Union Of India vs Ajmabano
2021 Latest Caselaw 3881 MP

                                           1               W.A.No.597/2021

              HIGH COURT OF MADHYA PRADESH
                    BENCH AT GWALIOR


                             DIVISION BENCH


                    JUSTICE SHEEL NAGU
                             &
                   JUSTICE ANAND PATHAK


                   WRIT APPEAL NO.597/2021


                         Union of India & Ors.
                                Versus
                          Ajma Bano & Ors.


==================================================
Shri Vivek Khedkar and Shri Mahesh Prasad Agrawal, learned counsel
for the appellants.
Shri Prashant Sharma, learned counsel for respondent No.1.
==================================================

                           JUDGMENT

{Delivered on 3rd day of August, 2021}

Per Justice Anand Pathak, J.:

1. The present intra court appeal under Section 2(i) of Madhya

Pradesh Uchcha Nyayalay (Khand Nyay Peeth Ko Appeal),

Adhiniyam, 2005 is preferred by the appellants assailing the

orders dated 25-02-2021 passed in Review Petition

No.364/2020 and 12-07-2019 passed in Writ Petition

No.12687/2019 by learned Single Judge wherein the direction

was issued to the Cantonment Board to decide the demarcation

application of petitioner/respondent No.1.

2. Facts in brief for adjudication are that appellants issued the

order dated 13-04-2017 purportedly exercising power under

Section 239 of the Cantonments Act, 2006 (hereinafter referred

to as "the Act of 2006") and called upon respondent No.1 to

remove the encroachment. Respondent No.1 preferred Writ

Petition No.18960/2017 before the Writ Court and the Single

Bench vide order dated 30-11-2018 disposed of the petition

with the direction to the petitioner to avail remedy of appeal

under Section 340(1) of the Act of 2006. As per the said

provision, appeal lies before the Cantonment Board.

3. It further appears that in pursuance to the order dated 30-11-

2018 passed by the Writ Court, appeal was preferred and heard

by the Cantonment Board and vide order dated 25-02-2019

appeal was decided and it was resolved by the Board that

appeal of respondent No.1 was bereft of merits and therefore

dismissed. The said order/resolution further resolved to

conduct a joint survey of GLR survey No.66 with the

representatives of Cantonment Board, Defence Estate Officer,

LMA and State Government on the basis of revenue record of

1933.

4. It further appears that another writ petition was preferred by the

petitioner/respondent No.1 vide Writ Petition No.12687/2019

on the ground that demarcation has not been made and the

application for demarcation before the appellate authority has

not been decided. Therefore, direction was given to the

appellate authority to consider the appeal in accordance with

law. Said order precipitated filing of review by the present

appellants/Union of India on the ground that when appeal has

already been decided then demarcation is only an in-house

decision for facilitating demarcation for posterity and it had

nothing to do with the rights of petitioner. Review Petition

bearing No.364/2020 was dismissed vide order dated 25-02-

2021, therefore, the writ appeal has been preferred.

5. It is the submission of learned counsel for the appellants that

when appeal of respondent No.1 has been considered and

decided by the Cantonment Board vide order dated 25-02-2019

available on record, thereafter respondent No.1 had no

occasion to prefer any writ petition while not disclosing the

correct facts and in correct perspective. Order of demarcation is

in fact an in house decision reflected through resolution which

has nothing to do with the rights of respondent No.1. If she is

aggrieved then she can prefer revision under Section 343 of the

Act of 2006.

6. Per contra, learned counsel for respondent No.1 opposed the

submission and submitted that the issue regarding demarcation

is still pending and therefore respondent No.1 preferred writ

petition No.12687/2019 and learned Single Judge rightly passed

the order for expediting hearing of appeal. He prayed for

dismissal of appeal.

7. Heard learned counsel for the parties through video-

conferencing and perused the record appended to it.

8. This is a case where respondent No.1 is allegedly an

encroacher of land belonging to Union of India/Ministry of

Defence. A notice was issued to respondent No.1 for removal

of encroachment and from there the litigation precipitated. Once

the litigation culminated into decision over appeal preferred by

respondent No.1 and said order dated 25-02-2019 passed by the

Cantonment Board reveals application of mind over the case of

respondent No.1 and thereafter appeal was dismissed, therefore,

as such contention of respondent No.1 regarding her claim over

the land stood adjudicated, subject to further proceedings. As

per Section 343 of the Act of 2006, provision of revision is

made which reads as under:

"343. Revision.--(1) Where an appeal from an order made by the Board has been disposed of by the District Magistrate, either party to the proceedings may, within thirty days from the date thereof, apply through the General Officer Commanding-in-Chief, the Command to the Central Government, or to such authority as the Central Government may appoint in this behalf, for revision of the decision.

(2) The provisions of this Chapter with respect to appeals shall apply, as far as may be, to the applications for revision made under this section.

(3) The appellate authority shall make

endeavours to dispose of the appeal made under section 340 of this Act within a period of ninety days."

9. Perusal of the above provision reveals that if respondent No.1 at

all is aggrieved by any part of order dated 25-02-2019 passed

by the Cantonment Board then appropriate remedy would be to

prefer revision so as to get her alleged claim adjudicated rather

than starting a new round of litigation.

10. Considering the submission and the fact situation it appears that

learned Single Judge erred in dismissing the review petition

preferred by the appellants and further erred in passing the

impugned order dated 12-07-2019 in writ petition

No.12687/2019. Respondent No.1 has appropriate remedy by

way of revision under Section 343 of the Act of 2006 in

accordance with law so as to get findings over her claim by the

competent authority rather than starting new spree of litigations.

11. Resultantly, impugned orders dated 25-02-2021 and 12-07-2019

passed in R.P.No.364/2020 and W.P.No.12687/2019

respectively are hereby set aside and appeal is disposed of with

a direction to respondent No.1 to avail the remedy (if available

to her) in accordance with law before the competent forum.

12. Appeal stands allowed and disposed of.

                (Sheel Nagu)                                                  (Anand Pathak)
                   Judge                                                          Judge
Anil*            03/08/2021                                                     03/08/2021
        ANIL
                    Digitally signed by ANIL KUMAR
                    CHAURASIYA
                    DN: c=IN, o=HIGH COURT OF
                    MADHYA PRADESH BENCH GWALIOR,

        KUMAR       ou=HIGH COURT OF MADHYA
                    PRADESH BENCH GWALIOR,
                    postalCode=474001, st=Madhya

        CHAURASI    Pradesh,
                    2.5.4.20=8512f40a1a9eaa50b6802d0
                    68b51dae27e84c266b09d283f0799e

        YA
                    67cdc7df50f, cn=ANIL KUMAR
                    CHAURASIYA
                    Date: 2021.08.04 07:51:35 -07'00'