Madhya Pradesh High Court
Indra Bhan Singh vs Parmal Singh on 18 December, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 18 th OF DECEMBER, 2023
MISC. PETITION No. 5395 of 2019
BETWEEN:-
INDRA BHAN SINGH S/O SHRI RAGHURAJ SINGH
YADAV, AGED ABOUT 56 YEARS, VILL. RAMGARH
TEHSIL BADARWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI DEEPENDRA RAGHUVANSHI - ADVOCATE)
AND
1. PARMAL SINGH S/O SHRI MUSHAB SINGH YADAV
VILL. RAMGARH TEHSIL BADARWAS (MADHYA
PRADESH)
2. VIRENDRA SINGH S/O SHRI BALWANT SINGH
YADAV VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
3. SANGRAM SINGH S/O SHRI UMMED SINGH
YADAV VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
4. BADAL SINGH S/O SHRI NARAYAN SINGH YADAV
VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
5. MUNNI BAI W/O SHRI INDRABHAN SINGH YADAV
VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
6. RAJKUMAR S/O SHRI BADAL SINGH YADAV
VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
7. PANCHAM SINGH S/O UMMED SINGH YADAV
VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
Signature Not Verified
Signed by: NEETU
SHASHANK
Signing time: 12/20/2023
5:08:41 PM
2
8. KRISHAN KUMARI W/O RAJENDRA SINGH
YADAV VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
9. GHANSHYAMBAI D/O SHRI GAJRAJ SINGH
YADAV VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
10. MEHARBAN SINGH S/O SHRI BALWANT SINGH
VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
11. KOKSINGH S/O SHRI BALWANT SINGH YADAV
VILLAGE RAMGARH TEHSIL BADARWAS
(MADHYA PRADESH)
.....RESPONDENTS
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
The present petition under Article 226 of the Constitution of India has
been filed against the order dated 22.09.2016 passed by Nayab Tehsildar,
Rannod, District Shivpuri in Case no.01/2015-169/A-13, whereby while hearing
an application under Section 131 of M.P.L.R.C. without serving the present
petitioner the matter was heard finally and the application preferred by the
present respondents was allowed and a right of way was granted from the
agricultural fields of the petitioner.
2. The petitioner is further aggrieved by the order dated 18.09.2019
passed by the Sub Divisional Officer, Revenue District Shivpuri in appeal
No.72/Appeal/2016-17, whereby the appeal preferred by the present petitioner
against the said order was dismissed and the order passed by Nayab Tehsildar
was upheld. Assailing both the orders the present petition has been filed.
3. Learned counsel for the petitioner while taking this Court to the
proceedings of Nayab Tehsildar while hearing the application under Section 131
of M.P.L.R.C. has contended that from bare perusal of the order sheets, it
could be evident that at no point of time service of notice issued to the
petitioner was effected and on the very next date on which the notice was said
to be served upon the petitioner the final order was passed, thus, the said order
passed by Nayab Tehsildar is dehorse the principle of natural justice and,
therefore, deserves to be set aside.
4. It was further contended that learned Sub Divisional Officer while
hearing the appeal did not considered this aspect of the matter and in a very
mechanical manner has upheld the order passed by Nayab Tehsildar and had
dismissed the appeal preferred by the petitioner, which was not in consonance
of law, thus, deserves to be set aside.
5. On the aforesaid grounds the present petition has been filed and it has
been contended that since opportunity of hearing was not granted to the
petitioner nor any opportunity was extended to adduce evidence or cross-
examination of the witnesses of the applicant was afforded, the impugned order
passed by Nayab Tehsildar dated 22.09.2016 is per se illegal and, therefore,
though there is an alternative remedy of preferring second appeal against the
order passed by Sub Divisional Officer, the order passed by Nayab Tehsildar
being per se illegal and unconstitutional, had been directly challenged before this
Court and in the light of the judgment of Hon'ble Apex Court in the matter of
Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors,
reported in 1998 (8) SCC 1, the present writ petition is maintainable and
cannot be dismissed on the ground of availability of alternate efficacious
remedy to the petitioner.
6. None for the respondents even after service of notices.
7. After hearing learned counsel for the petitioner, this Court finds
support in the arguments advanced by the counsel for the petitioner. From bare
perusal of the notice issued to the present petitioner of the matter pending
before Nayab Tehsildar, wherein the date of appearance was given as
30.08.2016, without ascertaining that whether the said notice has been served
upon the petitioner or not, Nayab Tehsildar proceeded to record the evidence
of the applicant and his witnesses and thereafter had fixed the date for passing
of the final order. From the notice, issued to the petitioner, it also appears that
there was no endorsement of the officer who has effected the service on the
petitioner, thus, from the aforesaid fact, it could not be gathered that notice
issued by Nayab Tehsildar was ever served upon the petitioner. Thus, it
appears to this Court that there was a total violation of principles of natural
justice as without giving any opportunity of hearing to the petitioner, Nayab
Tehsildar has passed the order.
8. This aspect appears to have not been considered by the Sub Divisional
Officer while hearing the appeal, thus, according to this Court the SDO has also
committed a grave illegality in dismissing the appeal. Accordingly the petition is
hereby allowed and order dated 22.09.2016 passed by Nayab Tehsildar,
Rannod, District Shivpuri and the order dated 18.09.2019 passed by the Sub
Divisional Officer, Revenue District Shivpuri are hereby set aside and the matter
is remitted back to the Nayab Tehsildar for fresh adjudication of the application
preferred by the present respondents after giving opportunity of hearing to all
the parties concerned.
9. Let this exercise be done within a period of three months.
With the aforesaid direction, petition is disposed of.
It is made clear that this Court has not expressed any opinion on merits
of the case.
E-copy/certified copy as per rules.
(MILIND RAMESH PHADKE)
JUDGE
neetu-
