Smt. Niranjana vs The State Of Madhya Pradesh
2021 Latest Caselaw 2750 MP

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            THE HIGH COURT OF MADHYA PRADESH
                            MP.1993.2021.
         (Smt. Niranjana and Another Vs. State of M.P. & Ors.)

GWALIOR; dated 28.06.2021.

         Shri N.K.Gupta Sr.Advocate with Shri Sanjay Kumar Sharma,

counsel for the petitioner.

         Shri Ajay Singh Raghuvanshi, GA, for the respondents/State.

With the consent of parties, the matter is heard finally.

Present petition has been filed under Article 227 of the

Constitution of India challenging the order dated 11.06.2021 Annexure

P/1 passed in Misc. Civil Appeal No. 111/2021 whereby the order dated

23.01.2021 passed by II Civil Judge, Class-II, Bhind, District Bhind

(M.P.) in Civil Suit No. 263A/2020 has been affirmed and the

application filed by petitioners/plaintiffs under Order 39 Rule 1 & 2

read with Section 151 CPC has been rejected.

It is argued that the petitioners/plaintiffs are the owners of the

land bearing survey nos. 3206 area 0.30 hectare, 3216 area 0.60 hectare

& 3218 area 0.30 hectare situated in Village Billab, Tehsil and District

Bhind (M.P.), which was purchased by the petitioners/plaintiffs vide

different sale deeds dated 01.02.2011, 07.02.2011 and 08.11.2012 and

the names of petitioners/plaintiffs are recorded in the revenue records as

owners and they are in possession of the property in question. The

respondents unauthorizedly trying to construct the road over Survey

Nos. 3206, 3216 & 3218 and were trying to take the land for

construction of road without making acquisition of the land and without

making payment of compensation hence the petitioners/plaintiffs filed a

THE HIGH COURT OF MADHYA PRADESH MP.1993.2021.

(Smt. Niranjana and Another Vs. State of M.P. & Ors.)

civil suit for declaration of right and permanent injunction. Along with

the civil suit, petitioners/ plaintiffs also filed an application under Order

39 Rule 1 & 2 read with Section 151 CPC for seeking temporary

injunction because the respondent authorities were proceeding further

for construction of the road and it was prayed by the

petitioners/plaintiffs that till the lis is decided, the construction of road

may be stopped.

The defendant nos. 1 & 2 filed joint written statement stating the

fact that adjacent to the plaintiffs/petitioners' land there is a road which

is 25 years old and adjacent to that there is a government land and the

defendant-Public Works Department has started work for widening and

strengthening the road. Therefore, no case under Order 39 Rule 1 and 2

read with Section 151 of CPC is made out in favour of the plaintiffs.

The learned trial Court after hearing arguments has rejected the

application vide order dated 23.1.2021 against which, a civil appeal

under Order 43 Rule 1 (r) of CPC was filed which was also dismissed

vide order dated 11.6.2021, against which, the writ petition has been

filed.

It is argued that once there is dispute with respect to boundaries, it

is the duty of the trial court to get the land demarcated by the revenue

authorities for which, he has placed reliance upon the judgment

rendered by Hon'ble Apex Court in the case of Haryana WAQF Board

Vs. Shanti Sarup and Ors., reported in (2008) 8 SCC 671. It is

THE HIGH COURT OF MADHYA PRADESH MP.1993.2021.

(Smt. Niranjana and Another Vs. State of M.P. & Ors.)

further submitted that under Article 300A of the Constitution of India,

they have a right to occupy their land which is owned by them and

respondent authorities have no right to oust them without following due

process of law. They have the constitutional right on the property in

question, therefore, application under Order 39 Rule 1 and 2 of CPC

read with Section 151 of CPC ought to have been allowed by the

learned trial court or by the appellate court. He has further placed

reliance upon the judgment in the case of Vidya Devi Vs. State of

H.P. Reported in 2020 (2) SCC 569 and in Godrej and Boyce Mfg.

Co. Ltd. Vs. State of Maharashtra reported in 2014 (3) SCC 430. It

is submitted that till decision of the civil suit, the parties may be

directed to maintain status quo with respect to the land in question or

the respondent authorities may be directed to get the land demarcated

from the revenue authorities and the entire controversy will be settled if

the demarcation report shows that the land in question belongs to the

petitioner.

Per contra, counsel for the State has opposed the application and

has contended that the road was in existence for last more than twenty

five years and the proceeding of the widening and strengthening of the

road was taken up by the authorities which has been objected to by the

petitioners by filing a civil suit for injunction and declaration wherein,

both the courts have rejected the application filed under Order 39 Rule

1 and 2 read with Section 151 of CPC which has been affirmed by the

THE HIGH COURT OF MADHYA PRADESH MP.1993.2021.

(Smt. Niranjana and Another Vs. State of M.P. & Ors.)

appellate court. There are concurrent findings of both the courts below.

If the petitioners want to get the land demarcated, then he could have

filed an application under Ordsr 26 Rule 9 of CPC for commission of

the property or could have approached the revenue authorities seeking

demarcation of the land in question. But without there being any

application, no direction can be made for demarcation of the property.

Entire burden is upon the petitioners/plaintiffs to prove his case. Even

if the action is taken for construction of the road, it is a public cause and

if the petitioner succeeds in proving his case, then he will be paid

adequate compensation. But at present, no case is made out for

interference in the impugned order. He has prayed for dismissal of the

application.

Heard learned counsel for the parties and perused the record.

It is not in dispute that the land is being taken up for widening

and strengthening of the road and the question of determination whether

the road was in existence for more than 25 years or not is a matter of

trial which can only be decided after leading cogent evidence. Even the

work of widening and strengthening of the road is a public cause. If the

petitioner succeeds in proving his ownership over the land in question,

then certainly he will be entitled for grant of compensation. He has not

filed any application for commission or demarcation of the property

before the concerning authorities. This petition is filed under Article 227

of the Constitution of India invoking supervisory jurisdiction of the

THE HIGH COURT OF MADHYA PRADESH MP.1993.2021.

(Smt. Niranjana and Another Vs. State of M.P. & Ors.)

court wherein, no error is apparent in the order passed by learned trial

court while dismissing the application under Order 39 Rule 1 and 2 read

with Section 151 of CPC. As far as interference in the case under

Article 227 of the Constitution of India is concerned, the law is well

settled by Hon'ble Supreme Court in the case of Shalini Shyam

Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329 wherein

it had formulated following principles for exercise of High Court's

jurisdiction under Article 227 of the Constitution in India :

(a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

In such circumstances, when there is concurrent finding of both

the courts with respect to existence of road in question, no case for

interference is made out. The orders passed by learned trial court as well

as by the appellate court have rightly been passed.

The petition being sans merits is hereby dismissed with no order

as to the cost.

THE HIGH COURT OF MADHYA PRADESH MP.1993.2021.

(Smt. Niranjana and Another Vs. State of M.P. & Ors.)

CC as per rules.

(Vishal Mishra) Judge Rks.

RAM KUMAR SHARMA 2021.07.01 12:03:58 +05'30'