Umesh Kasera vs Municipal Corporation ...
2023 Latest Caselaw 16515 MP

                                                              1
                                IN THE HIGH COURT OF MADHYA PRADESH
                                            AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                                ON THE 6 th OF OCTOBER, 2023
                                              WRIT PETITION No. 25141 of 2023

                           BETWEEN:-
                           UMESH KASERA S/O LATE SHRI GULAB CHAND
                           KASERA, AGED ABOUT 47 YEARS, OCCUPATION:
                           BUSINESS, R/O 32, MANDHATA COLONY, DISTRICT
                           CHHINDWARA (MADHYA PRADESH)

                                                                                            .....PETITIONER
                           (BY SHRI VIKRAM SINGH - ADVOCATE)

                           AND
                           1.    MUNICIPAL  CORPORATION,  CHHINDWARA,
                                 THROUGH ITS COMMISSIONER, MUNICIPAL
                                 CORPORATION,   CHHINDWARA,   DISTRICT
                                 CHHINDWARA (MADHYA PRADESH)

                           2.    CHIEF  MUNICIPAL   OFFICER,  MUNICIPAL
                                 COUNCIL, CHHINDWARA (MADHYA PRADESH)

                           3.    SHRI ANSHUL S/O GAHLAN SINGH, R/O CHOTI
                                 BAZAAR, DISTRICT CHHINDWARA (MADHYA
                                 PRADESH)

                           4.    STATE OF MADHYA PRADESH, THROUGH ITS
                                 COLLECTOR, DISTRICT CHHINDWARA (MADHYA
                                 PRADESH)

                                                                                         .....RESPONDENTS
                           (BY SHRI ALOK AGNIHOTRI - GOVERNMENT ADVOCATE)

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

By the instant petition filed under Article 226 of the Constitution of India, the petitioner is claiming that initially vide order dated 31.12.1991 the land was Signature Not Verified Signed by: PRACHI PANDEY Signing time: 10/7/2023 11:46:10 AM

allotted to the petitioner, but thereafter, respondents No.1 and 2 are trying to create third party right over the land in question.

2. Learned counsel for the petitioner submits that the petitioner raised the grievance and also filed a civil suit seeking decree of declaration and that civil suit has been decreed in his favour, but in an appeal preferred by respondent No.2, the said decree was set aside. He submits that against the said judgment and decree passed in First Appeal, a Second Appeal has been filed before this Court, which has been registered as S.A. No.2179/2018, but the same is not listed so far for admission and taking advantage of this situation, respondent No.2 is trying to create third party right over the land in question and is trying to

execute lease-deed in favour of some other private person i.e. respondent No.3. He further submits that the land which was allotted to the petitioner in the year 1991, he had made plantation over there and if the lease-deed is executed in favour of respondent No.3, there is every possibility that all trees standing over the land will be cut either by respondent No.2 or by respondent No.3. He further submits that the petitioner has already approached the National Green Tribunal (N.G.T.) and the Tribunal has also passed an order directing the authorities to take care of the trees standing over the land of the petitioner and also directed not to allow anybody to encroach over the land. Learned counsel submits that executing the lease would amount to allowing a person to encroach over the land and this is purely illegal. He submits that some protection be granted till the Second Appeal is heard by the Court and interim relief is granted therein.

3. However, when the issue with respect to the land in question is already pending before the High Court in Second Appeal, it is not proper to initiate any parallel proceeding for creating any right or to grant any protection in a writ Signature Not Verified Signed by: PRACHI PANDEY Signing time: 10/7/2023 11:46:10 AM

petition under Article 226 of the Constitution of India, but in the interest of justice and looking to the fact that the land is full of green trees, it is expected that the nature of the land may not be changed and there should be no damage to the trees standing over there. Therefore, protection for a period of sixty days from today, is granted directing respondent No.2 not to create any third party right over the said land or shall not cut any tree standing over the land in question.

4. It is made clear that this protection is granted only for a period of sixty days from today.

5. In the meantime, if the petitioner is able to get any interim order from the Court in the pending Second Appeal, then the situation will be controlled as per the said order.

6. With the aforesaid observations, the petition is disposed of.

(SANJAY DWIVEDI) JUDGE Prachi

Signature Not Verified Signed by: PRACHI PANDEY Signing time: 10/7/2023 11:46:10 AM