Without following due process of law, the State Govt. has no right or authority to change nature of cremation ground and to make allotment.
3. In the return filed by State of M.P. and Collector, District Gwalior, it is submitted that Survey No. 2216 entry was of Municipality Abadi Marghat, however, in the khasra for the Samvat Year 2002-03 land had been recorded as “Municipality Abadi and Nazul” and consequently State Govt., Urban Administration & Development Department under the Scheme of Rajiv Gandhi Ashray Yojana, after removing the encroachment on Survey No. 2216 of Village Ghoshpura has allotted the land on lease to the landless persons. The case of Munnilal was not relating to the disputed land under Rajiv Gandhi Ashray Yojana State Govt. has issued a circular on 23-6-2003 that the land of Government, Municipal Corporation and the land of Development Authority could be allotted to the houseless persons on lease, thus, the action taken by the State Govt. was proper.
4. In the return filed by respondent No. 3, Municipal Corporation, Gwalior, it is submitted that permission was sought by the State Govt. from the Municipal Corporation to allot Survey No. 2216, same was declined by the Corporation as apparent from correspondence (R-3/1 & R-3/2), thus, it was not open to the State Govt. to allot the land out of Survey No. 2216, they have not allotted any land out of Survey No. 2216 to anybody. The Corporation has not changed the nature of the land.
5. The Intervenors have also filed their reply submitting that land given to them on patta is not a part of cremation ground, i.e., Survey No. 2216. The pattas were given on 5-9-2003 and this petition was presented in the month of October, 2003. They have placed reliance on khasra for the Samvat year 2003-04 that land is not part of cremation ground. The pattas R-2 to R-29 had been given to them by the State, thus, allotment made to them was valid.
6. We have heard the learned Counsel for the parties at length. “Khasras” have been produced as directed by this Court by Shri Vivek Khedkar, GA for respondent Nos. land 2. One fact has not been disputed at bar by the Counsel for the parties and rightly so that Survey No. 2216 in area 3 Bighas 4 Biswas had been reserved since time immemorial for the purpose of cremation ground (Marghat). There are entries made in that regard. In the khasra for Samvat year 1997 corresponding to year 1940 the entry over Survey No. 2216 in area 3 Bighas 4 Biswas was that of cremation ground under management of erstwhile Gwalior Municipality, in the khasra for Samvat year 2006 before abolition of intermediaries the entry was similar, i.e., “cremation ground under the Management of Gwalior Municipality” in area 3 Bighas 4 Biswas on Survey No. 2216, for Samvat Year 2007, entry over Survey No. 2216 is similar, for Samvat year 2008 similar entry was made over Survey No. 2216, the entry for the Samvat year 2022 to 2024 was of “Municipal Corporation”, thereafter again in the year 1989 to 1992, 1992-93 the entry was of “Municipal Corporation, Gwalior”, in the khasra for the year 1993-94, 1997 and 1998 the entry was of “Municipal Corporation Abadi Nazul”, similar entry was in the year 2006-07, i.e., for the Samvat year 2063, thus, it is apparent that area of 3 Bighas 4 Biswas had been recorded as “cremation ground” and it was even admitted by Counsel for the State and Corporation and was not disputed by Counsel for the intervenors that Survey No. 2216 in area 3 Bighas 4 Biswas had been recorded for the purpose of cremation ground (Marghat).
7. We have no hesitation to hold that Survey No. 2216 had been reserved for the purpose of cremation/burial ground, right from the year 1940 entries for more than 50 years were to that effect, it passes comprehension how later on entries could have been changed to add nazul with Municipal Corporation without any order of any Authority whereas land remained Marghat (cremation ground) and how State Govt. all of a sudden could have taken decision to allot the land out of Survey No. 2216, the State Govt. had sought the permission from the Municipal Corporation, Gwalior as land had been recorded as Marghat under Management of the Municipal Corporation, Gwalior, the permission was declined and rightly so by the Corporation as apparent from communications (R-3.1/R-3.2). The Corporation and the State Govt. are simply the custodian of such land reserved for cremation ground. It was not open to allot even small piece of land, out of land reserved for specific public purpose. It was not a case that procedure prescribed under Section 237 of M.P. Land Revenue Code had been adopted for changing the nature of land reserved for public purposes such as burial ground etc., it was after following the procedure under Section 237 of the M.P. Land Revenue Code, the nature of land could have been changed. It was only after changing the nature of land, it would have been possible for the State Govt. to allot the land but that was not even the case set up by the State Govt. and fairly conceded by the Counsel for State that no procedure envisaged under Section 237 of the M.P. Land Revenue Code for changing the nature of land reserved for specific public purpose had been adopted.
8. Now we come to the submission of intervenors, they have submitted that they have not encroached upon any part of Survey No. 2216 in area 3 Bighas 4 Biswas, the land allotted to them in fact is not forming part of Survey No. 2216, their possession and structures if any are on different piece of land. The intervenors have raised the dispute on facts that the land in their possession is not forming part of Survey No. 2216 in area 3 Bighas 4 Biswas. We cannot give a finding in their favour on this factual aspect as to different piece of land as writ appeal is confined to Survey No. 2216, which is reserved for specific public purpose, however, it appears to be prima facie incorrect submission as in allotment made to them Survey No. 2216 has been mentioned. The question in the instant case is not of protecting the possession of intervenors on different piece of land but that of protection of the land reserved for specific public purpose of cremation ground, i.e. Survey No. 2216 in area 3 Bighas 4 Biswas in this case and it is the bounden duty of all the concerned to protect it. It appears that piece of land of Survey No. 2216 had been allotted to intervenors but in case it is found that in fact their possession is on different piece of land and in fact different piece of land except land of Survey No. 2216 had been handed over to them, it is between the State Govt., Municipal Corporation and intervenors to settle it elsewhere, however, State Govt. had no authority or right to allot any portion of Survey No. 2216 reserved for cremation ground, thus, in our opinion, with respect to existence of cremation ground over Survey No. 2216 in area 3 Bighas 4 Biswas, there being no dispute on facts the case could not have been thrown away by the Single Bench on the ground that it raised disputed question of facts. It has not been disputed at all that Survey No. 2216 in area 3 Bighas 4 Biswas was reserved for the purpose of cremation/burial ground (Marghat) and rightly so as once there were continuous entries in the year 1940 even before the date of abolition of intermediaries in the years 1951 and 1952, thereafter entries had continued for a long period, State Govt. could not have taken unilateral decision even after refusal by Corporation to allot any part of land of Survey No. 2216, it would be open to the State Govt. to allot different piece of land to the intervenors as it appears that they were not at fault as they had been allotted Survey No. 2216. We direct that let the steps be taken forthwith to remove all the encroachment found on the Survey No. 2216 in area 3 Bighas 4 Biswas. It is further directed that order be carried out punctually by all concerned and no remiss of any official will be tolerated by this Court.
9. Consequently, we allow the writ appeal and direct the respondents, State Govt. and the Corporation to take steps forthwith within a period of 15 days in the aforesaid manner without any delay whatsoever and to protect the land of 3 Bighas 4 Biswas of Survey No. 2216 by putting a boundary around the area so as to prevent any encroachment of any kind in future over the said land. However, we leave the parties to bear their own costs as incurred of this appeal.
