Madhya Pradesh High Court
Ankit Sharma vs Public Health And Family Welfare ... on 25 April, 2017
Second Appeal No.535 of 2015.
26.04.2017:-
Shri R.Shukla, learned counsel for the appellants.
As prayed, list after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.544 of 2016.
26.04.2017:-
Shri B.L.Jain, learned counsel for the appellant.
As prayed, list after two weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.2161 of 2016.
26.04.2017:-
Shri S.V.Dandwate, learned counsel for the appellant.
Shri Romil Malpani, learned counsel for the
Respondent Nos.1 and 2.
Issue notice of I.A.No.9305/2016, an application for
condonation of delay to the Respondents.
Today Shri Malpani appearing on instructions of
Respondent Nos.1 and 2 accepts notice and prays for ten
days' time to file reply.
Shri Dandwate is directed to supply copy of the
application to Shri Malpani.
Let process fee be paid for notice to Respondent No.3
within three days.
Record of the Labour Court be also called.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2948 of 2016.
26.04.2017:-
Shri L.C.Patne, learned counsel for the petitioner.
Shri Sudhanshu Vyas, learned Panel Lawyer for the
Respondent Nos.1 and 2/State.
Shri V.P.Khare, learned counsel for the Respondent
No.3.
None for the Respondent No.4.
Let the return be filed by the Respondent No.4
positively within four weeks.
List thereafter.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5943 of 2016.
26.04.2017:-
Shri L.C.Patne, learned counsel for the petitioner.
Shri Sudhanshu Vyas, learned Panel Lawyer for the
Respondents/State, prays for and is granted four weeks' time
to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8318 of 2016.
26.04.2017:-
Shri S.Patwa, learned counsel for the petitioner.
Service to the Respondents are awaited.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.34 of 2017.
26.04.2017:-
Parties through their counsel.
Service to the Respondent Nos.4 and 5 are awaited.
Counsel for the Respondent prays for and is granted
fifteen days' time to file reply.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.98 of 2017.
26.04.2017:-
Shri P.M.Jain, learned counsel for the appellant.
As prayed, list after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.123 of 2017.
26.04.2017:-
None for the petitioner.
Shri Pushyamitra Bhargava, learned counsel for the
Respondent No.4, on advance notice.
List this petition along with Conc. Nos.120 and 122 of
2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.136 of 2017.
26.04.2017:-
Shri R.K.Tiwari, learned counsel for the appellant.
Record of the Courts below be requisitioned.
List along with the records for admission.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.210 of 2017.
26.04.2017:-
Shri Palash Choudhary, learned counsel for the
appellant.
Record of the Courts below be requisitioned.
List along with the records for admission.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.215 of 2017.
26.04.2017:-
Shri Manish Manana, learned counsel for the
appellant.
List in the next week along with the record.
Office is directed to send the requisition by tomorrow.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.610 of 2017.
26.04.2017:-
Parties through their counsel.
Let reply be filed by the Respondents within four
weeks.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.894 of 2017.
26.04.2017:-
Shri Siddharth Jain, learned counsel for the petitioner.
Shri Sudhanshu Vyas, learned Panel Lawyer for the
Respondents/State.
As prayed by counsel for the petitioner, list after two
weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1175 of 2017.
26.04.2017:-
Shri Palash Choudhary, learned counsel for the
petitioners.
Shri Sudhanshu Vyas, learned Panel Lawyer for the
Respondent No.3/State.
Heard on I.A.No.1683/2017, an application for
dispensing with the filing of certified copy of the impugned
order.
As per the High Court Rules, certified copy is required
to be filed.
Counsel for the petitioners prays for and is granted two
weeks' time to file the certified copy of the impugned order.
List after two weeks.
IA No.1683/2017 stands disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.608 of 2011.
26.04.2017:-
None for the appellant.
Record perused.
Admit.
Respondents are represented through counsel,
therefore, no notice is necessary.
List for final hearing in due course.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.344 of 2012.
26.04.2017:-
Shri Ajay Kumar Kanthed, learned counsel for the
appellant.
Counsel for the appellant submits that the Respondent
No.3 is represented through counsel in three other pending
Misc. Appeal Nos.678, 679 and 708 of 2012.
List this appeal along with Misc. Appeal Nos.678, 679
and 708 of 2012.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6995 of 2014 (S).
26.04.2017:-
Parties through their counsel.
Let reply be filed by the Respondent within four
weeks.
List after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.730 of 2017.
25.04.2017:-
Shri Manuraj Singh, learned counsel for the petitioners.
Ms. ....................................., learned counsel for the
Respondents/NVDA.
Heard.
O R D E R
THE petitioners have filed the present petition being
aggrieved by order dated 07.01.2017 by which their order of
regularization dated 26.11.2016 has been cancelled and the
recovery has been ordered.
[2] Notices were issued in this writ petition and till the
next date of hearing, the Respondents were restrained from
making any recovery.
[3] Ms. ........................, learned counsel appearing on
behalf of the Respondents submits that now the Respondents
have issued a fresh order dated 25.03.2017 by which the
services of the petitioners have been classified as permanent
employee in place of daily rated employee.
[4] Since the petitioners have again been classified as
permanent employee, therefore, nothing survive in this writ
petition. The petition has rendered infructuous.
[5] Accordingly, this writ petition is dismissed as
having been rendered infructuous. However, it is made clear that
their shall be no recovery from the petitioners in pursuant to the
order dated 07.01.2017 (Annexure P/1).
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2701 of 2017.
25.04.2017:-
Shri S.S.P.Dhaliwal, learned counsel for the
petitioners.
Learned counsel has informed this Court that in Writ
Petition No.2552 of 2017 Co-ordinate Bench of this Court
has granted an interim order.
This Court has gone through the order dated
19.04.2017 passed in Writ Petition No.2552 of 2017.
Keeping in view the order passed in the aforesaid case,
the demolition activities pursuance to Annexure P/1 shall
remain stayed till the next date of hearing.
Issue notice to the Respondents on payment of process
fee within a week, failing which the writ petition shall stand
dismissed without reference to this Court.
Notice be made returnable within 2 weeks.
List the matter on 09.05.2017 along with Writ
Petition No.2552 of 2017.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6185 of 2016.
25.04.2017:-
Shri C.L.Yadav, learned Senior Counsel with Shri
S.S.Thakur, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.1/State.
Shri Shashank Sharma, learned counsel for the
Respondent No.2.
Shri Kamal Airen, learned counsel for the Respondent
No.3.
As prayed, list in the week commencing 15th May,
2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6716 of 2016.
25.04.2017:-
None for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.1/State.
Let SPC be issued to the petitioner for his appearance
before this Court on 17.05.2017.
Meanwhile, the Respondents may file the reply.
List on 17.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6901 of 2016.
25.04.2017:-
Parties through their counsel.
Learned Govt. Advocate prays for and is granted four
weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7379 of 2016.
25.04.2017:-
Shri Padmnabh Saxena, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, prays for and is granted four weeks' time
to file reply
List after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7835 of 2016.
25.04.2017:-
Parties through their counsel.
Let the reply be filed by the Respondents within two
weeks.
List immediately thereafter.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8391 of 2016.
25.04.2017:-
Parties through their counsel.
Counsel for the Respondents prays for and is granted
two weeks' time to file reply
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8509 of 2016.
25.04.2017:-
Parties through their counsel.
Counsel for the petitioner prays for four weeks' time to
file rejoinder.
Time is granted.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8559 of 2016.
25.04.2017:-
Parties through their counsel.
As prayed by counsel for the petitioner, list after
Summer Vacation.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.883 of 2017.
25.04.2017:-
Parties through their counsel.
Counsel for the Respondents prays for and is granted
four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1214 of 2017.
25.04.2017:-
Parties through their counsel.
Counsel for the Respondents prays for and is granted
four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1239 of 2017.
25.04.2017:-
Shri Jitendra Verma, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Shri Verma submits that today he has filed the
rejoinder.
The same may be taken on record.
List in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.492 of 2013.
25.04.2017:-
Parties through their counsel.
As prayed, list on 04.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.500 of 2006.
25.04.2017:-
Shri S.S.Garg, learned counsel for the appellant.
Service to the proposed Respondents are awaited.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.1523 of 2013.
25.04.2017:-
Shri Ashish Jaiswal, learned counsel for the appellant.
Shri Atul Jaiswal, learned counsel for the Respondent
No.7.
Considering the averments made in application [IA
No.852/2017], the same is allowed.
Process fee for preparation of HUMDUST notice be
paid within seven days.
IA No.852/2017 stands disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.1743 of 2013.
25.04.2017:-
Ms. Nidhi Bohara, learned counsel for the appellants.
None for the Respondent.
List after a week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.1809 of 2013.
25.04.2017:-
None for the parties.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.341 of 2015.
25.04.2017:-
None for the appellants.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.5/State.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1191 of 2015.
25.04.2017:-
Smt. Anjali Jamkherkar, learned counsel for the
petitioner.
Counsel for the petitioner prays for two weeks' time to
pay process fee for unserved Respondents.
Time granted.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.596 of 2016.
25.04.2017:-
Parties through their counsel.
Counsel for the appellant prays for and is granted four
weeks' time to argue the matter.
List after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.260 of 2017.
25.04.2017:-
Shri Rahul Verma, learned counsel for the appellant.
Service report is awaited.
List after service is effected along with Misc. Appeal
No.259 of 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2710 of 2017.
25.04.2017:-
Shri Manoj Manav, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy is directed to take
instructions in the matter.
List on 02.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.731 of 2017.
25.04.2017:-
Ms. Anushree Kaushik, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 and 2/State, on advance copy.
Issue notice to the Respondents on payment of process
fee within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2709 of 2017.
25.04.2017:-
Shri L.C.Patne, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Issue notice to the Respondents on payment of process
fee within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No. of 201.
25.04.2017:-
Ms. Nidhi Bohara, learned counsel for the petitioners.
Shri H. Wadnerkar, learned counsel for the
Respondents.
As prayed by counsel for the petitioners, list in the
next week.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2036 of 2012 (O).
25.04.2017:-
Shri A.K.Sethi, learned Senior Counsel with Viraj
Godha, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.1/State.
Shri A.K.Chitale, learned Senior Counsel with Shri
Vishal Lashkari, learned counsel for the Respondent No.2.
With the consent of parties, list on 02.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.476 of 2017.
25.04.2017:-
None for the petitioner.
Shri P.S.Kushwaha, learned counsel for the
Respondent.
The present petition is filed against the order dated
18.01.2017 passed in Civil Suit No.1-B/2016.
Counsel for the Respondent submits that the learned
Civil Judge, Class-II, Bagli, District Dewas has passed the
judgment and decree in the said suit on 25.02.2017.
Therefore, the present writ petition has rendered infructuous.
In view of the above, the present petition is dismissed
as infructuous.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1662 of 2017.
24.04.2017:-
Shri Vivek Singh, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by order dated 18.11.2016 passed by
Collector, Dhar under Section 47-A (2) of the M. P. Excise
Act, 1915 (Amended 2000) by which the Bolero Jeep
bearing registration number MP-09/TA-2962 has been
confiscated.
[2] The petitioner is an owner of Bolero Jeep bearing
registration number MP-09/TA-2692 which was seized
along with 306 bulk liters of country made liquor. The
petitioner was prosecuted under Section 34 (1) (a) (2) of M.
P. Excise Act. Vide judgment dated 21.11.2013, the
petitioner was acquitted in the said criminal case. The said
order has attained finality as the State of Madhya Pradesh
has not filed any criminal appeal. The case of the petitioner
is that despite acquittal in a criminal case, the Collector has
wrongly passed the order of confiscation of his vehicle.
[3] This Court has directed the Govt. Advocate to
seek instructions. Shri Rohit Mangal, learned Govt.
Advocate on instructions submits that the impugned order is
appealable under Section 47-B of the M. P. Excise Act,
therefore, instead of entertaining this petition, the petition be
dismissed with a liberty to the petitioner to file an appeal.
[4] The issue involved in this petition has already
been considered and decided by this Court in the case of
Sheikh Kaleem v/s State of M.P. [Misc. Criminal Case
No.1296 of 2015 - decided on 13.07.2015] which has been
followed by this Court in the case of Santosh Jaiswal v/s
State of M.P. [Writ Petition No.1037 of 2016 - decided on
13.05.2016]. The operative portion of the order is
reproduced below :-
"Having heard the learned counsel for parties and on
the perusal of the record, it is noticed that the petitioner was
tried for offence u/S. 34 (1-A)/2 of M.P. Excise Act on the
allegation of transporting 204.3 bulk ltr of illicit liquor. The
Chief Judicial Magistrate in the criminal case No.141/2014 by
the judgment dated 30th January, 2014 had acquitted the
petitioner of the said offence on reading to the conclusion that
the offence against the petitioner is not proved beyond doubt.
Mean while the proceedings were initiated against the
petitioner for confiscation of the vehicle used in the commission
of the said offence. The petitioner had appeared before the
Collector and had produced a certified copy of the order of
acquittal yet the Collector by order dated 22.09.2015 has
confiscated the petitioner's vehicle u/S.47-A (2) of the Act.
While passing the impugned order, the Collector has not
considered the effect of the acquittal of the petitioner in the
alleged offence. Sec. 47 (A-2) of the Act relating to confiscation
of the vehicle empowers the Collector to seize and confiscate
the vehicle on being satisfied that the offence covered by
Clause (a) or (b) of sub-section (1) of Sec. 34 has been
committed. In the present case, the impugned order does not
reflect that the Collector had applied his mind on the said
aspect of the matter and has reached to the conclusion that the
said offence was committed. The order of the Collector
otherwise also cannot be sustained since the petitioner was
already acquitted of the said offence by the competent court.
Learned counsel for petitioner has rightly placed
reliance upon the order of this court dated 13/7/2015 passed in
M.Cr.C. No.1296/2015 in the matter of Sheikh Kaleem Vs.
State of MP wherein the same issue was involved and this court
on reaching to the conclusion that the accused persons were
already acquitted by the competent court had set aside the
order of confiscation of the vehicle.
In the circumstances which are noted above, the
impugned order of confiscation of the vehicle dated 22/9/2015
passed by the Collector cannot be sustained and is hereby set
aside.
The writ petition is accordingly disposed of."
[5] In view of the law laid down by this Court, the
present petition is also allowed. The order passed by the
Collector dated 18.11.2016 is hereby set-aside.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.3644 of 2016.
24.04.2017:-
Shri Sanjay Sharma, learned counsel for the
petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 to 5/State.
At the request of learned counsel for the petitioners,
list after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.2264 of 2016.
24.04.2017:-
Shri M.H.Jindal, learned counsel for the appellant.
Shri Manish Jain, learned counsel for the Respondent
No.1/Claimant.
There is a delay in filing of appeal. Shri Manish Jain
prays for time to file reply of I.A.No.9765/2016. The
Respondent No.1 has also filed an application [I.A.
No.1240/2017] for vacating stay/modifying ex-parte stay
order.
Counsel for the appellant prays for time to file reply of
I.A.No.1240/2017.
Prayer is allowed.
List after two weeks.
In the meanwhile, record of the Tribunal be also called.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.955 of 2016.
24.04.2017:-
None one appeared on 21.02.2017 and 24.03.2017 on
behalf of the appellant. Even today also no one is appeared
on behalf of the appellant.
Hence, the present appeal is dismissed for want of
prosecution.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5546 of 2017.
24.04.2017:-
Shri B.I.Mehta, learned Senior Counsel with Shri
Kapil Mahant, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.1/State.
Shri R.B.Singh, learned counsel for the Respondent
No.2.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by letters dated 02.08.2016 (Annexures P/1
& P/1-A) by which the Additional Tehsildar has directed
Revenue Inspector, Circle-2 and Circle-1 to take the
possession of Survey No.226/9 area 1.321 hectare from the
petitioner in compliance of order dated 15.10.2015 passed
by the Sub Divisional Officer, Indore.
[2] It is not disputed that the validity of the said
order is under challenge by way of revision before the Board
of Revenue filed by the petitioner as well as by the
Respondent No.2. When the matter is pending before the
Revenue Court, then such a direction ought not to have been
issued by the Tehsildar specially in Jansunwai. If there were
no allegations of disturbance of peace in concerned, then
proceedings under Section 45 could have been initiated but
that has not been done so far.
[3] Therefore, the present petition is disposed of by
setting-aside both the letters dated 02.08.2016 (Annexures
P/1 & P/1-A) with a request to the Board of Revenue to
decide the pending Revision No.1629/PBR/2016 within a
period of two months from today. By order dated
19.08.2016 this Court has stayed the effect of letters dated
02.08.2016. Therefore, for the period of two months or till
final disposal by the Board of Revenue, parties are directed
to maintain status-quo in respect of possession.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.136 of 2016.
24.04.2017:-
Shri Ajay Jain, learned counsel for the appellant.
As prayed by counsel for the appellant, list after two
weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.450 of 2016.
24.04.2017:-
Shri Prakash Verma, learned counsel for the appellant.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.2/State.
Counsel for the appellant prays for two weeks' time to
go through the record.
Time is granted.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.3393 of 2016.
24.04.2017:-
Parties through their counsel.
Counsel for the Respondents prays for and is granted
four weeks' time to file reply.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7665 of 2016.
24.04.2017:-
Parties through their counsel.
As prayed by learned counsel for the petitioner, list in
the first week of July,2017.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.12 of 2017.
24.04.2017:-
Shri D.S.Panwar, learned counsel for the appellants.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.2/State.
As prayed by counsel for the appellants, list after
summer vacation.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.168 of 2017.
24.04.2017:-
Shri Rakesh Pal, learned counsel for the petitioner.
Counsel for the petitioner is directed to supply copy of
the petition to Shri G.S.Patwardhan who represents
contemnors in other contempt petitions in this High Court.
List in the third week of June, 2017.
Office is directed to reflect the name of Shri
G.S.Patwardhan in the cause-list.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2596 of 2017.
24.04.2017:-
Shri Vaibhav Jain, learned counsel for the petitioner.
Shri R.C.Sinhal, learned counsel for the
Respondents/Bank, on advance copy. Today he is seeking
permission to file the reply.
Permission Granted.
Shri Jain pointed out that in Writ Petition No.1586 of
2017 the Co-ordinate Bench of this Court has directed to list
this petition along with Writ Petition No.1586 of 2017. The
said petition is filed by the Respondent No.5 of this petition.
Office is directed to comply the order dated
19.04.2017 passed in Writ Petition No.1586 of 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2603 of 2017 (S).
21.04.2017:-
Shri U.S.Verma, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
With the consent of parties, heard finally.
O R D E R
THE petitioner before this Court has filed this
present petition claiming benefit of Iind Kramonnati by
virtue of executive instructions issued by State Government
dated 21.03.1983 and 19.04.1999.
[2] The contention of learned counsel for the
petitioner is that his case is squarely covered by judgment
delivered in Writ Petition No.6773 of 2006 (S) in the case of
Smt. Prerna Khoranne v/s State of M.P. and others passed
on 26.04.2007.
[3] Learned Government Advocate has fairly stated
before this Court that the matter is squarely covered by the
judgment delivbered in the case of Smt. Prerna Khoranne
(supra), wherein in identical circumstances the teachers of
Education Department or Tribal Welfare Department were
held entitled to receive the benefits of Iind Kramonnati
under the policy dated 21.03.1983 and 19.04.1999 and
02.11.2001.
[4] Resultantly, keeping in view the judgment
delivered in the case of Smt. Prerna Khoranne (supra), with
the consent of the parties, the present writ petition is
disposed of with the following directions :-
(i) Clause-3 of Policy dated 03.09.2005 fixing the
cut of date 01.08.2003 to grant the benefit of second
kramonnati to the teachers is arbitrary,
discriminatory, hence quashed.
(ii) Teachers of Education Department or Tribal
Welfare Department are held entitled to get the
benefit of Kramonnati under the Policy dated
21.03.1983, 19.04.1999 and 02.11.2001 in accordance
with the terms and conditions as specified therein.
(iii) The Respondents are directed to consider the
case of the petitioner keeping in view executive
instructions dated 21.03.1983, 19.04.1999 and
02.11.2001 and settle his claim within the period of
six months from today and the arrears thereof be
also released within the aforesaid period.
With the aforesaid directions, the petition is disposed
of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2586 of 2017.
21.04.2017:-
Shri S.I.Ansari, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
With the consent of parties, heard finally.
O R D E R
THE petitioner has filed the present petition
claiming regular pay scale from the date of initial
appointment by virtue of judgment delivered by M. P. State
Administrative Tribunal in the case of Madhukant Yadu
and others v/s State of M.P., in O.A.No.2745 of 1989 dated
24.08.1992 as has been granted in the cases of other
identically placed employees.
[2] Learned counsel for the petitioner has also stated
before this Court that the aforesaid judgment has been
affirmed by the apex Court in SLP No.6892 of 1993. The
petitioner also contended that this petition be disposed of in
terms of the order dated 05.05.2004 passed in Writ Petition
No.561 of 2004 [Smt. Pushpa Mishra v/s State of M.P.]
wherein the Respondents have been directed to pass a
reasoned and cogent order.
[3] Keeping in view the judgment delivered in the
case of Madhukant Yadu (supra), learned counsel for the
petitioner has prayed for disposal of the representation.
[4] Learned Govt. Advocate for the Respondents/
State has fairly stated before this Court that the controversy
involved in the present case is covered by the judgment
delivered in the case of Madhukant Yadu (supra) and he has
not objected to the reasonable prayer made by the counsel
for the petitioner.
[5] Resultantly, without commenting upon merits of
the case, the present writ petition stands disposed of with a
direction to the Respondents to consider the petitioner's
claim by passing a reasoned and cogent order and if the
petitioner is entitled for the benefit, the same shall be
extended to him, as has been extended in other identical
matters. The aforesaid exercise shall be completed within a
period of four months from the date of receipt of certified
copy of this order.
[6] With the aforesaid directions, the writ petition
stands disposed of.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2045 of 2017.
20.04.2017:-
Shri D.D.Vyas, learned Senior Counsel with Shri Ajay
Vyas, learned counsel for the petitioner.
Shri Rishi Tiwari, learned counsel for the Respondent
No.1/IMC.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.2/State, on advance copy.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
seeking direction that the Respondents be restrained to
remove the Sanchi Milk Parlour belonging to the petitioner
illegally without any notice.
[2] That the petitioner was granted permission to run
the Sanchi Milk Parlour vide permission letter dated
01.03.1994 issued by Indore Dugdh Sangh Sahakari
Maryadit, Talawali Chanda Mangliya, Indore. He obtained
necessary permission from Municipal Corporation. He has
installed his Milk Parlour near North Mandir, In front of
Nobel Hospital, Indore over the area 8 x 8 sq.ft. and entire
livelihood depend on income from the said parlour. Since
2003-2004 Municipal Corporation is charging tax from him
by giving licence. Vide Licence dated 02.06.2016, he was
granted permission to run the parlour from 01.04.2016 to
31.03.2017.
[3] Vide letter dated 21.03.1994, the Municipal
Corporation has granted permission to Indore Dugdh Sangh
Sahakari Maryadit, Talawali Chanda Mangliya, Indore to
install the Milk Booth Parlour with a condition that if there
is any obstruction in the traffic, the same shall be removed
without notice. The petitioner has obtained the telephone
connection and electricity connection therein and he is
regularly paying the taxes. That on 23.03.2017 the
employees of Municipal Corporation came to his shop and
started throwing the goods and directed him to remove the
shop forthwith. The petitioner filed a complaint to the
police station. Hence, the present petition was filed.
[4] Vide order dated 03.04.2017, the notices were
issued and by way of interim relief, the Respondents were
directed to maintain the status-quo.
[5] After notice, the Respondent No.1 filed the return
specifically denying that no such incident has taken place on
23.03.2017. The employees of Municipal Corporation
demanded the documents from the petitioner pertaining to
his shop and the petitioner himself has agreed to remove his
shop from the foot-path/Gumti. Instead of producing the
documents and removing the shop, the he approached this
Court and obtain the interim relief. The petitioner has no
authority to run the Gumti over the foot-path. The petitioner
has wrongly shifted the location of the Gumti and because
of the said location, there is an obstruction in the traffic. The
petitioner has also made encroachment and the Respondents
are not adopted pick and choose method but taking action
against all the encroachers and Gumti owners who have
made illegal construction over the foot-path. Along with the
return, Respondent No.1 filed the copies of orders passed in
Writ Petition No.8853 of 2012 and Writ Petition No.7062 of
2014. He has also placed reliance on the order in the case of
Akhilendu Arjaria v/s Banarasidas, reported in 1997 (1)
MPLJ 376.
[6] I have heard learned counsel for the parties.
[7] The petitioner has alleged that on 23.03.2017 the
employees of Municipal Corporation approached his shop
and started throwing the goods. This fact was specifically
denied by the Corporation in their return. But the stand of
Corporation is that the petitioner has illegally installed the
Gumti over the foot-path and which is causing hindrance in
the traffic. The petitioner has been granted licence by the
Municipal Corporation to run the Sanchi Milk Parlour and
the same has been renewed from 01.04.2017 to 31.03.2018.
The copy of the licence is filed along with the rejoinder.
Under Section 322 of the M. P. Municipal Corporation Act,
1956, no person has right to create obstruction in the street
and the Corporation has right to remove such encroachment
in a public place. Even under Section 320 of the M. P.
Municipal Corporation Act, 1956 the Corporation or the
Commissioner have no right to permit the use of public
street, even the foot-path is a part of public street. The
Corporation is having power under Section 366 of the M. P.
Municipal Corporation Act, 1956 to give a permission and
licence for doing any act under the Act and the Rules or bye-
laws made thereunder. While granting such permission and
licence, the Commissioner shall specify the date of the
grant, the purpose and the period, the restrictions and the
conditions etc. Not only to the petitioner but the Corporation
has issued the licence and permission to various other
persons to install and run the Sanchi Milk Parlour. But the
fact remains that the owner of such Milk Parlour hav no
right to use the public street or foot-path to do their
business.
[8] Since in the present case no notice has been
issued to the petitioner till date and the petitioner has
approached to this Court with the allegation that the
employees of the Municipal Corporation came to his shop
for removal of Milk Parlour.
[9] The present petition is disposed of with the
direction to the Municipal Corporation to issue a show-
cause notice to the petitioner specifying the violation and
the petitioner is directed to file a response to the said notice
along with the all necessary documents and thereafter the
Respondent Municipal Corporation shall consider and
decide the same as early as possible. Since no notice has
been issued in writing so far, therefore, it is expected from
the Municipal Corporation that before taking any action,
they shall not take any action against the petitioner.
[10] With the aforesaid directions, the petition stands
disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2611 of 2017.
21.04.2017:-
Shri Shailendra Shrivastava, learned counsel for the
petitioner.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by order dated 07.04.2017 by which the
Trial Court has rejected the application under Order VI Rule
17 of CPC for amendment in the written statement and
application under Order VIII Rule 1 (3) of CPC for taking
relevant document on record.
[2] The Respondent No.1/plaintiff has filed the suit
for decree of eviction and compensation for the Northern
portion of Plot No.3664, Sector-E, Sudama Nagar, Indore
with a constructed room therein. 4 years back he let out a
shop on his portion to Respondent Nos.2 and 3. He has
alleged that the Respondent Nos.2 and 3 have illegally sub-
let the said shop to the present petitioner, who is real brother
of Respondent No.1/plaintiff.
[3] The petitioner filed the written statement denying
the allegations of sub-tenancy and stated that his wife Smt.
Meera Mata has purchased the Southern portion of the said
property and the plaintiff has purchased the Northern
portion of the property. The said property was never let out
to the Respondent Nos.2 and 3. The plaintiff has not
impleaded Smt. Meera Mata as defendant in the suit.
[4] On the basis of the pleadings, the Trial Court has
framed 9 issues for adjudication.
[5] At the stage of plaintiff's evidence, the present
petitioner filed the application seeking amendment in the
written statement on the ground that on 06.02.2017 he found
2 documents in his home and one of which is a receipt dated
16.04.2016 executed by the Respondent No.2 in favour of
his wife and second is the document in respect of domestic
gas consumer card. In both the documents, the address of
Smt. Meera Mata is mentioned as "3663, Sector-E, Sudama
Nagar, Indore". He has filed an application under Order VIII
Rule 1 (3) of CPC for taking these documents on record.
The aforesaid applications were opposed by the plaintiff and
the learned Trial Court vide impugned order dated
07.04.2017 has rejected the applications. Hence, the present
petition.
[6] I have heard learned counsel for the petitioner.
[7] The plaintiff's evidence has been concluded on
06.10.2016 and the case is fixed for evidence of defendant
No.3 and he is avoiding to give the evidence. The facts
which he wants to bring on record by way of amendment
were in the knowledge of defendant from the very
beginning. He has failed to prove the requirement of proviso
to Rule 17 of CPC. Therefore, the Trial Court has not
committed error while rejecting the applications. Since the
pleadings in respect of the document filed along with the
application under Order VIII Rule 1 (3) of CPC has been
rejected, therefore, the Trial Court has rightly rejected the
application under Order VIII Rule 1 (3) of CPC. The High
Court has already directed for early disposal of the suit. The
defendant No.3 has been given time on 09.11.2016,
09.12.2016, 27.01.2017 and 07.02.2017 for evidence. It
appears that in order to avoid evidence he has filed the
present application to cause delay in early disposal of the
suit.
[8] Even, the scope of Article 227 of the Constitution
of India in exercising jurisdiction is very limited in respect
of interfering with the order of subordinate Court. Hon'ble
Supreme Court in the case of Shalini Shyam Shetty and
another v/s Rajendra Shankar Patil, reported in (2010) 8
SCC 329, wherein it has held that :-
"The scope of interference under Article 227 of the
Constitution is limited. If order is shown to be passed by a
Court having no jurisdiction, it suffers from manifest
procedural impropriety or perversity, interference can be
made. Interference is made to ensure that Courts below act
within the bounds of their authority. Another view is possible,
is not a ground for interference. Interference can be made
sparingly for the said purpose and not for correcting error of
facts and law in a routine manner."
[9] In view of the aforesaid observations, I do not
find any infirmity or illegality in the order. The Trial Court
has rightly exercised his discretion. Hence, the petition is
fails and is hereby dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5846 of 2015.
19.04.2017:-
Smt. Jyoti Tiwari, learned counsel for the petitioners.
Shri B.S.Gandhi, learned counsel for the Respondent
Nos.1 to 8.
Heard on the question of admission.
O R D E R
THIS petition has been filed by the defendants
being aggrieved by order dated 06.08.2015, by which
application under Order VII Rule 14 of CPC filed by the
Respondents/plaintiffs has been allowed.
[2] The Respondents/plaintiffs filed the Civil Suit
No.6-A/2013 in which they filed an application under Order
VII Rule 14 of CPC for taking certain documents on record.
The petitioners filed the reply opposing the said application
and vide order dated 06.08.2015 the said application has
been allowed. Hence, the present petition.
[3] The defendants have challenged the impugned
order on the ground that earlier the Trial Court has already
rejected the same applications vide order dated 10.10.2014
and 15.12.2014, therefore, the second application is barred
by principle of res judicata and not maintainable.
[4] I have heard Smt. Jyoti Tiwari, learned counsel
on behalf of the petitioners and Shri B.S.Gandhi, learned
counsel on behalf of the Respondent Nos.1 to 8 and perused
the order.
[5] That in the subsequent application, the plaintiffs
have specifically stated that earlier application was rejected
as the plaintiffs themselves did not press the same. The
defendants have objected that the copies supplied to them
are not legible, therefore, the aforesaid application was
withdrawn and filed another application. The learned Trial
Court while passing the impugned order has held that the
suit is at the stage of evidence of plaintiffs and filing of
document is one thing and proving the same is another
thing. The admissibility of the document would be decided
at the time of evidence. The contents of document cannot be
adjudicated at this stage. The reasoning given by the Trial
Court while allowing the application is just and proper.
[6] Even, the scope of Article 227 of the Constitution
of India in exercising jurisdiction is very limited in respect
of interfering with the order of subordinate Court. Hon'ble
Supreme Court in the case of Shalini Shyam Shetty and
another v/s Rajendra Shankar Patil, reported in (2010) 8
SCC 329, wherein it has held that :-
"The scope of interference under Article 227 of the
Constitution is limited. If order is shown to be passed by a
Court having no jurisdiction, it suffers from manifest
procedural impropriety or perversity, interference can be
made. Interference is made to ensure that Courts below act
within the bounds of their authority. Another view is possible,
is not a ground for interference. Interference can be made
sparingly for the said purpose and not for correcting error of
facts and law in a routine manner."
[] In view of the aforesaid observations, I do not
find any infirmity or illegality in the order. Hence, the
petition is fails and is hereby dismissed.
[ VIVEK RUSIA ]
(AKS) JUDGE
Writ Petition No.6842 of 2016.
19.04.2017:-
Shri H.C.Tripathi, learned counsel for the petitioner.
Shri Rishi Agrawal, learned counsel for the
Respondents.
Heard on the question of admission.
O R D E R
THE plaintiff has filed the present petition being
aggrieved by the order dated 22.07.2016 passed by 5th Civil
Judge, Class-II, Ratlam.
[2] The plaintiff has filed the suit for declaration and
permanent injunction along with an application under Order
XXXIX Rule 1 & 2 of CPC. After notice, instead of filing
written-statement, the defendants filed an application under
Order VII Rule 11 of CPC that the civil suit has not been
properly valued and the improper court-fees has been paid.
The learned Trial Court vide order dated 22.07.2016 has
allowed the application. Hence, the present petition.
[3] I have learned counsel for the parties.
[4] The plaintiff has filed the suit for permanent
injunction and declaration seeking relief that the decree of
declaration to the effect be issued that the defendants have
no right to flow the water and not to collect the said water
near his house by digging the whole. They be further
restrained by way of permanent injunction. He has valued
the suit of Rs.55,000-00. The plaintiff has not claimed that
the defendants who are collecting the water over the land
belonging to him. He has not sought declaration about his
ownership. He is seeking relief of a permanent injunction.
It is not clear on what basis he has valued the suit at
Rs.55,000-00. He has not alleged that the defendants have
illegally encroached over his land and he has not sought the
relief of possession. When he is not seeking declaration of
title, relief of possession, then the plaintiff is not liable to
pay ad volerum court-fees.
[5] In view of the above, the impugned order is set-
aside. The plaintiff is directed to properly valued the suit
and pay the fixed court-fees.
[6] With the aforesaid, the petition is allowed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1631 of 2017.
21.04.2017:-
Shri M.S.Solanki, learned counsel for the petitioner.
Issue notice to the Respondents on payment of process
fee within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.745 of 2006.
06.04.2017:-
Shri Kamal Airen, learned counsel for the appellants.
Shri Himanshu Joshi, learned counsel for the
Respondent No.1.
Heard on the question of admission.
O R D E R
THIS second appeal is filed by the
tenant/defendants against the judgment and decree dated
09.12.2005 passed by Fifth Civil Judge, Class-II, Indore and
judgment dated 08.08.2006 passed by 10th Additional
District Judge, Indore by which the decree of eviction has
been passed against them.
[2] The Respondent No.1 being a Charitable
Religious Trust is the owner of shop situated in ground floor
of House No.30. Khatipura Main Road, Indore which was
given on rent to Late Ramsingh for non residential purpose.
After the death of Ram Singh, Narayan Singh has came into
the possession of said shop. The tenancy was monthly at the
rate of Rs.85-00 per month for non residential purpose. The
defendant has paid the rent by 31.05.1988 and thereafter
stopped paying the rent and since last six months Narayan
Singh - defendant No.1 is not using the shop. Therefore,
the plaintiff has issued a notice on 21.01.1989 demanding
arrears of rent and eviction from the said shop. When the
defendants did not vacate the shop, the plaintiff - Trust
instituted a suit on 12.06.1989 through Managing Trustee -
Prahlad Das Singi. In the plaint, it is alleged that Narayan
Singh has vacated the shop and sub-leased to Sohanlal and
who is not paying the rent to the plaintiff, therefore, a decree
of eviction, arrears of rent and mesne profit be granted.
[3] After notice, the defendant No.1 - Narayan
Singh filed the written-statement submitting that he became
tenant after the death of his elder brother Ram Singh and he
used to pay the rent but the Trustee has refused to accept the
same.
[4] Defendant Nos.2 and 3 filed the written
statement submitting that Narayan Singh was never into the
possession of suit shop and Late Ram Singh has given the
shop to them by executing a Will dated 13.08.1987 and
since then they are in possession. They sent rent by way of
money order to the Trust but the Office Bearer of the Trust
has refused to accept the rent. Therefore, up to 31.07.1990
they have deposited the rent into the Court. During the
pendency of the suit, Sohanlal has expired and in his place
his legal heirs - Mahesh, Om Prakash and Chandrakala were
impleaded as defendants. They filed a separate written
statement stating that the Registrar Public Trust has initiated
proceedings under Section 26 of the M. P. Public Trusts Act,
1951 and the suit was filed before District Judge, Indore in
which judgment was passed against the Trust to the effect
that they are not properly managing the Trust. Therefore,
they are not entitled for decree.
[5] On the basis of pleadings, the Trial court
has framed as many as 10 issues for adjudication.
[6] By way of evidence, the plaintiff examined
Prahlad Das Singi as PW-1 who is the Managing Trustee of
the Trust and filed Registration Certificate of the Trust dated
07.09.1964 (Ex.P/1) by which the Trust was registered by
the Registrar Public Trust; notice dated 20.01.1989 (Ex.P/2)
and minutes of the meeting by which Prahlad Das Singi was
authorized to file the present suit as Ex.P/3. By way of
defence, the defendants examined Om Prakash as DW-1 and
got exhibited 8 documents as Exs.D/1 to D/8.
[7] The learned Trial Court has recorded the
finding on all issues in favour of the plaintiff. Issue No.6
was framed that w.e.f. 07.09.1989 the provisions of M. P.
Accommodation Control Act, 1961 has been made
applicable to the Religious and Charitable Trust. The suit
was filed on 12.06.1989. Therefore, the present suit is not
maintainable. The plaintiff is not entitled for decree of
eviction under the provisions of M. P. Accommodation
Control Act, 1961. The Trial Court has decided the issue
that the suit for eviction under the provisions of Transfer of
Property Act, 1882 was maintainable and the plaintiff has
issued notice under Section 106 of the Transfer of Property
Act, 1882 which has been proved, therefore, the suit was
maintainable. By judgment and decree dated 09.12.2005,
the defendants were directed to hand over the vacant
possession of the suit Shop No.30, Khatipura Main Road,
Indore to the plaintiff within a period of two months along
with the arrears of rent from 01.06.1988 till handing over
the possession.
[8] Being aggrieved by the aforesaid eviction
judgment and decree, defendant Nos.2 and 3 through legal
heirs filed the first appeal on the ground that there was a
collusion between the plaintiff and Narayan Singh to obtain
the decree of ejectment. Narayan Singh was never into the
possession and the present appellants are in possession by
virtue of Will dated 13.08.1987. It is further pleaded that
they were ready to pay the rent but the Office Bearers of the
Trust were not accepting the rent. No notice was sent to
them under Section 106 of the Transfer of Property Act,
1882, therefore, the suit was liable to be dismissed. The
Managing Trustee - Prahlad Das Singi was not authorized to
file the suit. All Trustees ought to have been joined as a
plaintiff along with the Trust. Vide judgment dated
08.08.2006, the first appellate Court has dismissed the
appeal. Hence, the present second appeal before this court.
[9] The present second appeal has been filed on
the ground that the Public Trust was not a juristic person.
The Managing Trustee alone cannot file the suit in absence
of the Trustees. No decree can be passed against the
appellants when they were not served with the notice under
Section 106 read with Section 111 of the Transfer of
Property Act, 1882.
[10] The appellants have proposed the following
substantial questions of law in this appeal :-
"(1) Whether the judgment and decree appealed
against of the Courts below are illegal having been passed in a
suit of the Respondent/plaintiff who was not authorised to file
the suit ?
(2) Whether Courts below erred in law in not
dismissing the suit on the sole legal ground that the Public
Trust being not the juristic person, it was not maintainable in
law by one person only claiming himself to be Managing
Trustee and in the absence of the other co-trustees or proof of
their authority in favour of the alleged Managing Trustee ?
(3) Whether the Courts below perverted themselves
in law in not holding the appellants as lawfully inducted
tenants and their tenancy having not been terminated u/s 106
read with Section 111 of the Transfer of Property Act ?
(4) Whether the Courts below erred in law in
holding that the Will Ex.D/8 was not duly signed ?
(5) Whether the lower appellate court was wrong in
law in enhancing the rate of mesne profits from Rs.85/- to
Rs.1,000/- even not claimed by the plaintiff/respondent ?"
[11] The appellants have filed an application
[I.A.No.7051/2011] under Order VI Rule 17 of CPC
seeking amendment in the written statement. The appellants
have sought the amendment on the ground that the Registrar
Public Trust has passed the order dated 05.08.2002
regarding the functioning of the Trust. The Registrar has
passed the order of appointing Receiver and send the matter
to the District Court. Therefore, Trust is not in existence
and against the order of District Judge, first appeal is
pending before this Court. Therefore, the plaintiff had no
right to file the suit.
[12] The Registrar has passed the order on
05.08.2002 i.e. much prior to the judgment and decree
passed on 09.12.2005. In the written statement the legal
heirs of Sohanlal has already taken a specific ground
regarding pendency of the proceedings before the Registrar
under Section 26 of the M. P. Public Trusts act, 1951. They
have also not filed any application under Order XLI Rule 27
of CPC before the first appellate Court. Therefore, at this
stage such an application seeking amendment in the written
statement cannot be allowed. Hence, the same is rejected.
[13] I have heard Shri Kamal Airen, learned
counsel for the appellants and Shri Himanshu Joshi, learned
counsel for the Respondent No.1.
[14] That vide Ex.P/3 the Trust in its meeting
dated 28.12.1988 has authorized Managing Trustee Shri
Prahlad Das Singi to give the notice and file the suit.
Therefore, Managing Trustees of the Trust has filed the suit
against the defendants. At the time of filing the suit, the
Trust was validly registered by Registrar Public Trust
(Ex.P/1). Admittedly the suit shop was given on rent to Ram
Singh who is elder brother of Narayan Singh. Ram Singh
has died, hence being brother Narayan Singh has became the
tenant of the Trust - plaintiff. Narayan Singh in his written
statement did not disputed this fact. The notice of
termination of tenancy (Ex.P/2) was issued to Narayan
Singh which was duly received by him on 20.01.1989. In the
notice it was alleged that you have inducted Sohanlal as sub-
tenant. PW-1 in his cross-examination has specifically
denied that he has never seen defendant Nos.2 and 3 doing
the business in the shop and the defendant Nos.2 and 3
never paid the rent to the Trust also.
[15] The defendants examined Om Prakash as
DW-1, who is son of defendant No.2 Sohanlal, who stated
that after the death of Ram Singh, he gave an application to
the Trust on 16.10.1987 that on the basis of the Will of Late
Ram Singh they have become the tenant. In the cross-
examination he has admitted that the plaintiff has never send
notice demanding the arrears of rent from them. Ram Singh
had no son and he adopted a girl and Ramesh was her
husband i.e. defendant No.3. In the present case the tenancy
of Ram Singh and the defendant No.1 in the suit premises is
not disputed. At the time of filing the suit the Trust was
duly registered and Prahlad Das Singi was the Managing
Trustee of the Trust and who was authorized to file the suit.
The suit was filed after giving notice of termination of
tenancy under Section 106 of the Transfer of Property Act,
1882 and not under the provisions of M. P. Accommodation
Control Act, 1961. The Registration was not cancelled by
the Registrar. The Trust is owner of the shop and competent
to file the civil suit. The original tenant of the shop was
Ramsingh who died issueless and after his death his younger
brother Narayan Singh become the tenant who was served
with the notice and termination of tenancy. The defendant
Nos.2 and 3 were claiming tenancy on the basis of the Will
dated 13.08.1987 but the said Will has not been proved
before the Court. Therefore, they cannot claim succession
by way of said Will.
[16] Learned counsel for the appellant has
emphasized on a issue that when the provisions of M. P.
Accommodation Control Act, 1961 has been made
applicable to the Trust before filing of the suit, then the suit
ought to have been filed under the provisions of M. P.
Accommodation Control Act, 1961. The learned Trial Court
as well as the first appellate Court has came to the
conclusion that the suit for eviction is maintainable after
terminating the tenancy under Section 106 of the Transfer of
Property Act, 1882.
[17] There is a concurrent finding recorded by
both the Courts against the defendants/tenant and admittedly
defendant Nos.2 and 3, who contested the suit by way of
appeal, were not the tenant in the suit accommodation. They
are claiming possession on the basis of Will dated
13.08.1987 which has not been proved. Therefore, I do not
find any substantial question of law involved in this appeal.
[18] The Supreme Court in the case of Kshitish
Chandra Bose v/s Commissioner of Ranchi, reported in
(1981) 2 SCC 103 has held that the High Court cannot
interfere with the conclusion of fact recorded by the Courts
below, however, erroneous the said conclusion may appear.
Para-11,12 & 13 of the aforesaid judgment is reproduced
herein below :-
"11. On a perusal of the first judgment of the High Court
we are satisfied that the High Court clearly exceeded its
jurisdiction under Section 100 in reversing pure concurrent
findings of fact given by the trial court and the then
appellate court both on the question of title and that of
adverse possession. In the case of Kharbuja Kuer v.
Jangbahadur Rai this Court held that the High Court had no
jurisdiction to entertain second appeal on findings of fact
even if it was erroneous. In this connection this Court
observed as follows:
"€œIt is settled law that the High Court has no
jurisdiction to entertain a second appeal on the ground
of erroneous finding of fact.
As the two courts approached the evidence from a
correct perspective and gave a concurrent finding of
fact, the High Court had no jurisdiction to interfere
with the said finding.
ۥ
To the same effect is another decision of this Court in the
case of R. Ramachandran Ayyar v. Ramalingam Chettiar
where the Court observed as follows:
"€œBut the High Court cannot interfere with the
conclusions of fact recorded by the lower appellate
court, however, erroneous the said conclusions may
appear to be to the High Court, because, as the Privy
Council observed, however, gross or inexcusable the
error may seem to be there is no jurisdiction under
section 100 to correct that error."
12. The same view was taken in two earlier decisions of
this Court in the cases of D.Pattabhiramaswamy v.
Hanymayya and Raruha Singh v. Achal Singh.
13. Thus, the High Court in this case had no jurisdiction
after reversing the concurrent findings of fact of the Courts
below on the question of adverse possession to remand the
case to the Additional Judicial Commissioner on the question
of title which also was concluded by the concurrent findings
of fact arrived at by the two courts as indicated above.
[19] In view of the above, second appeal is dismissed.
Since, the tenancy is very old and looking to the age of
appellants, three months' time is granted to vacate the suit
premises.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1061 of 2016.
18.04.2017:-
Shri Ramesh Sonvane, learned counsel for the
petitioners.
Shri Vishal Baheti, learned counsel for the Respondent
No.1.
None for the other Respondents, though served.
Heard on the question of admission.
O R D E R
THE petitioners have filed the present petition
being aggrieved by order dated 16.01.2016 by which
application under Order XIV Rule 5 of CPC filed by the
petitioners for framing additional issues has been rejected.
[2] The petitioner filed a suit for declaration and
permanent injunction against the Respondents. That the
petitioner made a partnership firm named "Jethmal
Bakhatawarmal" in the year 1970 which was duly
registered with the Registrar of Firm on 19.03.1960. The
said partnership firm purchased the suit land bearing Khasra
Nos.301, 302 and 303 ad-measuring 6.14 acres of land in
Village Pipliyahana, Tehsil and District Indore by way of
registered sale deed dated 27.11.1961. Out of the aforesaid
land, 3.07 acre of land has already been sold by the
partnership firm and the remaining land is in possession of
the plaintiff. Later on, the Firm was dissolved on
09.12.1970. The Respondent Nos.1 and 2 claimed their right
and share in the suit land and executed an illegal sale deed
dated 22.10.2012 in favour of the Respondent Nos.5 and 6,
without any authority, which gives cause of action to the
plaintiff to file a suit for declaration and permanent
injunction. Along with the suit, the plaintiff filed an
application under Order XXXIX Rule 1 & 2 of CPC
claiming temporary injunction.
[3] On the basis of pleadings between the parties, on
06.11.2015 the Trial Court has framed 10 issues for
adjudication which are as follows :-
" 01& D;k fookfnr d`f"k Hkwfe losZ dzekad 301] 302] 303
jDck 6-14 ,dM+ fLFkr xzke fiifY;kgkuk esa tsBey
c[rkojey Hkkxhnkjh QeZ ds LokfeRo dh laifRr gS\
02& D;k Lo0c[rkojey ds nsgkar mijkar fnukad
09-12-1970 ls mijksDr Hkkxhnkjh QeZ dk lekiu gks
x;k Fkk\
03& D;k mijksDr Hkkxhnkjh lekiu mijkar Hkkxhnkjh QeZ
dh leLr laifRr;ka ,oa nsunkfj;k oknh dks izkIr
gksdj dk oknh QeZ dk e= Lokeh gks x;k Fkk\
04& D;k mijksDr QeZ ds Hkkxhnkj /keZpanz lkaM dks QeZ
esa viuk fgLlk izkIr gks x;k gS \
05& D;k izfroknh dz &14 us izfroknh dzekad &6 o 7 ds
i{k esa fu"ikfnr fodz; i= fnukad 22-10-12 oknh ds
fgrksa ij ca/kddkjd ugha gS\
06& D;k oknh okafNr vk'k; dh LFkk;h fu"ks/kkKk ikus dk
vf/kdkjh gS \
07& D;k oknh us okn dk mfpr ewY;kadu fd;k gS \
08& D;k oknh us i;kZIr U;k;'kqYd vnk fd;k gS\
09& D;k bl okn dks lquus dh U;k;ky; dks /kuh;
vf/kdkfjrk gS \
10& lgk;rk ,oa okn O;; \"
[4] Thereafter the petitioners have filed an
application under Order XIV Rule 5 of CPC proposing some
additional issues mainly in respect of dissolution deed dated
29.01.1991 and whether the plaintiff is in possession or
not ? Though the Trial Court while rejecting the application
vide order dated 16.01.2016 has held that the controversy
involved in the proposes issues can be decided by way of
existing issues.
[5] I have heard learned counsel for the parties.
[6] Issue No. (d) proposed by the appellant is
whether the dissolution deed dated 29.01.1991 is a forged
and contrary to law ? and Issue No.(M+) is whether the
plaintiff is in possession or not because the defendant is
claiming right by virtue of sale-deed dated 22.10.2012, the
possession was handed over to them ? are based on the
written statement filed by the defendants.
[7] Under Order XIV Rule 1 of CPC while framing
issue, the Court is required to see averment made in plaint
and written statements. In considered opinion of this Court
the proposed Issue No. (d) and (M+) are relevant and
necessarily be framed keeping in view the controversy
between the parties.
[8] Therefore, the impugned order dated 16.01.2016
is set-aside to the extent of rejection of application in respect
of Issue No.(d) and (M+). The petition is partly allowed. The
Trial Court is directed to frame the additional issues (d) and
(M+).
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1337 of 2017.
19.04.2017:-
Shri Vinay Gandhi, learned counsel for the petitioners.
Shri Rishi Tiwari, learned counsel for the
Respondents/IMC.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by the notice dated 26.02.2017 issued by
the Municipal Corporation for demolishing the construction
made by the petitioners including the residential house.
[2] That the petitioner No.2 purchased the residential
house by way of registered sale-deed dated 17 th September,
1981 and since then he is residing with his family. Prior to
the execution of the sale-deed, they were residing in the said
house as tenant and they have not made any new
construction in the said house. The name of the petitioner
has been duly recorded in the record of Municipal
Corporation and they are regularly paying the property tax.
The petitioner was served with the notice dated 25 th
February, 2017 whereby they have been directed to produce
the documents in relation to the ownership and sanction
map. That before the petitioner could approach and submit
the documents, the Respondent has issued a notice dated
26.02.2017 for demolition of their construction. Hence, the
present petition.
[3] Vide order dated 28.02.2017 notices were issued
and the Respondents were restrained from taking any
coercive action in pursuant to the impugned notice.
[4] Shri Rishi Tiwari, learned counsel appearing on
behalf of the Respondents filed the reply stating that the
petitioner has made construction without sanction plan as
required under Section 293 of the M. P. Municipal
Corporation Act, 1956, there cannot be any construction
without permission of Municipal Corporation. The illegal
construction is liable to be demolished.
[5] The grievance of the petitioners is that the
Respondents have violated the principles of natural justice.
[6] Counsel for the Respondents has fairly stated
before this Court that the Respondents are ready to given an
opportunity of hearing and will pass a reasoned and
speaking order before taking any action in pursuance to the
impugned notice against the petitioner.
[7] Keeping in view the aforesaid submission of
learned counsel for the Respondents, the writ petition is
disposed of at this stage by permitting the petitioners to file
the detailed representation in response to the notice dated
26.02.2017. The petitioners will appear before the
Respondent No.2 along with all the documents. The
Respondent No.2 shall given an opportunity of hearing also
to the petitioner and will pass an appropriate reasoned order.
If the order is passed against the petitioners, then in order to
give breathing time, Respondent No.2 shall not give effect
of the said order for further two weeks from the date of
passing of the order. The Respondents shall communicate to
the final order to the petitioners. Till the final decision is
taken, the interim protection granted by this Court on
28.02.2017 shall continue.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6855 of 2014 (S).
20.04.2017:-
Shri Anand Agrawal, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent No.1/State.
Ms. Ishita Agrawal, learned counsel for the
Respondent Nos.2 to 4/NVDA.
Heard.
O R D E R
THE petitioner has filed the present petition
seeking direction to the Respondents to regularize his
services and quash the order dated 21.07.2014.
[2] By order dated 10.10.2014 the writ petition was
admitted for final hearing but the reply has not been filed till
today. By order dated 12.01.2017 Shri Vivek Patwa, learned
counsel for the NVDA was directed to file the report of
scrutiny committee along with the return. Even the said
order has not been complied with till today.
[3] The petitioner was initially appointed on
01.01.1995 as Skilled Labour. Thereafter he has passed
Hindi Typing examination and continuously working in the
NVDA. The case of the petitioner is that most of juniors
daily wagers have been regularized. The petitioner
submitted representation for regularization which has been
rejected vide order 21.07.2014 on the ground that as per the
Circular of State Government dated 16.05.2007 the Scrutiny
Committee has found only 145 daily wagers fit for
regularization and the name of the petitioner has not been
recommended. It is not clear from the order whether the
Respondents have maintained any seniority list of daily
wagers on the basis of their date of initial appointment and
whether they were regularized according to their seniority. It
is not clear on what ground name of the petitioner was
rejected and on what basis name of 145 have been
recommended for regularization. As per Anexure P/3 the
petitioner ought to have been regularized way back in the
year 1990 under Circular dated 09.01.1990.
[4] Since the impugned order is very vague, non
speaking and return has not been filed despite order dated
12.01.2017, accordingly the order dated 21.07.2014
(Annexure-P/1) is quashed. The matter is remitted back to
the Respondent Nos.2, 3 and 4 to consider the claim of the
petitioner for regularization. If any juniors to the petitioner
were appointed after 01.01.1995 have been regularized,
then the case of the petitioner is also liable to be considered.
The entire exercise be completed within four weeks from
today. The competent authority is directed to pass speaking
order.
[5] The petition stands disposed of.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.576 of 2017.
19.04.2017:-
Shri Nilesh Sharma, learned counsel for the petitioner.
Shri Amol Shrivastava, learned counsel for the
Respondent No.1 (A) and (B)/IMC.
Shri K.P.Gangore, learned counsel for the Respondent
No.2.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present
petition being aggrieved by order dated 21.01.2017 passed
in M.J.C. No.30/2017.
[2] Facts of the case are as under :-
(a) Municipal Corporation, Indore has issued a
notice to the father of the petitioner - Shri Ashok Pawar
regarding demolition of illegal construction which was duly
replied by him. Thereafter the petitioner issued a notice to
the Municipal Corporation that he has not done any illegal
construction on their part of House No.270/12, Patnipura,
New Dewas Road, Indore. Thereafter the petitioner filed an
application under Section 94 of CPC with documents and
sought the relief of permanent injunction. Along with the
said application, the petitioner has also filed the regular
Civil Suit. In the suit the petitioner has sought the relief of
declaration that he be declared sole owner of the House
No.270/12, Patnipura, New Dewas Road, Indore and
defendants be restrained not to demolish the construction.
(b) The defendant No.1 has filed reply to the
said application.
(c) In the application under Section 94 of CPC,
the Respondent No.2 filed an application under Order I Rule
10 read with Section 151 of CPC that the suit house has
been leased out to her by the Municipal Corporation by way
of lease deed dated 13.12.1988 and she is in possession.
Therefore, she is a necessary party in the present
proceedings.
(d) Vide order dated 21.01.2017 learned Trial
Court has allowed the application and she has been
permitted to implead as defendant No.3 in the proposed suit.
Hence, the present petition.
[3] Shri Nilesh Sharma, learned counsel on
behalf of the petitioner submits that the petitioner has filed
the suit against the Municipal Corporation, Indore and he
has not sought any relief against the Respondent No.2,
therefore, the learned Trial Court has wrongly allowed the
application filed under Order I Rule 10 of CPC. The
Respondent No.2 is a complainant who already initiated
proceedings under Section 307 of the Municipal
Corporation Act against his father. The High Court in the
case of Shashi v/s Indore Municipal Corporation [2012 (2)
MPLJ 78] has held that the complainant is not necessary
party in a suit filed against the Municipal Corporation.
[4] Counsel appearing for the Respondents have
opposed the prayer and prayed for dismissal of the writ
petition.
[5] I have perused the application filed under
Order I Rule 10 of CPC filed by the Respondent No.2. In
para 6 she has specifically stated that by virtue of lease deed
dated 13.12.1988 the property belongs to her for which the
plaintiff has filed the suit. She has also submitted that she is
in possession.
[6] In the plaint, the plaintiff is not only
claiming the relief of permanent injunction against the
Municipal Corporation but also claiming the relief of
declaration that he is owner of the property. When the issue
of ownership is involved and the Respondent No.2 is
disputing the same, therefore, she is a necessary party as
well as proper party in the suit. The Trial Court has not
committed any error while allowing the application.
[7] I do not find any illegality, infirmity or
jurisdictional error in the order passed by the learned 13 th
Civil Judge, Class-II, Indore on 21.01.2017. The petition is
dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8384 of 2016.
21.04.2017:-
Shri Lokesh Mehta, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Heard.
O R D E R
THE petitioners have filed the present petition
seeking direction to the Respondents to provide information
regarding the construction of new building at Survey
No.457, Pipliyahana, Indore.
[2] According to the petitioners they have also
applied under Right to Information Act but the said
information has not been supplied. The petitioners have also
filed civil suit against the Respondents.
[3] The petitioners are having alternate and
efficacious remedy under the Right to Information Act
which is a complete Code in it. Even in pending civil suit
the petitioners can apply for production of the documents
through the Court. The petitioners are having alternate and
efficacious remedy, therefore, this petition is not liable to be
entertained.
[4] The petition is dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2459 of 2017.
21.04.2017:-
Shri O.P.Solanki, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.10/State, on advance copy.
Issue notice to the Respondents on payment of process
fee within three days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.4664 of 2016.
21.04.2017:-
Shri G.S.Patwardhan, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.1/State.
None for the Respondent No.2, though served.
Counsel for the petitioner prays for withdrawal of writ
petition in view of the settlement arrived at between the
parties out side the Court.
Prayer is allowed.
The petition is dismissed as withdrawn.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2473 of 2017.
21.04.2017:-
Shri Gagan Parashar, learned counsel for the petitioner.
As prayed, list in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2491 of 2017.
21.04.2017:-
Shri C.L.Yadav, learned Senior Counsel with Shri
O.P.Solanki, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
As prayed, list in the next week.
In the meanwhile, learned Govt. Advocate is directed
to seek instructions in the matter.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2510 of 2017.
21.04.2017:-
None for the petitioner.
List in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2537 of 2017.
21.04.2017:-
Shri J.P.Kero, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Learned Govt. Advocate is directed to seek
instructions in the matter from Collector and Tehsildar.
List on 04.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2539 of 2017.
21.04.2017:-
Ms. Megha Jain, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.9 to 11/State, on advance copy.
As prayed, list in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2557 of 2017.
21.04.2017:-
Shri Abhinav Malhotra, learned counsel for the
petitioners.
Shri R.C.Sinhal, learned counsel for the Respondent
Nos.3 and 4, on advance notice.
Counsel for the petitioner prays for withdrawal of the
writ petition.
Prayer is allowed.
The petition is dismissed as withdrawn.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2566 of 2017.
21.04.2017:-
Shri Amit Raj, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
As prayed, list in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2592 of 2017.
21.04.2017:-
Shri Ajay Jain, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Issue notice to the Respondents on payment of process
fee within three days.
Meanwhile, the operation of Annexure-P/1, so far as it
relates to recovery of amount, shall remain stayed.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2576 of 2017.
21.04.2017:-
Shri Ajay Jain, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Issue notice to the Respondents on payment of process
fee within three days.
Meanwhile, the operation of Annexure-P/1, so far as it
relates to recovery of amount, shall remain stayed.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2572 of 2017.
21.04.2017:-
Shri Ajay Jain, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Issue notice to the Respondents on payment of process
fee within three days.
Meanwhile, the operation of Annexure-P/1, so far as it
relates to recovery of amount, shall remain stayed.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2613 of 2017.
21.04.2017:-
Shri Nilesh Joshi, learned counsel for the petitioner.
Heard on the question of admission.
Issue notice to the Respondent on payment of process
fee within three days.
Also heard on I.A.No.2193/2017.
Issue notice of this application also to the Respondents
on payment of separate process fee within three days.
Till the next date of hearing, further proceedings of the
Trial Court shall remain stayed.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2621 of 2017 (S).
21.04.2017:-
Shri G.P.Singh, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Issue notice to the Respondents on payment of process
fee within three days by RAD mode.
Also heard on interim relief.
Till the next date of hearing, the recovery against the
petitioners shall remain stayed.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.458 of 2014.
21.04.2017:-
None for the appellants.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent/State.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6406 of 2016.
21.04.2017:-
Parties through their counsel.
Learned Govt. Advocate for the Respondents further
prays for and is granted four weeks' time to file the reply.
List thereafter.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7686 of 2016.
21.04.2017:-
Parties through their counsel.
Shri Prasanna Prasad, learned counsel for the
Respondents further prays for and is granted two weeks'
time to file reply.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8179 of 2016 (S).
21.04.2017:-
Petitioner present in person.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 and 3/State.
Shri H.Y.Mehta, learned counsel for the Respondent
No.2.
Shri Mehta submits that today he is filing the reply.
Permission is granted.
Copy of the reply has already been sent to the
petitioner by Regd. AD post. Shri Mehta is directed to
supply one set of reply to the petitioner who is present in
person before this Court and he is also directed to accept the
copy of reply.
Shri Mangal, learned Govt. Advocate prays for and is
granted two weeks' time to file reply.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.38 of 2017.
21.04.2017:-
Shri S.Jain, learned counsel for the appellant.
Records are awaited.
List immediately after receipt of the records.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.84 of 2017.
21.04.2017:-
Smt. Pushpa Joshi, learned counsel for the petitioner.
Counsel for the petitioner is directed to supply two sets
of writ petition to Shri G.S.Patwardhan who represents
MPRTCm in this High Court. He is directed to seek
instructions and if possible, file short reply.
List after two weeks.
Office is directed to reflect the name of Shri
G.S.Patwardhan in the cause-list.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.119 of 2017.
21.04.2017:-
Shri Dharmendra Yadav, learned counsel for the
appellant.
Record of the Courts below are awaited.
List along with the records after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.140 of 2017.
21.04.2017:-
Shri Vinod Patidar, learned counsel for the appellant.
Record of the Trial Court is awaited.
List along with the records after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.850 of 2017.
21.04.2017:-
Shri Kishore Soni, learned counsel for the petitioner.
Counsel for the petitioner further prays for time to
comply the order dated 11.04.2017.
Two weeks' time is granted, failing which this petition
shall be liable to be dismissed without reference to the
Court.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1583 of 2017.
21.04.2017:-
Shri Deepak Mehra, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Learned counsel for the petitioner prays for withdrawal
of the writ petition with liberty to file fresh petition.
Prayer allowed.
The petition is dismissed as withdrawn with the
aforesaid liberty.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Civil Revision No.53 of 2014.
21.04.2017:-
None for the parties.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Civil Case No.972 of 2015.
21.04.2017:-
None for the petitioner.
As per the office report, the address of Respondent is
not proper.
Counsel for the petitioner is directed to pay fresh
process fee with correct and present address of the
Respondent within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2828 of 2015.
21.04.2017:-
Shri D.S.Patel, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, prays for and is granted four weeks' time
to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5404 of 2015.
21.04.2017:-
Shri Amitabh Upadhyay, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Heard on I.A.No.1079/2017, an application for
amendment in the grounds raised in the petition.
By way of this amendment, the petitioner is wanted to
incorporate certain grounds based on the judgment of High
Court of Madras and further sought certain reliefs.
The application is opposed by Govt. Advocate on
behalf of the Respondents.
Considering the averments made in the application [IA
No.1079/2017], the same is allowed.
Necessary amendment be incorporated within seven
days and amended writ petition be filed.
IA No.1079/2017 stands disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.306 of 2016.
21.04.2017:-
Shri Shashank Patwari, learned counsel for the
petitioner.
Ms. Chitralekha Hardia, learned counsel for the
Respondents.
Heard.
O R D E R
THE petitioner has filed the present contempt
petition alleging non-compliance of order dated 24.04.2015
passed by this Court in Writ Petition No.2663 of 2015 (S) by
which the Respondents were directed to decide the claim of
the petitioner in the light of the judgment passed in the case
of Smt. Prerna Koranne v/s State of M.P. and others [Writ
Petition No.6773 of 2006 (S)].
[2] After notice, the Respondents produced the copy
of order dated 04.03.2017 by which the Assistant
Commissioner, Tribal Department, Badwani has passed the
order of granting benefit to the petitioner.
[3] Since the representation has been considered and
the necessary orders has been passed in favour of the
petitioner, the present contempt petition is disposed of. The
Respondents are discharged. However, the monitory
benefits be extended to the petitioner in compliance of the
said order within four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.763 of 2016.
21.04.2017:-
Shri M.M.Bohara, learned counsel for the petitioner.
Shri Rahul Laad, learned counsel for the Respondents.
Counsel for the Respondents submits that the order
passed by this Court has been complied with.
Let the compliance report be filed within two weeks.
Meanwhile, counsel for the petitioner may verify from
the petitioner about the compliance of the order.
List in the week commencing 1st May, 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1410 of 2016.
21.04.2017:-
Parties through their counsel.
Counsel for the Respondent prays for time to go
through the record.
Time granted.
List on 02.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2038 of 2016.
21.04.2017:-
Shri Ranjeet Sen, learned counsel for the petitioner.
Shri S.V.Dandwate, learned counsel for the
Respondents.
Counsel for the petitioner prays for and is granted two
weeks' time to file rejoinder.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.426 of 2000.
20.04.2017:-
None for the appellant even in the second round.
Shri S.L.Ahiwasi, learned counsel for the Respondent
No.1.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent No.2/State.
Shri Ahiwasi submits that he is having information that
the compromise has been arrived at between the parties.
Since no one gave appearance on behalf of the
appellant, the appeal is dismissed for want of prosecution.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2549 of 2017.
19.04.2017:-
Shri Vinay Zelawat, learned Senior Counsel with Shri
Pratyush Mishra, learned counsel for the petitioner.
Learned counsel has informed this Court that today in
Writ Petition No.2552 of 2017 Co-ordinate Bench of this
Court has granted an interim order.
Keeping in view the order passed in the aforesaid case,
the demolition activities pursuance to Annexure P/1 shall
remain stayed till the next date of hearing.
Issue notice to the Respondents on payment of process
fee within a week, failing which the writ petition shall stand
dismissed without reference to this Court.
Notice be made returnable within 3 weeks.
List the matter on 09.05.2017 along with Writ
Petition No.2552 of 2017.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.2308 of 2010.
20.04.2017:-
Shri R.N.Dave, learned counsel for the appellants.
Shri Arun Gupta, learned counsel for the Respondent
No.3/Insurance Company.
The appellants/claimants have filed the present appeal
challenging the exoneration of Insurance Company on the
ground that the driver was not having driving licence to
drive the transport vehicle at the time of accident.
Certified copy of Licence No.MP04R-2010-0006250
which was filed before the Tribunal was valid w.e.f.
21.12.2009 to 20.12.2012 and same was issued on
04.01.2010. Before this Court also the appellants have filed
certified copy of the same driving licence which was shown
to have been valid w.e.f. 21.12.2006 to 22.12.2009 with the
same number and issued on 04.01.2010.
Let the Insurance Company verify validity of both the
licence from RTO, Bhopal and submit the report before this
Court.
List after four weeks in motion hearing.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1431 of 2008.
20.04.2017:-
Shri A.K.Sethi, learned Senior Counsel with Shri
Rishabh Sethi, learned counsel for the petitioner.
Shri G.S.Patwardhan, learned counsel for the
Respondents.
Today the name of Shri G.S.Patwardhan is not
appearing in the cause-list, therefore, he is not having the
file.
Office is directed to reflect the name of Shri G.S.
Patwardhan on behalf of the Respondents.
Shri Sethi submits that the petitioner has file one more
Writ Petition No.1406 of 2008.
List this petition along with the said writ petition in the
next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5822 of 2016.
13.04.2017:-
Shri Jitendra Verma, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Today this petition is listed for consideration of I.A.
No.376/2017, an application for vacating the stay.
With the consent of parties, instead of vacating the
stay, the writ petition is heard finally on merit.
O R D E R
THE petitioner has filed the present
petition being aggrieved by the order dated 08.08.2016
passed by the Respondent No.3 by which he has been
attached from the post of "Panchayat Secretary", Gram
Panchayat, Budi to Janpad Panchayat Pati, District Badwani.
[2] Facts of the case are as under :-
The petitioner was initially appointed as
"Panchayat Karmi" in Gram Panchayat, Walan. Thereafter
vide order dated 03.10.2006, he was notified as "Panchayat
Secretary" by the Collector, Badwani. Under Section 69 (1)
of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj
Adhiniyam, 1993. The work of the petitioner as a Secretary
was duly recognized and appreciated by the Higher
Authorities and the petitioner was issued the Certificate
under the Mukhyamantri Kanyadan Yojana, 2007 and 2008.
Under the Swachchta Abhiyan because of the efforts made
by the petitioner, Gram Panchayat also given the award.
Vide order dated 16.01.2013, the petitioner was transferred
from Gram Panchayat, Walan to Gram Panchayat, Budi.
That by the impugned order (Annexure P/1) dated
08.08.2016 issued by Chief Executive Officer, Jila
Panchayat, Badwani, the petitioner has been attached to the
Janpad Panchayat, Pati, District Badwani. In the said order
it is alleged that the Sarpanch and all the Panch of the Gram
Panchayat has made a complaint against him which was got
enquired by Block Panchayat Officer who has also
recommended for removing the petitioner from Gram
Panchayat Budi. Therefore, on the basis of the report and
complaint, the petitioner has been attached to the Janpad
Panchayat Pati, District Badwani. Hence, the petitioner has
filed the present petition.
[3] The petitioner has challenged the impugned
order (Annexure P/1) on the ground that the Chief Executive
Officer, Jila Panchayat is not competent to pass the order of
attachment under Panchayat Act and Rules made thereunder.
There is no provision of attachment. The Panchayat
Secretary can be de-notified, suspended and terminated but
he cannot be attached by way of punishment. In the
impugned order the allegations of negligence and dereliction
of duties were levelled. Therefore, the impugned order is
causing stigma. The violation of principle of natural justice
has also been raised that without issuing show-cause notice
and without affording an opportunity of hearing, the
impugned order was passed.
[4] While issuing notices to the Respondents,
vide order dated 30.08.2016 the effect of order dated
08.08.2016 was stayed.
[5] The Respondents filed the return along with
an application [I.A.No.376/2017] for vacating the stay
order. It is submitted that the services of the petitioner has
been absorbed under the Madhya Pradesh Panchayat Service
(Gram Panchayat Secretary recruitment and Conditions of
Service) Rules, 2011 [in brief "the Rules, 2011"] and the
appointing authority of Panchayatkarmi is Chief Executive
Officer, Jila Panchayat. It is submitted that the various
complaints were received against the working of the
petitioner and because of those complaints, a show-cause
notice was issued on 09.12.2015 and 08.03.2016 but the
petitioner did not appear to submit the reply. The Block
Panchayat Officer has recorded the statements of Sarpanch,
Gram Panchayat Budi who has alleged that the petitioner is
not performing his duties. On 07.06.2016 the report was
submitted by the Chief Executive Officer, Janpad Panchayat
Pati to the Respondent No.3. In pursuant to the said report,
the impugned order was passed in accordance with law. The
attachment with the Janpad Panchayat is not a punishment.
Therefore, there is no need to conduct a detailed enquiry.
Hence, the petition is devoid of merit and substance. The
Division Bench of this Court in the case of Manoj Kumar
Tiwari v/s Collector, reported in 2012 SCC Online MP
2358 has held that the Chief Executive Officer is having
administrative and supervisory control over the Secretary.
Therefore, he can place him under suspension.
[6] The petitioner filed the rejoinder to the
return in which it is submitted that he has never received the
show-cause notice dated 09.12.2015 and 08.03.2016. The
petitioner is under the administrative control of Gram
Panchayat, therefore, Gram Panchayat is competent to take
disciplinary action. It is further submitted that the complaint
was made by husband of Sarpanch who has no authority to
interfere in the working of Panchayat and make complaint.
The ex - Sarpanch and other villagers have given affidavits
in support of the petitioner that he is doing the work in the
interest of Panchayat. The petitioner has filed the copy of
Circular of State Government dated 20.01.2006 by which
direction has been given to constitute a Committee headed
by Sub Divisional Officer to conduct the enquiry in respect
of development work under the Gramin Rojgar Scheme.
The Block Panchayat Officer is not competent to conduct
the enquiry. Various photographs have been filed to
establish that the development work was appreciated by the
Panchayat by the News Channels.
[7] I have heard Shri Jitendra Verma, learned
counsel on behalf of the petitioner and Shri Rohit Mangal,
learned Govt. Advocate on behalf of the Respondents/State.
[8] The petitioner was initially appointed as
Panchayatkarmi. Thereafter he was notified under Section
69 of Panchayat Act as Secretary. By virtue of Rule 5 of
Rules, 2011 cadre has been made for Gram Panchayat
Secretary in each district and all the previously appointed
Gram Panchayat Secretary who are holding the office before
amendment of this rules have been absorbed in the cadre of
Panchayat Secretary. The other service conditions of the
Panchayatkarmi has been prescribed in Rule 6 of Rules,
2011 and under sub-rule (7) of Rule 6 of Rules, 2011
services of Gram Panchayat Secretary are transferred on
administrative ground under the policy of the State
Government. The Gram Panchayat Secretary may be
transferred, if necessary, after proper enquiry of the
complaints on the recommendation of the Chief Executive
Officer, Janpad Panchayat. Sub-rule (7) of Rule 6 of Rules,
2011 is reproduced below :-
"(7) The Gram Panchayat Secretary may be
transferred on administrative ground or on the basis of his
application within the district in accordance with the transfer
policy issued by the Commissioner Panchayat Raj. The Gram
Panchayat Secretary may be transferred, if necessary, after
proper enquiry of the complaints on the recommendation of the
Chief Executive Officer, Janpad Panchayat."
[9] Rule 7 of Rules, 2011 provides for
discipline and control under the Madhya Pradesh Panchayat
Service (Conduct) Rules, 1998 which has been made
applicable to the Gram Panchayat Secretary who shall be
under the administrative control of the Gram Panchayat.
Rule 7 of Rules, 2011 is reproduced below :-
"7. Discipline and Control.-- The rules of the
Madhya Pradesh Panchayat Service (Conduct) Rules, 1998
shall be applicable to the Gram Panchayat Secretary. The
Gram Panchayat Secretary shall be under the administrative
control of the Gram Panchayat. Disciplinary action against the
Gram Panchayat Secretary shall be taken in accordance with
the prescribed procedure within specified time period."
[10] The Full Bench of this Court in the case of
Chandrapal Yadav v/s State of M.P. [2016 (1) MPLJ 685]
has held that no prior notice or opportunity of hearing before
suspension of the Gram Panchayat Secretary or withdrawal
of charge of Secretary (de-notified) is required to be given
by the Competent Authority to the concerned employee who
is facing serious criminal charges. Therefore, the Panchayat
Secretary can be suspended on registration of criminal
charges or against whom Departmental Enquiry is instituted.
But in the present case the petitioner has not been placed
under suspension on account of criminal case and no charge-
sheet has been issued.
[11] The husband of Sarpanch has made a
complaint to the Collector against the petitioner alleging that
the construction work is not in progress, therefore, he be
transferred to some other Panchayat. According to the
Respondents the notice dated 09.12.2015 and 08.03.2016
were issued to the petitioner but he did not submit any reply.
By way of rejoinder, the petitioner submitted that he has
never received those notices. He has denied his signatures
over these notice. No additional return has been filed to
controvert this fact. The Block Panchayat Officer has
conducted the enquiry and submitted its report. He recorded
joint statements of Sarpanch and other local villagers on
18.05.2016. All these materials have been used against the
petitioner for passing the impugned order of attachment.
The petitioner has not been supplied the enquiry report as
well as the statements recorded by the Block Panchayat
Officer. The Respondents has submitted that the order of
attachment is not by way of punishment. In the Rules, 2011
there is a provision of transfer even on complaint. But there
is a provision of suspension under the Conduct Rules but
there is no such provision of attachment of Secretary to the
Janpad Panchayat because the Panchayat Secretary is the
employee of Gram Panchayat. The Chief Executive Officer
may be Competent Authority but the Panchayat Secretary
are under the disciplinary control of Gram Panchayat.
Therefore, on any allegation if any action is required to be
taken against the petitioner, the Gram Panchayat is
competent to take action under Rule 7 of Rules, 2011 and
that order is appealable under Rule 8 of Rules, 2011. If on
the charges the petitioner is required to be removed from the
Gram Panchayat, that would be under sub-rule (7) of Rule 6
of Rules, 2011. He could have been transferred to other
Gram Panchayat as Panchayat Secretary.
[12] Even otherwise in the impugned order dated
08.08.2016 charges of negligence and dereliction of duties
have been levelled against the petitioner. It is settled law in
service jurisprudence that if the order is stigmatic, then the
same cannot be passed without affording opportunity of
hearing to the petitioner. If any material is being used
against the employee, then the employer is required to
supply copies thereof and all these are subject to the cross-
examination. The apex Court in the case of Ayaaubkhan
Noorkhan Pathan v/s State of Maharashtra [(2013) 4 SCC
465] has considered the scope of providing reasonable
opportunity. The apex Court has held that opportunity of
cross-examination is an integral part and parcel of the
principles of natural justice. Para 28, 29 and 30 is
reproduced below :-
"28. The meaning of providing a reasonable
opportunity to show cause against an action proposed to be
taken by the Government, is that the government servant is
afforded a reasonable opportunity to defend himself against the
charges, on the basis of which an inquiry is held. The
government servant should be given an opportunity to deny his
guilt and establish his innocence. He can do so only when he is
told what the charges against him are. He can, therefore, do so
by cross-examining the witnesses produced against him. The
object of supplying statements is that, the government servant
will be able to refer to the previous statements of the witnesses
proposed to be examined against him. Unless the said
statements are provided to the government servant, he will not
be able to conduct an effective and useful cross-examination.
29. In Rajiv Arora v. Union of India [(2008) 15 SCC
306] this Court held : (SCC p.310, paras 13-14)
"13. ... Effective cross-examination could have
been done as regards the correctness or otherwise of the
report, if the contents of them were proved. The
principles analogous to the provisions of the Evidence
Act as also the principles of natural justice demand that
the maker of the report should be examined, save and
except in cases where the facts are admitted or the
witnesses are not available for cross-examination or
similar situation. ...
14. The High Court in its impugned judgment
proceeded to consider the issue on a technical plea,
namely, no prejudice has been caused to the appellant
by such non-examination. If the basic principles of law
have not been complied with or there has been a gross
violation of the principles of natural justice, the High
Court should have exercised its jurisdiction of judicial
review."
30. The aforesaid discussion makes it evident
that, not only should the opportunity of cross-
examination be made available, but it should be one of
effective cross-examination, so as to meet the
requirement of the principles of natural justice. In the
absence of such an opportunity, it cannot be held that
the matter has been decided in accordance with law, as
cross-examination is an integral part and parcel of the
principles of natural justice."
[13] In view of the above, the impugned order
cannot be sustained on violation of principles of natural
justice.
[14] Learned Govt. Advocate has placed reliance
on the judgment in the case of Manoj Kumar Tiwari (supra)
in which order of attachment issued by the Chief Executive
Officer was not interfered by the High Court as he is
competent under Rules 3 and 4 of Madhya Pradesh
Panchayat Service (Discipline & Appeal) Rules, 1999. The
aforesaid order was passed placing reliance over the
Madhya Pradesh Panchayat (Power and Functions of Chief
Executive Officer) Rules, 1995 and Madhya Pradesh
Panchayat Service (Discipline & Appeal) Rules, 1999.
Under Rule 7 of Rules, 2011, the Panchayat Secretary are
under the disciplinary control of Gran Panchayat. Even
otherwise the order passed in the case of Manoj Kumar
Tiwari (supra) was challenged by the petitioner in Writ
Appeal No.529 of 2012 and vide order dated 18.02.2012 the
writ appeal was disposed of directing the Collector to look
into the matter and decide the same expeditiously and in
accordance with law. The operative portion is reproduced
below :-
"In view of the limited prayer made by the learned
senior counsel appearing for the appellant the order passed
by the learned single judge is modified to the limited extent of
permitting the appellant to take up proceedings before the
Collector, Satna, by filing a fresh representation in respect of
his grievance.
It goes without saying that in case the appellant does
so along with a copy of the order passed today and a copy of
the petition within four weeks of obtaining the same, the
concerned Collector shall look into the matter and decide the
same expeditiously in accordance with law."
[15] Since while issuing the notice, the operation
of the impugned order was stayed by this Court. Therefore,
the said interim protection shall continue for the period of
further 60 days (sixty days) and the Collector, Badwani is
directed to look into the matter and decide the same
expeditiously in accordance with law. The petitioner is
directed to file a detailed representation along with all the
documents before the Collector, Badwani within a period of
four weeks from today who shall decide the same in
accordance with Panchayat Act and the Adhiniyam 1993,
Rules 1999 and Rules 2011 within a period of 60 days
(sixty days) and thereafter any action required to be taken
against the petitioner, then he shall give a direction to the
Competent Authority to take action against the petitioner if
required. The impugned order dated 08.08.2016 is hereby
set-aside.
[16] The petition stands allowed with above
direction. No order as to costs.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7819 of 2016.
19.04.2017:-
Shri B.L.Jain, learned counsel for the petitioner.
Shri Ajay Gupta, learned counsel for the Respondents.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by order dated 04.10.2016 by which his
right to file written-statement has been taken away.
[2] The Respondents No.1 and 2 filed the suit for
eviction against the petitioner in which the written-statement
was filed by the petitioner. In the said suit, an application
under Order VII Rule 11 of CPC was filed. Thereafter the
Respondents withdrew the suit with a liberty to file fresh
suit with a costs of Rs.1,000-00.
[3] Without payment of costs to the petitioner, the
Respondents filed the suit for eviction and permanent
injunction for the same property which was registered as
Civil Suit No.19-A/16. After notice, the petitioner appeared
on 18.02.2016 and filed the Vakalatnama. Arguments were
heard on the application under Order XXXIX Rule 1 & 2 of
CPC on 13.05.2016 and fixed the case for 17.05.2016. The
order was passed and thereafter the case was fixed for
13.06.2016. The counsel for the petitioner had no
knowledge about the said date and on 13.03.2016 right of
filing of written-statement has been closed and case was
fixed for evidence. Immediately on information the
petitioner filed the written-statement on 24.06.2016 along
with an application under Section 151 of CPC. Vide order
dated 04.10.2016 the application has been rejected. Hence,
the present petition.
[4] Shri B.L.Jain, learned counsel on behalf of the
petitioner submits that the right of defence is a valuable
right of the defendant and due to unavoidable circumstances
the written-statement could not be filed. The Court has
adopted hyper technical approach.
[5] Per contra, Shri Ajay Gupta, learned counsel on
behalf of the Respondents submits that sufficient
opportunity was granted to the defendant to file the written-
statement and after expiry of 90 days, he is not entitled to
file the written-statement.
[6] I have heard learned counsel for the parties.
[7] That initially the Respondents filed the suit in
which the defendant/present petitioner filed the written-
statement but the Respondents permitted to withdraw the
suit with a costs of Rs.1,000-00. Thereafter they filed the
suit for eviction as well as permanent injunction along with
an application under Order XXXIX Rule 1 & 2 of CPC.
Initially the time was consumed in respect of the Cheque
No.966870. Thereafter the petitioner was directed to
deposit the rent in the CCD which he deposited on
02.05.2016. Thereafter transfer application was pending
before the District Judge and the record was called. Vide
order dated 26.04.2016 the record was sent to 5 th Civil
Judge, Class-II, Ujjain. Thereafter arguments were heard on
13.05.2016 on application under Order XXXIX Rule 1 & 2
of CPC and order was passed which has caused delay in
filing the written-statement. It is settled law that the
defendant must get full opportunity to defend the case.
[8] In view of the above, the impugned order dated
04.10.2016 is hereby set-aside. The Trial Court is directed
to take the written-statement on record which was filed
along with the application under Section 151 of CPC. The
petition is allowed with a costs of Rs.1,000-00 [One
Thousand Rupees] payable to the District Bar Association,
Ujjain. The petitioner is also directed to deposit the regular
rent in the Court.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.191 of 2016.
19.04.2017:-
Shri Rishabh Sethi, learned counsel for the petitioner.
Ms. Mini Ravindran, learned counsel for the Respondents.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present contempt
petition alleging non compliance of order dated 28.02.2012
passed in Writ Petition No.29 of 2011 and order dated
22.08.2014 passed in Writ Petition No.6128 of 2014, by which
aforesaid orders the Respondents were directed to consider the
case of the petitioner for grant of Kramonnati.
[2] The petitioner submitted a representation and when
the benefit was not extended, hence present petition is filed.
[3] The Respondents have filed the return stating that
vide order dated 08.09.2016 the claim of the petitioner has been
rejected as the same is different from the case of Teju Lal Yadav
v/s State of M.P., reported in I.L.R. (2009) MP 1326.
[4] Since the Respondents have considered and rejected
the claim of the petitioner by a detailed and speaking order,
therefore, there is substance compliance by the Respondents.
[5] In view of the above, no contempt is made out. The
contempt petition is hereby dropped with the liberty to the
petitioner to assail the validity of the order dated 08.09.2016.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.745 of 2006.
06.04.2017:-
Shri Kamal Airen, learned counsel for the appellants.
Shri Himanshu Joshi, learned counsel for the
Respondent No.1.
Heard on the question of admission.
O R D E R
THIS second appeal is filed by the
tenant/defendants against the judgment and decree dated
09.12.2005 passed by Fifth Civil Judge, Class-II, Indore and
judgment dated 08.08.2006 passed by 10th Additional
District Judge, Indore by which the decree of eviction has
been passed against them.
[2] The Respondent No.1 being a Charitable
Religious Trust is the owner of shop situated in ground floor
of House No.30. Khatipura Main Road, Indore which was
given on rent to Late Ramsingh for non residential purpose.
After the death of Ram Singh, Narayan Singh has came into
the possession of said shop. The tenancy was monthly at the
rate of Rs.85-00 per month for non residential purpose. The
defendant has paid the rent by 31.05.1988 and thereafter
stopped paying the rent and since last six months Narayan
Singh - defendant No.1 is not using the shop. Therefore,
the plaintiff has issued a notice on 21.01.1989 demanding
arrears of rent and eviction from the said shop. When the
defendants did not vacate the shop, the plaintiff - Trust
instituted a suit on 12.06.1989 through Managing Trustee -
Prahlad Das Singi. In the plaint, it is alleged that Narayan
Singh has vacated the shop and sub-leased to Sohanlal and
who is not paying the rent to the plaintiff, therefore, a decree
of eviction, arrears of rent and mesne profit be granted.
[3] After notice, the defendant No.1 - Narayan
Singh filed the written-statement submitting that he became
tenant after the death of his elder brother Ram Singh and he
used to pay the rent but the Trustee has refused to accept the
same.
[4] Defendant Nos.2 and 3 filed the written
statement submitting that Narayan Singh was never into the
possession of suit shop and Late Ram Singh has given the
shop to them by executing a Will dated 13.08.1987 and
since then they are in possession. They sent rent by way of
money order to the Trust but the Office Bearer of the Trust
has refused to accept the rent. Therefore, up to 31.07.1990
they have deposited the rent into the Court. During the
pendency of the suit, Sohanlal has expired and in his place
his legal heirs - Mahesh, Om Prakash and Chandrakala were
impleaded as defendants. They filed a separate written
statement stating that the Registrar Public Trust has initiated
proceedings under Section 26 of the M. P. Public Trusts Act,
1951 and the suit was filed before District Judge, Indore in
which judgment was passed against the Trust to the effect
that they are not properly managing the Trust. Therefore,
they are not entitled for decree.
[5] On the basis of pleadings, the Trial court
has framed as many as 10 issues for adjudication.
[6] By way of evidence, the plaintiff examined
Prahlad Das Singi as PW-1 who is the Managing Trustee of
the Trust and filed Registration Certificate of the Trust dated
07.09.1964 (Ex.P/1) by which the Trust was registered by
the Registrar Public Trust; notice dated 20.01.1989 (Ex.P/2)
and minutes of the meeting by which Prahlad Das Singi was
authorized to file the present suit as Ex.P/3. By way of
defence, the defendants examined Om Prakash as DW-1 and
got exhibited 8 documents as Exs.D/1 to D/8.
[7] The learned Trial Court has recorded the
finding on all issues in favour of the plaintiff. Issue No.6
was framed that w.e.f. 07.09.1989 the provisions of M. P.
Accommodation Control Act, 1961 has been made
applicable to the Religious and Charitable Trust. The suit
was filed on 12.06.1989. Therefore, the present suit is not
maintainable. The plaintiff is not entitled for decree of
eviction under the provisions of M. P. Accommodation
Control Act, 1961. The Trial Court has decided the issue
that the suit for eviction under the provisions of Transfer of
Property Act, 1882 was maintainable and the plaintiff has
issued notice under Section 106 of the Transfer of Property
Act, 1882 which has been proved, therefore, the suit was
maintainable. By judgment and decree dated 09.12.2005,
the defendants were directed to hand over the vacant
possession of the suit Shop No.30, Khatipura Main Road,
Indore to the plaintiff within a period of two months along
with the arrears of rent from 01.06.1988 till handing over
the possession.
[8] Being aggrieved by the aforesaid eviction
judgment and decree, defendant Nos.2 and 3 through legal
heirs filed the first appeal on the ground that there was a
collusion between the plaintiff and Narayan Singh to obtain
the decree of ejectment. Narayan Singh was never into the
possession and the present appellants are in possession by
virtue of Will dated 13.08.1987. It is further pleaded that
they were ready to pay the rent but the Office Bearers of the
Trust were not accepting the rent. No notice was sent to
them under Section 106 of the Transfer of Property Act,
1882, therefore, the suit was liable to be dismissed. The
Managing Trustee - Prahlad Das Singi was not authorized to
file the suit. All Trustees ought to have been joined as a
plaintiff along with the Trust. Vide judgment dated
08.08.2006, the first appellate Court has dismissed the
appeal. Hence, the present second appeal before this court.
[9] The present second appeal has been filed on
the ground that the Public Trust was not a juristic person.
The Managing Trustee alone cannot file the suit in absence
of the Trustees. No decree can be passed against the
appellants when they were not served with the notice under
Section 106 read with Section 111 of the Transfer of
Property Act, 1882.
[10] The appellants have proposed the following
substantial questions of law in this appeal :-
"(1) Whether the judgment and decree appealed
against of the Courts below are illegal having been passed in a
suit of the Respondent/plaintiff who was not authorised to file
the suit ?
(2) Whether Courts below erred in law in not
dismissing the suit on the sole legal ground that the Public
Trust being not the juristic person, it was not maintainable in
law by one person only claiming himself to be Managing
Trustee and in the absence of the other co-trustees or proof of
their authority in favour of the alleged Managing Trustee ?
(3) Whether the Courts below perverted themselves
in law in not holding the appellants as lawfully inducted
tenants and their tenancy having not been terminated u/s 106
read with Section 111 of the Transfer of Property Act ?
(4) Whether the Courts below erred in law in
holding that the Will Ex.D/8 was not duly signed ?
(5) Whether the lower appellate court was wrong in
law in enhancing the rate of mesne profits from Rs.85/- to
Rs.1,000/- even not claimed by the plaintiff/respondent ?"
[11] The appellants have filed an application
[I.A.No.7051/2011] under Order VI Rule 17 of CPC
seeking amendment in the written statement. The appellants
have sought the amendment on the ground that the Registrar
Public Trust has passed the order dated 05.08.2002
regarding the functioning of the Trust. The Registrar has
passed the order of appointing Receiver and send the matter
to the District Court. Therefore, Trust is not in existence
and against the order of District Judge, first appeal is
pending before this Court. Therefore, the plaintiff had no
right to file the suit.
[12] The Registrar has passed the order on
05.08.2002 i.e. much prior to the judgment and decree
passed on 09.12.2005. In the written statement the legal
heirs of Sohanlal has already taken a specific ground
regarding pendency of the proceedings before the Registrar
under Section 26 of the M. P. Public Trusts act, 1951. They
have also not filed any application under Order XLI Rule 27
of CPC before the first appellate Court. Therefore, at this
stage such an application seeking amendment in the written
statement cannot be allowed. Hence, the same is rejected.
[13] I have heard Shri Kamal Airen, learned
counsel for the appellants and Shri Himanshu Joshi, learned
counsel for the Respondent No.1.
[14] That vide Ex.P/3 the Trust in its meeting
dated 28.12.1988 has authorized Managing Trustee Shri
Prahlad Das Singi to give the notice and file the suit.
Therefore, Managing Trustees of the Trust has filed the suit
against the defendants. At the time of filing the suit, the
Trust was validly registered by Registrar Public Trust
(Ex.P/1). Admittedly the suit shop was given on rent to Ram
Singh who is elder brother of Narayan Singh. Ram Singh
has died, hence being brother Narayan Singh has became the
tenant of the Trust - plaintiff. Narayan Singh in his written
statement did not disputed this fact. The notice of
termination of tenancy (Ex.P/2) was issued to Narayan
Singh which was duly received by him on 20.01.1989. In the
notice it was alleged that you have inducted Sohanlal as sub-
tenant. PW-1 in his cross-examination has specifically
denied that he has never seen defendant Nos.2 and 3 doing
the business in the shop and the defendant Nos.2 and 3
never paid the rent to the Trust also.
[15] The defendants examined Om Prakash as
DW-1, who is son of defendant No.2 Sohanlal, who stated
that after the death of Ram Singh, he gave an application to
the Trust on 16.10.1987 that on the basis of the Will of Late
Ram Singh they have become the tenant. In the cross-
examination he has admitted that the plaintiff has never send
notice demanding the arrears of rent from them. Ram Singh
had no son and he adopted a girl and Ramesh was her
husband i.e. defendant No.3. In the present case the tenancy
of Ram Singh and the defendant No.1 in the suit premises is
not disputed. At the time of filing the suit the Trust was
duly registered and Prahlad Das Singi was the Managing
Trustee of the Trust and who was authorized to file the suit.
The suit was filed after giving notice of termination of
tenancy under Section 106 of the Transfer of Property Act,
1882 and not under the provisions of M. P. Accommodation
Control Act, 1961. The Registration was not cancelled by
the Registrar. The Trust is owner of the shop and competent
to file the civil suit. The original tenant of the shop was
Ramsingh who died issueless and after his death his younger
brother Narayan Singh become the tenant who was served
with the notice and termination of tenancy. The defendant
Nos.2 and 3 were claiming tenancy on the basis of the Will
dated 13.08.1987 but the said Will has not been proved
before the Court. Therefore, they cannot claim succession
by way of said Will.
[16] Learned counsel for the appellant has
emphasized on a issue that when the provisions of M. P.
Accommodation Control Act, 1961 has been made
applicable to the Trust before filing of the suit, then the suit
ought to have been filed under the provisions of M. P.
Accommodation Control Act, 1961. The learned Trial Court
as well as the first appellate Court has came to the
conclusion that the suit for eviction is maintainable after
terminating the tenancy under Section 106 of the Transfer of
Property Act, 1882.
[17] There is a concurrent finding recorded by
both the Courts against the defendants/tenant and admittedly
defendant Nos.2 and 3, who contested the suit by way of
appeal, were not the tenant in the suit accommodation. They
are claiming possession on the basis of Will dated
13.08.1987 which has not been proved. Therefore, I do not
find any substantial question of law involved in this appeal.
[18] The Supreme Court in the case of Kshitish
Chandra Bose v/s Commissioner of Ranchi, reported in
(1981) 2 SCC 103 has held that the High Court cannot
interfere with the conclusion of fact recorded by the Courts
below, however, erroneous the said conclusion may appear.
Para-11,12 & 13 of the aforesaid judgment is reproduced
herein below :-
"11. On a perusal of the first judgment of the High Court
we are satisfied that the High Court clearly exceeded its
jurisdiction under Section 100 in reversing pure concurrent
findings of fact given by the trial court and the then
appellate court both on the question of title and that of
adverse possession. In the case of Kharbuja Kuer v.
Jangbahadur Rai this Court held that the High Court had no
jurisdiction to entertain second appeal on findings of fact
even if it was erroneous. In this connection this Court
observed as follows:
"€œIt is settled law that the High Court has no
jurisdiction to entertain a second appeal on the ground
of erroneous finding of fact.
As the two courts approached the evidence from a
correct perspective and gave a concurrent finding of
fact, the High Court had no jurisdiction to interfere
with the said finding.
ۥ
To the same effect is another decision of this Court in the
case of R. Ramachandran Ayyar v. Ramalingam Chettiar
where the Court observed as follows:
"€œBut the High Court cannot interfere with the
conclusions of fact recorded by the lower appellate
court, however, erroneous the said conclusions may
appear to be to the High Court, because, as the Privy
Council observed, however, gross or inexcusable the
error may seem to be there is no jurisdiction under
section 100 to correct that error."
13. The same view was taken in two earlier decisions of
this Court in the cases of D.Pattabhiramaswamy v.
Hanymayya and Raruha Singh v. Achal Singh.
13. Thus, the High Court in this case had no jurisdiction
after reversing the concurrent findings of fact of the Courts
below on the question of adverse possession to remand the
case to the Additional Judicial Commissioner on the question
of title which also was concluded by the concurrent findings
of fact arrived at by the two courts as indicated above.
[19] In view of the above, second appeal is dismissed.
Since, the tenancy is very old and looking to the age of
appellants, three months' time is granted to vacate the suit
premises.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.109 of 2017.
12.04.2017:-
Shri Rajendra Samdani, learned counsel for the
petitioner.
Shri Ajay Jain Giriya, learned counsel for the
Respondent Nos.1 to 4.
None for the Respondent No.5, though served
Heard on the question of admission.
O R D E R
THE petitioner has filed the present
petition being aggrieved by order dated 20.12.2016 passed
by 10th Additional District Judge, Ujjain by which the appeal
under Order XLIII Rule 1 of CPC was partly allowed.
[2] Facts of the case are as under :-
(a) The petitioner is a wife of Respondent
No.5, by virtue of their marriage held on 09.12.2011. The
Respondent Nos.3 and 4 are father-in-law and mother-in-law
and the Respondent Nos.1 and 2 are grand father-in-law and
grand mother-in-law of the plaintiff. Undisputedly the suit
house is a two storied having House No.2/30, Bharatpuri,
Ujjain is of the ownership of the Respondent No.1. The
petitioner and all other Respondents are jointly residing in
the said house by virtue of relationship between each other.
(b) The plaintiff filed the suit for declaration
and permanent injunction against the Respondents that the
Respondents be restrained from forcibly dispossessing her
from the said house and further restrained not to interfere in
her possession. She has alleged that after the marriage, she
was harassed by the Respondents for demand of dowry. She
gave a birth of daughter which made them unhappy as they
wanted a son. They are interested in second marriage of the
Respondent No.5 to get more dowry. She has lodged a FIR
against them under Sections 498-A and 506/34 of IPC. She
is residing in the said house as daughter-in-law with her
daughter and all of them has left the house long back and
entire house is in her possession. The Respondents are not
giving maintenance amount to her.
(c) Along with the plaintiff, the plaintiff filed
an application under Order XXXIX Rule 1 & 2 of CPC
seeking temporary injunction in the nature of protection of
her possession during the pendency of the suit. After notice,
the defendants filed the written statement denying the
allegations made therein and simultaneously levelled various
counter allegations against the plaintiff. It is stated that the
house belongs to the Respondents No.1 and 2 and the
plaintiff being the daughter-in-law cannot claim any right
over the properties of in-laws. The plaintiff is threatening
them for their false implication in the criminal case. She has
also initiated the proceedings under Domestic Violence Act.
(d) After hearing both the parties, learned Trial
Court vide order dated 11.07.2016 has rejected the
application for temporary injunction. The Court has
recorded the finding on all the three issues that the plaintiff
has no prima-facie right of residence in the said house.
Since the plaintiff is in possession of the house and the
defendants have filed the counter claim, therefore, if
injunction is not granted, that would not affect her interest.
The balance of convenience was also not found in her
favour.
(e) Being aggrieved by the order dated
11.07.2016, the plaintiff filed appeal under Order XLIII
Rule 1 of CPC. After notice the defendants/Respondents
appeared along with a Map of the house and submitted that
the portion marked in "red colour" is in possession of the
plaintiff and she can be permitted to continue to reside in
the said area. The possession of the plaintiff cannot be
treated into the entire house. She cannot claim the right over
the property of father-in-law. The learned first appellate
Court vide order dated 20.12.2016 has partly modified the
impugned order and permitted the plaintiff to reside in the
area marked as "red colour" and the defendants were
restrained not to interfere in her peaceful possession directly
or through servant or agent during the pendency of the suit.
(f) Being aggrieved by the order dated
20.12.2016, the petitioner preferred the present petition on
the ground that she is in possession of the entire house. The
Respondents themselves left the house and now she cannot
be dispossessed from the house. The Respondents
themselves have admitted before the Family Court that the
plaintiff is in possession of the entire house and not
permitting the Respondent Nos.1 and 2 to enter into the
house.
[3] Shri Rajendra Samdani, learned counsel on
behalf of the petitioner vehemently argued that the learned
first appellate Court has travelled beyond its jurisdiction by
granting partial interim relief; whereas the plaintiff is
entitled for temporary injunction to the effect that she is in
possession of entire house and the Respondents be
restrained not to interfere in her possession in the entire
house.
[4] Per contra, Shri Ajay Jain, learned counsel
on behalf of the Respondent Nos.1 to 4 submits that the
order passed by the learned first appellate Court is very
reasonable. The plaintiff is residing only in the limited
portion of the house which is marked in the red colour. She
cannot claim possession in the entire house as a matter of
right which admittedly belongs to the Respondent Nos.1 to
4.
[5] It is not disputed that the entire house
bearing House No.2/30, Bharatpuri, Ujjain is owned by the
defendant No.1 who is grand father-in-law of the plaintiff.
The Respondent No.3 is a son of Respondent No.1 and the
Respondent No.5, husband of the plaintiff, is the grant-son
of the Respondent No.1. So long father and grand-father are
alive, the Respondent No.5 has not right in the property,
therefore, the plaintiff being wife of the Respondent No.5
cannot claim any right over the property. She has a right to
reside in a shared household belonging to her husband only.
Being a daughter-in-law the plaintiff has not right as against
her father-in-law to occupy any portion of said property.
The High Court of Delhi in the case of Mr. Barun Kumar
Nahar v/s Parul Nahar, passed in CS (OS) 2795/2011
dated 05.02.2013, while deciding application under Order
XXXIX Rule 1 & 2 of CPC, held as under :-
"29. One can also not lose sight of the fact that none
of the statutes which deal with the rights of a married woman
in India, be it The Hindu Marriage Act, 1955; The Hindu
Succession Act, 1956; The Hindu Adoption and Maintenance
Act, 1956; The Protection Of Women From Domestic Violence
Act, 2005 or The Code Criminal Procedure, 1973 confer any
right of maintenance including residence for the married
woman as against the parents of the husband. To illustrate,
Sections 24 and 25 of The Hindu Marriage Act, 1955 provides
for the wife's right to pendent lite maintenance and
Permanent Alimony only against her husband. Section 17 (1)
of Domestic Violence Act, 2005 gives protection to the wife
where the wife is only entitled to claim a right to residence in a
shared household, and a shared household would only mean
the house belonging to or taken on rent by the husband, or the
house which belongs to the joint family of which the husband
is a member within the meaning of Section 2 (s) of the said Act.
Section 18 of the Hindu Adoption and Maintenance Act, 1956
enumerates the right of a Hindu wife to be maintained by her
husband during her life time. Section 125 of the Criminal
Procedure Code, 1973 provides for monthly maintenance to
wife, irrespective of her religion, if she has no source of income
or means to maintain herself against her husband. The wife's
right to maintenance which includes her residence in a
commensurate property is, thus, only against the husband.
Marriage is a social union of two persons called spouses that
establishes rights and obligations between them. The concept
of Matrimonial Home has evolved with the passage of time.
The concept hails from the law of England under the
Matrimonial Homes Act, 1967. There is no such absolute
statute in India, like the British Matrimonial Homes Act, 1967,
which clearly stipulates that the rights which may be available
under marriage laws can only be as against the husband and
not against the father-in-law or mother-in-law. However, it is
quite discernible that the spouses in wedlock, are obliged to
take care of each other and in case of any inter-se dispute; one
can claim his right with respect to maintenance only against
the other and not against the other family members. With the
transient course it has been observed that with the advent of
various women friendly laws, empowering the women with
equal rights as that of a man/husband, the remedy of women
to ask for maintenance or to claim her right in the residence in
a commensurate property is only restricted to her husband
and not against her parents in law. A woman is only entitled to
claim a right to residence in a shared household, and a shared
household would only mean the house belonging to or taken
on rent by the husband, or the house which belongs to the
joint family of which the husband is a member. This means
that she can assert her rights, if any, only against the property
of her husband and cannot claim a right to life in the house of
her husband's parents without their wishes and caprice. Law
permits a married woman to claim maintenance against her
in-laws only in a situation covered under section 19 of the
Hindu Adoption and Maintenance Act, 1956 i.e. after the
death of the husband and that too when she is unable to
maintain herself out of her own earnings etc. It would not be
abominable to say that even the parents/parents in law at the
fag-end of their lives, deserve to live a blissful, happy and a
peaceful life, away from any tautness or worries.
30. In the light of the aforesaid legal position the defendant
No.1, being a daughter-in-law of the plaintiff, has no right as
against the plaintiff i.e. her father-in-law, to occupy any
portion of the subject property, which is his self-acquired
property."
[6] The Respondent Nos.1 to 4 themselves
offered that the plaintiff along with her daughter can reside
in one room attached lat-bathroom and dressing room which
is marked in red colour. The learned first appellate Court
has not committed any error while granting such a relief to
the plaintiff. Being a daughter-in-law she cannot claim
possession over the entire house as she has no legal right as
held by the High Court of Delhi in the case of Mr. Barun
Kumar Nahar (supra).
[7] Therefore, I do not find any illegality or
infirmity in the order passed by the learned 10 th Additional
District Judge, Ujjain on 20.12.2016.
[8] The petition is hereby dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.2 of 2017.
17.04.2017:-
Shri Nilesh Joshi, learned counsel for the petitioner.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present Contempt
Petition alleging disobedience of order dated 11.08.2006
passed in Writ Petition No.2754 of 2005.
[2] Along with the others, the petitioner approached
this Court by way of Writ Petition challenging the order of
termination dated 25.01.2005 passed by Chief Medical &
Health Officer, Badwani. Vide order dated 11.08.2006 all
the writ petitions were disposed of. The order of
termination was quashed and the Respondents were directed
to extend the similar benefit as allowed to Abrar s/o Iqbal
Khan. The entire exercise should be completed within a
period of one month. The petitioner was reinstated in the
service but he was not paid the consequential benefits,
therefore, he filed Contempt Petition No.506 of 2008. The
same was disposed of vide order dated 22.08.2008 by which
time was extended for complying the order. Thereafter
again the petitioner preferred Contempt Petition No.97 of
2009 which was also disposed of vide order dated
06.02.2009 by extending the time for the period of three
months. The petitioner submitted a representation on
18.05.2009 claiming increment and up-gradation. The
petitioner kept quite for number of years and submitted
representation on 05.07.2016 that the order passed in Writ
Petition dated 11.08.2006 has not been complied so far and
thereafter now the present contempt petition is filed in the
year 2017. The contention of the petitioner is that while
reinstating him, the consequential benefits has not been
granted by the Respondents, therefore, they have committed
contempt of Court's order.
[3] The case of the petitioner before the High Court
was that similarly placed person approached the M. P. State
Administrative Tribunal against the termination and order of
termination was quashed by the Tribunal with the direction
to conduct the scrutiny in the matter and pass appropriate
order. The said order was passed in M.A.No.17/1997 on
12.08.1997. It was submitted that after the order passed in
M.A.No.17/1997, the petitioners have not been treated
similar with the aforesaid employees and discriminated by
the Respondents. The writ petition was disposed of vide
order dated 11.08.2006 with the direction to extend the
similar benefit as allowed to the aforesaid persons who were
party in M.A.No.17/1997. The petitioner has not filed the
copy of the order passed in M.A. No.17/1997 and
compliance order so as to demonstrate that what types of
consequential benefits were extended to Abrar s/o Iqbal
Khan and others. Therefore, no documents are on record to
compare the case of the petitioner with them. Therefore, the
contempt proceedings cannot be initiated against the
Respondents on the allegation made by the petitioner
without documentary evidence. Even otherwise there is a
delay of 10 years in approaching this Court for initiation of
the contempt proceedings against the Respondent for non
compliance of order passed on 11.08.2006.
[4] I do not find any reason to initiate the contempt
proceeding against the Respondent. Hence, the contempt
petition is dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1114 of 2017.
19.04.2017:-
Shri Vaibhav Jain, learned counsel for the petitioners.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State, on advance copy.
Heard on the question of admission.
O R D E R
THE petitioners have filed the present petition
claiming compensation on account of acquisition of their
land. The petitioners are the owners of land bearing Survey
No.790 area 1.150 hectare; 791 area 1.453 hectare and 492/5
area 1.775 hectare of Village Ungali, out of aforesaid lands,
the Respondents have illegally and forcibly taken over
following lands :-
a) 0.209 hectare out of Survey No.790
b) 0.021 hectare out of Survey No.791
c) 0.113 hectare out of Survey No.792
[2] According to them, the same has been taken for
construction of the road without payment of compensation
to them.
[3] Similar controversy came up before this Court in
the case of Govardhanlal v/s State of M.P. And others [Writ
Petition No.1187 of 2008] decided on 14.02.2008. The
order is reproduced below :-
"Thiscourt by order dated 14.2.2008 had disposed of
the W.P. No.1187/2008 (Govardhanlal Vs. State of M.P. and
others) by passing the following order :
"Shri A.K. Shrivastava, Advocate for the
petitioners.
Issue notice to show cause to the respondents no.1
and 2 as to why the present petition be not admitted and
finally disposed of.
On asking of the Court, Shri Umesh Gajankush,
learned Govt. counsel accepts notice on behalf of the
respondents no.1 and 2.
Advance copy of the petition has been supplied to
the learned Government counsel.
The petitioner has approached this Court with a
grievance that his land in village Ramdi, Tehsil
Kalapepal, District Shajapur has been taken away for
construction of the road by the respondents, but neither
the said land was ever acquired, nor the petitioner has
been paid any compensation for the same.
After taking into consideration the averments
made in the present petition, but without commenting on
the correctness thereof, I deem it appropriate to dispose
of the present petition with a liberty to the petitioner to
approach the Collector, Shajapur by filing a detailed and
comprehensive representation, appending all the
relevant documents making the claim, which the
petitioner has made before this Court.
If any such representation is filed by the
petitioner, then the Collector, Shajapur shall take an
appropriate decision thereupon and shall also take
consequential action which is required in the matter,
within a period of two months from the date of filing of
the said representation.
If for any reason the claim made by the petitioner
is liable to be rejected, then a detailed and speaking
order shall be passed.
C.C. as per rules."
[4] Keeping in view the submissions made by
counsel for the parties, the present writ petition is also
disposed of by directing that the order passed in W.P.
No.1187/2008 (supra) will apply mutatis mutandis in the
case of the present petitioners also and the direction issued
in the said order will be applicable to the petitioners also.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8793 of 2015.
19.04.2017:-
Shri L.S.Jhala, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent Nos.1, 2 and 6.
Heard on the question of admission.
O R D E R
THE petitioner claiming himself to be a Member
of Ward No.11 of Nagar Palika Decan, District Neemuch has
filed the present petition alleging that the Respondent Nos.4
and 5 have encroached the Government land and despite
reports against them, the Tehsildar is not removing their
construction. The petitioner is not claiming any relief for
himself and filed the petition for removing of encroachment
over the Government land.
[2] The petitioner, who himself is not affected or
related with the issue, is required to file a PIL or approach to
the Civil Court in the representative capacity.
[3] With the aforesaid, this petition is dismissed with
liberty to the petitioner to file PIL or approach to the Civil
Court in the representative capacity.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.398 of 2016.
19.04.2017:-
Shri Vishal Patidar, learned counsel for the appellants.
As prayed, list after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.2208 of 2016.
19.04.2017:-
Shri Manoj Jain, learned counsel for the appellant.
Let the record of the Tribunal be requisitioned.
List in the first week of May, 2017 along with the
record.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6685 of 2016.
19.04.2017:-
Shri V.K.Jain, learned counsel for the petitioner.
Shri S.C.Agrawal, learned counsel for the Respondent
No.1.
At the request of Shri Jain, list on 03.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7557 of 2016.
19.04.2017:-
Shri Anuj Bhargava, learned counsel for the petitioner.
Shri Durgesh Sharma, learned counsel for the
Respondent Nos.3 and 4.
At the request of learned counsel for the Respondent,
list on 26.04.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8504 of 2016.
19.04.2017:-
Shri Manish Manana, learned counsel for the
petitioner.
Heard on the question of admission.
Issue notice to the Respondents on payment of process
fee within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.7 of 2017.
19.04.2017:-
Shri G.S.Yadav, learned counsel for the appellant.
Shri Vijay Assudani, learned counsel for the
Respondents.
Record of the first appellate Court be also
requisitioned.
List for admission immediately after receipt of the
record.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.16 of 2017.
19.04.2017:-
Shri R.K.Samdani, learned counsel for the appellant.
Counsel for the appellant submits that the appellant/
defendant filed an application under Section 89 of CPC by
which he agreed to vacate the shop with the condition that
he should be given priority in the allotment of the shop in
newly constructed complex.
Learned Trial Court has not considered the said
application.
On this limited point, issue notice to the Respondents
on payment of process fee within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.116 of 2017.
19.04.2017:-
Shri Vinay Saraf, learned counsel for the appellant.
Shri R.S.Yadav, learned counsel for the Respondent.
As prayed by Shri Saraf, list after a week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.123 of 2017.
19.04.2017:-
Shri Dharmendra Chelawat, learned counsel for the
petitioner.
As prayed, list in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.133 of 2017.
19.04.2017:-
Shri M.A.Bohra, learned counsel for the appellant.
Heard on the question of admission.
The appeal is admitted for final hearing on the
following substantial question of law :-
"Whether the Courts below have committed error
by dismissing the plaint despite recording the finding
that the appellant is not having any alternate
accommodation to start the business for his son in
Ujjain City ?"
Issue notice of the appeal to the Respondents along
with question of law formulated by this Court on payment of
process fee within a week.
Certified copy as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.325 of 2017.
19.04.2017:-
None for the appellant.
Issue notice to the Respondents on payment of process
fee within seven days.
Record of the Tribunal be requisitioned.
List after service of notice.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.667 of 2017.
19.04.2017:-
Smt. Rekha Shrivastava, learned counsel for the
petitioner.
Heard on the question of admission.
Issue notice to the Respondents on payment of process
fee within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.911 of 2017.
19.04.2017:-
Shri G.K.Patidar, learned counsel for the petitioner.
Heard on the question of admission.
Issue notice to the Respondent on payment of process
fee within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1123 of 2017.
19.04.2017:-
None for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent/State.
Issue notice to the Respondents on payment of process
fee within seven days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1914 of 2017.
19.04.2017:-
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the petitioners/State.
As prayed by Shri Bhatnagar, list after a week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2051 of 2017.
19.04.2017:-
Shri Kailash Vijayvargiya, learned counsel for the
petitioner.
Heard on the question of admission as well as on IA
No.2079/2017, an application for stay.
Issue notice to the Respondents against admission as
well as on IA No.2079/2017 on payment of process fee
within seven days by RAD mode.
Let record of the Labour Court be requisitioned.
The prayer for interim relief shall be considered after
service of notices on the Respondents.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6891 of 2015.
18.04.2017:-
Shri J.B.Mehta, learned counsel for the petitioners.
Shri Amol Shrivastava, learned counsel for the
Respondents/IMC.
Shri Vivek Dalal, learned counsel for the Intervenor.
Heard on the question of admission.
O R D E R
THE petitioners have filed the present petition being
aggrieved by notice dated 29.09.2015 by which they have been
directed to remove the illegal construction made over Plot
No.203, Palsikar Colony, Manik Bag Road, Indore.
[2] Before issuing the impugned notice dated
29.09.2015, a show-cause notice dated 20.08.2015 was issued to
the petitioners in which the following irregularities were
informed to the petitioners :-
"(1) vkids }kjk Lohd`r uDls esa covered garage open
(side) MOS esa lEiw.kZ fuekZ.k dj fy;k x;k gSA
(2) ,d plot ij nks vkokfl; edku dk fuekZ.k fd;k x;k gSA "
[3] The petitioners submitted a detailed reply to the said
notice on 28.08.2015. Without deciding all these objections, the
Respondents have issued the impugned notice. The writ petition
was entertained by this Court on 01.10.2015 and the parties
were directed to maintain Status-quo. After notice, Intervenor
who is neighbour of the petitioners has filed an application
seeking permission to intervene on the ground that the
petitioners have made constructions over the entire plot and
because of which his ease mentary rights are being affected. The
Respondents/Indore Municipal Corporation has also filed a
detailed reply of the writ petition.
[4] In the present petition disputed questions of facts are
involved which required to be decided by the Competent
Authority. Admittedly in the present case after issuance of
show-cause notice, detailed reply was filed by the petitioners but
speaking and reasoned order has not been passed by the
Building Officer.
[5] The present petition is disposed of with the direction
to the Building Officer, Zone No.12, Indore Municipal
Corporation, Indore to pass a detailed and speaking order after
giving opportunity of hearing to the petitioners as well as
Intervenor. The Building Officer shall issue notices to all the
affected persons/owner who are residing in the said house. The
entire exercise be completed within a period of 60 days from
today. It is made clear that this Court has not express any
opinion on merit of the case. The Competent Authority is free to
decide in accordance with law. For the period of 60 days and till
the decision is taken by the authority "status-quo" be
maintained. That if authority decide the issue against the
petitioners then they are entitled for at least 15 days' time to
approach Court of law. Hence, for the next 15 days from the
date of order, the Respondents are restraint to take action against
the petitioners.
[6] With the aforesaid directions, petition is disposed of
finally.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.3688 of 2014 (O).
17.04.2017:-
Shri R.S.Chhabra, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent Nos.1 and 2/State.
Shri Sanjay Pathak, learned counsel for the
Respondent No.3/HDFC Bank.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by the order dated 05.03.2014 by which the
Assistant Tehsildar, Indore has rejected the preliminary
objection taken by the petitioner.
[2] The petitioner submitted an application for
issuance of Bank Credit Card to the HDFC Bank. After due
verification of his credential, the Bank has issued him "Gold
Credit Card" with a credit limit of Rs.50,000-00. The
petitioner got a job in Dubai, UAE and he used the Credit
Card at Dubai on various occasion and according to him he
made all the payments time to time to the Bank. The
petitioner left the job in Dubai on 10.11.2007 and returned
back to India on 22.11.2007.
[3] The HDFC Bank has issued credit card statement
dated 03.12.2007 in which certain entries reflects that the
petitioner has used the card in Dubai on 17.11.2007 for
making payment of Rs.25,649.33 and Rs.25,649.33. The
petitioner submitted a representation that he has not used the
card for making those payments. For the time being the
Bank has reversed those entries but after verification against
those entries were shown as a credit for making payment.
The petitioner send a legal notice to the Bank.
[4] Since the aforesaid amount was not paid by the
petitioner, the Bank has initiated proceedings for recovery of
Rs.56,129-00 under the provisions of M. P. Lok Dhan
(Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987 [in brief
"the Lok Dhan Adhiniyam, 1987].
[5] After receipt of the notice, the petitioner raised
an objection under Order VII Rule 11 of CPC that the
present recovery proceedings are not maintainable under the
provisions of the Lok Dhan Adhiniyam, 1987.
[6] The Bank has filed a detailed reply to the said
application and thereafter Assistant Tehsildar has rejected
the application filed by the petitioner vide order dated
05.03.2014. Hence, the petitioner has filed the present
petition before this Court.
[7] Shri R.S.Chhabra, learned counsel on behalf of
the petitioner submits that the Bank has wrongly initiated
the proceedings for recovery under the provisions of the Lok
Dhan Adhiniyam, 1987. Under this Adhiniyam the loan
falls under "socially desirable scheme" notified by the State
Government can be recovered. The petitioner who has used
the card out side the country through International Credit
Card cannot be subject to recovery under the provisions of
the Lok Dhan Adhiniyam, 1987. The entire proceedings are
time barred and the learned Assistant Tehsildar ought to
have closed the proceedings.
[8] Shri Sanjay Pathak, learned counsel on behalf of
the Respondent No.3 - HDFC Bank submits that looking to
the credential of the petitioner, the Bank on an application
by him, has issued Gold Credit Card which can be used
within India or Internationally. The petitioner has applied
for Gold Card and, therefore, he was issued a Gold Card.
Vide Notification dated 13th September, 2000, the provisions
of the Lok Dhan Adhiniyam, 1987 has been made applicable
for recovery of amount spend through credit cards.
Therefore, recovery proceedings before the Assistant
Tehsildar under the provisions of the Lok Dhan Adhiniyam,
1987 are maintainable. Notification dated 13th September,
2000 is reproduced below :-
"Notification No. F. 12-3-2000-IF-IF, dated the 13 th
September, 2000 - In exercise of the powers conferred by clause
(I) of section 2 of the Madhya Pradesh Lok Dhan (Shodhya
Rashiyon Ki Vasuli) Adhiniyam, 1987 (No.1 of 1988) and in
supersession of this Department Notification No. F 12-5-88-IF-
88-IV, dated 5th November, 1988, the State Government hereby
declare the following Scheme as "Socially Desirable Schemes",
namely :-
All Schemes under which any Banking Company or a
Government Company Corporation Advance loans for/to -
(a) ... ... ... ... ... ... ...
... ... ... ... ... ... ...
... ... ... ... ... ... ...
(11) Kisan Credit Cards/Credit Cards."
[9] It is not disputed that the petitioner was having
the Gold Credit Card which was used twice on 17.11.2007
when he was in Dubai. When he received the statement for
payment, he made a complaint to the Bank that he is having
doubt that Tayyab Raijgi and his brother Aamir Rejgi has
used his card. The petitioner has not made any complant at
the relevant time that his card is missing and someone else
has used the same. The only objection of the petitioner is
that the proceedings under the Lok Dhan Adhiniyam, 1987
are not maintainable because the loan does not fall under
"Socially Desirable Scheme". This issue came up for
consideration before Division Bench of this Court in the
case of Sadhna Chourasia v/s Punjab National Bank
[(2010) 4 MPLJ 708 (MP)]. Para 12 and 13 of the order is
reproduced below :-
"12. Now, we may advert to the second issue i.e.
whether the provisions of 1987 can be invoked for recovery of
amount of loan against the appellant. The Madhya Pradesh
Lok Dhan (Shopdhya Rashiyon Ki Vasuli) Adhiniyam, 1987 is
an Act to provide for the speedy recovery of certain classes of
dues payable to the State Government, Government
Companies and certain categories of Corporations and
Banking Companies, and for matters connected therewith.
Section 2 (i) of the Act defines the expression "socially desirable
scheme" to mean a scheme notified as such by the State
Government under which a banking company advances money
to any person by way of loan. In exercise of powers under
section 2 (i) of the Act the State Government has issued a
Notification dated 13-9-2000 by which certain schemes have
been defined as "Socially Desirable Schemes". The relevant
extract of the notification is quoted for the facility of
reference :-
"All Schemes under which any Banking Company
or a Government Company/Corporation advance loans
for/to -
(a) Development of land, creation and use of
irrigation facilities and purchase of inputs and
implements for promotion of agriculture, fisheries,
poultry and allied sector."
13. Thus, in the instant case, admittedly the loan was
advanced to the appellant for purchase of a Tractor-Trolley.
The Tractor-Trolley would fall within the expression "inputs
and implements for promotion of agriculture". Therefore, in
view of preceding analysis it can safely be held that the loan
was advanced to the petitioner under "socially desirable
scheme" and, therefore, under Section 3 (1) (B) of the 1987 Act
the proceedings for recovery of the amount can be initiated
against the appellant under the provisions of 1987 Act."
[10] Against this order, S.L.P.No.35619/2010 filed
before Hon'ble the Supreme Court which was dismissed
vide order dated 05.09.2014.
[11] Under Section 2 (i) of the Lok Dhan Adhiniyam,
1987 the State Government has notified "socially desirable
scheme" under which the banking company advances money
to any person by way of loan. By Notification dated 13 th
September, 2000 the Government has included the "Kisan
Credit Cards/Credit Cards". When the credit card has been
included in the notification which includes all types of credit
card either National or International. The credit card issued
by the Bank in India can be used Internationally. Therefore,
there is no separate credit card for use Internationally.
Therefore, the objection taken by the petitioner that the
proceedings are not maintainable as the International Credit
Card has not been notified in the Notification dated 13st
September, 2000 is misconceived. The Assistant Tehsildar
has not committed any error while rejecting the application
under Order VII Rule 11 of CPC.
[12] The petitioner has also raised the issue ot
limitation that the application is time barred. The
Respondent has submitted that the last payment made by the
petitioner in the credit card account on 27.04.2009 and
27.05.2009 and they filed application before the Assistant
Tehsildar for recovery under Form 3 on 20.08.2009, hence
the same is within time. Therefore, the Assistant Tehsildar
has rightly held that the proceedings are within limitation.
[13] I do not find any error or infirmity in the order
passed by the Assistant Tehsildar. In view of the above, the
petition fails and is hereby dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.466 of 2017.
17.04.2017:-
Shri Ajay Bagadiya, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State along with Station House Officer,
Police Station Lasudia, Indore.
Heard on the question of admission.
O R D E R
THE petitioner being a wife of Umesh Gadkar
has approached this Court seeking direction against the
Respondents to conduct a preliminary enquiry before
arresting her husband and brother and conduct a fair and
proper investigation.
[2] The petitioner's husband and his brother has been
made accused in an incident which was taken place on
17.01.2017 at Dewas Naka. One Achal Awasthy has lodged
an FIR against them which came to the knowledge of the
petitioner through the news paper dated 18.01.2017.
According to the petitioner, her husband was on Gujrat tour
to attend some marriage from 12.01.2017 on wards and on
the date of incident he was at Ahemdabad (Gujrat) which
can be verified from his mobile location and the recording of
CCTV footage of that area. If the police conducts fair
investigation in right direction there could be a possibility of
submitting closure report against them as they have been
falsely implicated in criminal case.
[3] The Respondents were directed to seek
instructions from the Investigating Officer.
[4] Shri Bhatnagar, learned Deputy Govt. Advocate
on behalf of the Respondents submits that husband of the
petitioner has been arrested and sent to the custody and the
petitioner has no locus to file the present petition. He
further submits that it is a discretion of Investigating Officer
to conduct the investigation. The accused cannot insist that
the material available of his favour be also considered.
[5] Since the petitioner's husband has been arrested,
therefore, the relief as claimed in Para 7 (ii) cannot be
granted. So far as the relief as claimed in Para 7 (iii) is
concerned, there is no allegation against the police that they
are not doing fair in investigating the crime in question. The
only relief which petitioner is claiming that her
representation submitted to the DIG, Indore be considered
who can direct the Investigating Officer to conduct the fair
investigation in right direction and in accordance with law
and he may be directed to monitor the investigation so that
innocent person may not suffer.
[6] The Hon'ble apex Court was pleased to observe
in case of Nirmal Singh v/s State of Punjab and others,
reported in (2009) 1 SCC 441, that the right to fair
investigation and trial is applicable to the accused as well as
the victim and such a right to a victim is provided under
Article 21 of the Constitution of India. The observations of
the Hon'ble apex Court is extracted hereunder :-
"28. An accused is entitled to a fair investigation.
Fair investigation and fair trial are concomitant to
preservation of fundamental right of an accused under Article
21 of the Constitution of India. But the State has a larger
obligation i.e. to main law and order, public order and
preservation of peace and harmony in the society. A victim of
a crime, thus, is equally entitled to a fair investigation. When
serious allegations were made against a former Minister of
the State, save and except the cases of political revenge
amounting to malice, it is for the State to entrust one or the
other agency for the purpose of investigating into the matter.
The State for achieving the said object at any point of time
may consider handing over of investigation to any other
agency including a Central agency which has acquired
specialisation in such cases."
[7] In Azija Begum v/s State of Maharashtra,
(2012) 3 SCC 126, the apex Court has held as follows :-
"13. The issue is akin to ensuring an equal access to justice.
A fair and proper investigation is always conducive to the
ends of justice and for establishing the rule of law and
maintaining proper balance in law and order.?"
[8] In Subramanian Swamy v/s CBI (2014) 8 SCC
682, the apex Court has ruled that any investigation into
crime should be fair and should not be tainted. It has been
further held that Rule of Law is a facet of equality under
Article 14 of the Constitution of India.
[9] Without entering into the merits of the case, the
present petition is disposed of with the liberty to the DIG,
Indore to consider the representation of the petitioner dated
18.01.2017 and act in accordance with law and under the
provisions of Cr.P.C.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8736 of 2015.
18.04.2017:-
Ms. Kiran Gohar, learned counsel for the petitioner.
None for the Respondents.
Return on behalf of the Respondent No.3 is awaited.
Let the Respondent No.3 file the return within a four
weeks.
List thereafter.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.1860 of 2016.
18.04.2017:-
Shri K.K.Kaushal, learned counsel for the appellant.
Service report awaited.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.916 of 2016.
18.04.2017:-
None for the appellant.
Service report awaited.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.602 of 2016.
18.04.2017:-
Shri Abhishek Tugnawat, learned counsel for the
appellant.
Shri Nitin Phadke, learned counsel for the Respondent.
As prayed, list on 02.05.2017.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.512 of 2016.
18.04.2017:-
Ms. Swati Sharma, learned counsel for the appellants.
None for the Respondents, though served.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.3296 of 2015.
17.04.2017:-
None for the petitioner even in the second round.
As per the office report, the Respondent - Naib
Tehsildar has been transferred to Vidisha.
The petitioner is directed to pay fresh process fee for
issuance of notice to Respondent No0.1 on his correct and
present address within a period of ten days, failing which
this petition shall be liable to be dismissed without reference
to the Court.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6571 of 2016.
17.04.2017:-
None present for the petitioner even in second round.
Reply has been filed by the Respondents.
List after a week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2485 of 2017 (S).
17.04.2017:-
Shri Abhishek Tugnawat, learned counsel for the
petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State, on advance copy.
Heard.
O R D E R
Learned counsel appearing for the petitioner
submitted that the petitioner had obtained the Bachelor
Degree in the year 1969 and is entitled for promotion on the
post of Upper Division Teacher as per Policy of the State
Government dated 6th January, 1968. It was further
submitted that the controversy involved in the matter has
been considered and decided by a Single Bench of this
Court in Writ Petition No.6176 of 2003 (S) [Sultan Khan
Qureshi v/s State of M.P. & ors] decided on 21.09.2005 and
in Writ Petition No.6158 of 2011 (S) [Champalal Patel v/s
State of M.P. & ors] decided on 05.08.2011, so similar
directions may also be issued in this petition.
[2] Learned Government Advocate does not oppose
the aforesaid prayer.
[3] In the matter of Champalal Patel (supra),
considering the controversy, the learned Single Bench has
held as under :-
"13. In view of the foregoing, this petition is allowed,
respondents are directed to reconsider the case of petitioner
for promotion to the post of UDT with effect from 06.01.1968
as per Policy and in consequent thereto reconsider his case for
further promotion to the post of Head Master Middle School
by the Review DPC and on found fit he be given notational
promotion with retrospective date on both the posts and
thereafter the post retiral and pensionary benefit be worked
out and shall be paid within six months from the date of
communication of this order. It is further made clear there
that benefit of promotion as UDT under the policy dated
06.01.1968 be given with effect from the date of said policy, to
those Assistant Teachers who had passed the graduate degree
prior to commencement of the said policy, otherwise from the
date of passing the graduation and having experience as per
Para-2 of the Policy, but prior to commencement of the rules
of 1973 i.e. the date of publication 19.10.1997, thereafter
promotions of UDT and Head Master Middle School shall be
governed by the rules of 1973. It is also made clear here that
the cases disposed of by this Court in the light of the
judgment of Murlidhar Neema (supra) and Mrs. Shobha
Shekatkar (supra) be considered by the Government in the
said perspective. In the facts and circumstances of the case,
there is no order as to costs.
In view of the aforesaid, respondents are directed to
consider the case of the petitioner in view of the observations
as made herein above in the case of Sultankhan Qureshi
(supra) and to pass a reasoned and speaking order within the
period of 3 months from the date of communication of this
order. It is further made clear here that if petitioner is found
suitable, he may be given promotion as UDT w.e.f. the date of
passing of graduation in the year 1971 notionally. If it is found
that the case of petitioner is not covered by the judgment of
Sultankhan Qureshi (supra), a reasoned order be passed after
giving him an opportunity of hearing."
[4] As the facts of the case and prayer made by the
petitioner are identical, hence, in terms of the directions
issued by this Court in the matter of Champalal Patel
(supra), the present petition is disposed of.
No order as to costs.
Certified copy as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2497 of 2017 (S).
17.04.2017:-
Shri Abhishek Tugnawat, learned counsel for the
petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State, on advance copy.
Heard.
O R D E R
Learned counsel appearing for the petitioner
submitted that the petitioner had obtained the Bachelor
Degree in the year 1969 and is entitled for promotion on the
post of Upper Division Teacher as per Policy of the State
Government dated 6th January, 1968. It was further
submitted that the controversy involved in the matter has
been considered and decided by a Single Bench of this
Court in Writ Petition No.6176 of 2003 (S) [Sultan Khan
Qureshi v/s State of M.P. & ors] decided on 21.09.2005 and
in Writ Petition No.6158 of 2011 (S) [Champalal Patel v/s
State of M.P. & ors] decided on 05.08.2011, so similar
directions may also be issued in this petition.
[2] Learned Government Advocate does not oppose
the aforesaid prayer.
[3] In the matter of Champalal Patel (supra),
considering the controversy, the learned Single Bench has
held as under :-
"13. In view of the foregoing, this petition is allowed,
respondents are directed to reconsider the case of petitioner
for promotion to the post of UDT with effect from 06.01.1968
as per Policy and in consequent thereto reconsider his case for
further promotion to the post of Head Master Middle School
by the Review DPC and on found fit he be given notational
promotion with retrospective date on both the posts and
thereafter the post retiral and pensionary benefit be worked
out and shall be paid within six months from the date of
communication of this order. It is further made clear there
that benefit of promotion as UDT under the policy dated
06.01.1968 be given with effect from the date of said policy, to
those Assistant Teachers who had passed the graduate degree
prior to commencement of the said policy, otherwise from the
date of passing the graduation and having experience as per
Para-2 of the Policy, but prior to commencement of the rules
of 1973 i.e. the date of publication 19.10.1997, thereafter
promotions of UDT and Head Master Middle School shall be
governed by the rules of 1973. It is also made clear here that
the cases disposed of by this Court in the light of the
judgment of Murlidhar Neema (supra) and Mrs. Shobha
Shekatkar (supra) be considered by the Government in the
said perspective. In the facts and circumstances of the case,
there is no order as to costs.
In view of the aforesaid, respondents are directed to
consider the case of the petitioner in view of the observations
as made herein above in the case of Sultankhan Qureshi
(supra) and to pass a reasoned and speaking order within the
period of 3 months from the date of communication of this
order. It is further made clear here that if petitioner is found
suitable, he may be given promotion as UDT w.e.f. the date of
passing of graduation in the year 1971 notionally. If it is found
that the case of petitioner is not covered by the judgment of
Sultankhan Qureshi (supra), a reasoned order be passed after
giving him an opportunity of hearing."
[4] As the facts of the case and prayer made by the
petitioner are identical, hence, in terms of the directions
issued by this Court in the matter of Champalal Patel
(supra), the present petition is disposed of.
No order as to costs.
Certified copy as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2487 of 2017 (S).
17.04.2017:-
Shri Abhishek Tugnawat, learned counsel for the
petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State, on advance copy.
Heard.
O R D E R
Learned counsel appearing for the petitioner
submitted that the petitioner had obtained the Bachelor
Degree in the year 1969 and is entitled for promotion on the
post of Upper Division Teacher as per Policy of the State
Government dated 6th January, 1968. It was further
submitted that the controversy involved in the matter has
been considered and decided by a Single Bench of this
Court in Writ Petition No.6176 of 2003 (S) [Sultan Khan
Qureshi v/s State of M.P. & ors] decided on 21.09.2005 and
in Writ Petition No.6158 of 2011 (S) [Champalal Patel v/s
State of M.P. & ors] decided on 05.08.2011, so similar
directions may also be issued in this petition.
[2] Learned Government Advocate does not oppose
the aforesaid prayer.
[3] In the matter of Champalal Patel (supra),
considering the controversy, the learned Single Bench has
held as under :-
"13. In view of the foregoing, this petition is allowed,
respondents are directed to reconsider the case of petitioner
for promotion to the post of UDT with effect from 06.01.1968
as per Policy and in consequent thereto reconsider his case for
further promotion to the post of Head Master Middle School
by the Review DPC and on found fit he be given notational
promotion with retrospective date on both the posts and
thereafter the post retiral and pensionary benefit be worked
out and shall be paid within six months from the date of
communication of this order. It is further made clear there
that benefit of promotion as UDT under the policy dated
06.01.1968 be given with effect from the date of said policy, to
those Assistant Teachers who had passed the graduate degree
prior to commencement of the said policy, otherwise from the
date of passing the graduation and having experience as per
Para-2 of the Policy, but prior to commencement of the rules
of 1973 i.e. the date of publication 19.10.1997, thereafter
promotions of UDT and Head Master Middle School shall be
governed by the rules of 1973. It is also made clear here that
the cases disposed of by this Court in the light of the
judgment of Murlidhar Neema (supra) and Mrs. Shobha
Shekatkar (supra) be considered by the Government in the
said perspective. In the facts and circumstances of the case,
there is no order as to costs.
In view of the aforesaid, respondents are directed to
consider the case of the petitioner in view of the observations
as made herein above in the case of Sultankhan Qureshi
(supra) and to pass a reasoned and speaking order within the
period of 3 months from the date of communication of this
order. It is further made clear here that if petitioner is found
suitable, he may be given promotion as UDT w.e.f. the date of
passing of graduation in the year 1971 notionally. If it is found
that the case of petitioner is not covered by the judgment of
Sultankhan Qureshi (supra), a reasoned order be passed after
giving him an opportunity of hearing."
[4] As the facts of the case and prayer made by the
petitioner are identical, hence, in terms of the directions
issued by this Court in the matter of Champalal Patel
(supra), the present petition is disposed of.
No order as to costs.
Certified copy as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.675 of 2017.
17.04.2017:-
Shri Antim Khedakar, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State along with Dr. B.S.Sethiya, CMHO, District
Badwani.
The petitioner has filed the present petition seeking
direction to the Respondents to pay the Gratuity and other legal
dues admissible to the petitioner. The petitioner has also
challenged the order dated 03.12.2016 by which the recovery
has been ordered due to wrong fixation.
Shri Mangal submits that an amount of Rs.5,53,578-00
has been paid to the petitioner and remaining amount of
Rs.5,65,885-00 would be made within two days. He further
submits that there is a recovery of Rs.50,000-00 against the
petitioner which was paid in excess to Late Ravji Pure due to
wrong fixation.
Since the deceased employee was working as a MPW
which is Class-III post and has expired.
In view of the law laid down in the case of State of
Punjab and Others Vs. Rafiq Masih (White Washer), (Civil
Appeal No.11527/2014, order dated 18.12.2014), no recovery
can be made against the deceased employee after his death.
Therefore, the petition is allowed in view of the above
statement made by the Officer-in-charge of the Case.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.4316 of 2015.
17.04.2017:-
Parties through their counsel.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
prays for and is granted four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7976 of 2015.
17.04.2017:-
Parties through their counsel.
List in the week commencing 1st May, 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8837 of 2015.
17.04.2017:-
Shri Ajay Jain, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State prays for and is granted four
weeks' time to file reply.
List after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8850 of 2015.
17.04.2017:-
Parties through their counsel.
List on 04.05.2017 for arguments on preliminary
objection.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.247 of 2016.
17.04.2017:-
Parties through their counsel.
Shri R.S.Chhabra, learned counsel on behalf of the
petitioner submits that today he is filing Vakalatnama on
behalf of the petitioner.
Permission granted.
List on 04.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.715 of 2016.
17.04.2017:-
Parties through their counsel.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
prays for and is granted four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.994 of 2016.
17.04.2017:-
Shri A.K.Sethi, learned Senior Counsel with Shri
Chetan Jain, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 and 2.
Shri Ashutosh Nimgaonkar, learned counsel for the
Respondent No.3.
Shri Sethi, learned Senior Counsel submits that today
he has filed additional rejoinder.
Office is directed to place the same on record.
Shri Nimgaonkar prays for and is granted two weeks'
time to seek instructions.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1570 of 2016.
17.04.2017:-
Parties through their counsel.
Shri Rohit Mangal, learned Govt. Advocate again
prays for time to produce the record.
List on 04.05.2017.
No further adjournment would be granted to either
parties.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2384 of 2016.
17.04.2017:-
Shri Vinay Gandhi, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State prays for and is granted four weeks' time
to file reply.
List after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2925 of 2016.
17.04.2017:-
Parties through their counsel.
Shri Rohit Mangal, learned Govt. Advocate prays for
and is granted four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2930 of 2016.
17.04.2017:-
Parties through their counsel.
Shri Rohit Mangal, learned Govt. Advocate prays for
and is granted four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.3398 of 2016.
17.04.2017:-
Shri V.K.Patwari, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State prays for and is granted four weeks' time
to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.3588 of 2016.
17.04.2017:-
Shri Ajay Jain, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State prays for and is granted four weeks' time
to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.4141 of 2016.
17.04.2017:-
Parties through their counsel.
Shri Nimgaonkar submits that today he has filed copy
of order passed by the Appellate Authority.
Office is directed to place the same on record.
List in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.4372 of 2016.
17.04.2017:-
Parties through their counsel.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State prays for and is granted two weeks' time
to file reply.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.4548 of 2016.
17.04.2017:-
Parties through their counsel.
As prayed, list on 26.04.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5045 of 2016.
17.04.2017:-
Parties through their counsel.
Learned counsel for the petitioner prays for and is
granted two weeks' time to argue the matter.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5186 of 2016.
17.04.2017:-
Shri Amit Bhatiya, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 to 4/State.
Shri Bhatiya submits that today he has filed the
rejoinder.
List after two weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5624 of 2016.
17.04.2017:-
Shri Ranjeet Sen, Learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State prays for and is granted four weeks' time
to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5696 of 2016.
17.04.2017:-
Shri V.K.Gangwal, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 to 3/State prays for and is granted four
weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5938 of 2016.
17.04.2017:-
Shri Manish Vijayvargiya, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Shri Mangal on behalf of the Respondents prays for
and is granted four weeks' time to file additional parawaise
reply.
List after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6531 of 2016.
17.04.2017:-
Shri V.K.Patwari, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Counsel for the petitioner prays for and is granted
three weeks' time to file rejoinder.
List after three weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6675 of 2016.
17.04.2017:-
Parties through their counsel.
Shri Rohit Mangal, learned Govt. Advocate prays for
and is granted four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6857 of 2016.
17.04.2017:-
Shri S.H.Moyal, learned counsel for the petitioner.
Shri Prakhar Karpe, learned counsel for the
Respondents.
As prayed, list in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7269 of 2016.
17.04.2017:-
None for the petitioner.
Counsel for the petitioner prays for and is granted four
weeks' time to file rejoinder.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7332 of 2016.
17.04.2017:-
Parties through their counsel.
Shri Rohit Mangal, learned Govt. Advocate submits
that today return has been filed and copy of the same is
supplied to counsel for the petitioner.
Counsel for the petitioner prays for and is granted two
weeks time to seek instructions.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8037 of 2016.
17.04.2017:-
Parties through their counsel.
Shri Rohit Mangal, learned Govt. Advocate submits
that today return has been filed and copy of the same is
supplied to counsel for the petitioner.
Counsel for the petitioner prays for and is granted four
weeks time to seek instructions.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8084 of 2016.
17.04.2017:-
None for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State prays for and is granted four weeks' time
to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5 of 2017.
17.04.2017:-
Shri A.S.Parihar, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State prays for and is granted four weeks' time
to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.10 of 2017.
17.04.2017:-
Shri Shashank Patwari, learned counsel for the
petitioner.
Ms. Bhagyashri Sugandhi, learned counsel for the
Respondents prays for and is granted four weeks' time to file
reply/ compliance report.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.30 of 2017.
17.04.2017:-
Shri Aditya Choudhary, learned counsel for the
petitioner.
Shri Aniket Naik, learned counsel for the Respondents
prays for and is granted three weeks' time to file reply/
compliance report.
List immediately after three weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.221 of 2017.
17.04.2017:-
Shri Vivek Dalal, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State prays for and is granted four weeks' time
to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2370 of 2017.
17.04.2017:-
Shri Vivek Dalal, learned counsel for the petitioner.
Shri M.L.Pathak, learned counsel for the Respondents.
As prayed, list on 25.04.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.393 of 2017.
17.04.2017:-
Shri V.K.Jain, learned counsel for the petitioner.
Shri Prakhar Karpe, learned counsel for the
Respondent.
As prayed, list on 20.04.2017 before another Bench.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.525 of 2017.
17.04.2017:-
Shri A.S.Parihar, learned counsel for the petitioner.
Service report is awaited.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Civil Case No.968 of 2016.
17.04.2017:-
Shri Prateek Maheshwari, learned counsel for the
petitioner.
Shri Amit Pal, learned counsel for the Respondent.
Both the counsel jointly submit that the parties have
entered into compromise and they are going to file an
application under Section 13-B of the Hindu Marriage Act
seeking divorce by way of consent.
In view of the above, Shri Maheshwari prays for
withdrawal of this petition filed for transfer of matrimonial
case.
Permission granted.
This petition is dismissed as withdrawn.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1970 of 2017 (O).
17.04.2017:-
Shri Nitin Phadke, learned counsel for the petitioner.
Shri M. Darbari, learned counsel for the Respondent
No.3 prays for and is granted two weeks' time to file reply.
List on 03.05.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.4833 of 2016 (S).
12.04.2017:-
Shri Mahesh Kumar Choudhary, learned counsel for
the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.1/State.
Shri B.L.Jain, learned counsel for the Respondent
No.2.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by order dated 13.08.2010 by which certain
daily rated employees were regularized as Driver by
Municipal Corporation, Ujjain.
[2] The case of the petitioner is that he was
appointed in the year 1986 as daily wager and since 1990 he
is discharging duties of Driver. The Respondent has
wrongly regularized him vide order dated 05.08.2002 as
Helper in the pay scale of Rs.2550-3200. Now the
Respondent vide order dated 13.08.2010 has regularized
various daily rated employee on the post of Driver. Despite
regularization as Helper, the petitioner is discharging the
duty of Driver. The Respondents are discriminating between
similarly placed persons, therefore, the direction be issued to
the Respondents to appoint the petitioner against the post of
Driver in the pay scale of Rs.5200-20200 Grade Pay
Rs.1900 w.e.f. 13.08.2010.
[3] After notice, the Respondent No.2 filed the
return in which specifically denied the averments made in
the petitioner that the petitioner was appointed against the
vacant post of Driver. Since he knows the driving,
therefore, some time he was directed to drive the vehicle. In
the year 2002 he was regularized as Helper. Thereafter vide
order dated 17.03.2016, the petitioner was promoted to the
post of Assistant Grade-III (Annexure R/2). Now the
petitioner cannot be appointed as Driver because the State
Government has amended the Madhya Pradesh Nagar Palika
Nigam (Adhikariyon Tatha Sewako Ki Niyukti Tatha Sewa
Ki Sharte) Niyam, 2000 w.e.f. 15th July, 2015 and under the
said amended rules the petitioner is not having qualification
and there is no provision to fill the post of Driver by way of
promotion and prayed for dismissal of writ petition.
[4] I have heard learned counsel for the parties.
[5] The petitioner has not filed anay document to
establish that he was appointed against the vacant post of the
Driver as daily rated employee. He might have discharged
the duty of Driver for certain periods but that would not
confer any right to claim appointment to the post of Driver.
Vide order dated 05.08.2002 he was regularized as Helper.
That order was accepted by him and continue to draw the
salary of Helper. He has never challenged his regularization
on the post of Helper. Thereafter vide order dated
17.03.2016 he has been promoted to the post of Assistant
Grade-III. The post of Assistant Grade-III unreserved, Point
No.26 became vacant and he was promoted. This promotion
was on the basis of roster point and no one has been
promoted to the post of Driver because the service rules, as
stated above, has been amended. Therefore, the claim of the
petitioner for appointment/ promotion to the post of Driver
is not tenable.
[6] The petitioner who was regularized as Helper and
now promoted as Assistant Grade-III cannot be appointed or
promoted as Driver. Both the orders have been accepted by
him and did not challenge in this petition.
[7] I do not find any illegality or infirmity in the
impugned order. In the result, this petition is dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1958 of 2017.
12.04.2017:-
Shri Prashant Upadhyay, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Heard on the question of admission.
O R D E R
THE petitioner was appointed on the post of
Lower Division Teacher on 26.07.1961 in the Department of
School Education. The petitioner obtained the degree of
graduation on 31.07.1967 from Vikram University, Ujjain.
The State Government came up with a Circular dated
06.01.1968 for granting promotion to the post of Upper
Division Teacher from the date of acquiring the
qualification. The petitioner submitted representation for
grant of such benefit. The petitioner filed a Writ Petition
No.738 of 1984 in which this Court has granted him the
paper seniority over and above those teachers who were
junior to him and were promoted prior to the petitioner.
[2] The petitioner was promoted to the post of Upper
Division Teacher on 31.08.1996 and thereafter retired on
31.07.2001 on attaining the age of superannuation. The
petitioner submitted representation for grant of seniority to
the post of Upper Division Teacher w.e.f. 01.04.1967. The
Respondents vide order dated 16.11.2006 (Annexure P/5)
has rejected the representation by granting him the seniority
w.e.f. 09.02.1979 but rejected his claim for seniority from
01.04.1967.
[3] Admittedly the petitioner has not challenged the
said order dated 16.11.2006 at the relevant time and even in
the present writ petition. The petitioner has approached this
Court by filing this petition seeking relief that the
Respondents be directed to decide his representation for
grant of seniority w.e.f. 01.04.1967 in the light of judgment
passed by this Court in the cases of Muralidhar Nema v/s
State of M.P.; Mrs. Shobha Shekatkar v/s State of M.P.
And Sultan Khan v/s State of M.P..
[4] The petitioner has already submitted the
representation way back in the year 2006 claiming the
seniority w.e.f. 01.04.1967 to the post of Upper Division
Teacher, the Respondents vide order dated 16.11.2006 has
already rejected his representation by a detailed and
speaking order. The petitioner has not challenged the said
order at the relevant time and even in the present writ
petition and simply filed the petitioner to grant the benefit.
The petition, which is filed for claiming the benefit w.e.f.
1967 cannot be entertained after the period of 50 years
specially when his representation to that effect was rejected
in the year 2006. There is a delay of 10 years in filing the
present petition from the date of order passed on 16.11.2006.
Therefore, the present petition is hopelessly time barred,
without any explanation of delay. Hence accordingly
dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.357 of 2017.
12.04.2017:-
Shri Kuldeep Bhargava, learned counsel for the
petitioner.
Shri Mahesh Kumar Choudhary, learned counsel for
the Respondents.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by orders dated 05.08.2016 and 09.12.2016
passed by the Labour Court, Dewas.
[2] The Respondent Nos.1 to 17 approached the
Labour Court under Sections 7 and 10 of the Industrial
Disputes Act, 1947 claiming classification on the basis of
the work performed by them and the salary to the said post.
They sought the reference on the ground that they are
engaged in the production as skilled labour and are being
paid the wages of unskilled labour. Therefore, looking to
their work, they are required to be classified as skilled
labour and entitled for wages. By way of reference, their
dispute was referred to the Labour Court.
[3] The present petitioner filed detailed reply along
with the preliminary objection before the Labour Court. On
the basis of the pleading, the Labour Court has framed 7
Issues for adjudication.
[4] The Respondents have filed an application that
the petitioner has simply filed the written statement denying
the claim of the Respondents and has not filed any
document in support of written statement. Therefore, he may
be directed to produce the attendance register, pay slips and
production register from 01.01.2013 to 30.06.2016 before
the Court so that they can establish their case. The said
application was opposed by the petitioner on the ground that
the present dispute is not related with the production,
attendance and salary of the workman, therefore, the
application be rejected. The learned Labour Court vide
impugned order dated 5.08.2016 has allowed the application
partly by directing the petitioner to file documents relating
to the production and payment of wages from 2013 to
December, 2015. Being aggrieved by the aforesaid order, the
petitioner filed a Review Application which has been
rejected by order dated 09.12.2016. Hence, the present
petition.
[5] Shri Kuldeep Bhargava, learned counsel on
behalf of the petitioner submits that the Industrial Court has
wrongly allowed the application. These documents are not
required for adjudication of the terms of reference. The
documents are very voluminous and it would be difficult to
produce before the Court.
[6] Per contra Shri Mahesh Kumar Choudhary,
learned counsel on behalf of the Respondents submits that in
all fairness petitioner ought to have filed the documents
along with the written statement which are in his possession.
On the basis of the documents, the workman would be in a
position to prove their case and the Labour Court has not
committed any jurisdictional error while allowing the
application.
[7] The specific claim of the Respondents/Workmen
are that they are doing the work of skilled labour but they
are being paid the wages of unskilled labour. The employer
has wrongly classified them as an unskilled labour. These
documents relating to the production as well as the wages
can establish their case. The documents are in possession of
the employer which are not exigible to the workmen and
same can be produced only through the Court order. Under
Rule 24 of Industrial Disputes (Central) Rules, 1947 the
Labour Court has been vested the power of the Civil Court
for discovery and inspection of the documents. If in the
opinion of the Labour Court the documents are necessary for
adjudication of the dispute between the parties, he can direct
either parties for production of these documents. The
counsel for the Respondents has fairly submitted that if
production of these documents is causing financial burden
on the employer, they are ready to bear the 50% expenses of
the photo copies.
[8] In view of the above, I do not find any illegality
or infirmity in the order passed by the Labour Court. The
Labour Court has passed the order within his jurisdiction for
adjudication of dispute between the parties.
[9] In the result, the petition stands dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8236 of 2016.
13.04.2017:-
Shri Rohit Mangal, learned Govt. Advocate for the
petitioners/State.
Heard on the question of admission.
Issue notice to the Respondent on payment of process
fee within seven days by RAD mode.
Also heard on I.A.No.6950/2016.
There is an award of reinstatement without back
wages.
Subject to the compliance of Section 17-B of the
Industrial Disputes Act, 1947, the operation of the impugned
award dated 21.04.2016 shall remain stayed till the next date
of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1805 of 2017.
13.04.2017:-
Shri Koustubh Pathak along with Shri Palash
Choudhary, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.1/State, on advance copy.
After arguing at length, learned counsel for the
petitioner prays for withdrawal of this writ petition.
Prayer is allowed.
The writ petition is dismissed as withdrawn.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1469 of 2013.
13.04.2017:-
Shri V.K.Jain, learned counsel for the petitioners.
Shri Harish Kumar Joshi, learned counsel for the
Respondent Nos.1 to 3.
At the request of counsel for the petitioners, list after a
week.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Civil Case No.412 of 2015.
13.04.2017:-
Shri D.Patel, learned counsel for the applicant.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.2/State.
Office of the Advocate General is directed to submit
report about the financial status of the applicant within 15
days.
List thereafter.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.187 of 2016.
13.04.2017:-
Parties through their counsel.
At the request of counsel for the Respondents, list after
two weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7221 of 2016.
13.04.2017:-
Parties through their counsel.
Counsel for the petitioner submits that in compliance
of the order dated 28.03.2017, today issues has been filed.
Office is directed to place the same on record.
List in the week commencing 24th April, 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.704 of 2017.
13.04.2017:-
Shri Anil Kumar Jain, learned counsel for the
petitioner.
None for the Respondents.
List on any Wednesday as directed by this Court on
28.03.2017.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8557 of 2016.
13.04.2017:-
Shri S.K.Golwarkar, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Vide order dated 06.01.2017 notices were issued,
interim relief was granted and the petitioner was directed to
paay the process fee within 3 days.
Counsel for the petitioner submits that there is a delay
of one day in payment of process fee.
On oral request, the delay is hereby condoned.
Office is directed to issue notice to the Respondents.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2258 of 2017.
13.04.2017:-
Shri Himanshu Joshi, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Order of Co-operative Tribunal is under challenge.
As per High Court Rules, the office is directed to
examine the matter and list before the Division Bench.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.572 of 2008.
11.04.2017:-
Dr. Manohar Dalal, learned counsel for the appellants.
Shri Brajesh Pandya, learned counsel for the
Respondent Nos.1 to 4.
The present second appeal has been filed by
defendants being aggrieved by judgment dated 07.07.2008
passed in First Appeal No.7/2007 whereby first appeal has
been dismissed affirming the judgment and decree dated
29.10.2005 in C.O.S.No.74-A/2004 whereby civil suit was
decreed in favour of the plaintiffs.
Heard on admission as well as on I.A.No.3829/2016,
I.A.No.4257/2016 and I.A.No.4258/2016.
For deciding these applications, facts of the case, in
short, are as under :-
That one Shri Narayandas s/o Pannalalji Goyal
has created a Trust called as "Shiv Mandir Public
Trust"Sadar Bazar, Indore on 21.09.1966 by appointing 6
Trustees, namely, (1) Rameshchandra Goyal, (2) Shrikrishna
Goyal, (3) Ravindra Goyal, (4) Krishnashankar, (5) Mahesh
Gupta and (6) Pramod Garg. All these so called Trustees on
08.03.1984 filed an application under Section 4 of the M. P.
Public Trust Act, 1951 [in brief "the Trust Act, 1951"]
before the Registrar, Public Trust, Indore for its registration.
Pandit Ramdhan Joshi filed an objection on 04.08.1984
about the registration of the Trust (Ex.P/3). Vide order dated
12.09.1986 (Ex.P/4) the Registrar, Public Trust has rejected
the application on the ground of limitation. The Registrar
held that the application under Section 4 of the Trust Act,
1951 ought to have been filed within a period of three
months from 21.09.1966.
Being aggrieved by order dated 12.09.1986, all
the so called six Trustees jointly filed a suit under Order VII
Rule 1 & 2 of CPC read with Section 8 of Trust Act, 1951
before the Civil Judge, Class-II, Indore on 12.03.1987
(Ex.P/5). In the said suit, Pandit Ramdhan Joshi has not
been impleaded as defendant. The plaintiffs in the suit has
only sought the relief that the order dated 12.09.1986 be set-
aside, the application be treated as within limitation and the
Registrar be directed to decide on its merit. Vide judgment
and decree dated 11.10.1988 the suit was decreed in favour
of the plaintiffs by setting aside the order of Registrar dated
12.09.1986 by directing him to register Public Trust.
The said Pandit Ramdhan Joshi came to know
about passing of ex-parte judgment and decree dated
11.10.1988 filed the suit [Civil Suit No.74-A/2004] seeking
the relief that the judgment and decree dated 11.10.1988 is
void and not binding on him and the Registrar be restrained
to register a Trust on the basis of judgment and decree dated
11.10.1988. In the said suit, all the present appellants, who
filed earlier suit, were made as defendant Nos.2 to 7.
Vide judgment and decree dated 29.10.2005 the
suit was decreed and judgment and decree dated 11.10.1988
was declared void and the Registrar was restrained from
registration of the Trust on the basis of judgment and decree
dated 11.10.1988. All the present appellants filed First
Appeal No.7/2007 before the District Judge, Indore against
the judgment and decree dated 29.10.2005. Vide judgment
dated 07.07.2008 the appeal was dismissed and the
judgment and decree passed by the Trial Court on
29.10.2005 has been affirmed.
The present appellants/defendant Nos.2 to 7 filed
the present second appeal before this Court.
During pendency of the appeal before the first
appellate Court, Pandit Ramdhan Joshi has expired and his
legal representatives has been brought on record and they
are Respondents in this appeal.
After filing this appeal, the appellant Nos.1 and 2 has
also expired and application was filed for deleting their
name and adding three new Trustees appointed in the Trust.
The said application was opposed by the Respondents on the
ground that since the Trust has not been registered,
therefore, new Trustees cannot be appointed and the appeal
has been abated on account of death of appellant Nos.1 and
2.
Thereafter the appellants have filed I.A.No.4257/2016,
an application under Order XXXI Rule 1 & 2 of CPC for
deleting the name of appellant Nos.1 and 2 and adding three
new Trustees as appellant Nos.1 to 3. The said application
was also opposed by the Respondents on the ground that the
property has not been vested into the Trust, therefore, the
provisions under Order XXXI Rule 1 & 2 of CPC would not
apply.
The appellants has also filed an application, I.A.
No.4258/2016, under Order XXIII Rule 1 of CPC for
withdrawal of this appeal with a liberty to file an application
under the provisions of Trust Act, 1951 for registration of
Public Trust. The aforesaid application was also opposed by
the Respondents on the ground that no such relief can be
granted to the appellants which can nullify the judgment and
decree granted in favour of the plaintiffs.
Since the Respondents has filed an application under
Order XXXI Rule 1, therefore, I.A.No.3829/2016, is hereby
dismissed because the nature of both applications are same.
The provisions of Order XXXI Rule 1 & 2 of CPC
applies to the property vested into the Trust. In the present
case, it is not disputed that the Trust has not been registered
so far, therefore, properties has not been vested into the
Trust and the appellants have not acquired the status of
Trustees. Therefore, provision of Order XXXI Rule 1 & 2
of CPC would not apply. Hence, this application is also
rejected. Hence, the appeal against the appellant Nos.1 and
2 stands abated.
So far as application under Order XXXIII Rule 1 of
the CPC for withdrawal of the appeal with liberty is
concerned, earlier this this Court has allowed the application
vide order dated 01.10.2014 without notice to the
Respondents and appeal was dismissed as withdrawn with
liberty. The operative part of order dated 01.10.2014 is
reproduced below :-
"Learned counsel for the appellants states that the
findings as recorded by the two Courts are accepted so far as
the present appellants are concerned, but liberty may be
granted to them that on filing a fresh application for
registration of the Public Trust it may be decided by the
Registrar in accordance with law without being influenced by
the findings as recorded by the two Courts.
Prayer seems to be reasonable therefore allowed.
Accordingly, this appeal is hereby dismissed as
withdrawn with liberty as prayed for."
Being aggrieved by the aforesaid order dated
01.10.2014, the Respondents preferred a Review Petition
No.237/2015 and vide order dated 09.02.2016 the review
petition was allowed on the ground that the aforesaid order
was passed without hearing the petitioners (Respondents in
this appeal) and remit the matter to the Court to decide it in
accordance with law.
The provisions of Order XXIII Rule 1 of the CPC are
reproduced below :-
"1. Withdrawal of suit or abandonment of part of
claim.- (1) At any time after the institution of a suitTh2jintiff
may as against all or any of the defendants abandon his suit
or abandon a part of his claim.
Provided that where the plaintiff is a minor or other
person to whom the provisions contained in rules to 14 of
Order XXXII extend, neither the suit nor any part of the
claim shall be abandoned Without the leave of the Court.
(2) An application for leave under the proviso to
sub-rule (1) shall be accompanied by an affidavit of the next
friend and also, if the minor or such other person is
represented by a pleader, by a certificate of the pleader to the
effect that the abandonment proposed is, in his opinion, for
the benefit of the minor or such other person.
(3) Where the court is satisfied,--
(a) that a suit must fail by reason of some formal
defect, or
(b) that there are sufficient grounds for allowing
the plaintiff to institute a fresh suit for the
subject matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in respect of the
subject matter of such suit or such part of the claim.
(4) Where the plaintiff,--
(a) abandons any suit or part of claim under sub-
rule (1), or
(b) withdraws from a suit or part of a claim without
the permission referred to in sub-rule (3),
he shall be liable for such costs as the court may award and
shall be precluded from instituting any fresh suit in respect of
such subject matter or such part of the claim.
(5) Nothing in this rule shall be deemed to
authorise the court to permit one of several plaintiffs to
abandon a suit or part of a claim under sub-rule (1), or to
withdraw, under sub-rule (3), any suit or part of a claim,
without the consent of the other plaintiffs."
Under these provisions the plaintiff at any time may
abandon his suit or part of his claim and if the Court is
satisfied may grant permission to withdraw of such suit or
part of the claim with liberty to institute a fresh suit in
respect of subject matter. Under Order XXIII Rule 1 of the
CPC while withdrawing the suit, the Court can grant liberty
to file a fresh suit. But in the present case the plaintiffs/
appellants are seeking withdrawal of this appeal with liberty
to file fresh application before the Registrar, Public Trust.
Proceedings of the second appeal is governed under the
provisions of CPC. The Court cannot grant liberty which is
not provided under the Code of Civil Procedure. Under
Order XXIII Rule 1 of the CPC, there is only a provision for
granting liberty to file a fresh suit but the present appellants
are not seeking liberty for filing the suit. Therefore, no
such liberty can be granted. They can simply withdraw the
appeal and the consequences shall follow.
The application under Section 4 of the Trust Act, 1951
filed by the present appellants before the Registrar was
dismissed as time barred. The order of Registrar was
challenged by them in a civil suit which was decreed by
judgment and decree dated 12.03.1987 but the said decree
has been declared void and not binding on the plaintiffs in a
suit filed by the Respondents and the Registrar was
specifically directed not to register the Trust in pursuant to
the decree dated 12.03.1987 which has been affirmed by the
first appellate Court vide order dated 07.07.2008.
Since the appellants are withdrawing this appeal,
therefore, the judgment and decree dated 29.10.2005 and
07.07.2008 are hereby affirmed and by which the decree in
favour of the appellants dated 11.10.1988 has already been
declared void. The claim of the appellants are based on the
Trust Deed dated 21st September, 1966 which was not
submitted for registration within a period of three months as
required under Section 4 of the Trust Act, 1951. Therefore,
liberty to the appellants cannot be granted for registration of
the Trust on the basis of the Trust deed dated 21 st September,
1966.
Accordingly, the appeal is dismissed as withdrawn
without any liberty.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7394 of 2016.
12.04.2017:-
Shri S.L.Gwaliory, learned counsel for the petitioner.
Shri Gaurav Laad, learned counsel for the Respondent.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by order dated 05.10.2016 by which his
application filed under Order VI Rule 17 of the CPC has
been rejected.
[2] Facts of the case are that the plaintiff has filed the
suit as Manager of the Trust against the petitioner/ defendant
who is discharging his duty as Pujari in the Mandir. The
petitioner has filed written-statement. Thereafter issue has
been framed and the case is fixed for plaintiff's evidence.
The petitioner/plaintiff filed an application under Order VI
Rule 17 of the CPC raising a plea that the suit is not
maintainable because the Trust has not been registered under
Section 4 of the M. P. Public Trust Act. The Trial Court has
rejected the said amendment application on the ground that
issue to that effect has already been framed and after
framing of the issue, the amendment cannot be allowed.
[3] I have heard learned counsel for the parties.
[4] That as an abandon precaution, the defendant has
moved an application for amending the written-statement to
raise issue of maintainability of suit. When the issue to that
effect has been framed, there is no delay in filing the
application and the plaintiff's evidence has not been started
as yet, the Trial Court ought to have allowed the application
for amendment in written statement.
[5] Such being the settled law, it can safely be held
that in the case of amendment of a written statement, the
Courts are more liberal in allowing an amendment than that
of a plaint as the question of prejudice would be far less in
the former than in the latter case [See - B.K.Narayana
Pillai v/s Parameswaran Pillai {(2000) 1 SCC 712} and
Baldev Singh & Ors v/s Manohar Singh [(2006) 6 SCC
498].
[6] In view of the above, the impugned order dated
05.10.2016 is hereby set-aside. The application filed under
Order VI Rule 17 of the CPC is allowed and defendant is
permitted to incorporate the amendment on the next date of
hearing and the plaintiff shall be free to apply for
consequential amendment in the plaint.
[6] The petition is allowed.
No order as to costs.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Civil Case No.522 of 2015.
12.04.2017:-
Shri B.L.Bakliya, learned counsel for the applicants.
Shri Gagan Bajad, learned counsel on behalf of Shri
Pankaj Kumar Jain, learned counsel for the Non-applicant
No.15.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for State of M.P.
None for the other Non-applicants, though served.
Heard on the question of admission.
O R D E R
THE present Misc. Civil Case is filed under
Order XLIV Rule 2 & 3 of the CPC seeking permission to
file the appeal as an indigent person.
[2] This Court has directed the Collector, Indore to
submit the report about the financial status of the applicants.
Vide letter dated 18.02.2016 the Additional Collector, Indore
has given the report that the applicants are engaged in the
sale of vegetables and earning Rs.200-00 per day and their
monthly income is Rs.5,000-00 and they are residing in a
house which is 15 x 15 sq.ft. The applicant No.1 is having
BPL Ration Card. Vide order dated 17.07.2012 learned Trial
Court has allowed the application under Section 35 of the
Courts Fees Act and plaintiffs were permitted to file the suit
as an indigent person. The applicants have also filed
affidavits under Order XLIV Rule 3 of the CPC that they
have not ceased to be an indigent person since the date of
the decree appealed and from the Collector report is also
established that the monthly income of the applicants are
Rs.5,000-00.
[3] This Court in the case of Mohan Singh v/s
Ravindranath [2011 (1) MPWN 19] has allowed the
application under Order XLIV Rule 1 of the CPC when the
income of the applicant is Rs.1,00,000-00 per annum and
applicant therein was unable to pay Court-fees of
Rs.95,800-00.
[4] In the present case, on the basis of income, the
present applicants are not in a position to pay the Court-fees
of Rs.1,50,000-00.
[5] Counsel for the Non-applicant No.15 opposes the
prayer.
[6] In this view of the matter, according to this
Court, application deserves to be allowed and the same is
hereby allowed. The applicants are permitted to file first
appeal as an indigent person.
[7] Office is directed to register the case as First
Appeal and list for admission.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Civil Case No.57 of 2017.
11.04.2017:-
Shri H.K.Sharma, learned counsel for the applicant.
Shri Sameer Verma, learned counsel for the Non-
applicant.
Heard on the question of admission.
O R D E R
THE applicant has filed the present application
under Section 24 of the Code of Civil Procedure [in brief
"the Code"] for transfer of Hindu Marriage Case
No.1393/2016 from Family Court, Indore to Family Court,
Bhopal.
[2] The marriage between applicant and the Non-
applicant was solemnized on 09.02.2015 under the hindu
customs and rites at Bhopal. Due to dispute arose after the
marriage, they are living separately. The Non-applicant has
filed an application under Section 13 of the Hindu Marriage
Act before the Family Court at Indore. On receiving the
summons from the said Court for appearance, the wife has
approached this Court seeking transfer.
[3] It is submitted that the distance from Indore to
Bhopal is 200 kms. and the applicant is pregnant and no
body is in the family to look after her. Even after the
delivery, she was required to take care of newly borne child.
[4] The application is opposed by the Non-applicant
on the ground that he is ready to pay the travelling expenses
and the maintenance if she come to Indore to attend the
Court and prayed for dismissal of the application.
[5] I have heard learned counsel for the parties.
[6] It is not disputed that the parents of the applicant
are residing at Bhopal and having permanent resident there.
Since 2016 the applicant is residing with her parents. The
applicant is pregnant and is not in a position to attend every
proceedings at Indore, therefore, she had no option but to
file this application for transfer of matrimonial case filed
against her.
[7] The apex Court in the case of Sumita Singh v/s
Kumar Sanjay and another, reported in (2001) 10 SCC 41
has held that in an husband's suit against wife for divorce,
the convenience of the wife must be looked at and the
divorce petition should be transferred to a place where she is
residing.
[8] In view of the above, the present application is
allowed and Hindu Marriage Case No.1393/2016 pending in
the Court of learned Principal Judge, Family Court, Indore is
transferred to Family Court, Bhopal. Both the parties are
directed to appear before the Family Court, Bhopal on
27.04.2017.
Application stands allowed.
C.c. as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6403 of 2016.
12.04.2017:-
Parties through their counsel.
At the request of learned counsel for the petitioner, list
on 26.04.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6683 of 2016.
12.04.2017:-
None for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 to 4/State, submits that the Respondents
has filed an application raising preliminary objection about
the maintainability of the writ petition.
Office is directed to list this matter for consideration of
the said application in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7098 of 2016.
12.04.2017:-
Shri Rajesh Batham, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Shri Akshat Pahadiya, learned counsel for the
intervenor.
Heard on I.A.No.1045/2017, an application for
intervention filed on behalf of Shubham Construction.
The present petition has been filed by the petitioner
being aggrieved by order dated 17.08.2016 (Annexure-P/1).
The intervenor has sought intervention on the ground that he
is the subsequent purchaser of the property in question in
which the petitioner is claiming right.
I have perused the application.
The petitioner has opposed the application on the
ground that the intervener was not party before the Collector
in the impugned order. The intervener was party in earlier
round of litigation before this Court in Writ Petition
No.12683 of 2013 and in Writ Appeal No.127 of 2016 being
a complainant and if this petition is allowed his right would
be affected. Therefore, intervention is allowed.
List on 26.04.2017.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7644 of 2016.
12.04.2017:-
Shri B.L.Jain, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Counsel for the petitioner submits that today he has
filed the rejoinder.
Office is directed to place the same on record.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7705 of 2016.
12.04.2017:-
Shri Kuldeep Bhargava, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent/State, submits that today he is filing the reply
and the copy has been supplied to Shri Bhargava.
List on 26.04.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8089 of 2016.
12.04.2017:-
None for the petitioner.
Shri Akshat Pahadiya, learned counsel for the
Respondent No.1.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.2/State.
Adjourned.
List in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8167 of 2016.
12.04.2017:-
Parties through their counsel
Counsel for the Respondents prays for four weeks'
time to file reply.
Time granted.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8338 of 2016.
12.04.2017:-
Parties through their counsel.
Counsel for the Respondent No.2 prays for and is
granted four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8505 of 2016.
12.04.2017:-
None for the parties.
Adjourned.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.82 of 2017.
12.04.2017:-
Shri M.L.Pathak, learned counsel for the petitioner.
Shri Pushyamitra Bhargava, learned Deputy Advocate General
for the Respondents/Contemnors.
Heard.
O R D E R
THE present contempt petition has been filed alleging
disobedience of order dated 28.09.2016 passed in Writ Petition
No.2591 of 2016 by which the petitioner was permitted to file an
appropriate representation before the Excise Commissioner and the
Excise Commissioner was directed to decide the same within a
period of three months. When the representation was not decided,
therefore, the present contempt petition was filed in which the
notices were issued.
[2] Shri Pushyamitra Bhargava, learned Deputy Advocate
General for the Respondents/Contemnors submits that there is a
delay but the Respondents by a detailed and speaking order dated
14.03.2017 has rejected the representation of the petitioner.
[3] Once the representation has been rejected, the petitioner
is required to challenge the same by way of separate proceedings.
[4] In view of the above nothing survive in the matter. The
order has been complied with. The Contemnors are discharged.
[5] The contempt petition is dismissed with the aforesaid
liberty.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.95 of 2017.
12.04.2017:-
Shri Anand Bhatt, learned counsel for the petitioner.
Shri Prateek Patwardhan, learned counsel appearing
for the Respondent No.2 prays for four weeks' time to
submit compliance report/return.
Time is granted.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.151 of 2017.
12.04.2017:-
Shri Anand Singh Behrawat, learned counsel for the
petitioner.
Ms. Chitralekha Hardia, learned counsel for the
Respondents/Contemnors.
Counsel for the Respondents prays for ten days' time to
file reply of this contempt petition.
Prayer is allowed.
List on 24.04.2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.155 of 2017.
12.04.2017:-
Shri P.M.Bhargat, learned counsel for the petitioner.
Shri Praveen Porwal, learned counsel for the
Respondent.
Counsel for the Respondent is directed to file the reply
of the writ petition along with the Income-tax returns of last
3 years and the details of the property.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.388 of 2011.
12.04.2017:-
Shri Manish Vijayvargiya, learned counsel for the
appellant.
Ms. Aditi Gobhuj, learned counsel for the Respondent
No.1.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent No.2/State.
Vide order dated 07.12.2016 order of status-quo in
respect of possession as well as alienation of the suit
property was granted to the appellant. Counsel for the
Respondent No.1 submits that under the garb of this order,
the appellant is restraining the Respondent No.1 from
making the construction and the construction is almost
complete. This appeal was filed in the year 2011 but
dismissed in default for want of prosecution. Later on it was
restored on 13.07.2016. During this period Respondent
No.1 has started construction work and the order of status-
quo was passed on 07.12.2016 by that time the Respondent
No.1 has raised the construction. Therefore, it is made clear
that there is no order of injunction in respect of construction.
List the appeal for arguments on admission in the week
commencing 1st May, 2017.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.545 of 2012.
12.04.2017:-
Shri A.S.Garg, learned Senior Counsel with Ms.
Megha Jain, learned counsel for the appellant.
Shri R.S.Trivedi, learned counsel for the Respondent
No.1.
List in the week commencing 1st May, 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.9116 of 2014.
12.04.2017:-
Parties through their counsel.
As prayed by learned counsel for the parties, list after
six weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.18 of 2015.
12.04.2017:-
Shri J.B.Dave, learned counsel for the appellant.
Shri S.S.Chouhan, learned counsel for the Respondent
No.1.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent Nos.2 and 3/State.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2823 of 2015.
12.04.2017:-
Parties through their counsel.
Counsel for the petitioner prays for further four weeks'
time to file rejoinder.
Time is granted.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5391 of 2015.
12.04.2017:-
Shri M.K.Jain, learned counsel for the petitioner.
As per the office report, Respondent No.1 is unserved.
Let fresh process fee be paid within seven days by
RAD mode for service to Respondent No.1.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6716 of 2015.
12.04.2017:-
Ms. Sangita Parsai, learned counsel for the petitioner.
She prays for withdrawal of the writ petition on the
basis of compromise arrived at between the parties.
Prayer is allowed.
The writ petition is dismissed as withdrawn.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6917 of 2015.
12.04.2017:-
Parties through their counsel.
Shri Sudarshan Joshi, learned counsel for the
Respondent No.1 seeks permission to file the reply.
Permission granted.
List in the week commencing 24th April, 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7467 of 2015.
12.04.2017:-
Shri V.K.Patwari, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent Nos.1, 2 and 4/State.
Shri Ashish Upadhyay, learned counsel for the
Respondent No.3.
Two weeks' time is granted to counsel for the
Respondent No.3 to file additional reply.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8155 of 2015.
12.04.2017:-
Shri Manish Gadkar, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent No.1/State.
Shri Ashish Upadhyay, learned counsel for the
Respondent Nos.2 and 3.
Shri Kamal Airen, learned counsel for the Respondent
No.4.
List in the first week of May, 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8357 of 2015.
12.04.2017:-
Shri Aviral Vikas Khare, learned counsel for the
petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent Nos.1 to 3/State.
Shri H.Wadnerkar, learned counsel for the Respondent
No.4.
Despite last opportunity granted on 27.02.2017,
rejoinder has not been filed.
Heard on the question of admission.
Admit.
List for final hearing in due course.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.8826 of 2015.
12.04.2017:-
Parties through their counsel.
Learned Deputy Govt. Advocate submits that today he
has filed the reply and copy has been supplied to counsel for
the petitioner.
List after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.73 of 2016.
12.04.2017:-
Shri M.K.Jain, learned counsel for the appellant.
Shri D.K.Sharma, learned counsel for the Respondent
Nos.1 and 2.
List after two weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.237 of 2016.
12.04.2017:-
Shri A.S.Garg, learned Senior Counsel with Shri
Sapnesh Jain, learned counsel for the appellant.
Shri M.L.Pathak, learned counsel for the Respondent
Nos.1 and 2.
Shri Garg prays for a week's time to file an application
for amendment in the application for condonation of delay.
Time is granted.
List after a week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.321 of 2016.
12.04.2017:-
Shri A.S.Kutumbale, learned Senior Counsel with Shri
M.R.Sheikh, learned counsel for the appellants.
Shri V.K.Jain, learned counsel for the Respondent
Nos.1 to 3.
List after two weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.362 of 2016.
12.04.2017:-
Shri Gagan Bajad, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent No.1 to 5/State.
Shri S.K.Tiwari, learned counsel for the Respondent
No.6.
Learned Deputy Govt. Advocate prays for and is
granted two weeks' time to file affidavit.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1859 of 2015.
10.04.2017:-
Shri Rakesh Pal, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by order dated 21.03.2011 by which his
claim for compassionate appointment has been rejected.
[2] Facts of the case, in short, are as under :-
Late Aniruddha Shukla working as Assistant
Grade-II in the Department of Tribal Welfare died on
31.08.1999. On 13.06.2000 mother of the petitioner
submitted an application that at present she is not applying
for compassionate appointment for herself and keeping right
reserved for his son i.e. petitioner on his becoming major.
The petitioner became major in the year 2011 and thereafter
he submitted an application for compassionate appointment.
Placing reliance over the Policy dated 13th January, 2011, the
claim of the petitioner has been rejected by the Assistant
Commissioner, Tribal Welfare Department. Hence, the
present petition.
[3] Learned counsel for the petitioner submits that
the Respondents has wrongly applied the Policy of 2011
which apply to a cases in which the death took place after
2001. But in the present case the death of the petitioner's
father took place in the year 1999. Therefore, in the light of
the judgment of apex Court in the case of Canara Bank v/s
M. Mahesh Kumar [(2015) 7 SCC 412], the claim of the
petitioner was liable to be considered under the policy
prevailing as on 1999.
[4] The Respondents have filed the return and
submitted that the case of the petitioner is hopelessly time
barred as the rejection order was passed in the year 2011 and
the petition was filed after a period of 5 years. Even
otherwise at the time of death of the father of the petitioner,
the Policy of the year 2000 was in force in which the right to
claim for compassionate appointment was available only for
the period of 3 years. Even if the Policy of 2000 is applied,
the claim of the petitioner was liable to be rejected by the
Respondents.
[5] I have heard learned counsel for the parties.
[6] It is correct that as per the judgment of apex
Court in the case of Canara Bank (supra) while considering
the claim for compassionate appointment, the Respondents
was required to consider prevailing policy of the year in
which the death took place. Father of the petitioner died in
the year 1999 and the Policy dated 10.06.1994 was in force.
[7] The petitioner become major after 10 years from
the death of his father, therefore, under the said Policy of
1994 he was entitled to claim compassionate appointment.
[8] That controversy involved in the case of the
petitioner is that whether his case would be covered under
the Policy dated 18.08.2008 or Policy dated 10.06.1994. The
apex Court in the case of Canara Bank (supra) has held that
the policy in vogue on the time of death of the concerned
employee would apply.
Paras 13 to 19 of the aforesaid judgment is
reproduced below :-
"13. Applying these principles to the case in hand, as
discussed earlier, respondent's father died on 10.10.1998 while
he was serving as a clerk in the appellant-bank and the
respondent applied timely for compassionate appointment as
per the scheme 'Dying in Harness Scheme' dated 8.05.1993
which was in force at that time. The appellant-bank rejected
the respondent's claim on 30.06.1999 recording that there are
no indigent circumstances for providing employment to the
respondent. Again on 7.11.2001, the appellant-bank sought for
particulars in connection with the issue of respondent's
employment. In the light of the principles laid down in the
above decisions, the cause of action to be considered for
compassionate appointment arose when the Circular
No.154/1993 dated 8.05.1993 was in force. Thus, as per the
judgment referred in Jaspal Kaur's case, the claim cannot be
decided as per 2005 Scheme providing for ex-gratia payment.
The Circular dated 14.2.2005 being an administrative or
executive order cannot have retrospective effect so as to take
away the right accrued to the respondent as per circular of
1993.
14. It is also pertinent to note that 2005 Scheme providing
only for ex-gratia payment in lieu of compassionate
appointment stands superseded by the Scheme of 2014 which
has revived the scheme providing for compassionate
appointment. As on date, now the scheme in force is to provide
compassionate appointment. Under these circumstances, the
appellant- bank is not justified in contending that the
application for compassionate appointment of the respondent
cannot be considered in view of passage of time.
15. Insofar as the contention of the appellant-bank that
since the respondent's family is getting family pension and also
obtained the terminal benefits, in our view, is of no
consequence in considering the application for compassionate
appointment. Clause 3.2 of 1993 Scheme says that in case the
dependant of deceased employee to be offered appointment is a
minor, the bank may keep the offer of appointment open till
the minor attains the age of majority. This would indicate that
granting of terminal benefits is of no consequence because
even if terminal benefit is given, if the applicant is a minor, the
bank would keep the appointment open till the minor attains
the majority.
16. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. &
Ors., (2000) 6 SCC 493, while dealing with the application
made by the widow for employment on compassionate ground
applicable to the Steel Authority of India, contention raised
was that since she is entitled to get the benefit under Family
Benefit Scheme assuring monthly payment to the family of the
deceased employee, the request for compassionate
appointment cannot be acceded to. Rejecting that contention
in paragraph (13), this Court held as under:-
"13. ....But in our view this Family Benefit Scheme
cannot in any way be equated with the benefit of
compassionate appointments. The sudden jerk in the
family by reason of the death of the breadearner can
only be absorbed by some lump-sum amount being
made available to the family -- this is rather
unfortunate but this is a reality. The feeling of security
drops to zero on the death of the breadearner and
insecurity thereafter reigns and it is at that juncture if
some lump-sum amount is made available with a
compassionate appointment, the grief-stricken family
may find some solace to the mental agony and manage
its affairs in the normal course of events. It is not that
monetary benefit would be the replacement of the
breadearner, but that would undoubtedly bring some
solace to the situation." Referring to Steel Authority of
India Ltd.'s case, High Court has rightly held that the
grant of family pension or payment of terminal benefits
cannot be treated as a substitute for providing
employment assistance. The High Court also observed
that it is not the case of the bank that the respondents'
family is having any other income to negate their claim
for appointment on compassionate ground.
17. Considering the scope of the Scheme 'Dying in Harness
Scheme 1993' then in force and the facts and circumstances of
the case, the High Court rightly directed the appellant-bank to
reconsider the claim of the respondent for compassionate
appointment in accordance with law and as per the Scheme
(1993) then in existence. We do not find any reason warranting
interference.
18. So far as the cases in Civil Appeal No.266/2008 and
Civil Appeal No.267/2008 are concerned, they are similar and
those respondents are similarly placed and the appeals
preferred by the bank are liable to be dismissed. The
appellant-bank is directed to consider the case of the
respondents in Civil Appeal Nos. 266/2008 and 267/2008.
19. In the result, all the appeals preferred by the appellant-
bank are dismissed and the appellant bank is directed to
consider the case of the respondents for compassionate
appointment as per the Scheme which was in vogue at the time
of death of the concerned employee. In the facts and
circumstances of the case, we make no order as to costs."
[9] That in Policy dated 10.06.1994, the Clause
which is relevant is clause No.5 which is reproduced
below :-
" ¼ikWp½ ;fn fdlh 'kkldh; lsod dh e`R;q ds le; mlds
ifjokj dk lnL; vo;Ld lnL; dks vuqdEik fu;qfDr dh ik=rk mlds
o;Ld gksus ij gkssxh vkSj mlds vkosnu djus ij vuqdEik fu;qfDr nh
tk ldsxhA "
[10] Under this clause, any member of the deceased's
family can apply for the compassionate appointment after
attaining the age of majority.
[11] In the present case, the petitioner became major
in the year 2010 and within one year, he applied for
compassionate appointment in the year 2011, therefore, the
application was within time. Respondent has wrongly
rejected the same by applying the Policy dated 13.01.2011.
[12] Thus, the impugned order is hereby set-aside.
The Respondents are directed to reconsider the claim of the
petitioner in light of the Policy dated 10.06.1994.
[13] With the aforesaid observation, the petition is
hereby disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7972 of 2016.
11.04.2017:-
Shri D.C.Kasaniya, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Heard on the question of admission.
O R D E R
THE petitioner has filed the present petition
being aggrieved by order dated 23.07.2016 by which
application under Section 65 of the Evidence Act has been
rejected.
[2] Plaintiffs filed an application under Section 65 of
the Evidence Act before the Trial Court on the ground that
original Registered Will dated 01.11.1926 is not available,
therefore, they may be permitted to prove as secondary
evidence under Section 65 of the Evidence Act. In this
application it is submitted that the plaintiffs filed an
application for obtaining the certified copy from the office
of Sub Registrar and same have been declined. The learned
Trial Court has rejected the application under Section 65 of
the Evidence Act on the ground that the plaintiffs have not
filed any document/receipt to show that they have applied
before the Sub Registrar for obtaining the certified copy.
However, the Court has allowed the application under Order
XIII Rule 10 of the CPC for summoning the record
pertaining to the deed dated 01.11.1926 from the office of
the Sub Registrar and the Court has also allowed the
application under Order VII Rule 14 of the CPC by which
the photo copy of the said deed has been taken on record.
When the photo copy has been taken on record and the
direction has been issued for summoning the record of Sub
Registrar, then application under Section 65 of the Evidence
Act is not necessary. However, liberty is granted to the
petitioners, if occasion so arises, they may file again
application under Section 65 of the Evidence Act.
[3] The petition stands disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Civil Case No.764 of 2014.
11.04.2017:-
Shri Brajesh Pandya, learned counsel for the applicant.
Shri A.S.Garg, learned Senior Counsel with Shri
U.K.Choukse, learned counsel for the Respondent Nos.4, 5,
7 and 8.
List in the week commencing 24th April, 2017.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.66 of 2017.
11.04.2017:-
Parties through their counsel.
Learned counsel for the Respondent prays for and is
granted one week's time to argue the matter.
List after a week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.85 of 2017.
11.04.2017:-
Parties through their counsel.
Learned counsel for the Respondents prays for and is
granted four weeks time to file reply/compliance report.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.86 of 2017.
11.04.2017:-
Shri Rajnish Yadav, learned counsel for the appellant.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent No.2/State.
As prayed by learned counsel for the appellant, list
after two weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.158 of 2017.
11.04.2017:-
Shri Shashank Patwari, learned counsel for the
petitioner.
Service to the Respondents are awaited.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.173 of 2017.
11.04.2017:-
Shri Rakesh Pal, learned counsel for the petitioner.
Service to the Respondents are awaited.
List after service is effected.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.268 of 2017.
11.04.2017:-
Shri Manish Joshi, learned counsel for the petitioner.
Learned counsel for the petitioner prays for and is
granted two weeks' time to file rejoinder.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1418 of 2017.
11.04.2017:-
Smt. Vinita Phaye, learned counsel for the petitioner.
Shri Yashn Pal Rathore, learned counsel for the
Respondent.
List in the week commencing 1st May, 2017 along with
Writ Petition No.7375 of 2016 and Writ Petition
Nos.19/2017, 1211/2017 and 141/2017 in which identical
issues are involved.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.3046 of 2011.
11.04.2017:-
Shri M.S.Dwivedi, learned counsel for the appellants.
Shri Ankit Dubey, learned counsel on behalf of Shri
Romil Malpani, learned counsel for the Respondent No.1.
Shri M.H.Jindal, learned counsel for the Respondent
No.3.
Learned counsel for the Respondent No.2 prays for
time to take instructions whether he can appear on behalf of
Respondent No.2 also who is driver of the Respondent No.1.
List after fifteen days.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.417 of 2012.
11.04.2017:-
Shri Ashish Jaiswal, learned counsel for the appellant.
Shri V.K.Gangwal, learned counsel for the Respondent
Nos.1 to 6.
Shri Manish Jain, learned counsel for the Respondent
No.8.
Heard on I.A.No.557/2017, an application for service
to the Respondent No.7 by way of HUMDAST.
The application [IA No.557/2017] is allowed.
Fresh process fee be paid for preparation of
HUMDAST service within seven days.
IA No.557/2017 stands disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.785 of 2012.
11.04.2017:-
None for the parties.
Considered I.A.No.4998/2014.
This appeal is for enhancement in which the liability of
Insurance Company is not disputed. The Respondent No.2
was ex-parte before the Tribunal also.
Therefore, service to the Respondent No.2 is dispensed
with at the risk and cost of the appellant.
Accordingly, IA No.4998/2014 stands disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.1598 of 2013.
11.04.2017:-
Shri Anil Goyal, learned counsel for the appellant.
Shri Surendra Gupta, learned counsel for the Respondent
No.1/claimant.
Heard on I.A.No.921/2017, an application filed on behalf
of the Respondent No.1 for withdrawal of the amount deposited
by the appellant/Insurance Company.
The appellant has filed this appeal being aggrieved by the
award dated 26th April, 2013 by which amount of compensation
Rs.12,66,000-00 has been directed to be paid to the claimant by
the Insurance Company. The appellant is mainly aggrieved by
the quantum. Vide order dated 10.02.2014 the appeal was
admitted for final hearing and the execution of the award was
stayed subject to deposit of Rs.4,00,000-00 before the Tribunal
within a period of one month. Shri Goyal submits that the
amount has been deposited. There was no restriction put on the
withdrawal of the amount deposited by the appellant while
granting the stay order dated 10.02.2014.
In view of the above, the application [IA No.921/2017] is
allowed. The Respondent No.1 (claimant) is permitted to
withdraw the amount of Rs.4,00,000-00 deposited by the
appellant.
IA No.921/2017 stands disposed of.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.1390 of 2014.
11.04.2017:-
Shri Sameer Verma, learned counsel for the appellant.
Record of the Tribunal be requisitioned.
List immediately after receipt of the record.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Civil Revision No.209 of 2015.
11.04.2017:-
Shri P.Prasad, learned counsel for the applicant.
Shri Prakash Jain, learned counsel for the Respondent
No.3.
Shri Prasad undertake to argue this revision on
admission on 20.04.2017.
List on 20.04.2017.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Civil Case No.242 of 2015.
11.04.2017:-
None for the applicant.
Respondents has not been served.
Let fresh process fee be paid within seven days for
service of notice on Respondents.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Conc. No.558 of 2015.
11.04.2017:-
Shri Avdhesh Polekar, learned counsel for the
petitioner.
Shri Mukesh Parwal, learned counsel for the
Respondent No.5.
As prayed, list in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.7956 of 2016
04.04.2017 :-
Shri Amit Pal, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State.
Heard.
O R D E R
THE petitioner has filed this present writ petition
being aggrieved by Annexure - P/1 dated 05/11/2016, by
which the Executive Engineer has directed the Assistant
Engineer to make recovery from the salary of the petitioner.
[2] That the petitioner was initially appointed as
Pump attendant under work charge establishment by PHE,
Ujjain Division fixing on a pay scale of Rs.750 - 945. At
the time of pay fixation in the pay scale of Rs. 825-1220,
which was later on revised on 01/01/1996 and 2006 and the
respondent could not correct the mistake . This mistake
came to the knowledge of the respondent at the time of
preparation of pension claim hence the recovery has been
ordered. Hence the present writ petition has been filed.
[3] After notice, the respondent has filed return
stating that the petitioner was wrongly fixed in the pay-scale
of Rs. 825- 1220/-. The mistake has been perpetuated in the
subsequent pay revision. In the return, a reliance was placed
over the judgment of the Hon'ble Supreme Court in the
matter of Chandi Prasad Vs. State of Uttrakhand, reported
in (2012) 8 SCC 417 on the point that such recovery is
permissible after retirement if the employee was not entitled
to recover.
[4] Learned counsel for the petitioner submits that in
view of law laid down in case of State of Punjab and
Others Vs. Rafiq Masih (White Washer), (Civil Appeal
No.11527/2014, order dated 18.12.2014), the Hon'ble
Supreme Court held that recovery would be not permissible
in case of employee belonging to Class III and IV.
[5] In reply, Shri Rohit Mangal, learned counsel for
the respondent has placed reliance over the judgment passed
in the case of High Court of Punjab and Haryana & Ors.
Vs. Jagdev Singh, reported in 2016, SCC SC 748, in which,
the Supreme Court has held that when the officer has given
an undertaking that the payment which was made at the first
instance is found to have been made in excess, would be
refunded, then the judgment passed in the case of State of
Punjab and Others (Supra), would not apply.
[6] I have heard learned counsel for the parties.
[7] In the case of State of Punjab and Others
(Supra), the Hon'ble Supreme Court has considered facts of
number of cases, in which, excess payment has been paid to
the employees/officers due to various reasons like wrongful
fixation, revision of pay etc. and after dealing with all such
situations, the apex Court has summarized all cases into 5
categories and issued directions in para 12 and held that in
these cases recovery is impermissible.
[8] Para 12 of the aforesaid judgment is reproduced
below:
"12. It is not possible to postulate all situations of hardship,
which would govern employees on the issue of recovery, where
payments have mistakenly been made by the employer, in excess
of their entitlement. Be that as it may, based on the decisions
referred to herein above, we may, as a ready reference,
summarise the following few situations, wherein recoveries by
the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV
service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due
to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has
been made for a period in excess of five years, before the order
of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been paid
accordingly, even though he should have rightfully been
required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion,
that recovery if made from the employee, would be iniquitous or
harsh or arbitrary to such an extent, as would far outweigh the
equitable balance of the employer's right to recover.
[9] So far as the case of High Court of Punjab &
Haryana & Ors. (supra) is concerned, in para 11 of the
order, it has been specifically held that the principle
enunciated in proposition (ii) and para 12 of the case of
State of Punjab & Ors. (supra) cannot be applied to such a
situation where the officer has given an undertaking while
opting for revised pay scale.
[10] Para 11 of the aforesaid judgment is reproduced
below :
"11. The principle enunciated in proposition (ii)
above cannot apply to a situation such as in the present case.
In the present case, the officer to whom the payment was
made in the first instance was clearly placed on notice that
any payment found to have been made in excess would be
required to be refunded. The officer furnished an
undertaking while opting for the revised pay scale. He is
bound by the undertaking ."
[11] In present case, petitioner, being a Class-III
employee would fall under principle (i) of para 12
mentioned in the case of State of Punjab & Ors. (Supra) as
reproduced above.
[12] Hence, the writ petition filed by the petitioner is
liable to be allowed as the petitioner is a Class-III employee
and is not responsible for wrong fixation of pay by the
respondent.
[13] In view of the aforesaid, recovery order dated
09/10/2015 (Annexure P/1) is set aside. The respondents
are directed to refund the recovered to the petitioner within a
period of 45 days from production of certified copy of this
order.
[14] It is made clear that this Court has set aside the
recovery order only and not the pay-fixation.
[15] The writ Petition is allowed. No order as to costs.
CC as per rules.
(VIVEK RUSIA)
Judge
(AKS)
Writ Petition No.5312 of 2016.
10.04.2017:-
Parties through their counsel.
Heard on the question of admission.
Admit.
List for final hearing in due course.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5670 of 2016.
10.04.2017:-
Parties through their counsel.
Heard on the question of admission.
Admit.
List for final hearing in due course.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5767 of 2016.
10.04.2017:-
Parties through their counsel.
As prayed by learned counsel for the Respondent, list
after a week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6646 of 2016.
10.04.2017:-
Parties through their counsel.
As prayed by learned counsel for the petitioner, list
after four weeks.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6662 of 2016.
10.04.2017:-
Parties through their counsel.
Counsel for the Respondent prays for a week's time to
file reply.
Time is granted.
List after two weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6857 of 2016.
10.04.2017:-
Shri S.H.Moyal, learned counsel for the petitioner.
Shri Prakhar Karpe, learned counsel for the
Respondents.
Reply be filed by the Respondents within three days.
List in the next week.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5636 of 2014.
10.04.2017:-
Shri Arjun Agrawal, learned counsel for the
petitioners.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State.
Learned counsel for the petitioner prays for and is
granted four weeks time to file rejoinder.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.9470 of 2014.
10.04.2017:-
Parties through their counsel.
As prayed by learned counsel for the Respondents, list
after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1322 of 2015.
10.04.2017:-
None for the petitioner.
Adjourned.
List after four weeks.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Misc. Appeal No.2198 of 2015.
10.04.2017:-
Shri Siddharth Jain, learned counsel for the appellant.
Shri Arjun Agrawal, learned counsel for the
Responsdent No.1.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondent No.2/State.
As prayed by learned counsel for the appellant, list
after two weeks, on any Wednesday.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5211 of 2015.
10.04.2017:-
Ms. Sofiya Khan, learned counsel for the petitioner.
Shri Kamal Airen, learned counsel for the Respondent.
As prayed by learned counsel for the Respondent, list
in the next week.
IR to continue till the next date of hearing.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.853 of 2016.
04.04.2017:-
Shri Vijay Assudani, learned counsel for the
petitioners.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate
for the Respondents/State.
Heard on the question of admission.
O R D E R
THE petitioners have filed the present
petition being aggrieved by the order dated 15.01.2016 and
06.10.2015 issued by the Respondent No.2 by which they
have been directed to take permission for development of
godown/logistic hub under the provisions of the Madhya
Pradesh Gram Panchayat (Development of Colonies) Rules,
2014 [in brief "the Rules, 2014"].
[2] The petitioners are a Partnership Firm
engaged in the work of development of land. The
petitioners are owner, occupier and in possession of 27.94
hectares of land comprised in various suvery numbers of
Village Baroda-Arjun, Tehsil Sanwer, District Indore. The
details of the land is mentioned in para 5.2 of the writ
petition. The petitioners decided to develop the land by
constructing godown/logistic hub in the entire land and
applied for development permission before the Department
of Joint Director, Town & Country Planning, Indore. Vide
order dated 03.04.2014 the permission for development was
granted with various conditions as mentioned in Para 1,
which is reproduced below :-
"1.fuEufyf[kr vf/kfu;e@fu;e@l{ke vf/kdkfj;ksa rFkk laLFkk ls
vukifRRk@vuqKk ysuk vfuok;Z gksxk%&
v- e-iz-Hkw&jktLo lafgrk 1959 dh /kkjk 172
c- e-iz-xzke iapk;r ¼dkWyksukbZtj dk jftLVªhdj.k fucZ/ku RkFkk 'krsZ½1999
l- vU; fdlh fu;eksa@vf/kfu;eksa ds vUrxZr dksbZ vuqefr@vuqKk vfuok;Z
gks rks mls vko';d :i ls izkIr fd;k tkosaA
n- lsokdj foHkkx ls ;fn vko';d gks rks vukifRr izkIr dh tkosaA
b- jk"Vªh;@jktdh; jktexkZ ls vukifRr @vuqefr ;fn vko';d gksA "
[3] After obtaining such permission, the petitioners
applied for diversion of said land and the Sub Divisional
Officer (Revenue), Sanwer under Section 172 of the M. P.
Land Revenue Code, 1959 has passed the order for
diversion dated 01.07.2014. The petitioners were also
granted the Coloniser License by the Sub Divisional Officer
(Revenue), Sanwer under the provisions of Madhya Pradesh
Gram Panchayat (Registration of Coloniser Terms and
Conditions) Rules, 1999 [in brief "the Rules, 1999"] with
certain conditions. As per Condition No.5, before starting
the development and construction work, the petitioners were
required to take development permission from the office of
Sub Divisional Officer. The aforesaid certificate was issued
on 10.12.2013.
[4] The State Government in exercise of
powers conferred under Section 95 read with Sections 61-A
to 61-E of the Madhya Pradesh Raj Evam Gram Swaraj
Adhiniyam, 1993 [in brief "the Adhiniyam, 1993"] has
framed the new Rules called "Madhya Pradesh Gam
Panchayat (Development of Colonies) Rules, 2014" by
repealing the Rules of 1999. The petitioners submitted
representation to the Collector, Indore that under the new
Rules of 2014, there is no provision of taking development
permission from the Panchayat in respect of development of
land for non residential purpose which was required under
the Rules of 1999. Therefore, they may be guided whether
under the new Rules they are required to obtain a
development permission from the Competent Authority.
When the petitioners did not receive any reply, legal notice
was issued.
[5] On the representation of the petitioners, the
Collector sought information from the Sub Divisional
Officer (Revenue) Sanwer who informed vide letter dated
20.03.2015 that Sub Divisional Officer (Revenue) has been
appointed as a Competent Authority for granting
development permission by way of Gazette Notification
dated 24th December, 2014 by Panchayat and Rural
Department. The petitioners approached this Court by way
of Writ Petition No.2878 of 2015 alleging that the
Respondents are restraining them from doing the
construction activities. Government Advocate on
instructions made statement that the authorities have not
directed the petitioners to stop the construction work.
Accordingly vide order dated 11.05.2015 the writ petition
was disposed of.
[6] Thereafter the Sub Divisional Officer
(Revenue) Sanwer has issued a show-cause notice dated
22.07.2015 alleging that the petitioners have started selling
the plots and making constructions without the development
permission. The petitioners submitted detailed reply on
04.09.2015 and vide order dated 15.01.2016 the petitioners
have been directed to remove the illegal constructions as
they have not obtained any development permission from
the Competent Authority. Vide letter dated 06.10.2015 the
petitioners have been directed to take a development
permission from the Competent Authority (Collector) for
non-residential development over their land. Being
aggrieved by order dated 15.01.2016 and notice dated
06.10.2015, the petitioners have filed the present writ
petition before this Court.
[7] After notice, the Respondents have filed the
return in which it is stated that the petitioners have raised the
construction on the land in question without taking any
development permission from the Competent Authority.
They have not even made an application seeking
development permission. The petitioners have been issued
the Coloniser License under the Rules of 1999. Despite
repelling of the said rules by Rules of 2014. they are
required to take a development permission for development
of land. That under Sections 61-A to 61-E of the Adhiniyam,
1993 even for non-residential purpose, the development
permission is required.
[8] Shri Vijay Assudani, learned counsel on
behalf of the petitioners submits that the Joint Director,
Town & Country Planning, Indore has granted the
permission of development with the conditions to obtain a
development permission under the Rules of 1999. Under
Rules of 1999 the permission was required for residential as
well as for non-residential purpose. As per Rule 3, the Rules
1999 has been repealed by the Rules of 2014 and the
legislature has omitted the work "non-residential".
Therefore, under the new Rules, the petitioners are not
required to obtain the development permission for non-
residential purpose. The Rules of 2014 has been framed
only for the development of colonies for residential purpose.
No separate rules has been framed for development of land
for non-residential purpose. The petitioners have referred
various provisions of Rules 2014 which deals with the
development of land for construction of residential house
and dwelling units. In support of his contention, he has
placed reliance on various judgments of apex Court on the
point that where the legislature has clearly declares its
intention in the language of statute, it is the duty of the
Court to give full effect to the same. The Court cannot read
between lines in the statutory provisions which is plain and
unambiguous. The Court can give only interpretation but
cannot legislate it. The decisions cited by the petitioners are
as follows : The Commissioner of Sales Tax, U.P. v/s M/s
Parson Tools and Plants, Kanpur [(1975) 4 SCC 22];
Unique Butyle Tube Industries (P) Ltd v/s U.P.Financial
Corporation [(2003) 2 SCC 455]; Mohammad Ali Khan v/s
Commissioner of Wealth Tax [(1997) 3 SCC 511]; J.P.
Bansal v/s State of Rajasthan [(2003) 5 SCC 134] and
Illachi Devi (Dead) by Lrs. v/s Jain Society, Protection of
Orphans India [(2003) 8 SCC 413].
[9] Shri P.R.Bhatnagar, learned Deputy
Government Advocate refuted the arguments of Shri
Assudani and emphasied that the Rules 2014 also deals with
the development of land along with the development of
colony within the Gram Panchayat Area. He has drawn
attention of this Court to the Rule 9 para 1 where permission
for development of colony is necessary if the registered
Coloniser intend to develop any colony and take up
development work. The word "development of land" has
been used at various places in Rules of 2014. He has
referred Sections 61-A to 61-E of the Adhiniyam, 1993
which is in part of Chapter VI-A which deals with the
colonization. He has referred Section 61-B of the
Adhiniyam, 1993 which mandates registration of the
coloniser who intend to undertake the establishment of
colony in Gram Panchayat Area for purpose of dividing the
land into plots for construction of residential, non-residential
or composite accommodation. Therefore, the authorities
have not committed any error in passing the order by
directing the petitioners to obtain a development permission.
[10] I have learned counsel for the parties.
[11] The petitioners were granted development
permission by Joint Director, Town & Country Planning
with the condition that they are required to take permission
under the Rules of 1999. At the time of passing this order
dated 03.04.2014 by the Joint Director, Town & Country
Planning, the Rules of 1999 were in force and it is also the
case of the petitioners that they were required to take
permission even for non-residential purpose in Rules 1999.
The Rules of 1999 repealed by the Rules of 2014 w.e.f. 24 th
December, 2014, therefore, from 03.04.2014 till 24th
December, 2014, the Rules of 1999 were in force and under
the Rules of 1999 the petitioners got registered themselves
as Coloniser under Section 61-B of the Adhiniyam, 1993
and the certificate was issued on 10.12.2013 by Sub
Divisional Officer (Revenue) Sanwer who was the
Competent Authority. The said certificate is valid even in
the Rules of 2014 because of the repeal Clause 24. The
petitioners ought to have obtained the development
permission under the Rules of 1999 at the relevant time.
Under Rule 3 of the Rules 2014, any person who intends to
develop a colony in any Gram Panchayat Area shall apply to
the Competent Authority for registration in Form-1
appended to these rules. The certificate is granted in Form-2
under the provisions of Adhiniyam, 1993 and the Rules of
2014. The said certification is granted under Section 61-B of
the Adhiniyam, 1993 which is for development of land for
non-residential also. Section 61-B of the Adhiniyam, 1993
is reproduced below :-
"61-B. Registration of Coloniser.-- (1) Any person who
intends to undertake the establishment of a colony in the
Gram Panchayat area for the purpose of dividing land into
plots, with or without developing the area, transfers or agrees
to transfer gradually, or at a time, to persons desirous of
setting down on those plots by constructing residential, non-
residential or composite accommodation shall apply to the
such Competent Authority as may be prescribed by State
Government for the grant of registration certificate, along
with a copy of the resolution duly passed by the Gram
Panchayat in support of the establishment of the colony.
(2) On receipt of the application for registration
under sub-section (1), the such Competent Authority as may
be prescribed by State Government shall, subject to the rules
made in this behalf, either issue or refuse to issue the
registration certificate within thirty days:
Provided that if the such Competent Authority
as may be prescribed by State Government refuses to issue the
registration certificate, the reasons for refusal shall be
intimated to the applicant.
(3) The State Government shall have power to
make rules prescribing the form of application, amount of fees
for registration and other terms and conditions, for issue of
registration certificate."
[12] The word "Coloniser" means a person who
intends to take up the work of developing a colony in
accordance with the provisions of the Rules. Any Coloniser
who has been issued registration certificate may develop a
colony in Gram Panchayat Area under Section 61-C of the
Adhiniyam, 1993. Therefore, the Rules of 2014 prima-facie
applies for development of land as well as development of
colony.
[13] The Rule 23 of the Rules 2014 provides
that if any question arises as to the interpretation of these
rules, the same shall be referred to the Government. The
decision of the Department of Panchayat and Rural
Development shall be final. The contention of the petitioners
is that while framing the Rules 2014, the legislature has
intentionally omitted the word "non-residential" which was
there in the Rules of 1999. Both the rules were framed
under the Madhya Pradesh Raj Evam Gram Swaraj
Adhiniyam, 1993. Therefore, the Department of Panchayat
is a competent to give interpretation whether the Rules 2014
applies for non-residential purpose also as provided under
Rule 23. Therefore, the Sub Divisional Officer (Revenue),
Sanwer is directed to refer the question involved in this
petition to the Department of Panchayat and Rural
Department for interpretation whether the petitioners are
required to obtain a development permission for non-
residential purpose under the Rules of 2014 ? The
petitioners shall have a liberty to appear before the
department to present their case. The Competent Authority is
free to give interpretation without being influenced by the
observations made above.
[14] With the aforesaid, the petition stands
disposed of.
No order as to costs.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2218 of 2017.
07.04.2017:-
Shri Abhishek Tugnawat, learned counsel for the
petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance copy.
Heard.
O R D E R
Learned counsel appearing for the petitioner
submitted that the petitioner had obtained the Bachelor
Degree in the year 1969 and is entitled for promotion on the
post of Upper Division Teacher as per Policy of the State
Government dated 6th January, 1968. It was further
submitted that the controversy involved in the matter has
been considered and decided by a Single Bench of this
Court in Writ Petition No.6176 of 2003 (S) [Sultan Khan
Qureshi v/s State of M.P. & ors] decided on 21.09.2005 and
in Writ Petition No.6158 of 2011 (S) [Champalal Patel v/s
State of M.P. & ors] decided on 05.08.2011, so similar
directions may also be issued in this petition.
[2] Learned Government Advocate does not oppose
the aforesaid prayer.
[3] In the matter of Champalal Patel (supra),
considering the controversy, the learned Single Bench has
held as under :-
"13. In view of the foregoing, this petition is allowed,
respondents are directed to reconsider the case of petitioner
for promotion to the post of UDT with effect from 06.01.1968
as per Policy and in consequent thereto reconsider his case for
further promotion to the post of Head Master Middle School
by the Review DPC and on found fit he be given notational
promotion with retrospective date on both the posts and
thereafter the post retiral and pensionary benefit be worked
out and shall be paid within six months from the date of
communication of this order. It is further made clear there
that benefit of promotion as UDT under the policy dated
06.01.1968 be given with effect from the date of said policy, to
those Assistant Teachers who had passed the graduate degree
prior to commencement of the said policy, otherwise from the
date of passing the graduation and having experience as per
Para-2 of the Policy, but prior to commencement of the rules
of 1973 i.e. the date of publication 19.10.1997, thereafter
promotions of UDT and Head Master Middle School shall be
governed by the rules of 1973. It is also made clear here that
the cases disposed of by this Court in the light of the
judgment of Murlidhar Neema (supra) and Mrs. Shobha
Shekatkar (supra) be considered by the Government in the
said perspective. In the facts and circumstances of the case,
there is no order as to costs.
In view of the aforesaid, respondents are directed to
consider the case of the petitioner in view of the observations
as made herein above in the case of Sultankhan Qureshi
(supra) and to pass a reasoned and speaking order within the
period of 3 months from the date of communication of this
order. It is further made clear here that if petitioner is found
suitable, he may be given promotion as UDT w.e.f. the date of
passing of graduation in the year 1971 notionally. If it is found
that the case of petitioner is not covered by the judgment of
Sultankhan Qureshi (supra), a reasoned order be passed after
giving him an opportunity of hearing."
[4] As the facts of the case and prayer made by the
petitioner are identical, hence, in terms of the directions
issued by this Court in the matter of Champalal Patel
(supra), the present petition is disposed of.
No order as to costs.
Certified copy as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.5683 of 2016.
07.04.2017:-
Shri K.P.S.Suresh, learned counsel for the petitioner.
Shri Shailendra Shrivastava, learned counsel for the
Respondents.
Heard on the question of admission.
O R D E R
THE petitioner was initially appointed as VNS
Deposit Collector by State Bank of Bikaner & Jaipur. There
was no specific appointment order but only Identity Card
was issued and even that assignment came to an end on
10.12.2015. The petitioner approached this Court by way of
relief that the Respondents be directed to reinstate him and
assigned the work of VNS Deposit Collector and to release
withholding amount.
[2] Notices were iossued. During pendency of this
petition, the State Bank of Bikaner & Jaipur has been
merged with the State Bank of India w.e.f. 01.04.2017. In
the State Bank of India there is no scheme to engage VNS
Deposit Collector. Since the Bank is no more, therefore, the
relief of reinstatement cannot be granted.
[3] Shri K.P.S.Suresh submits that there are certain
pending dues of the petitioner which has not been released.
[4] Let the petitioner is directed to submit a detailed
representation to the Branch Manager, Branch Murai
Mohalla, Sanyogitaganj, Indore about his pending claim and
the Respondents shall consider the same and if any dues
payable to him are found, the same shall be released in
favour of the petitioner. That entire exercise be completed
within 45 days from submitting detailed representation
along with certified copy of this order.
[5] The petition is accordingly disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.3643 of 2016.
07.04.2017:-
Shri Rishi Tiwari, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1, 4, 5 and 6/State.
Shri Lokesh Mehta, learned counsel for the
Respondent No.7.
None for the Respondent No.8.
Shri Anshuman Singh, learned counsel for the
Respondent Nos.2, 3, 9, 10 and 11.
Heard on the question of admission.
O R D E R
Initially the petitioner has filed the present
petition praying for quashment of the appointment of
Principal in Institution of the Respondent No.10. At the time
of filing petition, Shri S.N.Sahai was holding the post of
Principal. Admittedly now he has tendered resignation and
the fresh appointment of Mr. Mathew C.P. has been made.
The said regular appointment of Principal has not been
challenged by the petitioner. Now the petitioner has filed an
application for amendment to the effect that she be given the
charge of Principal.
[2] Once the regular appointment has been made to
the post of Principal, the charge of Principal cannot be given
to the petitioner. At present the petitioner has been given
joining and working as Professor.
[3] Shri Tiwari prays for withdrawal of the writ
petition with liberty to approach again if occasion so arises
regarding her claim as In-charge Principal.
[4] With the aforesaid liberty, the present petition is
dismissed as withdrawn. All the pending I.As. are also
disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1858 of 2017.
07.04.2017:-
Shri K.L.Hardiya, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 and 2/State, on advance notice.
Shri Nupur Soni, learned counsel for the Respondent
No.3, on advance notice.
Heard on the question of admission.
O R D E R
THIS writ petition has been filed by the
petitioners seeking a direction to pay the more compensation
amount to them.
[2] The case of the petitioners is that their land had
come into submergence in Yashwant Sagar Reservoir and
thereafter though the compensation amount was calculated
but the same has not been paid. Further grievance of the
petitioners is that compensation amount has been calculated
on the basis of loss of one crop per year; whereas the land of
the petitioners was yielding two crops per year. Their crops
are being affected due to increase of submergence.
[3] Learned counsel for the State fairly submits that
if petitioners file an appropriate representation before the
Respondent No.1, then the same will be considered and
grievance of the petitioners would be looked into.
[4] In the aforesaid circumstances, without
expressing any opinion on the merits of the matter, the
present writ petition is disposed of by permitting the
petitioners to file an appropriate representation before the
Respondent No.1. If such a representation is filed by the
petitioners, the same will be considered and decided by the
Respondent No.1 in accordance with law within a period of
three months from the date of receipt of representation.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1854 of 2017.
07.04.2017:-
Shri K.L.Hardiya, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondent Nos.1 and 2/State, on advance notice.
Shri Nupur Soni, learned counsel for the Respondent
No.3, on advance notice.
Heard on the question of admission.
O R D E R
THIS writ petition has been filed by the
petitioners seeking a direction to pay the more compensation
amount to them.
[2] The case of the petitioners is that their land had
come into submergence in Yashwant Sagar Reservoir and
thereafter though the compensation amount was calculated
but the same has not been paid. Further grievance of the
petitioners is that compensation amount has been calculated
on the basis of loss of one crop per year; whereas the land of
the petitioners was yielding two crops per year. Their crops
are being affected due to increase of submergence.
[3] Learned counsel for the State fairly submits that
if petitioners file an appropriate representation before the
Respondent No.1, then the same will be considered and
grievance of the petitioners would be looked into.
[4] In the aforesaid circumstances, without
expressing any opinion on the merits of the matter, the
present writ petition is disposed of by permitting the
petitioners to file an appropriate representation before the
Respondent No.1. If such a representation is filed by the
petitioners, the same will be considered and decided by the
Respondent No.1 in accordance with law within a period of
three months from the date of receipt of representation.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2041 of 2017.
07.04.2017:-
Shri Akshat Pahadiya, learned counsel for the
petitioners.
Heard on the question of admission.
O R D E R
THE petitioners have filed the present petition
being aggrieved by order dated 09.02.2017 passed by Board
of Revenue, Gwalior by which the matter was remitted back
to the Tehsildar for deciding afresh the application for
intervenor.
[2] The petitioners are residents of Village Pipaliya,
Tehsil Kukshi, District Dhar engaged in the work of farming
in their agricultural land. On 18.07.2016 all the petitioners
moved an application before the Tehsildar that piece of land
behind the Hanuman Mandir are being used as a right of
way to reach their agricultural land. One Madhusudan
Patidar has put a gate on the other side of the way due to
which the right of way has been obstructed. The Tehsildar
called the report and the Panchanama prepared by the
Revenue Inspector. Thereafter Naib Tehsildar himself made
spot inspection in presence of the parties. On 09.11.2016
one Trilokchand Jain has filed written objection. The Naib
Tehsildar, Kukshi after hearing the submission of the parties
has passed an interim order dated 17.11.2016 directing for
opening of the way.
[3] Respondent No.2 Trilokchand Jain filed the civil
suit for permanent injunction against the petitioners along
with an application under Order XXXIX Rule 1 & 2 of the
CPC. The Trial Court vide order dated 22.11.2016 has
rejected the application for temporary injunction. Thereafter
the order passed by the Naib Tehsildar dated 17.11.2016 was
executed and the gate was opened.
[4] Respondent No.2 by concealing all these facts
has approached the Board of Revenue by way of revision
and obtained ex-parte status-quo order. Under the garb of
stay order, Respondent No.2 has again put the gate and has
obstructed the right of the way of the petitioners. After
notice the petitioners appeared before the Board of Revenue
on 09.02.2017 by filing detailed reply. The Board of
Revenue vide impugned order dated 09.02.2017 has
recorded the finding that the Tehsildar has passed the order
without giving opportunity of hearing to the Respondent
No.2 and has set-aside the order with a direction to the
Tehsildar to implead the Respondent No.2 as defendant and
pass the fresh interim order. Hence, the present petition.
[5] Though the Respondent No.2 was not party
before the Naib Tehsildar but he filed a civil suit against the
petitioners in which application under Order XXXIX Rule 1
& 2 of the CPC was rejected. Even otherwise the main case
filed by the petitioner before the Naib Tehsildar is pending
for final adjudication.
[6] Therefore, instead of deciding application for
interim relief, as directed by the Board of Revenue, the
Tehsildar is directed to decide the case finally on merit after
giving an opportunity of hearing to the Respondent No.2 on
merit in accordance with law, preferably within a period of
45 days (forty five days). The Naib Tehsildar shall not be
influenced by the order passed by the Board of Revenue and
shall decide the same on merit independently.
[7] The petition stands disposed of.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2253 of 2017.
07.04.2017:-
Shri L.C.Patne, learned counsel for the petitioner.
Shri Vivek Sharan, learned counsel for the
Respondents, on advance copy.
Petitioner has filed the present petition seeking
direction to the Respondents to make payment of annual
increment and consider his case for confirmation to the post
of Professor.
Counsel for the petitioner submits that the issue
involved in this petition has already been decided in Writ
Petition No.4959 of 2015 vide order dated 07.02.2017 [Dr.
Bhanu Pratap Singh v/s Devi Ahilya Vishwavidyalaya].
The operative part of the said order is reproduced below :-
"This Court has carefully gone through the reply of
the University. Merely because, as some body has filed a
petition challenging 29 appointments and who is a
businessman and who himself is not a candidate in respect of
the post in question, which is not the subject matter of
W.P.No.4592/2014. In absence of the interim order passed by
this Court, the confirmation of the petitioner cannot be
deferred on account of pendency of a writ petition.
The executive council is the appointing authority of
the petitioner and the appointing authority of the petitioner
has held the petitioner to be entitled for confirmation in its
meeting held on 30.07.2011 and therefore, once the executive
council has held the petitioner entitled for confirmation, he is
certainly entitled to be confirmed w.e.f. 30.07.2011 and the
pendency of the writ petition will not come in the way.
Resultantly, writ petition is allowed. Respondents are
directed to pass a consequential order in light of the decision
taken by the executive council w.e.f. 30.07.2011 and the
consequential confirmation order, keeping in view the
appointment order be issued within a period of 30 days from
today. Petitioner shall be entitled for all other consequential
benefits arising out of confirmation order.
With the aforesaid, the writ petition stands allowed."
[3] In the light of the above, present petition is also
allowed. Respondents are directed to pass consequential
orders in the light of the decision taken by the executive
council w.e.f. 30.07.2011 and consequential confirmation
order within 30 days. Petitioner shall be entitled for all
consequential benefits arising out of his confirmation.
[4] With the aforesaid, the writ petition stands
allowed.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2249 of 2017.
07.04.2017:-
Shri L.C.Patne, learned counsel for the petitioner.
Shri Vivek Sharan, learned counsel for the
Respondents, on advance copy.
Petitioner has filed the present petition seeking
direction to the Respondents to make payment of annual
increment and consider his case for confirmation to the post
of Lecturer (Assistant Professor).
Counsel for the petitioner submits that the issue
involved in this petition has already been decided in Writ
Petition No.4959 of 2015 vide order dated 07.02.2017 [Dr.
Bhanu Pratap Singh v/s Devi Ahilya Vishwavidyalaya].
The operative part of the said order is reproduced below :-
"This Court has carefully gone through the reply of
the University. Merely because, as some body has filed a
petition challenging 29 appointments and who is a
businessman and who himself is not a candidate in respect of
the post in question, which is not the subject matter of
W.P.No.4592/2014. In absence of the interim order passed by
this Court, the confirmation of the petitioner cannot be
deferred on account of pendency of a writ petition.
The executive council is the appointing authority of
the petitioner and the appointing authority of the petitioner
has held the petitioner to be entitled for confirmation in its
meeting held on 30.07.2011 and therefore, once the executive
council has held the petitioner entitled for confirmation, he is
certainly entitled to be confirmed w.e.f. 30.07.2011 and the
pendency of the writ petition will not come in the way.
Resultantly, writ petition is allowed. Respondents are
directed to pass a consequential order in light of the decision
taken by the executive council w.e.f. 30.07.2011 and the
consequential confirmation order, keeping in view the
appointment order be issued within a period of 30 days from
today. Petitioner shall be entitled for all other consequential
benefits arising out of confirmation order.
With the aforesaid, the writ petition stands allowed."
[3] In the light of the above, present petition is also
allowed. Respondents are directed to pass consequential
orders in the light of the decision taken by the executive
council w.e.f. 30.07.2011 and consequential confirmation
order within 30 days. Petitioner shall be entitled for all
consequential benefits arising out of his confirmation.
[4] With the aforesaid, the writ petition stands
allowed.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2245 of 2017.
07.04.2017:-
Shri L.C.Patne, learned counsel for the petitioner.
Shri Vivek Sharan, learned counsel for the
Respondents, on advance copy.
Petitioner has filed the present petition seeking
direction to the Respondents to make payment of annual
increment and consider his case for confirmation to the post
of Lecturer (Assistant Professor).
Counsel for the petitioner submits that the issue
involved in this petition has already been decided in Writ
Petition No.4959 of 2015 vide order dated 07.02.2017 [Dr.
Bhanu Pratap Singh v/s Devi Ahilya Vishwavidyalaya].
The operative part of the said order is reproduced below :-
"This Court has carefully gone through the reply of
the University. Merely because, as some body has filed a
petition challenging 29 appointments and who is a
businessman and who himself is not a candidate in respect of
the post in question, which is not the subject matter of
W.P.No.4592/2014. In absence of the interim order passed by
this Court, the confirmation of the petitioner cannot be
deferred on account of pendency of a writ petition.
The executive council is the appointing authority of
the petitioner and the appointing authority of the petitioner
has held the petitioner to be entitled for confirmation in its
meeting held on 30.07.2011 and therefore, once the executive
council has held the petitioner entitled for confirmation, he is
certainly entitled to be confirmed w.e.f. 30.07.2011 and the
pendency of the writ petition will not come in the way.
Resultantly, writ petition is allowed. Respondents are
directed to pass a consequential order in light of the decision
taken by the executive council w.e.f. 30.07.2011 and the
consequential confirmation order, keeping in view the
appointment order be issued within a period of 30 days from
today. Petitioner shall be entitled for all other consequential
benefits arising out of confirmation order.
With the aforesaid, the writ petition stands allowed."
[3] In the light of the above, present petition is also
allowed. Respondents are directed to pass consequential
orders in the light of the decision taken by the executive
council w.e.f. 30.07.2011 and consequential confirmation
order within 30 days. Petitioner shall be entitled for all
consequential benefits arising out of his confirmation.
[4] With the aforesaid, the writ petition stands
allowed.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2238 of 2017 (S)
07.04.2017 :-
Shri K.L.Purohit, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the
Respondents/State, on advance notice.
This writ petition is heard and disposed of finally with
the consent of the learned counsel for the parties.
ORDER
[1] The petitioner has filed the present writ petition claiming the benefit of regular pay-scale from the date of initial appointment in the light of the earlier orders passed by this Court.
[2] Learned counsel appearing for the petitioner submitted that the same issue has already been decided by order dated 24.08.1992 passed by the M.P. State Administrative Tribunal in O.A.No. 2745/2009 (Madhukant Yadu V/s State of M.P.). The S.L.P. No. 6092/93 preferred against this order was dismissed by the Supreme Court. He also submitted that similar writ petitions have already been disposed of by this Court by issuing directions in favour of the writ petitioners.
[3] Learned counsel for the petitioner has submitted that the concerned Respondent be directed to decide the petitioner's claim within a time bound period.
[4] Learned Govt. Advocate for the Respondents has no objection to the same.
[5] In view of the aforesaid, the present writ petition is disposed of by giving liberty to the petitioner to file an appropriate representation to the concerned respondent raising the grievance in respect of the non grant of regular pay-scale/increments from the date of initial appointment. If such a representation is submitted by the petitioner, the concerned respondent will consider and decide it within a period of four weeks from the date of its receipt keeping in view the judgment in the matter of Madhukant Yadu (supra) noted above and any other binding judgment on the point and if the petitioner is found to be entitled to the said benefit, the concerned respondent would extend such benefit to him without any delay. Any adverse order will be a reasoned speaking order.
[6] The writ petition is accordingly disposed of.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2235 of 2017 (S) 07.04.2017 :-
Shri K.L.Purohit, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance notice.
This writ petition is heard and disposed of finally with the consent of the learned counsel for the parties.
ORDER [1] The petitioner has filed the present writ petition claiming the benefit of regular pay-scale from the date of initial appointment in the light of the earlier orders passed by this Court.
[2] Learned counsel appearing for the petitioner submitted that the same issue has already been decided by order dated 24.08.1992 passed by the M.P. State Administrative Tribunal in O.A.No. 2745/2009 (Madhukant Yadu V/s State of M.P.). The S.L.P. No. 6092/93 preferred against this order was dismissed by the Supreme Court. He also submitted that similar writ petitions have already been disposed of by this Court by issuing directions in favour of the writ petitioners.
[3] Learned counsel for the petitioner has submitted that the concerned Respondent be directed to decide the petitioner's claim within a time bound period.
[4] Learned Govt. Advocate for the Respondents has no objection to the same.
[5] In view of the aforesaid, the present writ petition is disposed of by giving liberty to the petitioner to file an appropriate representation to the concerned respondent raising the grievance in respect of the non grant of regular pay-scale/increments from the date of initial appointment. If such a representation is submitted by the petitioner, the concerned respondent will consider and decide it within a period of four weeks from the date of its receipt keeping in view the judgment in the matter of Madhukant Yadu (supra) noted above and any other binding judgment on the point and if the petitioner is found to be entitled to the said benefit, the concerned respondent would extend such benefit to him without any delay. Any adverse order will be a reasoned speaking order.
[6] The writ petition is accordingly disposed of.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2235 of 2017 (S) 07.04.2017 :-
Shri K.L.Purohit, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance notice.
This writ petition is heard and disposed of finally with the consent of the learned counsel for the parties.
ORDER [1] The petitioner has filed the present writ petition claiming the benefit of regular pay-scale from the date of initial appointment in the light of the earlier orders passed by this Court.
[2] Learned counsel appearing for the petitioner submitted that the same issue has already been decided by order dated 24.08.1992 passed by the M.P. State Administrative Tribunal in O.A.No. 2745/2009 (Madhukant Yadu V/s State of M.P.). The S.L.P. No. 6092/93 preferred against this order was dismissed by the Supreme Court. He also submitted that similar writ petitions have already been disposed of by this Court by issuing directions in favour of the writ petitioners.
[3] Learned counsel for the petitioner has submitted that the concerned Respondent be directed to decide the petitioner's claim within a time bound period.
[4] Learned Govt. Advocate for the Respondents has no objection to the same.
[5] In view of the aforesaid, the present writ petition is disposed of by giving liberty to the petitioner to file an appropriate representation to the concerned respondent raising the grievance in respect of the non grant of regular pay-scale/increments from the date of initial appointment. If such a representation is submitted by the petitioner, the concerned respondent will consider and decide it within a period of four weeks from the date of its receipt keeping in view the judgment in the matter of Madhukant Yadu (supra) noted above and any other binding judgment on the point and if the petitioner is found to be entitled to the said benefit, the concerned respondent would extend such benefit to him without any delay. Any adverse order will be a reasoned speaking order.
[6] The writ petition is accordingly disposed of.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Criminal Case No.999 of 2017. 07.04.2017:-
Shri Himanshu Thakur, learned counsel for the applicant.
Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Non-applicant No.1/State.
Shri A.K.Saraswat, learned counsel for the Non- applicant No.2.
Heard.
O R D E R Father of the deceased Kalpana has filed the present application under Section 439 (2) of the Code of Criminal Procedure [in brief "the Code"] for cancellation of the bail granted by this Court vide order dated 26.12.2016 in Misc. Criminal Case No.13031 of 2016.
[2] The husband Rahul along with 2 others were made accused in a FIR registered as Crime No.713/2016 under Section 306/34 of IPC. He was arrested on 20.12.2016. Thereafter he filed bail application under Section 439 of the Code before the Sessions Court seeking bail in offence under Section 306/34 of IPC and the said bail was refused vide order dated 25.11.2016. Thereafter he filed the first bail application under Section 439 of the Code before this Court in which vide order dated 26.12.2016 bail was granted.
[3] Counsel for the applicant submits that statement of brother of the deceased was also recorded under Section 164 of the Code on 02.12.2016 in which he made allegation of demand of dowry against the Non-applicant No.2. Thereafter Superintendent of Police, Mandsaur vide letter dated 06.12.2016 has informed the JMFC that there are allegations of demand of dowry against the accused persons. Therefore, the charge under Section 304-B of IPC has also been added in the FIR. Thereafter challan was filed on 06.01.2017 under Sections 304-B and 34 of IPC. When the bail application under Section 439 of the Code came up before this Court on 26.12.2016 it was the duty of the prosecution to inform about the statement recorded under Section 164 of the Code and the letter of Superintendent of Police, Mandsaur dated 06.12.2016 and there are charges under Section 304-B of IPC also against the accused persons, because of suppression of this material, this Court has granted the bail.
[4] Learned Deputy Govt. Advocate and Shri Saraswat has opposed the present application for cancellation of bail.
[5] I have heard learned counsel for the parties. [6] Non-applicant No.2 - Rahul filed the bail application before the Sessions Court as B.A.No.642/2016 for the offence under Section 306/34 of IPC and that was rejected on 25.11.2016. Thereafter he filed the bail application before this Court under the same offence as he was not aware about the communication dated 06.12.2016 and the statement of brother of the deceased recorded under Section 164 of the Code by JMFC because he was in custody. The challan was filed on 06.01.2017 under Sections 304-B and 34 of IPC and this Court granted the bail on 26.12.2016.
[6] Even otherwise under Section 304-B of IPC the maximum punishment is 7 years RI and under Section 306 of IPC also the maximum punishment is 7 years RI. The trial has reached to the stage of evidence and there is no allegations of misuse of the bail by the Non-applicant.
[7] Considering the aforesaid, no case for cancellation of bail is made out. Accordingly, the application is hereby dismissed.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2245 of 2017.
07.04.2017:-
Shri L.C.Patne, learned counsel for the petitioner. Shri Vivek Sharan, learned counsel for the Respondents, on advance copy.
Petitioner has filed the present petition seeking direction to the Respondents to make payment of annual increment and consider his case for confirmation to the post of Lecturer (Assistant Professor).
Counsel for the petitioner submits that the issue involved in this petition has already been decided in Writ Petition No.4959 of 2015 vide order dated 07.02.2017 [Dr. Bhanu Pratap Singh v/s Devi Ahilya Vishwavidyalaya]. The operative part of the said order is reproduced below :-
"This Court has carefully gone through the reply of the University. Merely because, as some body has filed a petition challenging 29 appointments and who is a businessman and who himself is not a candidate in respect of the post in question, which is not the subject matter of W.P.No.4592/2014. In absence of the interim order passed by this Court, the confirmation of the petitioner cannot be deferred on account of pendency of a writ petition.
The executive council is the appointing authority of the petitioner and the appointing authority of the petitioner has held the petitioner to be entitled for confirmation in its meeting held on 30.07.2011 and therefore, once the executive council has held the petitioner entitled for confirmation, he is certainly entitled to be confirmed w.e.f. 30.07.2011 and the pendency of the writ petition will not come in the way.
Resultantly, writ petition is allowed. Respondents are directed to pass a consequential order in light of the decision taken by the executive council w.e.f. 30.07.2011 and the consequential confirmation order, keeping in view the appointment order be issued within a period of 30 days from today. Petitioner shall be entitled for all other consequential benefits arising out of confirmation order.
With the aforesaid, the writ petition stands allowed."
[3] In the light of the above, present petition is also allowed. Respondents are directed to pass consequential orders in the light of the decision taken by the executive council w.e.f. 30.07.2011 and consequential confirmation order within 30 days. Petitioner shall be entitled for all consequential benefits arising out of his confirmation.
[4] With the aforesaid, the writ petition stands allowed.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2226 of 2017.
07.04.2017:-
Shri N.L.Tiwari, learned counsel for the petitioners. Issue notice to the Respondents on payment of process fee within seven days, failing which this petition shall be liable to be dismissed without reference to the Court.
In the meanwhile, the petitioners shall not be evicted from the premises in question, till the next date of hearing.
List the matter on 09.05.2017. Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2203 of 2017.
07.04.2017:-
Shri Kamlesh Mandloi, learned counsel for the petitioner.
Record of the Labour Court be requisitioned. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2216 of 2017.
07.04.2017:-
Shri M.A.Mansoori, learned counsel for the petitioner. Heard on the question of admission. Issue notice to the Respondents on payment of process fee within 3 working days by RAD mode.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2224 of 2017.
07.04.2017:-
Shri Rushil Shukla, learned counsel for the petitioner. Learned counsel for the petitioner is directed to supply copy of the writ petition to Shri V.P.Khare.
List in the next week.
Office is directed to reflect the name of Shri V.P.Khare in the cause-list.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2232 of 2017.
07.04.2017:-
Shri L.C.Patne, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance copy.
Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2263 of 2017.
07.04.2017:-
Shri Yash Pal Rathore, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance copy.
Heard on the question of admission.
O R D E R THE petitioner was appointed as Forest Guard on 01.05.1980. He was promoted to the post of Forest in July, 2007. The petitioner was granted second time scale pay after completion of 20 years of service but has not been paid third time scale pay after completion of 30 years of service in view of the Circular dated 30.09.2014. The petitioner has submitted a representation on 03.10.2016 to the Conservator of Forest. The same has not been decided so far.
[2] The petition is disposed of with a direction to the Respondents to decide the representation of the petitioner within a period of 60 days (sixty days) from production of certified copy of this order.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2273 of 2017.
07.04.2017:-
Shri Yougendra Baghel, learned counsel for the petitioner.
Issue notice to the Respondents on payment of process fee within seven days, returnable within six weeks.
Meanwhile, recovery in pursuance to the order/letter (Annexures P/1 & P/2) shall remain stayed.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4021 of 2016.
07.04.2017:-
Shri Sanjay Sharma, learned counsel for the petitioner. As prayed by Shri Sharma list after a week to enable him to file an affidavit regarding HUMDAST service.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4348 of 2016.
07.04.2017:-
Shri Vivek Patwa, learned counsel for the petitioners. Shri Durgesh Sharma, learned counsel for the Respondent No.1.
Shri Patwa prays for time to examine whether the Respondent No.1 was in the list of 4998 submitted before the Supreme Court who have been granted the benefit of compensation by the Supreme Court.
List after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4510 of 2016.
07.04.2017:-
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the petitioners/State.
Shri Shashank Sharma, learned counsel for the Respondent Nos.2 and 3 prays for and is granted two weeks' time to file reply.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4655 of 2016.
07.04.2017:-
Shri Rahul Sethi, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Respondents/State again prays for and is granted four weeks' time to file reply.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4883 of 2016.
07.04.2017:-
Shri Rishabh Sethi, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Respondents/State.
As prayed, list on 27.04.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4911 of 2016.
07.04.2017:-
Shri Pourush, learned counsel for the petitioner. None for the Respondents No.1 to 7. Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Respondent No.8/State.
List in the week first week of May, 2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2068 of 2017.
07.04.2017:-
Shri Abhishek Shrivastava, learned counsel for the petitioner.
Shri Rishi Tiwari, learned counsel for the Respondents
- Indore Municipal Corporation, Indore.
The petitioner before this Court has filed this present writ petition alleging that he is being forcibly evicted from the shop in question. A prayer has been made in the Writ Petition for issuance of an appropriate writ, order or direction, directing the Respondents not to evict the petitioner from the shop in question forcibly, except by following the procedure prescribed under the law.
Shri Rishi Tiwari, learned counsel for the Respondents has fairly stated before this Court that the petitioner shall not be evicted without following the due process of law/procedure provided under the law.
Resultantly, in the light of the categoric undertaking given by the learned counsel for the Respondents - Indore Municipal Corporation, Indore, the present Writ Petition stands disposed of with a direction to the Respondents not to evict the present petitioner without following the due process of law.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.568 of 2015.
07.04.2017:-
Parties through their counsel. At the request of learned counsel for the parties, the case is adjourned.
List after two weeks.
IR, if any, to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.1661 of 2016.
07.04.2017:-
None for the appellant.
Perused the appeal.
Issue notice to the Respondents on payment of process fee within seven days.
Record of the Tribunal be requisitioned. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8153 of 2016.
07.04.2017:-
Shri Rahul Laad, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Respondents/State, further prays for and is granted 15 days' time to comply the order dated 20.02.2017 from Collector.
List after fifteen days.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8213 of 2016.
07.04.2017:-
Shri Jitendra Panwar, learned counsel for the petitioner.
Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days.
At this State Shri Deepak Rawal, learned Assistant Solicitor General accepts notice on behalf of the Respondent Nos.1 to 5.
Counsel for the petitioner is directed to supply two sets of the writ petition to Shri Rawal within two working days.
Return be filed within four weeks. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.109 of 2017.
07.04.2017:-
Shri Rishabh Sethi, learned counsel for the petitioner. Issue notice to the Respondent on payment of process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.255 of 2017.
07.04.2017:-
Shri Pranay Shukla, learned counsel for the petitioner. Issue notice to the Respondent No.2 on payment of process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.482 of 2017.
07.04.2017:-
Shri Vaibhav Jain, learned counsel for the appellants. Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days.
Record of the Tribunal be requisitioned. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.486 of 2017.
07.04.2017:-
Shri Himanshu Thakur, learned counsel for the petitioners.
Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Respondents/State.
Counsel for the petitioner prays for withdrawal of the petition.
Prayer is allowed.
The petition is dismissed as withdrawn.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.500 of 2017.
07.04.2017:-
None for the appellant.
Perused the appeal.
Issue notice to the Respondents on payment of process fee within seven days.
Record of the Tribunal be requisitioned. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.545 of 2017.
07.04.2017:-
Ms. Kashu Mahant, learned counsel for the petitioner. Counsel for the petitioner is directed to supply a copy of the writ petition to Shri S.V.Dandvate, Advocate who normally represent the Oriental Insurance Company.
List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.622 of 2017.
07.04.2017:-
None for the petitioner.
Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Respondents/State, prays for and is granted four weeks' time to file reply.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1085 of 2017.
07.04.2017:-
Shri Juhi Bhargava, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Respondents/State.
Heard on I.A.No.1893/2017.
Considering the averments made in the application [IA No.1893/2017], the same is allowed. Necessary amendment be incorporated in the petition within three working days.
List after a week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1173 of 2017.
07.04.2017:-
Shri Nilesh Patel, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned Deputy Govt. Advocate for the Respondent/State.
Learned counsel for the petitioner prays for withdrawal of the petition.
Prayer is allowed.
The petition is dismissed as withdrawn.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1723 of 2017.
07.04.2017:-
Shri Harish Joshi, learned counsel for the petitioner. Smt. Anjali Jamakherkar, learned Deputy Govt. Advocate for the Respondents/State.
Heard on the question of admission.
O R D E R THE petitioner has filed the present petition only for the purpose of direction to the Tehsildar, Mandsaur to decide his application filed under Sections 109 and 110 of the M. P. Land Revenue Code for mutation.
[2] According to the petitioner, he filed the suit for declaration and permanent injunction which was decreed in his favour on 13.02.2002. Thereafter the appeal filed by the Respondents has been dismissed and which has been affirmed by the apex Court vide order dated 04.08.2014. After this affirmation of the decree in his favour, he filed an application for mutation on 08.09.2016 which is pending before the Tehsildar, Mandsaur. Vide order dated 24.09.2016 the Tehsildar has called the report of Patwari which is still awaited.
[3] Without commenting on merits of the matter, the present petition is disposed of with a direction to the Tehsildar, Mandsaur to conclude the proceedings preferably within a period of 60 days (sixty days) from production of certified copy of this order.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1771 of 2017.
07.04.2017:-
Shri Vinay Gandhi, learned counsel for the petitioner. Heard on the question of admission as well as on IA No.1522/2017, an application for stay.
Issue notice to the Respondents against admission as well as on IA No.1522/2017 on payment of process fee within 3 working days.
List in the week commencing 24th April, 2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1792 of 2017.
07.04.2017:-
Shri Pankaj Ajmera, learned counsel for the petitioner. Learned counsel for the petitioner is directed to file the copy of issues which has already been framed by the Court.
List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Civil Case No.45 of 2014.
03.04.2017:-
Shri Sameer Athawale, learned counsel for the applicant.
Shri B.S.Gandhi, learned counsel for the Non- applicant.
Heard on the question of admission.
O R D E R THE applicant has filed the present Misc. Civil Case under Order XXXIX Rule 2-A of the Code of Civil Procedure [in brief "the Code"].
[2] The present applicant had filed a Civil Suit No.9-A/2007 against the Non-applicant claiming 1/2 share in the agricultural land bearing Survey Nos.1284 and 1288 with a house situated at Village Jahangirpur, Tehsil Badnagar, District Ujjain along with relief of partition, possession, mesne profits and permanent injunction.
[3] The suit was dismissed vide judgment and decree dated 25.01.2008. Being aggrieved by the dismissal of the suit, the applicant filed an application under Order XLIV Rule 1 of the Code seeking permission to prosecute the appeal as an indigent person. The said application was allowed and First Appeal No.774 of 2010 was registered. Notices were issued and the Respondent represented through his counsel.
[4] In the First Appeal No.774 of 2010, the applicant filed an application for temporary injunction with affidavit and same was registered as I.A.No.5696/2010. In the said application, it is alleged that the Non-applicant Radheyshyam has agreed to sell a piece of land of suit property to one Pyarsingh. The said application came up for consideration before the Court on 01.12.2010 and in presence of counsel for the Respondent this Court has passed the order directing the Respondent to maintain the status-quo as on 01.12.2010. It is alleged in the present application that despite order dated 01.12.2010, the Non- applicant filed an application under Sections 109 and 110 of the M. P. Land Revenue for getting his name recorded on 1/2 share of Survey Nos.1284 and 1288 which belongs to Smt. Ramibai. The certified copy of entire proceedings from 08.04.2011 to 06.06.2011 are filed as Annexure-P/5. It is alleged that the said application for mutation, he has pleaded that the civil suit has been dismissed, therefore, his name be mutated in place of Smt. Ramibai. He has suppressed the fact of pendency of first appeal and interim order dated 01.12.2010. Therefore, he has violated the order of temporary injunction and liable to be punished. [5] After notice, the Non-applicant filed the reply submitting that the order dated 01.12.2010 was not communicated to him by the counsel engaged by him. Even the applicant has also not conveyed the same to him by any mode at any point of time, therefore, he had no knowledge about the passing of order dated 01.12.2010. The said land was jointly recorded in his name along with Smt. Ramibai in the revenue record. Since Smt. Ramibai has died, therefore, Non-applicant has applied before the Naib Tehsildar for deleting her name from the revenue record. The Naib Tehsildar has followed the due process of law and despite publication of the notice, no objection was received, hence he passed the order by deleting the name of Ramibai. Therefore, he has not made any willful disobedience of the Court order dated 01.12.2010 and also submitted unconditional apology before this Court. He has further pleaded that the applicant has filed the present application only to harass him.
[6] I have heard learned counsel for the parties. [7] It is true that the order of status-quo was passed in presence of the counsel for the Non-applicant. The counsel for the Non-applicant also sought time to file reply of the application for temporary injunction. On 15.03.2011 the counsel has pleaded no instructions in the matter and the interim order was directed to continue until further orders. Thereafter the Non-applicant has changed his counsel and engaged Shri B.S.Gandhi who filed his Vakalatnama on 16.01.2012. The Non-applicant on affidavit submitted that the counsel engaged by him did not inform about the order dated 01.12.2010. Even the applicant has also not informed him about the said status-quo order. The name of Non-applicant was jointly recorded with Smt. Ramibai on death of Smt. Ramibai he filed an application for deleting her name from the revenue record along with death certificate. The Naib Tehsildar has ordered for publication of the notice on 10.05.2011 and after publication no one has appeared hence vide order dated 06.06.2011 he has directed to delete the name of Ramibai. It is settled law that the revenue entries does not offer any title. The right of the applicant over the 1/2 share of Smt. Ramibai is yet to be adjudicated in the first appeal and if first appeal is allowed, his name would be mutated in the revenue record along with the Non-applicant. At present only the name of Ramibai has been deleted on account of her death. Therefore, there is no deliberate disobedience by the Non-applicant when he specifically stated that he had no knowledge about the order dated 01.12.2010 and later on he changed his counsel also who did not inform him. He has also not alienate the property. Therefore, in view of the above, I do not find any reason to punish the Non-applicant. Since the order of status-quo has now came to his knowledge, therefore, he is directed not to take any further steps in violation of the order of status-quo. The unconditional apology is also accepted.
[8] Misc. Civil Case stands dismissed.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7815 of 2016.
06.04.2017:-
Shri Sanjay Jamindar, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
Heard on the question of admission.
O R D E R THE petitioner has filed the present petition being aggrieved by notice dated 24.10.2016 issued by the Tehsildar, Ujjain to all the three petitioners.
[2] In the notice it is alleged that the petitioners are in possession of Survey Nos.1548 area 6.063 hectares by way of encroachment. They have been directed to appear before the Tehsildar with a reply on 07.11.2016. The petitioners submitted detailed representation stating that they are not in possession of land of Survey No.1548 but are in possession over the land of Survey Nos.1551 and 1553 since last 38 years. Therefore, notices have wrongly been issued to them.
[3] The Respondents have filed the return and it is submitted that the Tehsildar has registered the case and proceedings are pending before him. The petitioners were only directed to appear before the Tehsildar and satisfy him by filing reply about their possession.
[4] Since the Tehsildar has already registered a Revenue case on 06.02.2017 against all the petitioners and issued notices, let the petitioners approach before the Tehsildar, Ujjain and by submitting their reply to justify their possession. The petitioners are free to take all defence before the Tehsildar which has been taken before this Court. The Tehsildar is directed to conclude the proceedings within a period of sixty days from production of certified copy of this order, if already not concluded so far. The interim order granted on 25.11.2016 shall continue for the period of sixty days.
[5] The petition stands disposed of.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7906 of 2016.
06.04.2017:-
Parties through their counsel. At the request of learned counsel for the Respondents, the case is adjourned.
List in the week commencing 24th April, 2017. The interim order granted on 20.01.2017 shall continue.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8468 of 2016.
06.04.2017:-
Parties through their counsel. Reply is awaited.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8391 of 2016.
06.04.2017:-
Parties through their counsel. Learned counsel for the Respondent No.2 prays for and is granted two weeks' time to file reply.
List after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.457 of 2017.
06.04.2017:-
Parties through their counsel. Learned counsel for the Respondents submits that today he has filed the reply and the copy has been supplied Shri Vivek Dalal.
Shri Dalal prays for time to go through the same. List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.519 of 2017.
06.04.2017:-
Parties through their counsel. At the request of learned counsel for the Respondents, list in the week commencing 24th April, 2017.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.538 of 2017.
06.04.2017:-
Shri Manuraj Singh, learned counsel for the petitioner. Service to the Respondents is awaited. List after service is effected.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.579 of 2017.
06.04.2017:-
None for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State prays for and is granted four weeks' time to file reply.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1084 of 2017.
06.04.2017:-
Shri Nilesh Sharma, learned counsel for the petitioner. Service report is awaited.
List after service is effected. IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.247 of 2015.
06.04.2017:-
None for the parties.
Adjourned.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.503 of 2015.
06.04.2017:-
Shri M.Sharma, learned counsel for the appellant. As prayed by learned counsel for the appellant, list after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.2053 of 2015.
06.04.2017:-
Shri J.B.Dave, learned counsel for the appellant. Shri P.Patvardhan, learned counsel for the Respondents.
Heard on I.A.No.347/2016, an application for condonation of delay.
As per the office objection, the appeal is barred by 26 days. This is an appeal under the provisions of Workmen Compensation Act by which the claim of the appellant has been rejected by the Commissioner of Workmen Compensation. The appeal is barred by limitation, hence an application under Section 5 of the Limitation Act is filed. In the application it is stated that the appellant came to know about the rejection of his claim on 04.11.2015. He is an illiterate person and was not aware about the procedural law and the delay is caused. The application is supported by an affidavit.
Considering the averments made in the application [IA No.347/2016], the application is allowed and the delay is hereby condoned.
List the appeal for admission after a week. IA No.347/2017 stands disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5099 of 2015.
06.04.2017:-
Shri Ghanshyam Agrawal, learned counsel for the petitioners.
Shri Darshan Singh, learned counsel for the Respondent Nos.1 to 3.
Service to the Respondent Nos.5 to 7 are awaited. Let fresh process fee be paid for service to Respondent Nos.5, 6 and 7 on their current and present address by Regd. Mode within ten days.
List after service is effected.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.405 of 2016.
06.04.2017:-
None for the appellants.
Shri Kapil Mahant, learned counsel for the Respondent Nos.1 and 2.
Shri Mahant prays for and is granted ten days' time to file reply of the application for condonation of delay.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.636 of 2016.
06.04.2017:-
Shri Jitendra Panwar, learned counsel for the appellant. Heard on I.A.No.1466/2017, an application for condonation of delay.
Issue notice of this application to the Respondents on payment of process fee within seven days.
Record of Courts below be requisitioned. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Civil Case No.905 of 2016.
06.04.2017:-
Shri Gaurav Verma, learned counsel for the applicants. Shri S.V.Dandwate, learned counsel for the Non-applicant No.3.
Heard.
This application is filed for restoration of Misc. Appeal No.1182 of 2016 by not removing the defects within the time granted by the Court. This Misc. Civil Case is barred by 8 days, hence application under Section 5 of the Limitation Act is filed.
Considering the averments made in the application, which is supported by an affidavit of the applicant, the delay in filing Misc. Civil Case is condoned.
The appellants filed the appeal for enhancement of compensation payable by the Insurance Company. Since there were so many defects in Misc. Civil Case, therefore, the Court has granted time for removing the same by way of peremptory order. Since the appellants could not arrange the Court-fees, therefore, they could not paid the same.
Considering the averments made in the application, this Misc. Civil Case is allowed. The order dated 26.08.2016 is set- aside and the appeal is restored to its original number.
List the appeal for admission after removing the defects within two weeks.
Misc. Civil Case stands disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.1445 of 2016.
06.04.2017:-
Ms. Manisha Parsai, learned counsel for the appellants. Shri Manoj Sharma, learned counsel for the Respondent Nos.1 and 2.
Service report of Respondent No.3 is awaited. Shri Sharma prays for time to file Vakalatnama on behalf of the Respondent Nos.1 and 2. He also prays for two weeks' time to argue on this appeal.
Learned counsel for the appellants submits that vide order dated 20.03.2017 learned 4th ADJ has granted time till 06.04.2017 for payment of court-fees.
Till the next date of hearing, the Court is directed not to dismiss the suit for want of court-fees.
Fresh process fee be paid for service of notice on Respondent No.7.
List on 19.04.2017.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.77 of 2017.
06.04.2017:-
Shri Nitin Phadke, learned counsel for the petitioners. Issue notice to the Respondents on payment of process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.246 of 2017.
06.04.2017:-
Ms. Nisha Tanwar, learned counsel for the appellant. Shri Anil Goyal, learned counsel for the Respondent No.3/Insurance Company.
Learned counsel for the parties submit that the settlement has been arrived between them.
Office is directed to list this appeal before the Lok Adalat going to be held on 08.04.2017.
Parties are directed to file docket.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8727 of 2015.
06.04.2017:-
Parties through their counsel. Shri Mangarl, learned Govt. Advocate prays for and is granted four weeks' time to file reply.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1401 of 2017.
06.04.2017:-
Shri Viraj Godha, learned counsel for the petitioner. Shri Ashok Airen, learned counsel for the Respondents, on advance notice.
By this writ petition, the petitioner has challenged the show cause notice dated 20th June, 2016.
Counsel for the petitioner has pointed out that the reply to the show cause notice has already been filed on 29/06/2016 and has sought liberty to file additional reply.
Learned counsel for the Respondents submits that till now no action has been taken in pursuance to the show cause notice and the Respondents will duly consider the reply of petitioner and will pass a reasoned order before taking any action.
It will also be open to the petitioner to file additional reply within ten days from today.
In view of the aforesaid, no case for entertaining the writ petition is made out. The writ petition is disposed off by taking note of the stand of Respondents.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2176 of 2017.
04.04.2017:-
Shri A.K.Sethi, learned Senior Counsel with Shri Arpit Oswal, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent No.1/State, on advance copy.
Shri Kamal Airen, learned counsel for the Respondent No.2, on Caveat.
Heard on the question of admission. Issue show-cause notice to the Respondents. Since the Respondent No.2 has already appeared on Caveat, therefore, no notice is necessary.
Also heard for grant of interim relief. The petitioner has filed the present petition being aggrieved by the impugned order dated 28.03.2017 by which he has been removed from the post of Chairman and Member of Krishi Upaj Mandi Samiti (Marketing Committee) Indore and further disqualified for the period of 6 years to contest the election of Member of Mandi Samiti, by the Managing Director in exercise of powers under Section 55 of the M. P. Krishi Upaj Mandi Adhiniyam, 1972.
It is alleged that 88 shops constructed in the premises of Krishi Upaj Mandi, Indore were put to auction in the year 2009 under the provisions of Madhya Pradesh Krishi Upaj Mandi (Allotment of Land and Structures) Rules, 2009. The petitioner was Chairman of Marketing Committee constituted under Section 11 of Mandi Adhiniyam. For 9 shops under reserved category, the up-set price of Rs.1,83,400-00 and the bids were received from 22.26 lakhs to 33.51 lakhs. In the year 2011 again these 9 shops were put under auction with the up-set price of Rs.7,64,309-00 and 14 bidders has offered the price 9.75 lakhs which was very low as compared to the price offered in the auction in the year 2009. It has been alleged that by accepting such bid the petitioner has caused the huge financial losses to the Mandi by not obtaining the directions from the Competent Authority. It is not disputed that the said auction was not finalized and later on the said allotment was cancelled by the Mandi and such cancellation is under challenge in the writ petition is pending before this Court filed by the successful bidders in whose favour the agreement has been executed.
The petitioner, who was holding the post of Chairman in the year 2011 and the said period has came to an end after completing 5 years terms. Thereafter again the petitioner has been elected as a Chairman and at present holding the post of the Chairman in the same Krishi Upaj Mandi. Therefore, the petitioner has challenged the authority of the Managing Director that no action can be taken under Section 55 against him in respect of the period which has already been over. Section 55 of Adhiniyam, 1972 is applicable for removal of any Chairman or Vice-Chairman of a market committee from his office, for misconduct, or neglect of or incapacity to perform his duty in his current tenure.
Shri Sethi, learned Senior Counsel submits that there is no provision in the entire Krishi Upaj Mandi Adhiniyam for taking any action against the Chairman for the period which has already been over. When the competency of Managing Director and applicability of Section 55 is under challenged, the writ petition cannot be dismissed prima-facie for want of alternative remedy under Section 59 of the Adhiniyam, 1972.
The operation of the order dated 28.03.2017 (Annexure-P/1) shall remain stayed till the next date of hearing.
The Respondents are directed to file the reply. List thereafter.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8304 of 2015.
03.04.2017:-
Shri Yash Pal Rathore, learned counsel for the petitioner.
Smt. Mamta Shandilya, learned counsel for the Respondent Nos.1 and 2.
None for the Respondent Nos.3 and 4, though served. Heard.
O R D E R THE petitioner being a decree-holder has filed the present petition being aggrieved by order dated 20.11.2015 passed in Execution Case No.5/2015 by Iind Civil Judge, Class-II, Jawad, District Neemuch.
[2] Facts of the case are as under :-
(a) The petitioner filed the suit for eviction and arrears of rent against the Respondent Nos.3 and 4 in respect of land bearing Survey No.240 area 0.04 hectare and two rooms constructed therein. According to the plaintiff he gave the land and the two rooms on rent to the defendant Nos.3 and 4 on 01.05.1997 and at present the tenancy has been come to an end. After notice, the Respondent Nos.3 and 4 remained ex-parte and the suit has been decided ex-
parte against them vide judgment and decree dated 31.03.2011. The defendants/Respondent Nos.3 and 4 were directed to hand over the vacant possession to the plaintiff within a period of two months. Thereafter the petitioner filed the execution proceedings before the Executing Court. On 19.06.2015, the Respondent No.4 appeared before the Executing Court and stated that he has abandoned the suit property. The possession warrant was issued in favour of the petitioner and Process Server submitted its report dated 07.07.2015. The possession has been handed over to the petitioner/decree-holder. The Panchnama report was prepared on 07.07.2015. It has also been mentioned that the Respondent No.2 was found in possession and when the contents of Kabja Warrant was read over before him, he left the area and the possession was given to the plaintiff/decree- holder.
(b) The Respondent No.2 filed an application under Section 151 of the Code of Civil Procedure [in brief "the Code"] before the Executing Court stating that he is owner of the suit property which he purchased from one Iqbal Hussain vide registered sale-deed dated 30.01.2014 and he is in possession. Therefore, the possession warrant has wrongly been issued against him and the same is liable to be cancelled.
(c) The said application was opposed by the present petitioner. Learned Executing Court vide impugned order dated 20.11.2015 has held that under Order XXI Rule 35 of the Code, the possession can be handed over to the decree-holder from judgment-debtor. The Respondent Nos.1 and 2 were not party in the judgment and decree, therefore, the entire proceedings dated 07.07.2015 is illegal, contrary to law and hereby set-aside. Hence, the present petition before this Court.
[3] Shri Yash Pal Rathore, learned counsel appearing on behalf of the petitioner submits that the Executing Court has wrongly set-aside the proceedings dated 07.07.2015 because the possession has already been given to the petitioner and now the rights of the Respondent Nos.1 and 2 are liable to be decided under Section 47 of the Code or under Order XXI Rule 97 - 101 of the Code. The petitioner is apprehending his dispossession because of the impugned order dated 20.11.2015. Hence, he filed the petition before this Court.
[4] Smt. Mamta Shandilya, learned counsel appearing on behalf of the Respondent Nos.1 and 2 refuted the arguments and submitted that neither Respondent No.4 nor Iqbal Hussain, from whom he purchased the suit property, were party to the civil suit, therefore, the decree cannot be executed against them. It is submitted that he is in possession, got the electricity connection therein and paying the property tax. He had no knowledge about the ex-parte decree in favour of the petitioner. The Respondent Nos.1 and 2 filed an application under Section 47 read with Section 151 of the Code for restoration of the possession against the dispossession on 07.07.2015, the Executing Court may be directed to decide the application under Section 47 of the Code in accordance with law.
[5] I have heard learned counsel for the parties. [6] It is not disputed that by virtue of proceedings dated 07.07.2015 the present petitioner/decree- holder has been put into the possession of the suit property. When the possession has been taken from the Respondent Nos.1 and 2, the only remedy available with him is to file an application under Order XXI Rule 97 or Section 47 of the Code. The Respondent Nos.1 and 2 have already exercised their right by filing an application under Section 47 of the Code. Under Order XXI Rule 99 of the Code, where any person other than the judgment-debtor is dispossessed of immovable property by holder of a decree, therefore, he may make an application to the Court complaining of such dispossession and where any such application is made, the Court shall proceed to adjudicate in accordance with the provisions herein contained i.e. under Rule 100 and 101 of the Code. Under Rule 100 (a) of the Code, the Executing Court may make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application. Under Rule 101 of the Code, all questions relating to right, title or interest arising between the parties, shall be determined by the Court dealing with the application, and not by a separate suit for this purpose. Therefore, the right and title of the Respondent Nos.1 and 2 would be decided by the Executing Court in a pending executing proceedings. Rule 99, 100 and 101 of the Code are reproduced below :-
"99. Dispossession by decree-holder or purchaser.-- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession.-- Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,--
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined.-- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
[7] Since the possession has already been taken from the Respondent Nos.1 and 2 and given to the petitioner and the right of the Respondent Nos.1 and 2 are liable to be decided, therefore, the impugned order is set-aside and the matter is remitted back to the authority to decide the same under the provisions of Order XXI Rule 99, 100 and 101 of the Code.
[8] The petition stands allowed.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1986 of 2017.
04.04.2017:-
Shri M.A.Mansoori, learned counsel for the petitioner. Heard on the question of admission.
O R D E R THE plaintiff has filed the suit for declaration and permanent injunction against the defendants on the ground that she is the owner of land bearing Survey No.449/3 and in possession. It is alleged that the defendants are trying to create way from her land, which give to her cause of action to file the suit. Plaintiff has also filed an application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure [in brief "the Code"]. During pendency of the suit as well as the said application, the Respondents/ defendants also approached the Tehsildar under Section 131 of the M. P. Land Revenue Code claiming the way over the Survey No.449/3. The Tehsildar passed the order and the way was provided. The said order was assailed before the Board of Revenue and vide order dated 08.09.2015 the order of Tehsildar was maintained and at present the said disputed land is being used as a way.
[2] Since the order of Competent Authority under Section 131 of the M. P. Land Revenue Code has attained finality and the way has been provided, therefore, no case is made out for grant of temporary injunction. Both the Courts below have rightly rejected the application for temporary injunction and no interference is called for by this Court in this writ petition. The petition is, therefore, dismissed. However, it is made clear that while deciding the application under Order XXXIX Rule 1 & 2 of the Code, any observations made in this order would not come in the way of the Trial Court. The Trial Court shall decide the suit on the basis of evidence.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1052 of 2017.
03.04.2017:-
Petitioner is present in person. Shri Akhil Godha, learned counsel for the Respondent No.2, on advance notice.
Petitioner, who is present in person submits that Shri Vibhor Khandelwal, Advocate has withdrawn Vakalatnama on behalf of him and in future he will appear in person.
Issue notice to the Respondents on payment of process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.163 of 2017.
03.04.2017:-
Shri Romil Malpani, learned counsel for the appellant. Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days.
Record of the Tribunal be requisitioned.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1339 of 2017.
04.04.2017:-
None for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent Nos.1 and 2/State, on advance copy.
Shri Mohan Sharma, learned counsel for the Respondent Nos.3 and 4.
The petitioner has filed the present petition being aggrieved by the notice dated 27.02.2017 by which the Respondent Nos.2, 3 and 4 were directed to remove the illegal construction. Counsel for the Respondents was directed to seek instructions and vide order dated 10.03.2017 the counsel for the Respondents was directed to file an affidavit disclosing the current status. An affidavit was filed on 15th March, 2017 stating that the illegal construction has been demolished on 03.03.2017. Counsel for the petitioner sought time on 20.03.2017 to file rejoinder.
No rejoinder has been fined. Even today in second round no one is appeared on behalf of the petitioner.
The petition is dismissed in default of appearance.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1730 of 2017.
04.04.2017:-
Shri Abhinav Dhanodkar, learned counsel for the petitioner.
Shri Rishi Tiwari, learned counsel for the Respondents
- Indore Municipal Corporation, Indore.
The petitioner before this Court has filed this present writ petition alleging that he is being forcibly evicted from the shop in question. A prayer has been made in the Writ Petition for issuance of an appropriate writ, order or direction, directing the Respondents not to evict the petitioner from the shop in question forcibly, except by following the procedure prescribed under the law.
Shri Rishi Tiwari, learned counsel for the Respondents has fairly stated before this Court that the petitioner shall not be evicted without following the due process of law/procedure provided under the law.
Resultantly, in the light of the categoric undertaking given by the learned counsel for the Respondents - Indore Municipal Corporation, Indore, the present Writ Petition stands disposed of with a direction to the Respondents not to evict the present petitioner without following the due process of law.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.594 of 2015.
03.04.2017:-
Parties through their counsel. As prayed by learned counsel for the petitioner, list after two weeks.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6145 of 2015.
03.04.2017:-
Smt. Pushpa Joshi, learned counsel for the petitioner. Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent No.1 to 3/State.
Shri Jitendra Verma, learned counsel for the Respondent No.4.
As prayed by Shri Verma, learned counsel for the Respondent No.4, further four weeks' time is granted to file the reply.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5782 of 2015.
03.04.2017:-
Parties through their counsel. As prayed, list on 07.04.2015.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.131 of 2014.
03.04.2017:-
Parties through their counsel. As prayed by learned counsel for the parties, list after eight weeks.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.14199 of 2013.
03.04.2017:-
Shri Shashank Patwari, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State.
Learned counsel for the petitioner further prays for two weeks' time to file rejoinder.
As a last indulgence, four weeks' time is granted.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2150 of 2017.
03.04.2017:-
Shri Piyush Mathur, learned Senior Counsel with Shri M.S.Dwivedi, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State, on advance copy.
As prayed by learned Senior Counsel for the petitioner, list in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2061 of 2017.
03.04.2017:-
Shri Prateek Maheshwari, learned counsel for the petitioner.
Shri Rishi Tiwari, learned counsel for the Respondents
- Indore Municipal Corporation, Indore.
The petitioner before this Court has filed this present writ petition alleging that he is being forcibly evicted from the shop in question. A prayer has been made in the Writ Petition for issuance of an appropriate writ, order or direction, directing the Respondents not to evict the petitioner from the shop in question forcibly, except by following the procedure prescribed under the law.
Shri Rishi Tiwari, learned counsel for the Respondents has fairly stated before this Court that the petitioner shall not be evicted without following the due process of law/procedure provided under the law.
Resultantly, in the light of the categoric undertaking given by the learned counsel for the Respondents - Indore Municipal Corporation, Indore, the present Writ Petition stands disposed of with a direction to the Respondents not to evict the present petitioner without following the due process of law.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2052 of 2017.
03.04.2017:-
Shri Siddharth Jain, learned counsel for the petitioner. Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State, on advance copy.
As prayed by learned counsel for the petitioner, list in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2045 of 2017.
03.04.2017:-
Shri D.D.Vyas, learned Senior Counsel with Shri Ajay Vyas, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent No.2/State, on advance copy.
Heard on the question of admission. Shri Rishi Tiwari, learned counsel is requested to accept notice on behalf of Respondent No.1 and submit short reply.
List the matter on 12.04.2017. Till the next date of hearing, status-quo be maintained. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1912 of 2017.
03.04.2017:-
Shri Dilip Singh Panwar, learned counsel for petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State on advance notice.
Learned counsel for petitioner submits that the petitioner was appointed as Guruji and his services were orally terminated in the year 2001. He submits that in the identical writ petition being WP No.1547/2013 in the matter of Trilok Singh Devda v/s State of MP & others the co- ordinate bench has passed the order dated 9/3/2015 granting permission to file the representation in view of the judgment in the case of Smt.Madhubala Verma Vs. State of MP passed in WP No.12273/2010 dated 16/3/2012.
On the perusal of the record, it is noticed that in the matter of Trilok Singh (supra), the following order was passed by the co-ordinate bench:-
"Shri Prasanna R.Bhatnagar, learned counsel for the petitioner.
Shri C.S.Ujjainiya, learned Government Advocate for the respondents - State.
With the consent of parties, heard finally. The prayer in this petition is for quashment of order of termination dated 16.10.2001 and to direct the respondents to reinstate the petitioner as E.G.S. Guruji with all consequential benefits.
2] Learned counsel for the petitioner submits that petitioner was working as Guruji and was terminated by oral order. It is submitted that an inquiry was conducted in which the report is dated 13.11.2010 wherein it was found that petitioner was wrongly terminated, however, no further orders has been passed till so far. It is submitted that case of the petitioner is covered by order dated 16.03.2012 passed in Writ Petition No.12273/2010 (Smt. Madhubalqa Verma Vs. State of Madhya Pradesh). It is submitted that necessary directions be issued. 3] Learned counsel for the respondents submit that case of the petitioner is not covered by order dated 16.03.2012 passed in Writ Petition No.1173/2010 (Smt. Madhubala Verma Vs. State of Madhya Pradesh) as in the present case inquiry has already been conducted.
4] After taking into consideration all the facts and circumstances of the case and keeping in view the submission of petitioner that inquiry report is in favour of petitioner, petition filed by the petitioner is disposed of with short direction that petitioner shall submit an appropriate application along with copy of the order passed by this Court and also the copy of report dated 13.11.2010 and also with the copy of order dated 16.03.2012 passed in Writ Petition No.12273/2010 (Smt. Madhubala Verma Vs. State of Madhya Pradesh) before the Competent Authority with a request to reinstate the petitioner on the post of EGS Guruji. If such application is filed, then the competent authority shall decide the application by passing a reasoned order within a period of three months. 5] With the aforesaid observations, petition stands disposed of."
Since the petitioner stands on the same footing, therefore, the petitioner's writ petition is also disposed of without expressing any opinion on the merits of the matter by permitting the petitioner to file an appropriate application along with the copy of the order passed in the matter of Smt. Madhubala (supra). If such a representation is filed by the petitioner, the same will be considered and decided by the competent authority in accordance with law having regard to the aforesaid judgment within a period of three months from the date of receipt of representation.
Cc.c as per rules.
[ VIVEK RUSIA ]
(AKS) JUDGE
Writ Petition No.2020 of 2017.
03.04.2017:-
Shri Akshat Pahadiya, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State, on advance copy.
Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days by RAD mode.
By way of interim relief, any subsequent action would be subject to the out come of this writ petition.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1974 of 2017.
03.04.2017:-
Shri Vivek Phadke, learned counsel for the petitioners. Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State, on advance copy.
Heard on the question of admission. Issue notice to the Respondents on payment or process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1951 of 2017.
03.04.2017:-
Shri Aniket Abhay Naik, learned counsel for the petitioners.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State, on advance copy.
List on 06.04.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1927 of 2017.
03.04.2017:-
Shri Manoj Manav, learned counsel for the petitioner. Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent/State.
Shri Bhatnagar submits that on his instructions, the Head Quarters of the petitioner is not going to change.
Let an affidavit be filed to that effect. List on 06.04.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1789 of 2017.
03.04.2017:-
Petitioner present in person. Shri S.C.Sinhal, learned counsel for the Respondents. The petitioner is aggrieved by his transfer from Ratlam to Dewas, but he has not challenged the said order in the writ petition. He prays for time to file an amendment application.
Prayer is allowed.
List after three days.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.22 of 2017.
28.03.2017:-
Shri Ramesh Saboo, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
With the consent of parties, heard finally. Order passed separately, signed and dated.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.358 of 2017.
28.03.2017:-
Shri A.S.Kutumbale, learned Senior Counsel with Shri M.A.Bohra, learned counsel for the petitioners.
Shri B.L.Pavecha, learned Senior Counsel with Shri Akshat Pahadiya, learned counsel for the Respondent Nos.1 and 3.
None for the Respondent Nos.2, 4 and 5. Main Trustees - Mr. Sureshchandra Khandelwal; Mr. Samirmal Jain and Mr. Sitaram Patidar are present in person.
Mr. Raj Kumar Jain, President of Municipal Council, Manawar; Mr. Rajendra Mishra, C.M.O., Municipal Council, Manawar and Mr. Dheerendra Rawat, Engineer of the project are also present in person.
No settlement has arrived between the parties. Arguments heard.
Order passed separately, signed and dated.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2165 of 2016.
22.03.2017:-
Shri Amit Kumar Pardeshi, learned counsel for the petitioner.
Shri Vivek Patwa, learned counsel for the Respondent Nos.2 and 3.
Ms. Medha Patkar for the intervenors. Heard.
O R D E R THE petitioner has filed the present petition seeking direction to the Respondents to give benefit under the Special Rehabilitation Package ensure allotment of 2 hacters of irrigated land and comply the order of GRA Case No.345/2012.
[2] The counsel for both the parties jointly submit that the issue involved in this petition has been decided in Writ Petition No.2168 of 2016 vide order dated 21.03.2017 which is reproduced below :-
"Learned counsel for respondents no.2 & 3 has pointed out that the issue in regard to the allotment of alternate land has now been settled by the Hon'ble Supreme court by order dated 8/2/2017 passed in WP No.328/2002 in the matter of Narmada Bachao Andolan Vs. Union of India and others. He has pointed out that in the said order, the concerned project affected families has been found entitled to the monetary compensation to the tune of Rs.60 lakhs. It has also been pointed out that a list of 681 project affected families has already been considered by Hon'ble Supreme court and in case if any other affected family is similarly situated and not included in the list then they have the option to approach the GRA and establish their credentials.
Shri Vivek Patwa learned counsel for respondents no.2 & 3 has fairly stated before this court that prompt action in terms of the order of the Hon'ble Supreme court will now be taken and proper remedy at this stage available to the petitioner is to approach the GRA and get the relief in terms of the aforesaid order of the Hon'ble Supreme court.
Ms. Medha Pakar appearing on behalf of the intervenors has raised a grievance submitting that list of 681 project affected families has not yet been supplied to the concerned parties inspite of the request made to GRA and NVDA.
Since the relief in terms of the aforesaid order of the Supreme court infavour of 681 families has already been crystallized therefore, it is the bounded duty of the concerned authority to disclose the list of 681 persons expeditiously.
Hence it is directed that if any affected family approaches the competent authority then the list will be duly disclosed to such affected party without any delay. The concerned authorities are directed to take expeditious action in terms of the order of the Hon'ble Supreme court.
Writ petition is accordingly disposed off."
[3] In the light of the above, the petition is also disposed of with the direction that if the affected family approaches the competent authority, then the list will be duly supplied to said affected party and the concerned authorities take expeditious action in terms of the order passed by the Hon'ble apex Court.
[4] Writ petition is accordingly disposed of. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2121 of 2017.
30.03.2017:-
Shri A.M.Mathur, learned Senior Counsel with Shri Abhinav Dhanodkar, learned counsel for the petitioner.
Issue notice to the Respondents on payment of process fee within seven days, failing which this petition shall be liable to be dismissed without reference to the Court.
In the meanwhile, the petitioner shall not be evicted from the premises in question, till the next date of hearing.
List the matter on 09.05.2017. Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2118 of 2017.
30.03.2017:-
Shri A.M.Mathur, learned Senior Counsel with Shri Abhinav Dhanodkar, learned counsel for the petitioner.
Issue notice to the Respondents on payment of process fee within seven days, failing which this petition shall be liable to be dismissed without reference to the Court.
In the meanwhile, the petitioner shall not be evicted from the premises in question, till the next date of hearing.
List the matter on 09.05.2017. Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2085 of 2017.
30.03.2017:-
Shri A.M.Mathur, learned Senior Counsel with Shri Abhinav Dhanodkar, learned counsel for the petitioner.
Issue notice to the Respondents on payment of process fee within seven days, failing which this petition shall be liable to be dismissed without reference to the Court.
In the meanwhile, the petitioner shall not be evicted from the premises in question, till the next date of hearing.
List the matter on 09.05.2017. Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8710 of 2013.
30.03.2017:-
Shri Abhinav Dhanodkar, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
The petitioner has challenged the order dated 29.06.2013 by which allotment in his favour has been cancelled in respect of House No.419 C.M.2 Sukhliya, Indore.
Now the petitioner has filed an application [I.A. No.1878/2017] for withdrawal of the petition with liberty to file fresh petition if occasion so arises.
The application [I.A.No.1878/2017] is allowed. In the result, the petition is dismissed as withdrawn with the aforesaid liberty.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8888 of 2011.
06.03.2017:-
Shri A.K.Chitale, learned Senior Counsel with Shri Vivek Phadke, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent Nos.1 to 3/State.
Shri R.S.Chhabra, learned counsel for the Respondent No.4.
Arguments heard.
Reserved for orders.
[ VIVEK RUSIA ] JUDGE (Adarsh) 30.03.2017:-
Order passed, signed and dated.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.980 of 2017.
28.03.2017:-
Shri Shashank Sharma, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent No.1/State.
Shri Abhishek Singh Rathore, learned counsel for the Respondent No.2.
At the request of learned counsel for the petitioner, due to non availability of arguing counsel, list on 03.04.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1560 of 2017.
28.03.2017:-
Shri N.S.Tomar, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance copy.
Heard on the question of admission.
O R D E R According to the petitioner, his wife lodged a report against Kanwarlal which was registered in Crime No.191/2015 under Section 376 of IPC in Police Station Afzalpur, Mandsaur. Her statement was recorded under Section 164 of Cr.P.C. It is alleged that niece of Kanwarlal has lodged a false report against the petitioner which has been registered as Crime No.582/2016 under Sections 363, 366, 376 (2) and 506 of IPC and under Sections 3 and 4 of POCSO Act . Later on she gave an affidavit that at the instance of his uncle Kanwarlal, she lodged false report and no such incident of rape has taken place with her. On the basis of her affidavit, the petitioner was released on bail by this Court in Misc. Criminal Case No.11114 of 2016. The case of the petitioner is that Kanwarlal is still threatening that he would falsely implicate him. Therefore, a direction may be issued to the police that before registering a FIR against him, proper investigation be made.
[2] Under the Code of Criminal Procedure, if police received any complaint of committing cognizable offence, they are bound to register FIR. Hon'ble apex Court in the case of Lalita Kumari v/s Govt. of U.P. [(2014) 2 SCC 1] has issued directions which are reproduced below :-
"120. In view of the aforesaid discussion, we hold:
120.1 Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
[3] Therefore, no further direction is necessary in this petition. The aforesaid judgment of the apex Court is binding on the police authorities.
[4] The petition is disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1988 of 2017.
28.03.2017:-
Shri A.K.Sethi, learned Senior Counsel with Shri Chetan Jain, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent/State, on advance copy.
Heard on the question of admission.
O R D E R THE petitioner has filed the present petition being aggrieved by the order dated 16.02.2017 by which the Board of Revenue has refused to extend the interim stay order.
[2] Facts of the case are that :
The petitioner was granted a mining lease by the Government of Madhya Pradesh on 05.08.2010 in respect of Survey No.993/1 situated at Village Bapaiya, Tehsil Mahidpur, District Ujjain for the period of 10 years. A report was submitted by the S.D.O. (Revenue) that the petitioner is carrying out the mining operations on some other land. The petitioner has alleged that false report has been submitted against him at the instance of local M.L.A. On the basis of the said report, the S.D.O. (Revenue) registered a case and imposed the penalty to the tune of Rs.30,29,25,600-00 vide order dated 19.02.2016. Against the said order, the petitioner preferred appeal before the Additional Commissioner, Ujjain in which the stay was granted to the petitioner. But later on the said appeal has been dismissed vide order dated 18.11.2016. Thereafter the petitioner preferred an appeal to the Board of Revenue along with an application for stay. By order dated 23.11.2016 record of the lower authorities were summoned and the recovery of penalty was stayed by the Board of Revenue.
The stay order was continued and the appeal was fixed by the Board of Revenue at Ujjain Camp. For want of record, the argument could not take place. Thereafter the same was listed on 16.02.2017 on application for urgent hearing and extension of stay order but vide order dated 16.02.2017 without any reason the President of Board of Revenue has refused to extend the stay order, hence the present petition before this Court.
[3] Shri Sethi, learned Senior Counsel submits that the Board of Revenue in an arbitrary manner by non- speaking and unreasoned order has refused to extend the stay order which was granted in his favour. When appeal is pending for final hearing and stay was granted, then it ought to have been continued till the final disposal of appeal.
[4] Shri Rohit Mangal, learned Govt. Advocate on behalf of the State submits that the Board of Revenue may be directed to decide the appeal finally itself on merit.
[5] I have heard learned counsel for the parties. [6] The Board of Revenue vide order dated 23.11.2016 has granted the stay in favour of the petitioner. There is no application for vacating of stay order by Mining Department. The appeal is yet to be heard finally on its merit. Once the stay has been granted, in normal course it ought to have been continued till the final disposal of the appeal if there is no application for vacating the stay order.
[7] The Board of Revenue while passing the impugned order has not assigned any reason for not extending the stay order. The impugned order is set-aside. The Board of Revenue is directed to decide the pending Appeal Case No.3962/PBR/2016 within a period of two months from today and till then the interim order granted on 23.11.2016 shall continue.
[8] With the aforesaid, the petition is finally disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6174 of 2016.
28.03.2017:-
Smt. Ranjana Gawade, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
As prayed by learned counsel for the petitioner, list after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6834 of 2016.
28.03.2017:-
Shri R.Gupta, learned counsel for the petitioner. Shri M.S.Dwivedi, learned counsel for the Respondents.
As prayed, two weeks' time is granted to file reply List after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7221 of 2016.
28.03.2017:-
Shri R.K.Vyas, learned counsel for the petitioner. Shri Vinay Zelawat, learned Senior Counsel with Shri A.S.Parihar, learned counsel for the Respondent Nos.1 to 8.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent Nos.9 and 10/State.
Learned Senior Counsel for the Respondent Nos.1 to 8 is directed to file copy of the Issues framed in Civil Suit No.5-A/2015.
List after fifteen days.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8242 of 2016.
28.03.2017:-
Shri Anshuman Shrivastava, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
As prayed by counsel for the petitioner, list after two weeks.
Meanwhile reply may be filed.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.52 of 2017.
28.03.2017:-
Parties through their counsel. Learned counsel for the Respondent No.1 prays for and is granted four weeks' time to file reply/compliance report.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.54 of 2017.
28.03.2017:-
Shri R.Sethi, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondent No.1/State.
Shri Kamal Airen, learned counsel for the Respondent No.2.
As prayed, list in the next week. IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.397 of 2017.
28.03.2017:-
Shri G.Panchal, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
Service report of the Respondents are awaited. List after service is effected. Meanwhile State may file the reply.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.688 of 2017.
28.03.2017:-
Shri Satish Jain, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
Learned Govt. Advocate prays for and is granted four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.44 of 2017.
27.03.2017:-
Ms. Anamika Sen, learned counsel for the appellants. Requisition the record of the Courts below and thereafter list for admission.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.633 of 2017.
27.03.2017:-
Shri Ajay Bagadiya, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance copy.
Heard on the question of admission.
O R D E R THE petitioner has filed the present petition seeking quashment of the impugned order dated 16.08.2001 passed by the Collector, Dhar and further sought direction that the name of the petitioner be restored in the Revenue Record.
[2] According to the petitioner he purchased certain piece of land by registered sale-deed dated 11.10.1993 and his name was mutated in the Revenue Record and Rin Pustika was prepared but in the Khasra entries from 1999 onwards the same property has been recorded in the name of Wakf.
[3] Counsel for the petitioner further submitted that the property owned by petitioner has wrongly been declared as Wakf property without following the due procedure of law as provided under the Waqf Act,1995.
[4] The present property has already been declared as Wakf property by way of Gazette Notification dated 10.01.1995 and later on the Collector vide order dated 16.08.2001 has directed the Tehsildar, Dhar to make correction in the revenue entries. Once the property has been notified as Wakf property, therefore, under Section 6 of the Waqf Act, 1995 the petitioner is required to raise the dispute before the Wakf Tribunal. The Wakf Tribunal is competent to decide the issue relating to the Wakf properties under the Waqf Act, 1995..
[5] Therefore, the petition is disposed of with the liberty to the petitioner to approach the Wakf Tribunal in accordance with law.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8322 of 2016.
27.03.2017:-
Shri Pravin Alune, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondent Nos.1 and 3/State.
Shri Vivek Patwa, learned counsel for the Respondent No.2.
Heard on the question of admission.
O R D E R THE petitioner was initially appointed as Accountant on contract basis in NRHM Programme vide order dated 05.01.2008 on a fixed honorarium of Rs.8,000/- per month. She was posted at Community Health Centre, Silawad, District Badwani. Since the post of Accountant at Badwani has been abolished, therefore, the petitioner was given an offer to accept the appointment in Community Health Centre, Chandra Shekhar Azad Nagar, Bhabra as per new agreement dated 31.03.2017 in a fixed honorarium of Rs.15,000/- per month. The petitioner has given a written undertaking by Annexure-A/7 accepting the said appointment but later on filed the present petition on the ground that the present place of posting is 100 kms away and there is reduction in the honorarium from Rs.30,000/- to Rs.15,000/- per month. She is having experience of the said post since 2008. She can be accommodated in any other places nearby District Badwani. The petitioner has filed an affidavit on 24.11.2017 stating that she has joined the post at Community Health Centre, Chandra Shekhar Azad Nagar, Bhabra.
Since the petitioner has given the joining, therefore, the present writ petition has rendered infructuous. However, the liberty is granted to the petitioner to submit representation to the Director of NRHM for posting at another suitable vacant place and if such representation is filed, the learned authority shall consider looking to the experience of the petitioner and the family problem.
With the above liberty, writ petition stands disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.465 of 2017.
27.03.2017:-
Shri Vivek Sharan, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance copy.
Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days by RAD mode.
Return be filed within four weeks. Interim relief would be considered after filing of the return.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No349 of 2014.
27.03.2017:-
None present.
List after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.8 of 2015.
27.03.2017:-
Shri Shyam Patidar, learned counsel for the appellants. As prayed, list after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.271 of 2015.
27.03.2017:-
None for the appellants.
List after two weeks.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2948 of 2016.
27.03.2017:-
None for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent Nos.1 and 3/State.
Respondent Nos.1 and 3 have filed the return. Return from Respondent No.4 is awaited. Let the return be filed within four weeks. List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7395 of 2016.
27.03.2017:-
Shri Rohit Gupta, learned counsel for the petitioner. Counsel for the petitioner submits that the rejoinder has been filed.
List after a week.
Interim relief granted earlier shall continue. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.610 of 2017.
27.03.2017:-
Shri Ajay Mimrot, learned counsel for the petitioners. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
Instructions are awaited.
List after four weeks.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.34 of 2017.
27.03.2017:-
Ms. Seema Sharma, learned counsel for the petitioner. Ms. Bhakti Vyas, learned counsel for the Respondent Nos.1 to 3.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent Nos.4 and 5/State.
Let the Respondent Nos.1 to 3 file a return of the writ petition.
Shri Mangal undertakes to file return on behalf of the Respondent Nos.4 and 5 within four weeks.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.67 of 2017.
27.03.2017:-
Ms. Sangeeta Bourasi, learned counsel for the appellant.
Requisition the record of the Courts below and thereafter list for admission.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.70 of 2017.
27.03.2017:-
Shri Sapnesh Jain, learned counsel for the appellant. As prayed, list in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Second No.150 of 2017.
27.03.2017:-
None for the appellant.
Requisition the record of the Courts below and thereafter list for admission.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.639 of 2017.
27.03.2017:-
Shri M.I.Ahmed, learned counsel for the petitioners. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State.
Learned counsel for the petitioners prays for withdrawal of the writ petition with liberty to file duly constituted fresh writ petition.
The aforesaid writ petition is dismissed as withdrawn with the aforesaid liberty. All pending I.As. Are also disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.693 of 2017.
27.03.2017:-
Shri Sarver Ashraf, learned counsel for the petitioner. At the request of learned counsel for the petitioner, list after a week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.795 of 2017.
27.03.2017:-
Ms. Sumanlata, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondent Nos.1 to 4/State.
Shri Mangal has produced the letter of Station House Officer, Police Station Kali Devi, District Jhabua before whom the petitioner herself has stated that she is living with her husband along with son.
Counsel for the petitioner is disputing the said fact and stated that at present the petitioner is living with her father.
The petitioner is directed to file an affidavit to that effect and the Respondents is also directed to file the reply.
List after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1635 of 2017.
22.03.2017:-
Shri Manohar Singh Solanki, learned counsel for the petitioner.
Heard on the question of admission.
O R D E R THE present petition is filed against the order dated 22.12.2016 by which appeal under Section 96 of the Code of Civil Procedure [in short "the Code"] has been dismissed by Additional District Judge, Khachrod, District Ujjain.
[2] The petitioner/plaintiff has filed the suit against his own father claiming declaration that the property is an ancestral property and he is having share in the property. In the said suit the Respondent/defendant filed an application under Section VII Rule 11 of the Code on the ground that the suit is not maintainable during life time of father and barred under Section 8 of the Hindu Succession Act, 1956.
[3] Vide order dated 10.04.2014 the learned Civil Judge has upheld the objection and rejected the plaint.
[4] The plaintiff filed an appeal under Section 96 of the Code. The learned Additional District Judge entertained the appeal and dismissed the same vide order dated 22.12.2016. Hence, the present writ petition is filed.
[5] Counsel for the petitioner submits that since the decree has not been drawn by the appellate Court, therefore, second appeal would not lie. Hence, the writ petition is filed.
[6] That the "decree" is defined under Section 2 (2) of the Code and according to which a formal expression of an adjudication which so far as regards the Court expresses between the parties. Section 2 (2) is reproduced below :-
"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.-- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"
[7] The rejection of plaint under Order VII Rule 11 of the Code is deemed to be a decree passed by the Civil Court, therefore, the petitioner preferred first appeal under Section 96 of the Code. Now first appeal has been dismissed by the Court on merit, therefore, the second appeal would lie before this Court. Hence, the petition is dismissed as not maintainable with liberty to the petitioner to file second appeal. Certified copy of the impugned order dated 22.12.2016 be returned to the petitioner after substituting by photo-copy.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.367 of 2014.
20.03.2017:-
Shri K.C.Raikwar, learned counsel for the petitioners. Shri Milind Phadke, learned counsel for the Respondent No.2.
Shri Mukesh Parwal, learned counsel for the Respondent Nos.3 to 5.
Shri Tarun Kushwaha, learned counsel for the Respondent No.6.
Respondent No.6 - Shri Shyam Kumar Singh, Commissioner, Municipal Corporation, Ratlam is also present in person.
Heard.
O R D E R THE petitioners have filed the present contempt petition alleging non compliance/violation of order dated 08.07.2013 passed in Writ Petition No.10782 of 2012.
[2] The petitioners approached this Court by way of Writ Petition No.10782 of 2012 seeking extension of benefit of pay scale of Shiksha Karmi Grade-III of Rs.800-1200. This Court vide order dated 08.07.2013 disposed of the Writ Petition No.10782 of 2012 and another writ petition of similar nature i.e. Writ Petition No.10783 of 2012 in terms of the order passed in Writ Petition No.1570 of 2001 [Sayyed Imtiaz Ali v/s State of M.P.]. This Court in case of Sayyed Imtiaz Ali (supra) has directed the Respondents to grant pay scale to the petitioners of Rs.800-1200 on which they were appointed initially vide order dated 18.08.1998. After the aforesaid order, the petitioners submitted the representation claiming the pay scale of Rs.800-1200. When the said benefit was not extended to the petitioner, therefore, they filed the present contempt petition.
[3] After notice, the Respondents filed the return contending that the petitioners were appointed vide order dated 05.03.1999 in the Madarsa run under the Rajeev Gandhi Primary Education Mission, Ratlam on fixed honorarium of Rs.1,000-00 per month. Therefore, they are not entitled for the pay scale of Shiksha Karmi or Assistant Teacher. The Commissioner, Municipal Corporation, Ratlam has written a letter to the Collector for grant of necessary sanction for giving the pay scale of Rs.800-1200 but no sanction was granted by Government.
[4] The District Project Officer, Jila Shiksha Kendra also filed reply to the contempt petition submitting that the appointing authority of the petitioners is Municipal Corporation, therefore, even if the order is required to be complied, the same is to be complied by the Municipal Corporation not by the State Government. It is further submitted that along with the writ petition of the petitioners, another Writ Petition No.10783 of 2012 was decided which was filed by the employees of Municipal Council, Jaora and in compliance of the aforesaid order dated 08.07.2013 passed in the writ petition, the Municipal Council, Jaora vide order dated 08.11.2014 has rejected the representation of the petitioner and against which contempt petition has been dismissed and now the writ petitioner has challenged the said rejection order in the writ petition. Therefore, the present contempt petition is also liable to be dismissed.
[5] The petitioners filed rejoinder to the return filed by the Respondents submitting that the order passed in the case of Sayyed Imtiaz Ali (supra) has been complied with and the writ petitioners of that petition are getting the pay scale of Rs.800-1200 and they have been paid the arrears of salary also - Rs.23,30,664-00.
[6] Shri Raikwar, learned counsel on behalf of the petitioner submits that while deciding the writ petition filed by Sayyed Imtiaz Ali (supra), this Court has held that the petitioners were appointed as Shiksha Karmi Grade-III Madarsa on the pay scale of Rs.800-1200. The advertisement was issued on the same post in respect of other Shiksha Karmi employee by Respondent No.2. The petitioners who were also appointed in the Madarsa are also entitled to get the pay scale of Rs.800-1200 and the Respondents have committed contempt by not complying the directions given by this Court.
[7] I have heard the arguments of learned counsel for the parties.
[8] That the petitioners were appointed vide order dated 05.09.1999 issued by Municipal Corporation, Ratlam. In the order it is specifically mentioned that they are being appointed on the fixed honorarium of Rs.1,000-00 per month. The designation is mentioned as "Ustad" not the 'Shiksha Karmi'. Sayyed Imtiaz Ali, who filed the Writ Petition No.1570 of 2001 was appointed by Municipal Council, Jaora as Shiksha Karmi Grade-III Madarsa in the pay scale of Rs.800-1200. Vide order dated 12.01.1999 issued by Block Education Officer, the post of Shiksha Karmi has been changed and it has been ordered that now they would be designated as "Ustad" and they will be entitled to get the fixed honorarium of Rs.1,000-00 per month. In that factual background, this Court while allowing the writ petition vide order dated 22nd March, 2006 has held that the petitioners were initially appointed as Shiksha Karmi Grade-III Madarsa on the pay scale of Rs.800-1200, therefore, they are entitled for the said pay scale.
[9] In the present case, the petitioners were appointed as Ustad in the fixed honorarium of Rs.1,000-00 per month. Therefore, the facts of the present case are quite different from the case of Sayyed Imtiaz Ali (supra).
[10] Along with the writ petition of the petitioner, another writ petition i.e. Writ Petition No.10783 of 2012 was also disposed of. That was in respect of the appointment made by Municipal Council, Jaora. After the High Court order dated 08.07.2013, the Chief Municipal Officer, Municipal Council, Jaora has rejected the representation of the petitioners and the said order has been challenged by Shri Gopal Panchal and others by way of writ petition before this Court and the said writ petition is still pending. The contempt petition filed by Gopal Panchal has also been disposed of with liberty to file writ petition to challenge the rejection order. Since the Writ Petition No.10782 of 2012 and Writ Petition No.10783 of 2012 were decided by common order and in one petition the representation has been rejected and the petitioners therein have already filed the writ petition, therefore, in the present case also the writ petitioners are also liable to file the writ petition to challenge the action of Municipal Corporation, Ratlam. The Contempt Petition No.375 of 2014 has been dismissed vide order dated 10.11.2014. The order is reproduced below :-
"10.11.2014 Shri K.P.Pandey, learned counsel for the petitioner. Ms. Chitralekha Hardiya, learned counsel for respondents No.2 and 3.
Shri Rohit Mangal, learned counsel for respondent No.6. Counsel for the petitioner has fairly stated before this Court that in pursuance to the direction of this Court, the representation has been decided, therefore, the petitioner be granted liberty to file fresh petition challenging the order of rejection.
In view of the aforesaid, contempt petition is dismissed with the liberty as prayed above."
Thereafter Gopal Panchal and others have filed Writ Petition No.59 of 2012 before this Court, which is still pending.
[11] In view of the above, the contempt petition is dismissed. The contemnors are dis-charged.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.358 of 2017.
23.03.2017:-
Shri A.S.Kutumbale, learned Senior Counsel with Shri M.A.Bohra, learned counsel for the petitioners.
Shri B.L.Pavecha, learned Senior Counsel with Shri Akshat Pahadiya, learned counsel for the Respondent Nos.1 to 3.
In this petition, the petitioners/plaintiffs have challenged the order of first appellate Court setting aside the order of granting temporary injunction in favour of the plaintiffs. The appellate Court has refused injunction looking to the public cause behind the construction of water tank. Admittedly the land was given to the plaintiffs' trust by the State Government measuring 162000 sq.ft. and the Municipal Council going to make construction of water tank over the land approximately measuring 1500 sq.ft.
Without commenting on merit, looking to the public cause involved in this petition, let the main Trustee of the petitioners as well as the Chief Municipal Officer, Dhar; President and In-charge of this project remain present before this Court on 28.03.2017 for amicable settlement of the issue between them.
List on 28.03.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8223 of 2014.
22.03.2017:-
Shri R.R.Bhatnagar, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned Govt. Advocate for the Respondent Nos.1 to 3/State.
Shri Mangesh Bhachawat, learned counsel for the Respondent Nos.4 and 5.
Heard.
O R D E R THE petitioner has filed the present petition seeking direction to the Respondents to arrest the accused in connection with Crime No.764/2014 dated 25.09.2014 and further sought direction to conduct fair investigation in the matter at the earliest.
[2] After notice, the Respondent Nos.1 to 3/State have filed the return in which they submitted that the investigation was completed and thumb impression of mother of the petitioner was examined through handwriting expert and it was found that the mother of the petitioner executed 4 sale-deeds of the property in the year 1990 which she received from her father and at present the arrest is not necessary.
[3] The Respondent Nos.4 and 5 filed the return denying all the allegations. It has been informed that the police has submitted closure report before the concerned Magistrate but the same has been rejected. The mother of the petitioner appeared before the Magistrate and opposed the closure report submitted by the police and the Magistrate has recorded her statement. Since the concerned Magistrate has rejected the closure report submitted by the police, therefore, how the trial shall be proceed against the accused persons. Since the FIR has been registered and the concerned Magistrate has taken cognizance in the matter, therefore, the present petition is disposed of with the liberty to mother of the petitioner to appear before the concerned Magistrate and she assist the prosecution.
The petition is disposed of accordingly.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2017 of 2015.
22.03.2017:-
Parties through their counsel. Learned counsel for the Respondent No.3 prays for and is granted four weeks' time to file reply.
List immediately after filing of the reply.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.774 of 2015.
22.03.2017:-
Shri Brajendra Mishra, learned counsel for the petitioner.
Shri Arjun Pathak, learned counsel for the Respondents.
Heard on I.A.No.1037/2017, an application for withdrawal of the writ petition.
Considering the averments made in the application [IA No.1037/2017], the same is allowed.
The petition is dismissed as withdrawn.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.365 of 2015.
22.03.2017:-
Shri A.S.Kutumbale, learned Senior Counsel with Ms. Bharti Lakkad, learned counsel for the appellant.
Shri M.K.Jain, learned counsel for the Respondent. Heard.
There is a decree of eviction against the appellant under Sections 12 (1) (c) and 12 (1) (e) of the M. P. Accommodation Control Act. Both the Courts below have concurrently granted the decree of eviction. The apex Court in the case of Hero Vinoth v/s Seshammal [(2006) 5 SCC 545] and Sheel Chand v/s Prakash Chand [(1998) 6 SCC 683] held that concurrent finding should not be interfered by the High Court.
Shri Kutumbale, learned Senior Counsel submits that appellant be granted period of six months time to vacate the premises. He undertakes to vacate the premises within a period of six months.
Shri Jain opposes the prayer and submitted that the appellant has already vacated the premises.
As the case may be, in view of the above undertaking the appellant is directed to vacate the premises within a period of six months from today. The appellant shall file an undertaking before the Executing Court that he shall vacate the premises within a period of six months from today. He is also directed to deposit rent of 6 months before the Executing Court along with undertaking. If undertaking is not filed and rent is not deposited in 15 days from today, the Respondent shall be free to get the decree executed.
The appeal stands disposed of. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2638 of 2015.
22.03.2017:-
Shri Madhusudan Dwivedi, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned Govt. Advocate for the Respondents/State.
Heard.
O R D E R THE petitioner has filed the present petition being aggrieved by the action of the Respondents by which he has been denied the benefit of 1st Krammonnati/Higher Pay Scale of Rs.5200-20200 with grade pay of Rs.2400/- with effect from 01.04.2006.
[2] The petitioner was initially appointed as Lower Division Clerk vide order dated 29.02.1996 by the Director of Kalidas Sanskrit Academny, Ujjain. Later on he was confirmed on the said post vide order dated 09.08.2000 with effect from initial date of appointment i.e. 01.03.1996. Thereafter the petitioner was posted in Kalidas Sanskrit Academy, Ujjain. Since the petitioner was not promoted for the period 19 years since his appointment, therefore, he filed petition claiming the benefit of Kramonnati in the light of Circular dated 24.01.2008.
[3] The State Government has framed the policy regarding Time Bound Promotion Scheme for granting the benefit of Higher Pay Scale to those employees who had completed 8/10 years of service from the date of initial appointment but could not get promotion due to some reasons. The State Government has fixed the cut of date for granting the said benefit is 01.04.2006.
[4] The Departmental Promotion Committee of the Respondents met on 28.08.2012 for considering the case of eligible employee for granting the benefit of 1 st Kramonnati/ up-gradation. The name of the petitioner was also considered along with 39 employees. The DPC has considered the ACRs of 01.04.2009 up to 31.3.2012. Since the petitioner's ACRs were adverse during aforesaid period, and show-cause notice was also issued for awarding punishment of stoppage of 2 increments, the DPC did not recommend the name of the petitioner for grant of 1 st Kramonnati.
[5] The petitioner has challenged the action of the Respondents mainly on the two grounds that the Respondents have wrongly considered the ACRs of the years 2009 to 2012 of the petitioner and even though those adverse ACRs has never been communicated to him, therefore, they cannot be considered for denying the benefit of the up-gradation to the petitioner.
[6] The Respondents filed the return in which it is submitted that the DPC is liable to be considered the ACRs of the preceding 5 years and since the petitioner's ACRs were not up to the mark, therefore, his name was not recommended. It is submitted that the ACRs of the petitioner were communicated to him vide letter dated 27.06.2011 and received by the petitioner on 10.10.2011 hence prayed for dismissal of the writ petition.
[7] I have heard learned counsel for the parties. [8] The State Government has framed the policy dated 24.01.2008 for granting benefit of Higher Pay Scale to their employees of Category A, B and C after completing 8 years and 10 years of service respectively. The scheme was made effective w.e.f. 01.04.2006. The criteria for grant of the said benefit was same as the criteria for promotion. In Clauses 9 and 10, it has been mentioned that the employees whose service of 8 years completed as on 01.04.2006 would be considered for grant of benefit w.e.f. 01.04.2006 and those employees who had completed more than 8 years service than the said extra period would be counted for granting 2nd Kramonnati. Clause 9 and 10 are reproduced below :-
" 9. fnukad 1&4&2006 dks ;fn mPprj osrueku dh ik=rk ds fy;s fu/kkZfjr lsok vof/k vFkok mlls vf/kd lsok vof/k iw.kZ gks pqdh gS rks izFke mPPkrj osrueku dh ik=rk fnukad 1&4&2006 ls gksxhA fnukad 1&4&2006 dks ;fn f}rh; mPPkrj osrueku ds fy;s fu/kkZfjr lsok vof/k iw.kZ dj yh xbZ gS rks mls lh/ks f}rh; mPPkrj osrueku dh ik=rk gksxhA 10- ;fn fdlh 'kkldh; lsod dh fnukad 1&4&2006 dks izFke mPprj osrueku ds fy;s fu/kkZfjr lsok vof/k ls vf/kd lsok vof/k gS rks vf/kd lsok vof/k f}rh; mPPkrj osrueku dh ik=rk ds fy;s x.kuk esa yh tk;sxhA mnkgj.kkFkZ] ;fn izFke mPPkrj osrueku ds fy;s 8 o"kZ dh lsok vof/k fu/kkZfjr gS vkSj fnukad 1&4&2006 dks mldh dqy lsok vof/k 12 o"kZ iw.kZ gks pqdh gS rks 'ks"k 4 o"kZ dh vof/k f}rh; mPprj osrueku gsrq x.kuk esa yh tk;sxh vFkkZr~ ftl Hkh fnukad dks mldh lsok vof/k 16 o"kZ gks tkrh gS ml fnukad ls mls f}rh; mPPkrj osrueku dh ik=rk gksxhA"
[9] It is clear from the two clauses the benefit of Kramonnati is to be granted to those employees who had completed 8/10 years service on 01.04.2006, therefore, their service record/ACRs were liable to be considered up to 01.04.2006 not beyond that. In the present case the Respondents considered the ACRs of the year 2009, 2010 and 2011 i.e. after 01.04.2006. Therefore, the action of the Respondent is contrary to their own policy dated 24.01.2008. Therefore, the matter is remitted back to the Respondents to consider the case of the petitioner for grant of 1st Kramonnati considering his service record up to 01.04.2006 from the date of initial appointment. The entire exercise be completed within six weeks from production of certified copy of this order.
[10] The petition is stands allowed.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.473 of 2013.
22.03.2017:-
Shri Vinay Gandhi, learned counsel for the appellants. Shri Vaibhav Bhagwat, learned counsel for the Respondent Nos.1 to 3.
Shri Romesh Dave, learned Govt. Advocate for the Respondent No.4/State.
Heard on I.A.No.1765/2017, an application for deleting the name of appellant No.1 on account of death. L.Rs. of appellant No.1 are already on record.
Considering the averments made in the application [IA No.1765/2017], the same is allowed.
Necessary amendment be incorporated within seven days.
IA No.1765/2017 stands disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2425 of 2015.
22.03.2017:-
Shri Brajesh Garg, learned counsel for the petitioner. Shri Rishi Agrawal, learned counsel for the Respondents.
Heard on I.A.No.3867/2016.
During pendency of this petition, Respondent No.1 has expired on 01.04.2016 leaving behind two L.Rs. Notices were issued. Shri Rishi Agrawal on behalf of the L.Rs. Has not opposed the date of death and submitted that correct name of wife is "Vatsla w/o Dinesh Kumar Kathuriya" and son Devansh is minor aged 17 years, therefore, he should be represented through his mother Vatsla.
In view of the above, the application [IA No.3867/2016] is allowed. Necessary amendment be carried out in the Memo of Petition.
No notice is necessary as Shri Agrawal has already marked his present.
IA No.3867/2016 stands disposed of. List after two weeks.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6891 of 2015.
22.03.2017:-
Parties through their counsel. As prayed, list after two weeks. IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.1671 of 2016.
22.03.2017:-
Shri S.R.Kochatta, learned counsel for the appellants. Shri Rishi Agrawal, learned counsel for the Respondent No.1.
As prayed by Shri Agrawal, list after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.1820 of 2016.
22.03.2017:-
Shri Romil Malpani, learned counsel for the appellant. Service report is awaited.
List after service is effected. IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.31 of 2017.
22.03.2017:-
Shri S.C.Sharma, learned counsel for the appellants. Heard on I.A.No.407/2017, an application for condonation of delay.
Issue notice of this application to the Respondents on payment of process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Civil Case No.158 of 2017.
22.03.2017:-
Shri Rajendra Samdani, learned counsel for the applicant.
Heard on I.A.No.1841/2017, an application for condonation of delay.
Issue notice of this application to the Respondents on payment of process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.139 of 2017.
22.03.2017:-
Shri Ajay Mishra, learned counsel for the appellants. Record of the Courts below be requisitioned. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.205 of 2017.
22.03.2017:-
None for the petitioner.
List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.507 of 2017.
22.03.2017:-
Shri Avinash Yadav, learned counsel for the appellant. Issue notice to the Respondent on payment of process fee within seven days.
Record of the Tribunal be requisitioned. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1511 of 2017.
22.03.2017:-
Shri Prateek Patwardhan, learned counsel for the petitioner.
Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days by RAD mode.
Also heard on I.A.No.1368/2017, an application for stay.
Issue notice of this application also to the Respondents on payment of process fee within seven days by RAD mode.
Subject to the compliance of Section 17-B of the Industrial Disputes Act, the execution of Award dated 13.05.2016 shall remain stayed.
Record of the Labour Court be requisitioned. C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1518 of 2017.
22.03.2017:-
Shri Prateek Patwardhan, learned counsel for the petitioner.
Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days by RAD mode.
Also heard on I.A.No.1373/2017, an application for stay.
Issue notice of this application also to the Respondents on payment of process fee within seven days by RAD mode.
Subject to the compliance of Section 17-B of the Industrial Disputes Act, the execution of Award dated 13.05.2016 shall remain stayed.
Record of the Labour Court be requisitioned. C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.412 of 2015 (S). 22.03.2017:-
Shri Brajendra Mishra, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned Govt. Advocate for the Respondents/State.
Heard.
O R D E R THE petitioner has filed the present petition being aggrieved by the charge-sheet dated 09.06.2014 and the Departmental Enquiry against the petitioner.
[2] This petition was filed in the year 2015 and no stay was granted. Now more than 2 years have been passed and the Departmental Enquiry must have been completed. Counsel for the petitioner submits that he is having no information from the petitioner about the status of Departmental Enquiry.
[3] As the case may be, if the Departmental Enquiry has not been completed, let it be completed within 60 days from production of certified copy of this Order and if it has been completed, then the petitioner is free to challenge the final out come of the enquiry.
[4] With the aforesaid observation, this petition is disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.510 of 2015.
22.03.2017:-
Parties through their counsel. As prayed, list after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8223 of 2014.
22.03.2017:-
Shri R.R.Bhatnagar, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned Govt. Advocate for the Respondent Nos.1 to 3/State.
Shri Mangesh Bhachawat, learned counsel for the Respondent Nos.4 and 5.
Heard.
O R D E R THE petitioner has filed the present petition seeking direction to the Respondents to arrest the accused in connection with Crime No.764/2014 dated 25.09.2014 and further sought direction to conduct fair investigation in the matter at the earliest.
[2] After notice, the Respondent Nos.1 to 3/State have filed the return in which they submitted that the investigation was completed and thumb impression of mother of the petitioner was examined through handwriting expert and it was found that the mother of the petitioner executed 4 sale-deeds of the property in the year 1990 which she received from her father and at present the arrest is not necessary.
[3] The Respondent Nos.4 and 5 filed the return denying all the allegations. It has been informed that the police has submitted closure report before the concerned Magistrate but the same has been rejected. The mother of the petitioner appeared before the Magistrate and opposed the closure report submitted by the police and the Magistrate has recorded her statement. Since the concerned Magistrate has rejected the closure report submitted by the police, therefore, how the trial shall be proceed against the accused persons. Since the FIR has been registered and the concerned Magistrate has taken cognizance in the matter, therefore, the present petition is disposed of with the liberty to mother of the petitioner to appear before the concerned Magistrate and she assist the prosecution.
The petition is disposed of accordingly.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.952 of 2017.
21.03.2017:-
Shri Ajay Mimrot, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State.
Heard on I.A.No.1394/2017.
Considering the averments made in the application [IA No.1394/2017], the same is allowed.
Necessary amendment be incorporated in the Memo of Writ Petition within seven days.
IA No.1394/2017 stands disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1793 of 2017.
21.03.2017:-
Shri Vivek Dalal, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondent Nos.1 to 3/State, on advance copy.
Issue notice to the Respondents. Shri Dave accepts notice on behalf of the Respondent Nos.1 to 3/State.
Issue notice to Respondent Nos.4 and 5 on payment of process fee within a week, returnable within two weeks.
By way of interim relief, it is directed that any subsequent action on the part of the Respondents would be subject to the out come of this writ petition.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1798 of 2017.
21.03.2017:-
Shri Shashank Patwari, learned counsel for the petitioner.
Issue notice to the Respondents on payment of process fee within a week, returnable within four weeks.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1830 of 2017.
21.03.2017:-
Shri Manoj Manav, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State, on advance copy.
The petitioner was appointed as Panchayat Secretary of Gram Panchayat Barmandal. Vide order dated 06.08.2016 the petitioner was placed under suspension by the Chief Executive Officer, Jila Panchayat, Dhar on account of filing challan against him in Crime No.84/2016. Vide Sessions Trial No.240/2016 judgment dated 09.01.2017 the petitioner has been acquitted. After acquittal the petitioner submitted representation for revocation of suspension order. Vide letter dated 18.01.2017 and 17.02.2017, the Chief Executive Officer, Janpad Panchayat, Sardarpur has forwarded letter to the Chief Executive Officer, Jila Panchayat, Dhar for revocation of the suspension order and notifying the petitioner as Secretary. The said matter is still pending before the Chief Executive Officer, Jila Panchayat, Dhar.
The petition is disposed of with a direction to the Chief Executive Officer, Jila Panchayat, Dhar to take final decision in the matter within a period of 15 days from production of copy of this order in accordance with law.
C.c. as per rules.
[ VIVEK RUSIA ]
(AKS) JUDGE
Writ Petition No.6955 of 2016.
21.03.2017:-
Shri Piyush Shrivastava, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned counsel for the Respondent No.1/State.
Arguing counsel on behalf of Respondent No.2 comes from Ujjain.
List on any Wednesday.
In the meanwhile, reply be filed also.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.526 of 2008.
21.03.2017:-
Smt. Anjali Jamkherkar, learned Govt. Advocate for the appellants/State.
Shri Vishal Baheti, learned counsel for the Respondents.
As prayed by learned Govt. Advocate, list after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5090 of 2015.
21.03.2017:-
Shri Abhishek Tugnawat, learned counsel for the petitioner.
Shri R.R.Bhatnagar, learned counsel for the Respondent Nos.1 to 3.
As prayed, list after a week.
IR to continue till the next date of hearing. C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.77 of 2016.
21.03.2017:-
Parties through their counsel. As prayed, list in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.475 of 2016.
21.03.2017:-
None present.
Adjourned.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.248 of 2016.
21.03.2017:-
Shri Arvind Sharma, learned counsel for the appellant. Shri S. Polekar, learned counsel for the Respondent. Shri Sharma on behalf of the appellant prays for time to argue the matter as arguing counsel Shri L.L.Sharma is not well.
Shri Polekar on behalf of the Respondent submits that in this appeal there is no stay order but the Executing Court is not proceeding for execution of the judgment and decree.
Counsel for the appellant is seeking time for arguments on admission since 10.05.2016 and due to non appearance this appeal was dismissed for want of prosecution. Later on it was restored. Today the counsel is also seeking time to argue on admission.
It is made clear that in this appeal there is no stay of execution and mere filing of appeal does not operate stay of execution in the executing proceedings. The Executing Court is free to proceed in accordance with law.
List after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.266 of 2016.
21.03.2017:-
Smt. Pushpa Joshi, learned counsel for the petitioner. Learned counsel for the petitioner submits that the P.P.O. has been prepared by the Respondents.
Let the payment be made to the petitioner within 30 days from today.
The present contempt petition is disposed of. The contemnors are discharged.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.583 of 2016.
21.03.2017:-
Parties through their counsel. Counsel for the petitioner submits that today he is filing rejoinder.
Permission is granted.
List the contempt petition after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.622 of 2016.
21.03.2017:-
Parties through their counsel. As prayed by Shri Patwardhan, learned counsel for the Respondent, four weeks' time is granted to file compliance report.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.733 of 2016.
21.03.2017:-
Shri Anand Agrawal, learned counsel for the petitioners.
Shri Vivek Patwa, learned counsel for the Respondent/contemnors.
By order dated 21.03.2016 passed in Writ Petition No.6436 of 2015, a direction was given to the Respondents to pay the benefit of 5th as well as 6th Pay Commission to the petitioners.
Shri Patwa submits that the benefit of 6 th Pay Commission has been granted to the petitioners and the arrears has also been paid. So far as benefit of 5 th Pay Commission is concerned, the matter is under consideration as detailed calculation is required to be done.
We undertake that the same shall be released to the petitioners within three months from today.
With the aforesaid undertaking, the present contempt petition is disposed of. The contemnors are discharged.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.666 of 2016.
21.03.2017:-
Shri Shashank Patwari, learned counsel for the petitioner.
Shri Yogesh Mittal, learned counsel for the Respondents/Contemnors.
Writ Petition No.6040 of 2015 (S) filed by the petitioner was disposed of vide order dated 02.09.2015 by directing the Respondents to consider the case of regularization. The Respondents has considered the case of the petitioner and rejected the same. Now the order of consideration has been complied with and the petitioner is required to challenge the rejection order.
With the liberty to challenge the rejection order, the present contempt petition is disposed of. The contemnors are discharged.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.857 of 2016.
21.03.2017:-
Parties through their counsel. As prayed, four weeks' time is granted to file compliance report.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.863 of 2016.
21.03.2017:-
Parties through their counsel. As prayed, four weeks' time is granted to file reply/ compliance report.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1575 of 2016.
21.03.2017:-
Shri Rahul Vijayvargiya, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned counsel for the Respondent Nos.1 to 3/State.
Heard.
O R D E R THE petitioner has filed the present petition seeking direction to the Respondents to release the salary and permit him to work at present place of post.
[2] Vide order dated 10.07.2012 the petitioner was transferred from Government College, Agar-Malwa to Mata Jijabai Government P.G. Girls College, Indore at his own request and by the same order one Bhanupratap Tiwari was transferred from Indore to Agar-Malwa in place of the petitioner on administrative grounds. In pursuant to the aforesaid order, the petitioner gave joining at Indore and started work. Vide order dated 23.09.2013 transfer order of Bhanupratap Tiwari has been cancelled. Because of the cancellation of the transfer of Bhanupratap Tiwari, the petitioner was declared as surplus. The Principal of Mata Jijabai Government P.G. Girls College has sought permission from the Commissioner, Higher Secondary Education to draw the salary of the petitioner from a vacant post. The petitioner submitted a representation to the Respondents that he has wrongly been declared surplus and the Respondents be directed to pay the salary to him.
[3] After notice, the Respondents has filed the return in which it is stated that due to cancellation of transfer of Respondent No.4 - Bhanupratap Tiwari, the petitioner has become surplus at Indore, therefore, vide order dated 15.06.2016 his salary is being drawn from the vacant post of Assistant Grade-III from Government College, Badnawar. The petitioner has been paid salary and he is at present working in Mata Jijabai Government Girls P.G. College, Indore.
Therefore, nothing survives in this petition and the petition is rendered infructuous.
[4] Counsel for the petitioner submits that though the petitioner is getting regular salary but salary of 5 months is not released so far and he has wrongly been declared surplus at Indore.
[5] The petitioner has not challenged the cancellation order dated 23.09.2013 in this petition. The Respondents has permitted the petitioner as well as Respondent No.4 to work at Indore and the petitioner is working since 2012. So far as the salary of 5 months is concerned, let the representation of the petitioner be decided by the Competent Authority within four weeks from production of the certified copy of this order.
[6] The petition is disposed of accordingly.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1710 of 2016.
21.03.2017:-
Shri Mohd. Iqbal Khan, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned counsel for the Respondent Nos.1, 3 and 4/State.
Shri Lokendra Joshi, learned counsel for the Respondent No.2.
Service report of newly added Respondent No.5 is awaited.
List after service is effected.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1810 of 2016.
21.03.2017:-
Parties through their counsel. Learned counsel for the petitioner prays for time to argue the matter.
Prayer is allowed.
List after three weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2038 of 2016.
21.03.2017:-
Parties through their counsel. Learned counsel for the petitioner prays for and is granted four weeks' time to file rejoinder.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2164 of 2016.
21.03.2017:-
Parties through their counsel. As prayed, list on 05.04.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2204 of 2016.
21.03.2017:-
Parties through their counsel. Learned counsel for the petitioner prays for and is granted four weeks' time to file rejoinder.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2329 of 2016.
21.03.2017:-
Parties through their counsel. As prayed by learned counsel for the Respondents, four weeks' time is granted to file the reply.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.503 of 2016.
20.03.2017:-
Shri L.R.Bhatnagar, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State.
Heard.
O R D E R THE petitioner has filed the present petition being aggrieved by the order dated 07.01.2016 by which his contract appointment to the post of District Manager (Public Services) has been cancelled.
[2] Facts of the case are as under :-
The petitioner was appointed on contract basis as District Manager, Public Services at Dhar vide order dated 20.03.2013. The appointment was made under the provisions of M.P.Lok Sewaon Ke Pradan Ki Guarantee Adhiniyam, 2010. The terms and conditions of the appointment have been incorporated in the appointment order dated 20.03.2013. Under Clause 5.10 if the appointed officer/employee was found involving in a criminal activities or mis-conduct, the appointing authority may terminate the services. Thereafter an agreement was executed on 21.03.2013 for the period of one year in which also there is a Clause 11 pertains to the termination of service after giving reasonable opportunity of hearing. The petitioner has started working on the said post and the said appointment was again extended for a period of one year from 21.03.2014 to 21.03.2015. Thereafter, the Collector vide order dated 24.04.2015 again extended the contract appointment for the period of one year. According to the petitioner she issued many show-cause notices to the Director of Public Service Centers which has annoyed them. One Jagdish Bais has made a complaint against the petitioner alleging that she is involving in extortion of money from the In-charge of Public Service Centers. He has produced one CD in which the conversation between the petitioner and Mr.Rituraj Singh, In-charge of Public Service Center, Tirla was recorded. On the basis of the said complaint, a show-cause notice was issued to the petitioner and she was asked to appear before the Collector.
The Collector has also called Rituraj Singh who recorded his statement before the Collector in which he has admitted his conversation with the petitioner about illegal demand of money. On the same day, the statement of the petitioner was also recorded in which she has also admitted the conversation with Rituraj Singh on telephone but denied the demand of money. She has stated that she has only put pressure on him for taking the charge of Public Utility Center, Nalchha. On the basis of the aforesaid brief inquiry, vide order dated 07.01.2016 the contract of the petitioner has been terminated under Clause 5.10 of the appointment order. Being aggrieved by the aforesaid order, the petitioner has filed the present petition.
[3] After notice, the Respondents filed the return justifying the action of the Collector. Along with the return, copy of the transcription of conversation between the petitioner and Rituraj Singh has also been filed. Copy of the statement of Rituraj Singh and petitioner were also filed and contended that there was an illegal demand of rupees one lakh by the petitioner from Rituraj Singh and the said conversation has been admitted by the petitioner. Since the appointment was contract appointment, therefore, regular inquiry is not required. As per the terms and conditions of the contract, a reasonable opportunity of hearing has been granted to her and thereafter services has been terminated. It is further submitted that even otherwise the contract appointment was only for the period of three years and which was going to be end on 21.03.2016. Therefore, no relief of reinstatement can be granted to the petitioner.
[4] Shri L.R.Bhatnagar on behalf of the petitioner submits that the impugned order is casting stigma on the career of the petitioner. Such stigmatized order cannot be passed without holding regular inquiry. The services of the contractual employee cannot be terminated without giving him an opportunity of hearing. In support of his contention, he has placed reliance on the judgment of this Court in the case of Rahul Tripathi v/s Rajeev Gandhi Shiksha Misson, Bhopal [2001 (3) MPLJ 616] and judgment passed in Writ Petition No.8461 of 2014 dated 05.01.2015 [Smt. Amrita Choudhary v/s The State of M.P.] [5] Per contra, Shri Dave, learned Govt.
Advocate on behalf of the Respondents/State submits that there are serious allegations against the petitioner of demanding money from the In-charge of Public Utility Center which has been found proved by recording of conversation between the petitioner and Rituraj Singh. The petitioner has not denied such conversation. Therefore, no regular departmental inquiry is required under the provisions of M. P. Civil Services (Classification, Control and Appeal), Rules like government employee.
[6] It is not disputed that the petitioner was initially appointed for the period of one year vide order dated 20.03.2013. In this order it is specifically mentioned that this appointment is only for the period of one year and which is extendable for one year twice i.e. maximum three years. The said contract was extended vide order dated 24.04.2015 up to the period of 22.03.2016. In Clause 11 of the agreement, it is specifically provide that the services of contract appointment are liable to be terminated after giving a reasonable opportunity of hearing if he/she found involved in the mis-conduct or in criminal activities. Clause 11 is reproduced below :-
"11- lafonk ij fu;qDr o;fDr ds dnkpkj ;k fdlh vkijkf/kd fdz;kdyki es lafyIr ik;s tkus ij fu;qfDr izkf/kdkjh mls lquokbZ dk ;qfDr;qDr volj nsus ds i'pkr~ ,slh lafonk fu;qfDr lekIr dj ldsxk A"
[7] The terms of appointment only provides reasonable opportunity of hearing. Since the petitioner was not regular government employee, therefore, the protection of M. P. Civil Services (Classification, Control and Appeal) Rules would not apply. The petitioner was issued a show- cause notice by Collector and the petitioner has appeared before the Collector and recorded her statement. She has categorically admitted her conversation with Rituraj Singh but she tried to justify her conduct by giving an explanation that she was trying to put pressure on the Director so that the charge of Public Utility Center, Nalchha can be taken. While passing the impugned order, the Collector has given the reasonable opportunity of hearing to the petitioner. Even otherwise the contract appointment was going to be end in the month of March, 2016.
[8] The only grievance of the petitioner is that the impugned order is casting stigma on her career and after this stigmatic order she cannot get appointment in any government department. Though the petitioner has admitted the conversation with Rituraj Singh which was recorded in the CD and the statement of Rituraj Singh has been used against the petitioner. The apex Court in the case of Ayaaubkhan Noorkhan Pathan v/s State of Maharashtra [(2013) 4 SCC 465] has considered the scope of providing reasonable opportunity. The apex Court has held that opportunity of cross-examination is an integral part and parcel of the principles of natural justice. Para 28, 29 and 30 is reproduced below :-
"28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government, is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that, the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross-examination.
29. In Rajiv Arora v. Union of India [(2008) 15 SCC 306] this Court held : (SCC p.310, paras 13-14) "13. ... Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross- examination or similar situation. ...
14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non- examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdictionof judicial review."
30. The aforesaid discussion makes it evident that, not only should the opportunity of cross- examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice."
[9] In the present case, the Collector did not provide the opportunity to the petitioner to cross-examine Rituraj Singh and his statement has been used against the petitioner. The statements were taken on 07.01.2016 and on the same day order has been passed. Since the contract period has came to end, therefore, no relief of reinstatement can be granted but since the petitioner was not given the opportunity of cross-examination and the apex Court has held that it is a violation of principle of natural justice. Therefore, it is held that the impugned order would not cast stigma on petitioner's career in getting future employment. Therefore, the petition is partly allowed with the aforesaid observations.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1307 of 2017.
20.03.2017:-
Shri Sanjay Sharma, learned counsel for the petitioner. Shri Romesh Dave, learned counsel for the Respondent/State.
The petitioner has filed the present petition being aggrieved by the order dated 04.02.2016 by which his right of evidence has been closed.
The petitioner has filed the suit against the State Government for the relief of declaration and permanent injunction. After notice, the Respondent has filed the written statement and issues has been framed. The plaintiff examined himself and one witness Chhaganlal on 04.02.2006 but his other two witnesses were not present and the Court has closed the right of the plaintiff to lead evidence. This Court issued the notice on the writ petition and stayed the further proceedings of the civil suit.
Shri Sharma submits that affidavit of all the witnesses have already been filed but they were not present for cross- examination due to some compelling reason. It was the plaintiff's suit. He himself interested in early disposal. The non-appearance of witnesses must be beyond his control. The plaintiff has examined himself and one witness. Two witnesses are required to be examined and prays for one opportunity that he shall keep two witnesses remain present before the Court for cross-examination.
Shri Dave opposes the prayer and submits that 11 opportunities has already been granted to the plaintiff.
During pendency of this writ petition, the sole plaintiff expired and his L.Rs. were brought on record. Though the learned Trial Court passed a detailed order therein each and every date has been mentioned on which the plaintiff's witnesses were not present. Though the suit is of the year 2012 but the records were summoned in the appeal and till 2015 due to pendency of appeal as well as writ petition, the proceedings of the suit were held-up. Since the plaintiff has examined himself and one witness and required to be examined two witnesses, hence in the interest of justice last opportunity is granted to the plaintiff to keep his witnesses present before the Court on 05.04.2017. On that date or next date of hearing the Court shall permit the defendant to cross- examine them. It is made clear that no further opportunity shall be granted to the plaintiff. By way of costs, petitioner shall deposit Rs.1,000-00 [One Thousand Rupees] in the District Bar Association, Narayangarh, District Mandsaur.
With the aforesaid, this writ petition is disposed of. C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1173 of 2016.
20.03.2017:-
Parties through their counsel. Reply be filed within four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1151 of 2016.
20.03.2017:-
Parties through their counsel. Reply be filed within four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.994 of 2016.
20.03.2017:-
Parties through their counsel. As prayed by Shri Sethi, learned counsel for the petitioner, list after a week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1458 of 2016.
20.03.2017:-
None for the petitioner.
Shri Romesh Dave, learned counsel for the Respondents/State.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1516 of 2016.
20.03.2017:-
Shri Abhishek Tugnawat, learned counsel for the petitioner.
Shri Romesh Dave, learned counsel for the Respondent No.1/State.
Shri Aniket Naik, learned counsel for the Respondent Nos.2 to 4.
Learned counsel for the petitioner prays for and is granted four weeks' time to file rejoinder.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1543 of 2016.
20.03.2017:-
Parties through their counsel. Further four weeks' time is granted to file para-wise reply.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1588 of 2016.
20.03.2017:-
Parties through their counsel. As prayed by Shri Saraf, learned counsel for the Respondents, list after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.1712 of 2016.
20.03.2017:-
Shri M.A.Bohra, learned counsel for the appellants. As per the office report, notice to the Respondents could not be served as they were received after the date fixed by the office.
Let fresh process fee by RAD mode be paid within 3 days for service of notice on the Respondents.
Heard on I.A.No.7853/2016, an application for stay. The Insurance Company has initiated the execution proceedings against the present appellants after depositing the amount under the award.
Till the next date of hearing, the execution proceedings shall remain stayed.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1781 of 2017.
20.03.2017:-
Shri Abhishek tugnawat, learned counsel for the petitioner.
Issue notice to the Respondents. Shri Romesh Dave, learned counsel accepts notice on behalf of the Respondent Nos.1, 3 and 4/State.
Let process fee be paid within 3 days for service of notice on Respondent No.2.
By way of interim relief, it is directed that the petitioner be permitted to submit the Form of line.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6324 of 2015.
20.03.2017:-
Shri M.A.Bohra, learned counsel for the petitioner. Shri Pranay Joshi, learned counsel for the Respondent Nos.1 and 2.
Smt. Anjali Jamkherkar, learned counsel for the Respondent No.3/State.
None for the Respondent No.4, though served. The petitioner/plaintiff has filed the present petition being aggrieved by the order of Civil Judge as well as District Judge by which the relief of temporary injunction has been denied.
The petitioner/plaintiff has filed a suit for declaration; permanent injunction and partition against his two brothers claiming 1/3rd share in the property. Along with the plaint, he has filed an application under Order XXXIX Rule 1 & 2 of CPC. The defendants after notice appeared and filed reply to the application. Vide order dated 05.01.2015 learned Civil Judge, Class-II has dismissed the application holding that the defendants are in possession of the suit property, therefore, the plaintiff is not entitled for any temporary injunction.
Being aggrieved by the order dated 05.01.2015, the plaintiff preferred Misc. Appeal under Order XLIII Rule 1 & 2 of CPC. Vide order dated 07.07.2015 the said appeal was also dismissed and affirmed the order of learned Civil Judge. Being aggrieved by the order of appellate Court, the present petition was filed. Vide order dated 11.09.2015 notices were issued to the Respondents and by way of interim relief status-quo was granted only in respect of possession be directed to be maintained. The order of status-quo is still in force in this writ petition. The civil suit was filed on 21.12.2012 and the application for temporary injunction was decided on 05.01.2015. The suit is only for partition between the brothers which is pending since last more than 5 years. The order of status-quo in favour of the petitioner is in operation from 11.09.2015. Therefore, instead of entering into the merits of the case for the purpose of temporary injunction it would be better to direct the Civil Court to decide the suit finally on merit preferably within a period of six months from today and till then the order of status-quo shall remain in force.
This order would not be treated that this Court has interfere with the impugned order rejecting relief of temporary injunction. This Court has not expressed any opinion on merit of the case.
With the aforesaid direction, the present petition is disposed of. Parties are directed to co-operate for early disposal of the suit.
C.c.as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1665 of 2017.
20.03.2017:-
Shri S.K.Meena, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned counsel for the Respondents/State, on advance copy.
Learned counsel for the petitioner prays for withdrawal of this writ petition.
Accordingly this petition is dismissed as withdrawn.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6357 of 2015.
20.03.2017:-
Parties through their counsel. Learned counsel for the Respondents prays for and is granted four weeks' time to file reply.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7028 of 2015.
20.03.2017:-
Shri Dinesh Rathore, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned counsel for the Respondents/State.
Learned counsel for the Respondents/State prays for and is granted four weeks' time to file return.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7223 of 2015.
20.03.2017:-
Shri Anand Agrawal, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned counsel for the Respondents/State.
The petitioner has filed the present petition challenging the order dated 31.07.2015 by which his claim for two advance increment has been rejected on the basis of Circular dated 09.01.2012. The petitioner has also challenged the validity of the Circular dated 09.01.2012 and specially the cut of date 16.06.1993. The entire return is silent on the point of Circular dated 09.01.2012.
Let the additional return be filed by the Respondents in respect of Circular dated 09.01.2012 within four weeks.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7408 of 2015.
20.03.2017:-
Shri L.C.Patne, learned counsel for the petitioner. Shri Govind Purohit, learned counsel for the Respondent No.3/University.
Counsel for the University - Respondent No.3 is directed to file complete scheme under which the petitioner was appointed in the year 1987 along with the additional return.
List after fifteen days.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7695 of 2015.
20.03.2017:-
Parties through their counsel. Learned counsel for the petitioner prays for and is granted two weeks' time to file rejoinder.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8060 of 2015.
20.03.2017:-
Shri L.C.Patne, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned counsel for the Respondents/State.
Learned counsel for the Respondents/State prays for and is granted four weeks' time to file reply.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8208 of 2015.
20.03.2017:-
Shri Manuraj Singh, learned counsel for the petitioner. Smt. Anjali Jamkherkar, learned counsel for the Respondents/State.
Office of this Court is directed to comply the order dated 18.01.2016.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1234 of 2017.
20.03.2017:-
Shri Himanshu Joshi, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned counsel for the Respondents/State.
The petitioner has filed the present petition being aggrieved by the order dated 30.10.2015 by which his services has been terminated on the ground of unauthorized absence under the provisions of M. P. Panchayat Samvida Shala Shikshak (Niyojan and Samvinda Ki Sharte) Rule, 2005. The aforesaid order was passed in the year 2015 and under the Rules 1995, the order is appealable. The contention of the petitioner is that he made the representation to the Chief Executive Officer. Even the said representation was filed on 10.01.2017 and immediately thereafter present petition has been filed. Once the services of the petitioner has been terminated, no representation would lie to the same authority. The petitioner is having remedy under the provisions of M.P.Panchayat (Appeal & Revision) Rules, 1995. The petition is dismissed with liberty to file an appeal in accordance with law.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1506 of 2017.
20.03.2017:-
Shri Aviral Vikas Khare, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned counsel for the Respondents/State.
The petitioner was appointed on 09.08.1973 in the establishment of Public Works Department, Indore. After rendering 44 years service, he retired on 31.01.2016. It is the case of the petitioner that in view of the law laid down by this Court in the case of Teju Lal Yadav v/s State of M.P. [ILR (MP) 2009, pg. 1326] which was upheld by the Division Bench as well as the Supreme Court, the petitioner is entitled for two upgradations after completion of 24 years of service which has not been granted to the petitioner. The petitioner has submitted a representation to the Executive Engineer, PWD, Indore dated 16.11.2016 (Annexure-P/7).
Without commenting on merits, the petition is disposed of with the direction to the Respondents to consider the representation of the petitioner in the light of the law laid down in the case of Teju Lal Yadav (Supra). The entire exercise be concluded within 30 days from production of the certified copy of this order.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1503 of 2017.
20.03.2017:-
Shri Vivek Dalal, learned counsel for the petitioner. Heard on the question of admission. Shri Dalal submits that the impugned plot has not been leased out by the AKVN and the cause still survives.
Issue notice to the Respondents on payment of process fee within a week, returnable within four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1497 of 2017.
20.03.2017:-
Shri Akshay Bhonde, learned counsel for the petitioner.
Issue notice to the Respondents on payment of process fee within 3 days, returnable within three weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1337 of 2017.
20.03.2017:-
Parties through their counsel. Return from the Respondents are awaited. Let the return be filed within four weeks. IR dated 28.02.2017 shall continue. C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.913 of 2017.
20.03.2017:-
Shri Ashish Jaiswal, learned counsel on behalf of Shri Ravindra Upadhyay, learned counsel for the petitioners.
Smt. Anjali Jamkherkar, learned counsel for the Respondent Nos.1 to 4/State.
As prayed, list in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.879 of 2017.
20.03.2017:-
Shri G.P.Singh, learned counsel for the petitioner. Shri Manish Kumar Vijayvargiya, learned counsel for the Respondent.
The petitioner has filed the present petition being aggrieved by the order dated 25.01.2017 by which application under Order VI Rule 17 of CPC filed by the Respondent/wife has been allowed.
The Respondent/wife filed an application under Section 12 (1) (A) and 12 (2) (A) and (B) of Hindu Marriage Act before the Family Court, Shajapur seeking declaration that the marriage dated 28.11.2011 be declared void. The petitioner filed the reply to the said application denying the allegations. Thereafter issues were framed and both the parties have recorded their evidence on the basis of averments made in the application and written statement. At the time of final hearing of the case, an application has been filed under Order VI Rule 17 of CPC. That application has been wrongly filed under Section 12 (1) (A) and ought to have been filed under Section 12 (1) (C) of the Hindu Marriage Act and it was only typing mistake and in place of word 'void' it should be treated "voidable". Such application was vehemently opposed by the petitioner/husband on the ground that by the said amendment entire nature of the case would be changed. Learned Family Court, Shajapur vide impugned order dated 25.01.2017 has allowed the application. Hence, the present petition.
I have heard learned counsel for the parties. The wife has filed the petition seeking declaration that the marriage with the present petitioner dated 28.11.2011 be declared void as it was undertaken against her wishes by force by putting her into intoxication condition. The grounds on which the relief was sought, is important and all the grounds which have been raised are under Section 12 (1) (C) of the Hindu Marriage Act. Due to typing mistake, Section 12 (1) (A) of the Hindu Marriage Act has been typed.
Therefore, the learned Family Court has not committed any error while allowing the application. He has rightly exercised its discretion. Looking to the averments made in the application and the nature of the case, I do not find any illegality in the order. The petition fails and is hereby dismissed.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.818 of 2017.
20.03.2017:-
Shri L.N.Soni, learned Senior Counsel with Ms. Shraddha Dixit, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned counsel for the Respondents/State.
Arguments heard.
Reserved for orders.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1586 of 2017.
07.03.2017:-
Shri Vibhor Khandelwal, learned counsel for the petitioner.
None for the Respondent No.1 despite Caveat No.82 of 2017 filed.
Shri Romesh Dave, learned Govt. Advocate for the Respondent No.2/State.
In para 6.2, the petitioner has given an undertaking that he is ready to pay the amount of Rs.28,00,000-00 {Twenty Eight Lakhs Rupees] as valued by the Bank for his property mortgaged as to the loan given to M/s S.P.Pharma. The petitioner has also written a letter dated 22.02.2017 to the Bank in reply to the notice that he is ready to pay the said amount as per valuation made by the Bank. Despite the bank is insisting for sale of the property by way of auction and trying to dispossess the petitioner.
Till the next date of hearing, the parties are directed to maintain status-quo in respect of South Portion of House No.43 (Old No.353), Bhagat Kanwarram, Lower Ground, Sindhi Colony, Gali No.1, Indore, subject to the payment of amount of Rs.15,00,000-00 [Fifteen Lakhs Rupees] within ten days to the Respondent No.1.
Let the petitioner file undertaking before the Respondent No.1 on or before 10.03.2017 that he is going to deposit Rs.15,00,000-00 [Fifteen Lakhs Rupees] within ten days from today in compliance of the Court order.
List after four weeks.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6102 of 2016.
07.03.2017:-
Shri R.S.Raghuvanshi, learned counsel for the petitioner.
Smt. Anjali Jamkherkar, learned Govt. Advocate for the Respondent Nos.1 to 3/State.
Shri Rahul Laad, learned counsel for the Respondent Nos.4 to 7.
The petitioner has filed the present petition seeking direction to the Respondent No.1 police to register the FIR against the Respondent Nos.4 to 7 under Sections 406, 420, 466, 467, 468, 471 and 120-B of IPC in the light of the judgment passed by the apex Court in the case of Lalita Kumari v/s State of U.P. [2013 (5) MPHT 336].
The Respondents have raised objection about maintainability of the petition in the light of the judgment passed in the case of Sudhir Bhaskarrao Tambe v/s Hemant Yashwant Dhage [(2016) 6 SCC 277] that the writ petition is not the remedy for giving direction to police for registration of the complaint.
I have heard learned counsel for the parties. In case of Sudhir Bhaskarrao Tambe (supra), the apex Court has held as under :-
"2. This Court has held in Sakiri Vasu v. State of U.P. [(2008) 2 SCC 409], that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156 (3) CrPC. If such an application under Section 156 (3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156 (3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
4. In view of the settled position in sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156 (3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court."
This Court in Writ Petition No.4019 of 2016 has considered the writ petition in the light of the order passed by the apex Court in the case of Sudhir Bhaskar Rao Tambe (supra) and Hemant Yashwant Dhage v/s State of Maharashtra [(2016) 6 SCC 273] and dismissed the writ petition with liberty to the petitioner to approach the concerned Magistrate. The operative part of the order is reproduced below :-
"The case of Sudhir Bhaskar Rao Tambe (supra), again came up for consideration before the Supreme Court in the case of Hemant Yashwant Dhage Vs. State of Maharashtra and others, reported in (2016) 6 SCC 273 in second round of litigation again the Hon'ble Supreme Court considered the scope of Section 156 (3) and 154 of the Cr.P.C. in which, it was held that the learned Magistrate can direct Police Authority to register the FIR. The direction given in the case of Mohd. Yusuf (supra) has been followed. Para 8 of the judgment is reproduced as under :-
In view of the aforesaid broad consensus amongst the counsel for the various parties, it is not necessary for us to go deeper into the relevant issue of law as to whether the earlier order of this Court dated April 12, 2010 warranted registering of F.I.R. By the police before commencing investigation. But we would like to only indicate in brief the law on this subject expressly stated by this Court in the case of Mohd. Yousuf versus Afaq Jahan (Smt.) and another, (2006) 1 SCC 627."
Thereafter, the Division Bench of this Court in Writ Appeal No.709 of 2016 by order dated 13.10.2016 has dismissed the writ appeal and upheld the order of Single Judge with a view that the petitioner is having remedy to approach the Magistrate concerned under Cr.P.C. The order passed in writ appeal is reproduced below :-
"It is a case of the petitioner that on a complaint made by the petitioner F.I.R. has not been registered by the competent Police Authorities. Accordingly, seeking registration of F.I.R. and placing reliance on the judgment of the Supreme Court in the case of Lalita Kumari Vs. State of U.P. - (2014) 2 SCC 1, the writ petition was filed. Learned writ Court considered the matter and found that merely because the F.I.R. is not registered the petitioner still has a remedy of approaching the Magistrate concerned by filing a complaint and the Magistrate can proceed in the matter under Section 154 read with Section 156 of Cr.P.C. and for the said purpose the learned writ Court has placed reliance on the decision of the Supreme Court in the case of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage - (2016) 6 SCC 277 and various other cases.
Considering the fact that the petitioner has a remedy of approaching the Magistrate concerned under the provisions of Code of Criminal Procedure and the Magistrate concerned is competent enough to deal with the matter on a complaint made by the petitioner, we see no reason to interfere in the matter.
Accordingly, the appeal stands dismissed with liberty to the appellant to take recourse by approaching the competent Court of criminal jurisdiction by filing a private complaint."
Again the same issue came up for consideration before this Court in the case of Mrs. Nikita Kukreja v/s State of M.P. [Writ Appeal No.159 of 2016 decided on 27.04.2016]. The Division Bench has dismissed the writ appeal, affirmed the order of writ Court dismissing the writ petition. The operative part is reproduced below :-
"It is not in dispute that the preliminary enquiry was conducted and on the basis of preliminary enquiry report, the police authorities came to the conclusion that the dispute between the parties is purely civil in nature. A civil suit in respect of property in question is very much pending between the parties and relinquishment deed and will is the subject-matter and an application which was preferred under Section 93 of Cr.P.C. for search and the same has been dismissed by the Chief Judicial Magistrate, First Class. Criminal Revision (Cri. Rev. No.1515/2015) is pending before this Court. The authorities were justified in conducting a preliminary enquiry and came to the conclusion that the dispute between the parties is purely civil in nature.
Considering the aforesaid, we are of the view that the learned writ Court has not committed any legal error in dismissing the writ petition. Appellant/ complainant is having remedy to file a complaint before the Magistrate of Competent Jurisdiction for investigation under the Code of Criminal Procedure, who will pass an appropriate order therein as to whether any cognizable offence is made or not. Lodging of complaint is basic right of every citizen. If concerned police after preliminary enquiry refuses to register the complaint, then the Magistrate could direct the police to register the complaint and investigate."
The aforesaid order was assailed by the petitioner before the Supreme Court in S.L.P.No.22750/2016 and by order dated 12.08.2016 the SLP has also been dismissed.
Thus, the petition is dismissed with liberty to approach before the competent Magistrate under the provisions of Cr.P.C.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4783 of 2016.
07.03.2017:-
Shri S.P.Joshi, learned counsel for the petitioner. Shri Aniket Abhay Naik, learned counsel for the Respondent/IDA.
List in the third week of April, 2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5891 of 2016.
07.03.2017:-
Smt. Rekha Shrivastava, learned counsel for the petitioner.
Service report of Respondents are awaited. List after service is effected.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6247 of 2016.
07.03.2017:-
Shri V.P.Khare, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State.
Let the return be filed within four weeks. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6394 of 2016.
07.03.2017:-
Smt. Rachana Dubey, learned counsel for the petitioner.
Shri S.K.Chourasia, learned counsel for the Respondent.
Shri Chourasia submits that the Respondent has been permitted to join by the petitioner in the month of February, 2017. There is a compliance of Section 17-B of the Industrial Disputes Act. The recovery part has already been stayed vide order dated 13.02.2017.
Heard on the question of admission. The petition is admitted for final hearing. Record of the Labour Court be called. No notice is necessary.
List the petition for final hearing in due course.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6798 of 2016.
07.03.2017:-
Parties through their counsel. Shri Khare on behalf of the Respondents further prays for and is granted four weeks' time to file return.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6999 of 2016.
07.03.2017:-
Shri Harish Pawar, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State.
The petitioner has filed the present petition being aggrieved by the order passed by the Commissioner dated 29.09.2016 by which the application for interim relief has been rejected.
The interim order was passed on 29.09.2016. Thereafter the appeal ought to have been decided by the Commissioner on merit. Sufficient time has been elapsed. If the appeal is not decided as yet, the same shall be decided within 45 days from production of certified copy of this order.
The petition is disposed of accordingly.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7154 of 2016.
07.03.2017:-
Parties through their counsel. Pleadings are complete.
Heard on the question of admission. The petition is admitted for final hearing. No notices to the Respondents are necessary. List this petition for final hearing in due course.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7185 of 2016.
07.03.2017:-
Parties through their counsel. Four weeks' time is granted to file reply. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7459 of 2016.
07.03.2017:-
Parties through their counsel. Four weeks' time is granted to file reply. IR to continue till the next date of hearing. C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7826 of 2016.
07.03.2017:-
Parties through their counsel. As prayed, list on 09.03.2016.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7954 of 2016.
07.03.2017:-
Shri Amit Pal, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State.
Service report of Municipal Corporation, Ujjain is awaited.
List after service is effected.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8021 of 2016.
07.03.2017:-
Shri Lokesh Joshi, learned counsel for the petitioner. None for the Respondents, though served. List in the week commencing 20th March, 2017 for arguments on admission.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8111 of 2016.
07.03.2017:-
Parties through their counsel. Four weeks' time is granted to file reply. List thereafter.
IR to continue till the next date of hearing. C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8344 of 2016.
07.03.2017:-
Parties through their counsel. Four weeks' time is granted to file reply. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8371 of 2016.
07.03.2017:-
Parties through their counsel. Four weeks' time is granted to file reply. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8509 of 2016.
07.03.2017:-
Shri Ashish Vyas, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondent No.1/State.
Shri N.S.Bhati, learned counsel for the Respondent No.3.
Learned counsel for the Respondent No.3 prays for two weeks' time to file reply.
Let the reply be filed within two weeks. Any appointment in place of petitioner would be subject to the out come of this writ petition.
List after two weeks.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8559 of 2016.
07.03.2017:-
Smt. Rachana Dubey, learned counsel for the petitioner.
Shri Romesh Dave, learned Govt. Advocate for the Respondent Nos.1 and 2/State.
None for the Respondent No.3, though served. Shri V.Puranik, learned counsel for the Respondent No.4 prays for two weeks' time to file reply of the writ petition.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8572 of 2016.
07.03.2017:-
Parties through their counsel. Four weeks' time is granted to file reply. List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8598 of 2016.
07.03.2017:-
Shri K.R.Malviya, learned counsel for the petitioner. Service report of Respondent No.1 is awaited. None for the Respondent Nos.2 and 3, though served. Shri Romesh Dave, learned Govt. Advocate for the Respondent No.4/State.
List after service is effected.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.28 of 2017.
07.03.2017:-
None for the petitioner.
Service report of the Respondents are awaited. List after service is effected.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.3166 of 2010.
07.03.2017:-
Parties through their counsel. As prayed by Shri Dhanodkar, list after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1253 of 2017.
06.03.2017:-
Shri Kuldeep Pathak, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance copy.
The petitioner has filed present petition being aggrieved by order dated 04.02.2017 by which her services as "Aganwadi Worker" has been terminated alleging that she was absent on duty and her work is not satisfactory. The petitioner is working since 2002, therefore, her services cannot be terminated without giving show-cause notice and opportunity of hearing.
The identical issue has been decided in bunch of writ petitions vide order dated 18.06.2015. The operative portion reads as under :-
"The principles of natural justice are firmly grounded in Article 14 and Article 21 of the Constitution of India. Article 14 of the Constitution guarantees equality before law and equal protection of law. Through the process of interpretation, procedural safeguards have been read into Article 14 by the Courts. In Delhi Transport Corporation v. DTC Mazdoor Union, AIR 1991 SC 101, the Hon'ble Supreme Court has held that "the audi alteram partem rule, in essence, enforce the equality clause in Art 14 and it is applicable not only to quasi-judicial bodies but also to administrative order adversely affecting the party in question unless the rule has been excluded by the Act or Regulation or Rule." Not giving any hearing results in decisions which are arbitrary in nature. Arbitrariness and equality are antithesis of each other. Similarly under Article 21 of the Constitution, no person can be deprived of his life or liberty except according to the procedure established by law. Audi alteram partem forms a part of the procedural due process under the Indian Constitution. Procedure established by law must be just, fair and reasonable and not oppressive, unreasonable or arbitrary."
In view of the above, the impugned order dated 04.02.2017 is hereby quashed. The matter is remitted back to the authority with a direction to issue show-cause notice and opportunity of hearing to the petitioner and pass the order in accordance with law.
Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1251 of 2017.
06.03.2017:-
Shri Kuldeep Pathak, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance copy.
The petitioner has filed present petition being aggrieved by order dated 04.02.2017 by which her services as "Aganwadi Worker" has been terminated alleging that she was absent on duty and her work is not satisfactory. The petitioner is working since 2002, therefore, her services cannot be terminated without giving show-cause notice and opportunity of hearing.
The identical issue has been decided in bunch of writ petitions vide order dated 18.06.2015. The operative portion reads as under :-
"The principles of natural justice are firmly grounded in Article 14 and Article 21 of the Constitution of India. Article 14 of the Constitution guarantees equality before law and equal protection of law. Through the process of interpretation, procedural safeguards have been read into Article 14 by the Courts. In Delhi Transport Corporation v. DTC Mazdoor Union, AIR 1991 SC 101, the Hon'ble Supreme Court has held that "the audi alteram partem rule, in essence, enforce the equality clause in Art 14 and it is applicable not only to quasi-judicial bodies but also to administrative order adversely affecting the party in question unless the rule has been excluded by the Act or Regulation or Rule." Not giving any hearing results in decisions which are arbitrary in nature. Arbitrariness and equality are antithesis of each other. Similarly under Article 21 of the Constitution, no person can be deprived of his life or liberty except according to the procedure established by law. Audi alteram partem forms a part of the procedural due process under the Indian Constitution. Procedure established by law must be just, fair and reasonable and not oppressive, unreasonable or arbitrary."
In view of the above, the impugned order dated 04.02.2017 is hereby quashed. The matter is remitted back to the authority with a direction to issue show-cause notice and opportunity of hearing to the petitioner and pass the order in accordance with law.
Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1422 of 2017.
06.03.2017:-
Shri Rahul Sethi, learned counsel for the petitioner. Shri Kamal Airen, learned counsel for the Respondents, on advance notice.
By this writ petition, the petitioner has challenged the show cause notice dated 20th June, 2016 (Annexure P/9).
Counsel for the petitioner submits that reply to the show cause notice has already been filed on 29/06/2016 and has sought liberty to file additional reply alone.
Learned counsel for the Respondents has submitted that till today no action has been taken in pursuance to the show cause notice and the Respondents will duly consider the reply of petitioner and will pass a reasoned order before taking any action. The petitioner is free to file additional reply.
In view of the aforesaid, no case for entertaining the writ petition is made out at this stage. The writ petition is disposed off in view of the stand of Respondents.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1444 of 2017.
06.03.2017:-
Shri Rahul Sethi, learned counsel for the petitioner. Shri Kamal Airen, learned counsel for the Respondents, on advance notice.
By this writ petition, the petitioner has challenged the show cause notice dated 20th June, 2016 (Annexure P/9).
Counsel for the petitioner submits that reply to the show cause notice has already been filed on 29/06/2016 and has sought liberty to file additional reply alone.
Learned counsel for the Respondents has submitted that till today no action has been taken in pursuance to the show cause notice and the Respondents will duly consider the reply of petitioner and will pass a reasoned order before taking any action. The petitioner is free to file additional reply.
In view of the aforesaid, no case for entertaining the writ petition is made out at this stage. The writ petition is disposed off in view of the stand of Respondents.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1451 of 2017.
06.03.2017:-
Shri Rahul Sethi, learned counsel for the petitioner. Shri Kamal Airen, learned counsel for the Respondents, on advance notice.
By this writ petition, the petitioner has challenged the show cause notice dated 20th June, 2016 (Annexure P/9).
Counsel for the petitioner submits that reply to the show cause notice has already been filed on 29/06/2016 and has sought liberty to file additional reply alone.
Learned counsel for the Respondents has submitted that till today no action has been taken in pursuance to the show cause notice and the Respondents will duly consider the reply of petitioner and will pass a reasoned order before taking any action. The petitioner is free to file additional reply.
In view of the aforesaid, no case for entertaining the writ petition is made out at this stage. The writ petition is disposed off in view of the stand of Respondents.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1446 of 2017.
06.03.2017:-
Shri Rahul Sethi, learned counsel for the petitioner. Shri Kamal Airen, learned counsel for the Respondents, on advance notice.
By this writ petition, the petitioner has challenged the show cause notice dated 20th June, 2016 (Annexure P/9).
Counsel for the petitioner submits that reply to the show cause notice has already been filed on 29/06/2016 and has sought liberty to file additional reply alone.
Learned counsel for the Respondents has submitted that till today no action has been taken in pursuance to the show cause notice and the Respondents will duly consider the reply of petitioner and will pass a reasoned order before taking any action. The petitioner is free to file additional reply.
In view of the aforesaid, no case for entertaining the writ petition is made out at this stage. The writ petition is disposed off in view of the stand of Respondents.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1181 of 2017.
06.03.2017:-
Shri Rahul Sethi, learned counsel for the petitioner. Shri Kamal Airen, learned counsel for the Respondents, on advance notice.
By this writ petition, the petitioner has challenged the show cause notice dated 20th June, 2016 (Annexure P/10).
Counsel for the petitioner submits that reply to the show cause notice has already been filed on 29/06/2016 and has sought liberty to file additional reply alone.
Learned counsel for the Respondents has submitted that till today no action has been taken in pursuance to the show cause notice and the Respondents will duly consider the reply of petitioner and will pass a reasoned order before taking any action. The petitioner is free to file additional reply.
In view of the aforesaid, no case for entertaining the writ petition is made out at this stage. The writ petition is disposed off in view of the stand of Respondents.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1167 of 2017.
06.03.2017:-
Shri Rahul Sethi, learned counsel for the petitioner. Shri Kamal Airen, learned counsel for the Respondents, on advance notice.
By this writ petition, the petitioner has challenged the show cause notice dated 20th June, 2016 (Annexure P/10).
Counsel for the petitioner submits that reply to the show cause notice has already been filed on 29/06/2016 and has sought liberty to file additional reply alone.
Learned counsel for the Respondents has submitted that till today no action has been taken in pursuance to the show cause notice and the Respondents will duly consider the reply of petitioner and will pass a reasoned order before taking any action. The petitioner is free to file additional reply.
In view of the aforesaid, no case for entertaining the writ petition is made out at this stage. The writ petition is disposed off in view of the stand of Respondents.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1328 of 2017.
06.03.2017:-
Shri Yash Pal Rathore, learned counsel for the petitioner.
Shri Dharmendra Chelawat, learned Assistant Solicitor General for Respondent Nos.1 to 6, on advance copy.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent No.12/State, on advance copy.
Heard on the question of admission. Issue notice to the Respondents. At this stage Shri Chelawat accepts notice on behalf of Respondent Nos.1 to 6 and Shri Mangal accepts notice on behalf of Respondent No.12/State.
Process fee be paid for notice to Respondent Nos.7 to 11 within a week, returnable within six weeks.
Till the next date of hearing, the suit of the plaintiff be not dismissed for want of Court-fees.
Office is directed to reflect the name of AG and ASG in the cause-list.
Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1324 of 2017.
06.03.2017:-
Shri Ankit Premchandani, learned counsel for the petitioner.
Shri Dharmendra Chelawat, learned counsel counsel for the Respondent Nos.1 to 5, on advance copy.
The petitioner has approached this Court again seeking direction to the Respondents to continue working on the post of Stringer in Indore as no formal order has been received by the petitioner regarding termination of service. The relief itself shows that there is no cause of action in favour of the petitioner. By virtue of earlier selection, she is still in panel of Stringer. Now the Respondents have issued an advertisement dated 18.02.2017. The petitioner was called for interview of 28.02.2017 and 01.03.2017. The process of selection is still going on and final out come is awaited. The petitioner has unnecessarily filed this petition. The petitioner herself participated in subsequent selection and continuing in the panel by virtue of her earlier selection. There is no question of termination. The petitioner should wait the decision of interview. The petition is pre-mature, therefore, it is hereby dismissed.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1417 of 2017.
06.03.2017:-
Smt. Vinita Phaye, learned counsel for the petitioner. Heard on the question of admission. Issue notice to the Respondent on payment of process fee within a week, returnable within six weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1211 of 2017.
06.03.2017:-
Smt. Vinita Phaye, learned counsel for the petitioner. Heard on the question of admission. Issue notice to the Respondent on payment of process fee within a week, returnable within six weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1156 of 2017.
06.03.2017:-
Shri Jitendra Sharma, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate counsel for the Respondents/State, on advance copy.
The petitioner has filed present petition seeking police protection on the ground that her husband and in-laws are torturing her and at the time of her marriage, she was minor, therefore, marriage is void.
If so called husband and in-laws are torturing the petitioner, the petitioner is free to report against them in concerned police station. No writ can be issued in this writ petition. The petition is, therefore, dismissed.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1155 of 2017.
06.03.2017:-
Shri B.S.Gandhi, learned counsel for the petitioner. Heard on the question of admission. Issue notice to the Respondents. At this stage, Shri Manuraj Singh, learned counsel accepts notice on behalf of Respondent Nos.(i) to (v).
Process fee be paid for notice to Respondent Nos.2 to 9 within a week, returnable within three weeks Till the next date of hearing, further proceedings of Civil Suit No.1-A/2016 shall remain stayed.
Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1110 of 2017.
06.03.2017:-
Shri Nilesh Sharma, learned counsel for the petitioners.
Heard on the question of admission. Issue notice to the Respondents on payment of process fee within a week by RAD mode, returnable within six weeks.
Till the next date of hearing, the Court shall not dismissed the suit for want of court-fees.
Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1009 of 2017.
06.03.2017:-
Shri Vinod Kaushal, learned counsel for the petitioners.
Shri Rohit Mangal, learned Govt. Advocate counsel for the Respondent Nos.1 to 3/State.
Learned counsel for the petitioners prays for withdrawal of this petition on the ground that certain documents and the pleadings has been left in this petition.
Permission granted.
With the liberty to file duly constituted petition, this petition is dismissed as withdrawn.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No. of 2017 (S)
07.04.2017 :-
Shri V.K. Patwari learned counsel for the petitioner. Shri Rohit Mangal learned counsel for the respondents on advance notice.
This writ petition is heard and disposed of finally with the consent of the learned counsel for the parties.
ORDER 1/ The petitioner has filed the present writ petition claiming the benefit of regular pay-scale from the date of initial appointment in the light of the earlier orders passed by this Court.
2/ Learned counsel appearing for the petitioner submitted that the same issue has already been decided by order dated 24.08.1992 passed by the M.P. State Administrative Tribunal in O.A.No. 2745/2009 (Madhukant Yadu V/s State of M.P.). The S.L.P. No. 6092/93 preferred against this order was dismissed by the Supreme Court. He also submitted that similar writ petitions have already been disposed of by this Court by issuing directions in favour of the writ petitioners.
3/ Learned counsel for the petitioner has submitted that the concerned respondent be directed to decide the petitioner's claim within a time bound period.
4/ Learned counsel for the respondents has no objection to the same.
5/ In view of the aforesaid, the present writ petition is disposed of by giving liberty to the petitioner to file an appropriate representation to the concerned respondent raising the grievance in respect of the non grant of regular pay-scale/increments from the date of initial appointment. If such a representation is submitted by the petitioner, the concerned respondent will consider and decide it within a period of four weeks from the date of its receipt keeping in view the judgment in the matter of Madhukant Yadu (supra) noted above and any other binding judgment on the point and if the petitioner is found to be entitled to the said benefit, the concerned respondent would extend such benefit to him without any delay. Any adverse order will be a reasoned speaking order.
6/ The writ petition is accordingly disposed of.
C.C. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.745 of 2006.
10.11.2006:-
Shri , learned counsel for the appellant. Shri , learned counsel for the Respondent. Heard on I.A.No. /2006 for stay of execution of impugned decree.
Issue notice of IA No. to the respondents. PF within three days. Notice be made returnable within 15 days.
Until further orders it is directed that the execution of impugned decree in so far as it related to appellant's eviction from the suit accommodation shall remain stayed subject to the following conditions :-
(a) The appellant shall deposit in court the entire arrears of rent up to date as also the cost of two courts (if awarded) within two weeks, if not so far deposited.
(b) The respondent on such deposit being made, will be entitled to withdraw the amount.
(c) Failure to comply with the direction to deposit the arrears of rent and cost shall automatically result in vacating of the interim stay without reference to the Court.
Let the record of the case out of which this appeal arises be requisitioned by the Registry from the concerned court within two weeks and list the appeal for admission along with the record immediately on receipt of the record.
In case if appellant fails to pay PF within time, as directed by this Court in accordance with the rules, the stay granted by this Court i.e. today shall stand automatically vacated on expiry of three days. It shall however, be the responsibility of the appellant to produce the acknowledgment before the learned trial Judge showing filing/paying the PF in the High Court/Registry in accordance with Rules, within three days so as to enable the trial court to know that the stay granted by this court is to continue even after expiry of three days. Failure to produce acknowledgment of payment of PF, before the trial court on the expiry of three days would be construed to mean non- compliance of conditions of stay, thereby enabling the trial court to proceed in the case on the expiry of three days as if no stay is in force. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No. of 2017.
25.04.2017:-
Shri , learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondents/State, on advance copy.
Heard on the question of admission.
O R D E R
THE petitioner has .
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No. of 201.
25.04.2017:-
Shri , learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondent/State.
List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No. of 2017.
24.04.2017:-
Shri , learned counsel for the petitioner. Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent/State.
List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS)