Om Prakash Kushwaha vs The State Of Madhya Pradesh
2023 Latest Caselaw 13131 MP

                              1
     IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                          BEFORE
            HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                  ON THE 11 th OF AUGUST, 2023
                 WRIT PETITION No. 19832 of 2023

BETWEEN:-
OM PRAKASH KUSHWAHA S/O LATE SHRI RAMJANAM
KUSHWAHA, AGED ABOUT 70 YEARS, OCCUPATION:
RETIRED DEFENSE OFFICER HAG PLOT NO. B-2
PRIYADARSHANI HOUSING COLONY DUMNA ROAD
JABALPUR DISTRICT JABALPUR (MADHYA PRADESH)

                                                     .....PETITIONER
(BY SHRI NAND KISHORE TIWARI - ADVOCATE)

AND
1.    THE STATE OF MADHYA PRADESH THROUGH
      THE PRINCIPAL SECRETARY COOPERATIVE
      DEPARTMENT MANTRALAYA VALLABH BHAWAN
      BHOPAL (MADHYA PRADESH)

2.    THE       COLLECTOR J A B A L P U R DISTRICT
      JABALPUR (MADHYA PRADESH)

3.    THE TAHSILDAR R AN JHI JABALPUR DISTRICT
      JABALPUR (MADHYA PRADESH)

4.    THE   JOINT   REGISTRAR/   COMMISSIONER
      JABALPUR    COOPERATIVE   DIVISION OFFICE
      ABOVE APEX BANK SECOND FLOOR CIVIC
      CENTER    JABALPUR   DISTRICT   JABALPUR
      (MADHYA PRADESH)

5.    THE   DEPUTY   REGISTRAR/COMMISSIONER
      JABALPUR   COOPERATIVE   DIVISION OFFICE
      ABOVE APEX BANK SECOND FLOOR CIVIC
      CENTER   JABALPUR   DISTRICT   JABALPUR
      (MADHYA PRADESH)

6.    PRIYADARSHANI HOUSING CO OPERATIVE
      SOCIETY LIMITED JABALPUR THROUGH THE
      ADMINISTRATOR      AND      COOPERATIVE
      INSPECTOR OFFICE ABOVE APEX BANK SECOND
                            2
      FLOOR CIVIC CENTER JABALPUR                DISTRICT
      JABALPUR (MADHYA PRADESH)

7.    THE COMMISSIONER MUNICIPAL CORPORATION
      DISTRICT JABALPUR (MADHYA PRADESH)

8.    DR. ASHOK KUMAR GUPTA S/O LATE SHRI
      SATISH CHANDRA GUPTA, AGED ABOUT 70
      YEAR S , R/O H. NO. 1068/1-A NEAR NOOTAN
      MARATHI SCHOOL GOL BAJAR JABALPUR
      DISTRICT JABALPUR (MADHYA PRADESH)

9.    DR. SMT. M.D. GUPTA W/O DR. ASHOK KUMAR
      GUPTA, AGED ABOUT 65 YEARS, R/O H. NO. 1068/1-
      A NEAR NOOTAN MARATHI SCHOOL GOL BAJAR
      JABALPUR DISTRICT JABALPUR (MADHYA
      PRADESH)

                                                             .....RESPONDENTS
(RESPONDENTS/STATE BY SHRI GIRISH KEKRE - GOVERNMENT
ADVOCATE)

      This petition coming on for admission this day, th e court passed the
following:
                                    ORDER

The petitioner, by the instant petition filed under Article 226 of the Constitution of India, is raising grievance in respect of action taken by the Administrator of the Co-operative Society known as Priyadarshani Housing Co- operative Society Maryadit, Jabalpur, in pursuance to the direction issued by Deputy Commissioner, Co-operative Society whereby the petitioner has been directed to remove the construction raised by him.

2. Learned counsel for the petitioner submits that by Anneuxre-P/1, though the petitioner had purchased plot No.B-2 from the said Society, but later on, respondent No.8 has disputed the said plot saying that it got purchased by him from the Society and as such, he has every right over the said plot. Thereafter, a suit was filed by him which got decreed by the Civil Court in his favour and challenging the said judgment and decree, the petitioner had preferred an appeal

before the Appellate Court and in turn, the Appellate Court allowing the appeal had set aside the judgment and decree passed by the Civil Court. Being aggrieved with the same, respondent No.8 had preferred a miscellaneous appeal (M.A. No.2023 of 2019) before this Court which was allowed vide order dated 24.01.2023 setting aside the order of Appellate Court and ultimately, the matter was remitted back to the Appellate Court for deciding the appeal on merits. Learned counsel for the petitioner submits that the said appeal is still pending, but in the meantime, the Deputy Commissioner, Co-operative Society has issued a letter on 27.04.2023 to the Administrator of the Co-operative Society for demolishing the construction raised by the petitioner and pursuant thereto, the Administrator of the Co-operative Society has issued a letter to the petitioner on 04.05.2023 (Annexure-P/11) asking him to remove his construction from the plot in question.

3. Learned counsel for the petitioner submits that against the judgment and decree passed by the Civil Court, in the first appeal preferred by the petitioner an interim relief was granted by the Court in his favour and after allowing the appeal when the matter was travelled up to the High Court wherefrom the matter was remitted to the Appellate Court for deciding the appeal afresh, no interim protection was granted in favour of the petitioner. He submits that originally the interim relief earlier granted by the Appellate Court in favour of the petitioner

was continued and when the matter was remitted back by the High Court even then the interim relief granted by the Appellate Court on earlier occasion came into force automatically and under such circumstances, the action of the authority is illegal and arbitrary.

4. Considering the aforesaid facts and circumstances of the case, I am disposing of this petition directing the Appellate Court i.e. 10th Additional

District Judge, Jabalpur, to decide the petitioner's pending appeal i.e F.A. No.191/2016 within a period of 60 days from the date of receipt of copy of this order in accordance with law. However, it is made clear that till the petitioner's appeal is decided or for a period of 60 days, whichever is earlier, the Deputy Commissioner, Co-operative Society is directed to issue appropriate instruction to the Administrator, Co-operative Society for not taking any coercive action against the construction raised by the petitioner, in pursuance to the notice issued to him for demolishing of his construction.

5. With the aforesaid, this petition stands disposed of.

6. It is made clear that this Court has not expressed any opinion on the merits of the case.

(SANJAY DWIVEDI) JUDGE Devashish DEVASHISH MISHRA 2023.08.11 19:08:55 +05'30'