M/S Rachna Builders vs The State Of Madhya Pradesh
2023 Latest Caselaw 13861 MP

                                                           1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                              ON THE 24 th OF AUGUST, 2023
                                            WRIT PETITION No. 20900 of 2023

                          BETWEEN:-
                          M/S RACHNA BUILDERS THROUGH PROPRIETOR SHRI
                          KAILASH    SHARMA AGED      ADULT   S/O  SHRI
                          FATENCHAND SHARMA HAVING OFFICE AT 159 ZONE I
                          I M.P. NAGAR BHOPAL (MADHYA PRADESH)

                                                                                       .....PETITIONER
                          (BY SHRI QASIM ALI - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH
                                THE DISTRICT COLLECTOR DISTRICT BHOPAL
                                (MADHYA PRADESH)

                          2.    SUB   DIVISIONAL    OFFICER TEHSIL HUZUR,
                                HAVING OFFICE AT 7 NO BUS STOP NEAR STATE
                                BNK OF INDIA SHIVAJI NAGAR BHOPAL
                                (MADHYA PRADESH)

                          3.    TEHSILDAR NAZUL CIRCLR MP NAGAR HAVING
                                OFFICE AT 7 NO BUS STOP NEAR STATE BANK OF
                                INDIA SHIVAJI NAGAR BHOPAL (MADHYA
                                PRADESH)

                                                                                    .....RESPONDENTS
                          (BY SHRI VIVEK SHARMA - DEPUTY ADVOCATE GENERAL)

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

This petition is filed by the petitioner being aggrieved of notice dated 11.08.2023, passed by Tahsildar (Nazul) Circle, Maharana Pratap Nagar, Bhopal (M.P.), asking the petitioner to show cause that why he has encroached Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 8/26/2023 1:49:05 PM

upon the public way contained in a 'Kachcha Road' at Ward No.56, Shyam Nagar, Barkheda Pathani, by the side of metro project being constructed by Dilip Buildcon. He is also asked to open the public way and file his reply.

2. Shri Qasim Ali, submits that firstly no provision of law is mentioned under which notice is issued. Secondly, placing reliance on the judgment of Supreme Court in Siemens Limited Vs. State of Maharashtra (Laws (SC) -2006-12-

43), and reading from para 5 onwards, it is pointed out that when a notice is issued, which is directory in nature, then that notice will not preempt the right of the petitioner to seek remedy before the Writ Court.

3. Shri Vivek Sharma, learned Deputy Advocate General, submits that notice

is issued in terms of the powers vested in the revenue authorities, specially the Tahsildar and the SDM to remove nuisance. It is clearly mentioned in the notice itself that public way was being obstructed by the petitioner and therefore, direction to remove obstruction from the public way cannot be said to be an act on the part of the Tahsildar to have formed his opinion in regard to the subject matter.

4. Shri Qasim Ali, though submits that the land in question is his land and mutation was carried out in relation to land contained in Survey No.115/Ta, measuring 1.7930 hectares as Barkheda Pathani, but the fact of the matter is that petitioner is required to demonstrate from record that the shed which was constructed is on his land and he has not obstructed the public way. Opening of the public way, obstruction of which causes inconvenience to the public, cannot be said to be an act on the part of the Tahsildar, to show that he had pre-decided the matter and was not willing to give fair hearing to the petitioner.

5. Since proceedings are already pending before the Tahsildar and as pointed out by Shri Vivek Sharma, learned Dy. Advocate General, a Civil Suit under Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 8/26/2023 1:49:05 PM

Section 133 of M.P. Land Revenue Code, 1959, was already filed before the competent Court, at this stage, no indulgence can be shown in the matter of show cause notice. Judgment in case of Siemens Ltd. (supra) has limited applications, inasmuch as, there the matter was strictly between the noticee and the person who issued notice and since notice was in regard to payment of Cess, there could not have been any direction for payment of Cess and then appear for personal hearing.

6. In the present case, nature of the matter is different. It pertains to opening of a public way and, therefore, direction to open public way and satisfy the authorities that the land on which shed has been constructed by the petitioner is not on public way but on a private land, being in a different domain, cannot be confused with the facts of the case of Siemens Ltd. (supra). Therefore, that judgment has no application to the facts of the present case.

7. Petition fails and is dismissed.

8. At this stage, Shri Qasim Ali, submits that Tahsildar be requested to decide the case expeditiously.

9. This innocuous prayer is not opposed by Shri Vivek Sharma, learned Deputy Advocate General.

10. Accordingly, it is requested that Tahsildar, if he has already not decided the matter, shall decide it expeditiously.

(VIVEK AGARWAL) JUDGE A.Praj.

Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 8/26/2023 1:49:05 PM