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2020 DIGILAW 1207 (MP)

Anil Kumar v. State of M. P.

2020-11-09

VISHAL MISHRA

body2020
ORDER 1. Present petition has been filed challenging the order dated 20th April, 2020 annexure P/1 and dated 17.10.2020 Annexure P/2 whereby, without there being any intimation to the petitioner, demarcation of the property bearing Survey No.1256 and 1257 has been got done by the respondent authorities. It is pointed out that respondent No.3 by filing an application for demarcation of the property in question alleging that there is certain encroachment made by the present petitioners on their land and by suppressing previous report with respect to demarcation which was got done in the year 2014, present order was obtained. On appeal, the objections taken by the petitioners were not considered by the appellate authority. It has been pointed out that the petitioners are owners and possession holders of the property situated in Survey No.1239, 1259, 1254 and 1252. The respondent No. 3 had filed an application seeking demarcation of the property situated in Survey No.1256 and 1257 in the year 2014. Learned SDO after following entire procedure with respect to demarcation of the property has got done the demarcation and the report was submitted in the year 2014 itself which is annexure P/3. In pursuance to the aforesaid demarcation report, parties are in possession of the property. There is no challenge to the aforesaid demarcation report till date. Again an application has been filed by the respondent No.3 for demarcation of the property in question by suppressing the previous demarcation report. On the application begin filed, the respondent authorities without intimation to the petitioners have got done the demarcation again and has submitted demarcation report to the effect that the petitioners have encroached upon the land bearing Survey No.1256 and 1257 which belongs to the respondents and therefore, directed for removal of the encroachment. It is pointed out that the objections were filed on 17.2.2016 by the petitioners but the same have not been taken into consideration by the respondent authorities and the final order has been passed on 17.2.2016. An appeal was preferred by the petitioners against the order dated 17.2.2016 but the appellate authorities without considering the grounds raised by the petitioners affirmed the order passed by the SDO vide its order dated 20.4.2020. Therefore, present petition has been filed. An appeal was preferred by the petitioners against the order dated 17.2.2016 but the appellate authorities without considering the grounds raised by the petitioners affirmed the order passed by the SDO vide its order dated 20.4.2020. Therefore, present petition has been filed. It is pointed out that entire procedure as contemplated under section 129 of MP Land Revenue Code 1959 has not been followed by the respondent authorities therefore, the order impugned is bad in law. He has prayed for quashment of the order. 2. Per contra, counsel for the respondent no.3 has filed his reply along with the application for vacating the stay and it has been pointed out that the petitioners were duly noticed in the demarcation proceedings and all the objections were taken into consideration by the authorities and thereafter, it was found that the petitioners have encroached upon the property of the respondent No.3 therefore, impugned order has been passed. He has drawn attention of this Court being annexure P/4 which is an application dated 4.1.2016 wherein, there is a specific allegation that on Survey No.1256 and 1257 area being 2 Bigha and 7 Biswa which is registered in the name of M.P. Wakf Board Bhopal, the property has been encroached upon by one Vishnu Batham and Nagarpalika Gohad and on that allegation, demarcation was prayed to be made. It is pointed out that the petitioners are neither Vishnu Batham nor Nagarpalika Gohad. He has further drawn attention of this Court to the impugned order Annexure P/1 and has pointed out that the petitioners were duly represented by their counsel before learned Collector and learned Collector after granting them opportunity of hearing and also going through the record of the SDO has arrived at the conclusion that the order dated 17.2.2016 has been passed in pursuance to the provisions of demarcation provided under MPLRC 1959 and there is no fault in the order passed by learned SDO, therefore, has upheld the aforesaid order by its order dated 20.4.2020. It is contended that there is no bar for filing repeat application for demarcation on new grounds and specific ground was raised regarding encroachment being made on the respondent No. 3 property by Vishnu Batham as well as by Nagarpalika Gohad which was found proved by respondent authorities. The petitioners are having no authority to file present petition. He has prayed for dismissal of this petition. 3. The petitioners are having no authority to file present petition. He has prayed for dismissal of this petition. 3. Counsel for the State has supported the impugned orders and has contended that the counsel for the petitioners has failed to point out any illegality in the impugned order. It is further contended that the entire procedure as contemplated under section 129 of MPLRC regarding demarcation has been followed by respondent authorities. Thus, there is no illegality in the impugned order. It is further submitted that in a petition under Article 227 of the Constitution of India, this Court is having limited jurisdiction to entertain the petition challenging the orders passed by the respondent authorities under their supervisory jurisdiction. He has relied upon the judgment passed by Hon'ble Apex Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil [ (2010) 8 SCC 329 ] and has prayed for dismissal of this petition. 4. Heard learned counsel for the parties and perused the record. 5. From perusal of record, it is seen that an application for demarcation was filed on the ground that there is encroachment being done by the petitioners over Survey No.1256 and 1257. It was specifically pointed out that the encroachment has been done by Vishnu Batham and Nagarpalika Gohad but they have not chosen to prefer petition before this Court. However, it is pointed that the petitioners are sons of Vishnu Batham therefore, they have a right to file present petition. It is further seen that it is not binding that the subsequent demarcation application cannot be filed. It is admitted position that owing to subsequent cause of action, application for demarcation can again be filed. Therefore, vide annexure P/4, application was filed by respondent No.3 for demarcation of their property in question with respect to Survey No.1256 and 1257 as the encroachment was alleged. Learned SDO after completing the proceedings and after granting hearing opportunity to the petitioners have passed impugned order which on challenge being made by the petitioners before the appellate authorities has also been affirmed. It is clearly seen that the opportunity of hearing was provided to the petitioners even by the appellate authority as they were represented by their counsel. 6. It is settled in law that petition under Article 227 of the Constitution is having limited scope for interference. It is clearly seen that the opportunity of hearing was provided to the petitioners even by the appellate authority as they were represented by their counsel. 6. It is settled in law that petition under Article 227 of the Constitution is having limited scope for interference. Hon'ble apex Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil [ (2010) 8 SCC 329 ] had formulated following principles for exercise of High Court's jurisdiction under Article 227 of the Constitution in India : (a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 7. Considering the over all facts and circumstances of the case and also the fact that ample opportunity of hearing was granted to the petitioners coupled with the fact that there appears to be a factual dispute which can only be adjudicated in the civil proceedings and not before this Court, this petition is therefore, sans merits and is hereby dismissed. The petitioners are at liberty to file appropriate civil proceedings for redressal of their grievances. With the aforesaid, this petition is dismissed with no order as to the cost. The interim oder granted on 10.9.2002 also stand vacated.