Madhya Pradesh High Court
Madanlal vs The State Of Madhya Pradesh Revenue ... on 7 May, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 7th OF MAY, 2024
WRIT PETITION No. 18494 of 2023
BETWEEN:-
MADANLAL S/O SHRI MAHADEVJI, AGED
ABOUT 57 YEARS, OCCUPATION: PUJARI
PATRAKAR COLONY BADNAGAR DISTRICT
UJJAIN (MADHYA PRADESH)
.....PETITIONER
SHRI NITIN PHADKE, ADVOCATE
AND
THE STATE OF MADHYA PRADESH
REVENUE DEPARTMENT THROUGH THE
1. PRINCIPAL SECRETARY MANTRALAYA,
VALLABH BHAWAN, DISTRICT BHOPAL .
(MADHYA PRADESH)
THE COLLECTOR UJJAIN (MADHYA
2.
PRADESH)
SUB DIVISIONAL OFFICER (REVENUE)
3. BADNAGAR DIST. UJJAIN (MADHYA
PRADESH)
THE NAIB TEHSILDAR TEHSIL
4. BADNAWAR DIST. UJJAIN (MADHYA
PRADESH)
MUKESH S/O GULABDAS VILLAGE
5. JASSAKHEDI, TEHSIL BADNAGAR DIST.
UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
MS.HARSHLATA SONI , GOVT. ADVOCATE
SHRI SAMEER ANANT ATHAWALE, ADVOCATE FOR RESPONDENT NO.5.
This petition coming on for order this day, the court passed
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 23-05-2024
09:56:05
2
the following:
ORDER
1. This writ petition has been filed by the petitioner under
Article 226 of the Constitution of India against the inaction on the
part of the respondents in taking steps for removal of
encroachments of the land belonging to the petitioner, and in
delivering its possession to the petitioner.
2. The petitioner has sought the following relief which is as
under:-
"(a) A writ in the nature of mandamus or any other
appropriate writ, order or direction in exercise of writ
jurisdiction of this Hon'ble Court be issued for directing the
respondents for immediately removing the encroachments
situated on the land bearing survey No.150 area 1.32 hecrates
(plot no.14 and 15) situated at village Jassakhedi Tahsil
Badnagar District Ujjain and for reinstating its possession to
the petitioner in terms of the order Annexure P/3 passed by this
Hon'ble Court.
(b) Costs of the petition be awarded to the petitioner from the
respondents and
(c) Any other relief which this Hon'ble Court may deem fit in
the facts of the present case be granted in favour of the
petitioner."
3. The facts of the case are that the petitioner is the owner of
land bearing survey No.150 admeasuring 1.32 hectare (plot No.14
and 15) situated at village Jassakhedi, Tahsil Badnagar District
Ujjain.
4. The case of the petitioner is that the southern side of the
aforesaid land was encroached upon by the respondent no.5 in a
portion admeasuring 20 feet X 42 feet (total 840 Square feet),
which led the petitioner to file an application under Section 250 of
the M.P. Land Revenue Code, 1959 (hereinafter to be referred to as
Code of 1959) for removal of encroachment made by the
respondent no.5, which was registered as case no.10/A 70/2012-13.
The aforesaid application was rejected by the Tahsildar vide its
order dated 4.3.2018, and against the aforesaid order the petitioner
preferred an appeal under Section 44 of the Code of 1959 before the
Sub Divisional Officer, Badnagar which was allowed by the SDO
vide its order dated 15.1.2018, and it was directed to respondent
no.4/Naib Tahsildar to remove the encroachment made by the
respondent no.5 and to handover the possession thereof to the
petitioner and also file a compliance report within a period of 15
days. The aforesaid order dated 15.1.2018 was challenged by the
respondent no.5 by filing an appeal under Section 44(2) of the Code
of 1959 before the Additional Commissioner, Ujjain which was
dismissed by the Additional Commissioner vide its order dated
18.4.2019. And finally, the aforesaid order was again challenged by
the respondent no.5 before this Court in W.P.No.9290/2019 which
was also dismissed by this Court vide its order dated
25.9.2019,upholding the orders passed by the Additional
Commissioner and SDO.
5. It is further the case of the petitioner that the respondent no. 5
had also filed a civil suit No.11-A/2018 for declaration and
permanent injunction which is still pending adjudication in the
Court of II Civil Judge, Class II, Badnagar District, Ujjain and in
the aforesaid suit, the application for temporary injunction filed
under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908
(hereinafter to be referred to as CPC) has already been dismissed by
the Trial Court vide order dated 15.3.2018, which has also been
challenged by the respondent in an appeal registered as
MCA.No.11/2018 which has also been rejected by the District
Appellate Court on 11.12.2018, and the M.P.No.6261/2019 referred
against the order dated 11.12.2018 (Annexure P-5) has also been
dismissed by this Court. Thus, pursuant to such orders, the
petitioner submitted various applications before the respondent no.2
and 4 for removal of the encroachment from the petitioner's land
situated at the land bearing survey no.150 in compliance of order
passed by this Court and also the order of Revenue Courts, but till
date the encroachment has not been removed. It is further the case
of the petitioner that recently on 26.6.2023, when the petitioner
again submitted an application to respondent no.2 and 3 for removal
of encroachment, the same has still not been decided causing grave
prejudice to the petitioner, and the entire exercise which was
lawfully pursued by him to claim his land has been proved futile,
and the petitioner was made to run from pillar to post for removal
of encroachment by the respondent no.5.
Thus, it is submitted that the respondents be directed to comply
with the aforesaid order passed by the SDO as the aforesaid which
has also been affirmed by this Court.
6. A detailed reply to the petition has also been filed by the
respondent no.5, and Shri Sameer Athawale, learned counsel has
appearing for respondent no.5 has vehemently submitted that the
respondent no.5 is the owner of the land for which he has already
filed a Civil Suit, and the Tahsildar has rightly rejected the
petitioner's application filed under Section 250 of the Code of
1959. It is also submitted that the material facts have been
suppressed by the petitioner in filing the present petition and the
order passed by the SDO cannot be complied with, which is
practically not possible. It is submitted that land in question is
actually the property of deity of "Shri Ram Mandir" situated at
Village Jassakhedi, for which, the father of the petitioner Mahadev
had filed a suit for claiming himself to be the Pujari after his father
Nand Kishore. The aforesaid civil Suit was decreed in the year
2004, however, the appeal preferred by the State Government
registered as CFA.No.8-A/2004 was allowed by the Appellate Court
vide judgement dated 18.3.2004, and the judgment and decree of
the trial Court was set aside. It is also submitted that the respondent
no.5 was validly appointed by the State of M.P. as Pujari of the said
Mandir on 28.4.1999, which was challenged by the petitioner in an
appeal before the Collector but the same has been dismissed, and
the second appeal has also been dismissed by the Commissioner,
Ujjain District Ujjain. It is further submitted that the application
filed by the petitioner was in respect of the land in the name of
State of M.P., and the land is not an agricultural land which is
adjoining to the, Ram Mandir and thus, the provisions of Section
250 of the Code of 1959 would not be maintainable.
7. Counsel for the respondent no.5 has also relied upon various
documents and has submitted that no case for interference is made
out and the petition is liable to be dismissed.
8. Heard learned counsel for the parties and perused the record.
9. From the record, it is apparent that the petitioner's
application under section 250 of the Code of 1959 has already been
allowed by the Sub Divisional Officer vide its order dated
15.1.2018, which has also been affirmed up-till by the High Court
in W.P.No.9290/2019 dated 25.9.2019, and in the Civil Suit filed by
the respondent no.5 also, his application for temporary injunction
has already been rejected, which has also attained the finality.
10. In such circumstances, this Court is of the considered opinion
that the submissions as advanced by the counsel for the respondent
no.5 that the aforesaid order passed by the SDO cannot be executed,
is of no avail, as this Court is not required to adjudicate upon the
dispute between the parties in respect of the aforesaid land, which
has already attained the finality as aforesaid in W.P.No.9290/2019,
vide order dated 25.9.2019, and this Court only required to see if
the order passed by this court can be brought to its logical end.
11. Resultantly, the respondent no.2/the Collector, District Ujjain
is directed to ensure that the order passed by the respondent
no.3/SDO dated 15.1.2018 (Annexure P-1), finally affirmed in
W.P.No.9290/2019, vide order dated 25.9.2019 is complied with in
its letter and spirit, and the possession is restored to the petitioner.
Let the said exercise be completed within a further period of thirty
days.
12. Accordingly, the petition stands allowed and disposed of.
(SUBODH ABHYANKAR)
JUDGE
das
