Kashiram vs The State Of Madhya Pradesh
2021 Latest Caselaw 3146 MP

1                           W.P.No.11931/2021
                   (Kashiram Vs. State of M.P.and others)

Indore : Dated 9.7.2021

       Shri Koustubh Pathak, learned counsel for the petitioner.

       Ms. Vinita Phaye, learned Govt.Advocate for the respondents No.1

to 3/State.

Heard through video conferencing.

Petitioner styling himself to be resident of village Balipur Bujurg

Tandapura, Tehsil Manawar, District Dhar is before this Court in

extraordinary constitutional jurisdiction seeking indulgence in the matter

of the order passed by SDO, Manawar in appellate jurisdiction on

18.1.2021 confirming the order of the Tehsildar dated 31.8.2020. The

order is self contained and self explanatory passed between two sets of

applicants and non-applicants under Section 131 of M.P.Land Revenue

Code (for short "the Code").

Learned counsel for the petitioner tried to impress upon this Court

that the petitioner was not aware of proceedings either before the

Tehsildar or before the SDO and his survey number is also mentioned

262/1 in description of facts. Hence, the order adversely affects him.

Therefore, this writ petition with plea of violation of principles of natural

justice.

Ms. Vinita Phaye, learned Govt.Advocate, at the first instance has

raised preliminary objection inter alia contending that orders passed by

Tehsildar under Section 131 of the Code and that of SDO are detailed

orders passed on contested pleadings of both sets of applicants and non-

(Kashiram Vs. State of M.P.and others)

applicants. The petitioner cannot invoke jurisdiction of this Court under

Article 226 of the Constitution of India for adjudicating facts between the

parties particularly in the matter of right of way under Section 131 of the

Code. As a matter of fact a bare perusal of orders passed by Tehsildar and

SDO (Annexures P/2 and P/4) brings on surface and makes it crystal

clear that no right of way whatsoever has been claimed by contesting

parties in relation to the land fallen in Khasra No.262/1 of the ownership

of the petitioner. As such there was no scope of involving the petitioner

while exercising jurisdiction under Section 131 of the Code. Therefore,

the grievance of not being made party or not being heard raised by the

petitioner is without factual basis. The respondents No.2 and 3 have also

not passed orders providing any right of way through petitioner's land

Khasra No.262/1. In any case, if the petitioner has apprehension of

encroachment, he may approach the competent forum for redressal of the

grievance. Therefore, no interference is warranted under Article 226/227

of the Constitution of India in the obtaining facts and circumstances

alleging pregnability or vulnerability of impugned orders.

This Court finds substantial force in the submission advanced by

Ms. Phaye and, therefore, is not inclined to interfere in the orders so

passed.

At this stage Shri Pathak relies upon the judgment of the Hon'ble

Apex Court in the case of Committee of Management and another Vs.

Vice Chancellor and others, (2009) 2 SCC 630 to submit that alternative

(Kashiram Vs. State of M.P.and others)

remedy is not a bar for invoking jurisdiction under Article 226 and 227 of

the Constitution of India.

This Court has perused both orders and is of the view that factual

matrix in hand are distinguishable and the said judgment is of no

assistance to the petitioner. That apart, the Tehsildar in his order has no

where directed for right of way of contesting parties over the land of the

petitioner fallen in survey No.262/1, instead observed that traditional way

going from the North end from the periphery of the petitioner's land

(Medh) shall continue for access to main road and resolved the dispute

between the parties as confirmed by the SDO. Even otherwise, on perusal

of the order of the Tehsildar it appears that applicants therein had sought

right of way through Khasra No.228/5/1, 229/2/2, 230/4/1, 238/3, 453/2,

469/1/2, 469/2 and admittedly not on the land of the ownership of the

petitioner. Therefore, the reference of the Khasra No.262/1 is only for the

purpose of identifying the available existing route. As such there is no

order of right of way over Khasra No.262/1.

In view of the aforesaid there is no order against the petitioner. If

for any reason he still apprehends encroachment, he is always free to

avail civil remedy under law.

With the aforesaid writ petition stands disposed of.

(Rohit Arya) Judge

Patil

Digitally signed by SHAILESH PATIL Date: 2021.07.10 17:49:38 +05'30'