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2023 DIGILAW 610 (MP)

Laxman v. Rajkumar

2023-06-16

MILIND RAMESH PHADKE

body2023
ORDER 1. This petition under Article 227 of the Constitution of India has been preferred challenging the order dated 16.10.2020 passed in Appeal No.516/2017-18 by the Additional Commissioner, Division Gwalior whereby the appeal preferred by the present respondent no.1 was allowed and the matter was remitted back to Tehsildar to decide the matter afresh after giving opportunity of hearing to the parties. 2. Learned counsel for the petitioner vehemently argued that the petitioner is the owner of land bearing Survey No. 6/2 admeasuring 3.135 hectare situated at Gram Kherona, Tehsil Saadora, District Ashoknagar and is in occupation thereof. A partition has taken place between the petitioner and respondent No.1 on 30.1.2001 and since thereafter the petition is in possession of the aforesaid land and tilling the land. It was further argued that though partition had taken place between the petitioner and the respondent No.1, but in the revenue map of the village the survey numbers were not mentioned, therefore, in the year, 2010 an application was moved by the present petitioner before Tehsildar for mentioning the survey numbers in the revenue map. Notice was issued to the general public on 26.3.2010. In pursuance to the aforesaid notice present respondent No.1 appeared before Tehsildar and moved his consent for mentioning of the survey numbers in the revenue map. On his according consent, the order dated 5.8.2010 came to be passed. Against the said order present respondent No.1 preferred an appeal on 16.7.2012 which was dismissed by the SDO vide order dated 17.11.2017. Thereafter, the second appeal was preferred by present respondent no.1 before the Commissioner and vide impugned order dated 16.10.2020 the matter was remitted back for hearing the matter afresh to Tehsildar. It was contended that the said order is per se illegal as on consent of the respondent no.1 the order has been passed. Now, there was no occasion and no new ground has been raised by respondent No.1 which would have persuaded the learned Additional Commissioner to remit the matter to Tehsildar for fresh adjudication. Thus, it was contended that the impugned order is per se illegal and deserves to be set aside. 3. None for respondent No.1 even after service of notices. 4. Per contra, learned Government Advocate appearing for respondent No.2 submitted that the learned Tehsildar had followed the procedure prescribed for mentioning of the survey numbers in the revenue map. Thus, it was contended that the impugned order is per se illegal and deserves to be set aside. 3. None for respondent No.1 even after service of notices. 4. Per contra, learned Government Advocate appearing for respondent No.2 submitted that the learned Tehsildar had followed the procedure prescribed for mentioning of the survey numbers in the revenue map. He had issued notices to the general public, there are signatures of respondent No.1 in the order sheet as well as in the panchnama prepared by revenue inspector and only, thereafter, it appears that the order by Tehsildar was passed which can be said to be with the consent of respondent No.1. Thus, in a way he supports the contention of the petitioner. 5. Heard the counsels for the parties and perused the record. 6. The record reflects that respondent No.1 in pursuance to the notice issued to general public on 26.3.2010 by Tehsildar had appeared in the proceedings and had even affixed his signatures on the order sheet as well as panchnama prepared by the revenue inspector and it was only after the consent was given by respondent No.1 that the Tehsildar had passed the order dated 5.8.2010. The respondent No.1 had unsuccessfully challenged the said order before SDO and, thereafter he has filed a second appeal before the learned Additional Commissioner, but from the order impugned thereby the matter was remitted back to the Tehsildar for fresh adjudication, no new grounds appears to have been raised by respondent No.1 except that without giving any opportunity of hearing to him the order has been passed and he had not consented before the learned Tehsildar, but this very contention of respondent No.1 is falsified by affixture of his signatures on the order sheet of the proceedings before Tehsildar as well as on the panchnama prepared by Revenue Inspector. 7. Therefore, in the light of the aforesaid fact, this Court finds that there was no occasion for the learned Additional Commissioner to have remitted the matter back to the Tehsildar, as respondent no.1 had very well consented for passing of the order before the Tehsildar, therefore, no illegality has been committed by Tehsildar in passing such order. Therefore, the order passed by learned Additional Commissioner deserves to be set aside and is hereby set aside. Hence, the present petition stands allowed.