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Madhya Pradesh High Court · body

2018 DIGILAW 222 (MP)

Rajesh Kumar v. State of M. P.

2018-02-26

ANAND PATHAK

body2018
ORDER 1. The present petition has been preferred by the petitioner against the alleged action/ inaction of respondent No. 2 whereby respondent No. 2/ Commissioner Gwalior Division has not taken into consideration the application for stay under section 52 of the M.P. Land Revenue Code, 1959 (for short “the Code”) filed by the petitioner in the pending appeal before respondent No. 2 but the same has not been decided yet and meanwhile notification dated 9.2.2018 (Annexure P-7) by Tahsildar, District- Ashoknagar has been issued under section 147 of the Code. By the said notification, the land in question is purportedly tried to be auctioned. 2. Precisely stated facts of the case are that petitioner was the owner and possessor of the land as mentioned in the writ petition. Due to non-payment of the diversion tax and without getting the land diverted, petitioner constructed marriage garden for commercial use, therefore, Sub-Divisional Officer Ashoknagar passed an order dated 16.6.2016 (Annexure P-2) under the provisions of section 172 of the Code and imposed penalty of Rs.1,19,52,000/-. It appears that after the order passed by the Sub Divisional Officer, petitioner challenged the order before the Collector Ashoknagar in appeal, which got dismissed vide order dated 12.7.2017 (Annexure P-3). 3. Thereafter, petitioner challenged the order passed by the Collector/ Additional Collector by way of filing second appeal before the Commissioner, Gwalior Division on dated 26.9.2017 alongwith application for stay under section 52 of the Code vide Annexure P-4. It appears that since 26.9.2017, the appeal as well as stay application was pending consideration. Meanwhile, on 9.2.2018 (Annexure P-7), notification was issued by Tahsildar under section 147-A of the Code by Tahsildar Tahsil Ashoknagar which precipitated filing of another application under section 52 of the Code at the instance of petitioner in pending second appeal before the Commissioner, Gwalior Division and the date of auction has been fixed as 26.2.2018. According to counsel for the petitioner, respondent No. 2 failed to exercise jurisdiction vested into it and when second appeal was pending before respondent No. 2 then publication of sale notice could not have been made by the Tahsildar. Action/ inaction of the authorities is arbitrary and illegal. 4. Learned counsel for the respondents/Sate opposed the prayer made by the petitioner and submits that petitioner approached this Court at a belated stage when proclamation of sale has been made through notice annexure P-7. Action/ inaction of the authorities is arbitrary and illegal. 4. Learned counsel for the respondents/Sate opposed the prayer made by the petitioner and submits that petitioner approached this Court at a belated stage when proclamation of sale has been made through notice annexure P-7. Petitioner is a defaulter and no leniency can be shown against him. 5. Heard the learned counsel for the parties and perused the documents appended with the petition. 6. Initially, petitioner suffered the order dated 16.6.2016 (Annexure P-2) by Sub-Divisional Officer, Ashoknagar and later on, in first appeal he suffered in the hands of the Collector/Additional Collector vide order dated 12.7.2017 (Annexure P-3). Since then, second appeal was pending before the Commissioner, Gwalior Division. Petitioner knew the fact that in absence of any stay, effect of the order dated 16.6.2016 (Annexure P-2) and order dated 12.7.2017 (Annexure P-3) would take their toll and, therefore, it was the duty of the petitioner to ask for consideration of the application under section 52 of the Code before second appellate authority. Second appeal is pending for last five months. Thereafter, the sale proclamation/ notice dated 9.2.2018 (Annexure P-7) is being published. Neither the petitioner could produce any interim order in his favour nor he placed the proceedings of the second appellate authority i.e. Commissioner, Gwalior Division to substantiate his arguments that because of the fault of the authority he could not get the hearing done for the said application. As such, petitioner is suffering the penalty order since June, 2016 but he could not make any attempt either to deposit any amount or settle the matter with the authorities or seek interim protection. 7. In the equitable jurisdiction, petitioner did not appear with clean hands and utmost promptness and violation of any fundamental or legal right is not palpably apparent. Once the auction has been initiated by the respondents then no case for interference is made out. Looking to the fact situation of the case, no justiciable cause exists justifying the interference of this Court. Petition sans merits and the same is hereby dismissed. Petitioner may avail his other remedies before the appellate authority, which shall be considered by the authority at the earliest.