Gopal Guptas/O Shri Nathulal ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 6071 MP

                                                                     1
                                             IN THE HIGH COURT OF MADHYA PRADESH
                                                           AT INDORE
                                                              WP No. 9415 of 2022
                                (GOPAL GUPTAS/O SHRI NATHULAL GUPTA THROUGH POWER OF ATTORNEY PANKAJ GUPTA AND OTHERS
                                                       Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                                Dated : 25-04-2022
                                      Mr Prateek Maheshwari, learned counsel for the petitioners.

                                      Mr Pushyamitra Bhargarva, Additional Advocate General for the
                                respondents State.

01. This petition under Article 226 of the Constitution of India has been preferred by the petitioners against the order dated 18-04-2022 (Annexure-P-28)

passed by the Tesildar, Tehsil Bicholi Hapsi, District Indore whereby an order Under Section 248 of the M.P. Land Revenue Code, 1959 has been passed against them for removal of their encroachment from over the property in dispute. Admittedly, against the impugned order the petitioners are having a remedy of preferring an appeal before the appellate authority under the provisions of Section 44(1) of the Code, 1959.

02. Learned counsel for the petitioners submits that in available facts of the case. the said remedy is not efficacious to the petitioners since in the proceedings before the Tehsildar it has come on record that the appellate authority

has himself being issuing directions to the Tehsildar in the matter of conducting the same hence it would be a frivolous exercise in preferring an appeal before him. It is further contended that the entire proceedings have been taken in a hasty manner on a day to day basis and have continued upto 09:00 PM at times. Various documents were filed by the petitioners before the Tehsildar demonstrating their title to the suit property but they have not been taken into consideration at all. Written arguments were also filed alongwith several judgments which have also been failed to be considered, hence this petition deserves to be entertained even in view of availability of alternate remedy. Reliance has been placed by him on the decisions of Hon'ble Apex Court in the matter of Maharashtra Chess Association Vs. Union of India and others reported in (2020) 13 SCC 285, Ram and Shyam Company Vs. State of Haryana and others reported in Signature Not Verified SAN

(1985) 3 SCC 267 and Dhampur Sugar Mills Ltd., Vs. State of U.P. and Digitally signed by RASHMI PRASHANT Date: 2022.04.26 11:05:26 IST others reported in (2007) 8 SCC 338.

03. Per contra the learned Additional Advocate General has submitted that directions were issued by the Sub-Divisional Officer, the appellate authority, only in respect of certain matters which was administrative in nature and from the proceedings it cannot at all be said that the proceedings have been conducted as

per his directions. The petitioners hence ought to avail alternate remedy which is efficacious. This is more so as the impugned order is a detailed order having been passed after affording due opportunity of hearing to the petitioners who have also led evidence in the matter. The correctness or otherwise of the impugned order cannot straightaway be examined in this petition.

04. Having regard to the respective submissions of the counsel for the parties it is observed that though the appellate authority, the Sub-Divisional Officer, has issued certain directions during course of the inquiry but it cannot be said that the impugned order has been passed solely on the basis of his directions. The statement of Tehsildar to the effect that he had been directed to treat the present case as a special case as per the orders of the superior officers cannot be stretched to such an extent to mean that he has passed the impugned order merely on such directions. The impugned order is a detailed order and appears to have been passed upon affording opportunity of hearing to the petitioners. All the grounds as have been raised in the petition can very well be agitated before the appellate authority. Thus, I am not inclined to entertain this petition in view of availability of alternate remedy to the petitioners to prefer an appeal. Accordingly, admission is declined.

05. However, liberty is reserved to the petitioners to challenge the impugned order by preferring an appeal against the same before the appellate authority. If such an appeal is preferred by the petitioners within a period of ten days from today alongwith an application for stay of operation of the impugned order, then till decision of the stay application and for a further period of ten days therefrom in case the order thereupon is against the petitioners, the impugned order dated 18-04-2022 shall not be given effect to by the respondents.

Signature Not Verified SAN

06. Petition is accordingly disposed off with the aforesaid directions,

Digitally signed by RASHMI without expressing any opinion on merits. PRASHANT Date: 2022.04.26 11:05:26 IST

Certified copy as per rules.

(PRANAY VERMA) JUDGE

rashmi

Signature Not Verified SAN

Digitally signed by RASHMI PRASHANT Date: 2022.04.26 11:05:26 IST