Madhya Pradesh High Court
Devika Choudhary vs Commissioner on 15 January, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
WRIT PETITION No. 29341 of 2024
DEVIKA CHOUDHARY AND OTHERS
Versus
COMMISSIONER AND OTHERS
Appearance:
Shri R. S. Chhabra - Senior Advocate with Shri Harsh Arora -
Advocate for the petitioners.
Shri S. Murlidhar - Senior Advocate with Shri Vivek Patwa and Shri
Akshat Kothari- Advocate for the respondent No.2.
Reserved on : 10.12.2024
Pronounced on : 15.01.2025
This writ petition having been heard and reserved for order, coming
on for pronouncement this day, the court passed the following:
ORDER
1] Heard finally, with the consent of the parties. 2] This writ petition has been filed by petitioners under Article 226 of the Constitution of India against order dated 12.09.2024, passed by respondent No.1 - Commissioner, Indore Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 2 Division, Indore whereby the order dated 17.03.2023, passed by the Additional Collector, Indore in Appeal No.16/22-23 has been reversed, and consequently, the order passed by Naib Tehsildar, Malharganj, Indore on 05.09.2020 has also been set aside, directing that all the revenue records, Khasra, Map, trace etc. be restored to its original position as it existed prior to the order dated 05.09.2020.
3] In brief the facts of the case are that the petitioners, along with other members of the family had an undivided joint ownership in lands bearing Survey Nos.3/1 and 3/2 situated at Village Nainod, Tehsil Malharganj, District Indore, and pursuant to an order of subdivision (Fardbatwara) dated 29.03.2010, petitioners viz., Devika Chaudhary, Dhruvraj Chaudhary and Madhuri Choudhary became the independent owners of the land bearing Survey Nos.3/2/1, 3/2/2 and 3/2/3 respectively.
4] The petitioners‟ case is that on the basis of the aforesaid Fardbatwara, on 19.06.2020, an application was filed by them for sub-division of land bearing Survey Nos.3/2/2 and 3/2/3 into 3/2/2/1, 3/2/2/2, 3/2/3/1 and 3/2/3/2, pursuant to which, a public notice was also issued by the Tehsildar on 19.06.2020, and finally the sub- division was allowed by the Tehsildar vide its order dated 05.09.2020. Against said order dated 05.09.2020, an appeal was preferred by the respondent no.2 Manjri Chaudhary on 30.12.2021, under Section 44(1) of the M.P. Land Revenue Code, 1959 (in short „the MPLRC‟) along with an application for condonation of delay before the Sub-
Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 3 Divisional Officer, (Revenue), Malharganj, Indore. However, on the objections filed by the petitioners, the Sub-Divisional Officer dismissed the appeal on 23.05.2022, holding that the respondent No.2 Smt. Manjri Choudhary was not a party to the previous proceedings and also that no leave to appeal was obtained by respondent No.2. However, a liberty was also granted to the respondent No.2 to file a fresh appeal, after obtaining the leave to appeal in accordance with law. The petitioners‟ further case is that instead of seeking leave to appeal, on 13.06.2022, the respondent No.2 filed a review petition under Section 51 of the MPLRC. However, the aforesaid review petition also came to be dismissed on 12.09.2022 by the Sub- Divisional Officer holding that no new grounds are made out.
5] Against the aforesaid order dated 12.09.2022, a first appeal under Section 44(3) of the MPLRC was also preferred by the respondent no.2 before the Additional Collector, Indore. However, according to the petitioners, it was in fact a second appeal. In the aforesaid appeal, an application was also filed by the petitioners for dismissal of the appeal on the ground that against an order of review, an appeal cannot be filed in terms of Section 46(a)(ii) of the MPLRC. However, vide its order dated 17.03.2023, the Additional Collector, Indore dismissed the appeal on the ground that the respondent No.2 failed to establish as to how her right was affected on account of the order of sub-division (Batankan) of the petitioners‟ land. The aforesaid order dated 17.03.2023 was also challenged by the Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 4 respondent No.2 by filing a second appeal under Section 44(2) of the MPLRC before the respondent No.1, Commissioner, Indore Division, who has allowed the appeal by setting aside the order of Additional Collector, and consequently, the order of sub-division (Fard batwara) dated 05.09.2020, passed by the Tehsildar has also been set aside.
6] Shri Ravindra Singh Chhabra, learned Senior counsel appearing for the petitioners has submitted that the Commissioner has erred in allowing the aforesaid appeal, despite the fact that it was practically a third appeal before him, which is not even maintainable under the MPLRC. Shri Chhabra has also submitted that the Commissioner has also lost sight of the fact that the first appeal under Section 44(1) of the MPLRC, which was filed by the respondent No.2 before the SDO, was filed along with an application for condonation of delay, but the aforesaid delay has not even been condoned, and thus, the appeal before the Commissioner was liable to be dismissed on this ground only. It is also submitted that the Commissioner has also lost sight of the fact that under Section 46(a)(ii) of the MPLRC, the appeal against an order of review has been specifically prohibited. Thus, it is submitted that the impugned order is liable to be quashed.
7] Shri Chhabra has also submitted that the Commissioner has given undue importance to Section 73, and Sections 109 and 110 of the MPLRC to hold that the aforesaid application u/s. 73 of MPLRC, for subdivision of land itself was not maintainable before the Tehsildar, whereas the mentioning of Section 73 in the application Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 5 was only a typographical error, and the sub-division/demarcation of the land was actually carried out in accordance with Section 129 of the MPLRC. It is also submitted that under Section 129(8) of the MPLRC, there is no appeal maintainable against an order passed under this Section. Shri Chhabra has also submitted that even otherwise, respondent No.2 does not hold any adjoining land in Survey Nos.3/2/2 and 3/2/3, which were to be sub-divided, hence the respondent No.2 had no locus to challenge the order of sub-division of land of the petitioners. It is also submitted that the boundary of the land bearing Survey Nos.3/2/2 and 3/2/3 were not even changed, and there was only a sub-division carried out with an intent to change the land use of part of the land, whereas the respondent No.2 is the owner of the land bearing Survey No.3/1/3, which is not adjoining the land at Survey Nos.3/2/2 and 3/2/3.
8] Shri Chhabra has also submitted that the second appeal was in fact, a de facto, third appeal, which has been entertained by the respondent No.1 the Commissioner, Indore, despite the fact that under the provision of MPLRC there is no provision of third appeal against an order passed in the second appeal. Shri Chhabra has also submitted that although the application for demarcation and mutation was filed by the applicant(s)/petitioners under Sections 109 & 110 of MPLRC, however, it is wrongly mentioned as an application under Section 73 by the Tehsildar, and thus, no benefit has accrued to the respondent No.2 on account of a typographical error made by the Tehsildar in the Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 6 order that he is invoking the powers under Section 73 of the MPLRC. It is also submitted that no leave to appeal before the SDO was filed by the respondent No.2 despite the fact that the respondent No.2 was also granted opportunity to file the aforesaid application, but instead, a review application was filed, which has been rightly rejected by the SDO holding that no new grounds are made out.
9] Senior counsel has also submitted that even otherwise, the application for condonation of delay filed before the SDO along with the original first appeal was not decided by the SDO. This aspect has also not been considered by the Commissioner in the impugned order, despite the fact that it was raised specifically by the petitioners. It is also submitted that apparently the Commissioner has also not taken into account the fact that against an order of review, no appeal in terms of Section 46(a)(ii) of MPLRC is maintainable.
10] Finally, it is also submitted that the respondent No.2 has nothing to do with the lands of the petitioners as she is not the adjacent land owner, particularly of land bearing Survey Nos.3/2/2 and 3/2/3, which belong to the petitioner Nos.2 and 3, respectively. Thus, it is submitted that the impugned order be set aside, and the order passed by Tehsildar be sustained.
11] On the other hand, the prayer is vehemently opposed by the Senior Counsel Shri S. Murlidhar, assisted by Shri Vivek Patwa and Shri Akshat Kothari- Advocates. Shri Murlidhar has drawn the attention of this Court to the fact that in the application filed by the Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 7 petitioners for demarcation, sub-division and correction of map, neither the provision of law, under which it has been filed, nor the date, have been mentioned, whereas, in his order dated 19.06.2020, the Naib Tehsildar, Malharganj, Indore has treated the aforesaid application to be an application filed under Section 73 of the MPLRC. Attention of this Court has also been drawn to Section 73 of the MPLRC, which provides all lands liable to assessment, that the District Survey Officer shall make assessment on all lands to which the survey extends where such lands are liable to the payment of land revenue or not. Thus, it is submitted that any action under Section 73 can only be taken by the District Survey Officer, and not the Naib Tehsildar, and in such circumstances only, the Tehsildar has acted without jurisdiction.
12] Shri Murlidhar has submitted that the aforesaid mentioning of Section 73 of the MPLRC in the order dated 19.06.2020 was not a mere typographical error as is apparent from the Vigyapti also, which has also been issued by the same Tehsildar on 19.06.2020, in which it is clearly stated that the aforesaid Vigyapti is being published under Section 73 of the MPLRC. Attention of this Court has also been invited to the fact that in the aforesaid Vigyapti dated 19.06.2020, the last date for filing the objection is mentioned as 03.07.2020, whereas the aforesaid Vigyapti has been affixed on the Tehsil Office‟s notice board only on 07.07.2020. Thus, it is submitted that the objections were invited till 03.07.2020, whereas the notice of the same was Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 8 affixed on 07.07.2020 i.e., after the period of filing the objections had already expired. Thus, it is submitted that the entire proceedings have been initiated only with a view to ensure that the petitioners get the benefit of the same as there was no question of any objection being invited, when the notice itself was affixed on 07.07.2020, whereas in the Vigyapti, the last date to submit the objections was 03.07.2020.
13] Shri Murlidhar has also drawn the attention of this Court to the proceedings, which took place before the Revenue Inspector, who had issued the notice to the petitioners on 24.08.2020, wherein the petitioners were directed to remain present on the spot at 11:00 AM in the morning on 27.08.2020. So far as the Panchnama, which was prepared on 27.08.2020, senior counsel has again drawn the attention of this Court to the fact that although it has been mentioned in the aforesaid Punchnama that the petitioners and the adjacent agriculturists are also present, however, their signnatures are not appended to the aforesaid Panchnama, hence it is not known as to who were the other adjacent agriculturists, who were present on the spot. Thus, it is submitted that the mutation and the correction of map, on the basis of the aforesaid proceedings have already been held to be bad in law by the Commissioner in the impugned order, which does not call for any interference.
14] Senior Counsel has also submitted that the present respondent No.2 Manjri Choudhary shares a common boundary with the petitioner No.1 Devika Choudhary as the respondent No.2 holds Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 9 the adjacent land at Survey No.3/1, whereas Devika Choudhary holds land bearing Survey No.3/2/1. It is also submitted that a boundary dispute is already going on between the respondent No.2 and the petitioner No.1, as in an earlier proceedings it has already been found that Devika Choudhary has encroached upon Khasra No.3/1/3, which belongs to the respondent No.2 as has been found by the order of Tehsildar dated 21.07.2021. It is also submitted that the aforesaid dispute is still pending before the Division Bench of this Court in Writ Appeal No.1049 of 2024, and in such circumstances, it cannot be said that the respondent No.2 was not a party to the dispute.
15] Shri Murlidhar, Sr. Counsel for the respondent no.2 has also submitted that although a review application was filed before the SDO, but in sum and substance, it was an application for leave to appeal only, but the SDO has not considered the contents of the aforesaid application in which it is apparent that a leave to appeal was also made, but treating it to be a review petition only, has rejected the same that no new grounds are made out. Senior counsel has also submitted that even otherwise, no leave to appeal was required to be sought by the respondent No.2, as she was very much an interested party in the dispute and not an alien. Shri Murlidhar, however, has fairly admitted that the second appeal before the Additional Collector was not maintainable. However, even if it is dismissed on merits, it cannot be said to be a second appeal, and for all the practical purposes, the appeal preferred before the Commissioner under Section 44(2) of Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 10 the MPLRC was the second appeal, and in such circumstances, no case for interference is made out, and the petition is liable to be dismissed.
16] In support of his submissions, Shri Murlidhar has also relied upon various judgements of the Supreme Court and a written argument has also been filed by the counsel for the respondent no.2, in addition to the detailed arguments advanced by Shri Murlidhar.
17] Heard counsel for the parties and perused the record. 18] On careful perusal of the record, for the reasons as assigned infra, this Court finds that grave illegalities have been committed by the Tehsildar, SDO and Additional Collector in passing the orders, whereas the Commissioner has taken care of all such orders to hold that the same cannot be sustained in the eyes of law and has set aside the same, with liberty reserved to the petitioners to apply afresh for division, demarcation and correction of map.
19] This Court does not find any force in the submissions as advanced by Shri Ravindra Singh Chhabra, learned Senior Counsel for the petitioners that the Commissioner could not have entertained the de facto third appeal under the provisions of the MPLRC, which does not provide for any third appeal. This Court also finds that, admittedly, against the order of Tehsildar, the first appeal under Section 44(1) of the MPLRC was filed before the Sub Divisional Officer, Malharganj, Indore in which, it was clearly pleaded that the respondent No.2 is also a party to the litigation. The aforesaid application was indeed filed Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 11 along with an application under Section 5 of the Limitation Act, 1963 in which it was also stated that the delay was caused as the respondent No.2 was not even a party before the Tehsildar, and only after she came to know about the order, the appeal was filed.
20] The aforesaid first appeal was rejected by the SDO on 23.05.2022, holding that since the appellant/the respondent No.2 herein was not a party before the Tehsildar, and in such circumstances, she ought to have obtained a leave to appeal, and a liberty was also given to the respondent No.2 to obtain the leave to appeal, and although, the respondent No.2 did not file any leave to appeal, but on a close reading of the application for review filed under Section 51 read with Section 32 of MPLRC, it is found that in para 4 of the aforesaid application, the respondent No.2 has clearly made a specific prayer that she may be allowed to file an appeal against the order passed by the Tehsildar. In the considered opinion of this court, in such circumstances, there was no occasion for the SDO to hold that it was purely an application for review only, without going into the contents of the same.
21] So far as the order of the Additional Collector dated 17.03.2023 is concerned, this Court appalled to see the manner in which the order has been passed, running into around 10(ten) pages. It is not just the pages which concern this court, but the fact that an Additional Collector, who is supposed to know the MPLRC like the back of his hand, would entertain a second appeal filed before him Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 12 under Section 44(3) of MPLRC, despite the fact that no such second appeal lies before the Collector under Section 44(3) of the MPLRC in the first place, which lies only under Section 44(2) of the MPLRC before the Commissioner or the Board of Revenue, as the case may be. At this juncture, it would be apt to refer to S.44 of MPLRC, which reads as under:-
"[44.Appeal and appellate authorities. -
(1) Save where it has been otherwise provided, an appeal shall lie from every original order of a Revenue Officer competent to pass such order under this Code or the rules made thereunder-
(a) if such order is passed by any Revenue Officer subordinate to the Sub-Divisional Officer - to the Sub-Divisional Officer;
(b) if such order is passed by any Revenue Officer subordinate to the Deputy Survey Officer - to the Deputy Survey Officer;
(c) if such order is passed by the Sub-Divisional Officer - to the Collector;
(d) if such order is passed by the Deputy Survey Officer - to the District Survey Officer;
(e) if such order is passed by any Assistant Collector, Joint Collector or Deputy Collector to whom the powers have been conferred under-section 24-to the Collector;
(f) if such order is passed by any Revenue Officer in respect of whom a direction has been issued under sub-section (3) of section 12 - to such Revenue Officer as the State Government may direct;
(g) if such order is passed by a Collector or District Survey Officer -to the Commissioner;
(h) if such order is passed by the Commissioner - to the Board.
(2) Save as otherwise provided, a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder
-
(a) by the Sub-Divisional Officer or the Deputy Survey Officer or the Collector or the District Survey Officer - to the Commissioner;
(b) by the Commissioner - to the Board.
(3) The second appeal shall lie only -Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 13
(a) if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost; or
(b) on any of the following grounds and no other, namely :-
(i) that the order is contrary to law or, usage having the force of law; or
(ii) that the order has failed to determine some material issue of law, or usage having force of law; or
(iii) that there has been a substantial error or defect in the procedure as prescribed by this Code, which may have produced error or defect in the decision of the case upon merits.
(4) An order passed in review varying or reversing any order shall be appealable in like manner as the original order.]"
(Emphasis Supplied) 22] On perusal of the said provision, this Court has no hesitation to hold that the order dated 17.03.2023 passed by the Additional Collector while entertaining a second appeal is an illegal order, passed without jurisdiction, because, when an appeal, being an appeal non-est in the eyes of law, was preferred by the respondent No.2 before the Additional Collector, and which is also rejected by him/her on merits, it cannot be said that the respondent No.2 had already availed the remedy of second appeal before the Additional Collector, and thus no third appeal lies before the Commissioner under Section 44(2) of the MPLRC.
23] This Court is of the considered opinion that when the second appeal itself was not maintainable before the Additional Collector, he ought not to have entertained the same, and ought to have returned the same to the respondent No.2 to file the same before the concerned Court. However, instead of passing such an order of returning the appeal, the Additional Collector has gone on to decide Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 14 the matter on merits, which has been rightly reversed by the Commissioner in the impugned order.
24] This Court is also of the considered opinion that when the dispute is already going on between the parties, and the question of demarcation is already pending before this Court in W.A. No.1049 of 2024, it cannot be said that the respondent no.2 was not a party to the demarcation proceedings initiated by the petitioners. Although, Shri Ravindra Singh Chhabra has also drawn the attention of this Court to the fact that in a subsequent proceedings, the Tehsildar has also found that there was no encroachment on the part of the petitioner no.1 Devika, however, the fact remains that the issue still pending before the Division Bench of this Court in the aforesaid writ appeal, and thus, the concerned authority was at least required to pass an appropriate order, after inviting objection from the respondent No.2 also.
25] In this context, it would be also interesting to note that in his proceedings dated 19.06.2020, the Tehsildar has treated the application filed by the petitioners without referring to any provision of law, as an application u/s.73 of MPLRC, apparently, u/s.73 only the District Survey Officer has the power to pass an order. Similarly, in the Vigyapti dated 19.06.2020 also, inviting the objections on the application of the petitioners, it is mentioned that it is being issued u/s.73 of MPLRC, in such circumstances, when such a misleading publication (vigyapti) is made, referring to a wrong provision of law, even assuming that it was affixed at the right place, it cannot be said Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 15 with any certainty that it also attracted the interested persons/adjacent landowners to file their objections because, after looking at it one might be misled that it is a notice u/s.73 only and not u/s.109, 110 or 129 of MPLRC as contended by the learned Sr. Counsel for the petitioners. Similarly, the contents of Panchnama dated 27.08.2020 which was prepared after service of notice to the petitioners, also reveals that in the Panchnama there are no signatures of petitioners, despite mentioning that the petitioners were also present on the spot, and so far as the other signatures appended to the said Panchnama are concerned, there is no reference as to which adjacent plots belong to them. Thus, the aforesaid entire proceedings appear to be a mere eyewash, and hence rightly set aside by the Commissioner, Indore in the impugned order.
26] In view of the same, this Court finds that the petitioners have not been able to make out any case for interference. Accordingly, petition being devoid of merits, is hereby dismissed with cost of Rs.50,000/-, considering the manner in which the lower revenue authorities have played into the hands of the petitioners. The cost of Rs.50,000/- shall be paid by the petitioners in the account of "President and Secretary High Court Employees Union" {Account No.63006406008, Branch Code No.30528, IFSC No. SBIN0030528, CIF No.73003108919} within a period of one month from the date of receipt of certified copy of this order, and the acknowledgement of the same shall be also filed before the Registry of this Court.Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 16 27] An exemplary cost of Rs.75,000/- is also being imposed on the respondent no.2 for the following reasons :-
A DISCORDENT NOTE REGARDING THE CONDUCT OF THE RESPONDENT NO.2 THROUGHOUT THE PROCEEDINGS OF THIS PETITION:-
28] Although, the aforesaid order has been passed in favour of the respondent No.2, however, this Court records its utter dissatisfaction and disappointment towards the manner in which the entire case has been conducted by the counsel who have drafted the reply and other applications on behalf of the respondent No.2, of course, with the consent of the respondent no.2.
29] From the pleadings of the respondent no.2, it is apparent that both the parties are well endowed and consider themselves as the richest persons in Indore. This Court is of the considered opinion that it was not a complicated case, but the respondent No.2 in her pleadings, has tried to project the same as the one, involving various complications. It is surprising that the impugned order runs into hardly eight to nine pages, but the respondent no.2 had initially filed preliminary objection on 01.10.2024, running into seventy (70) pages, out of which 31 pages were devoted to the memo of objection only, whereas the documents annexed along with the said objection were various police complaints running into 39 pages, made by the respondent No.2 against the petitioners which were not relevant to decide the issue involved. Thereafter, on 26.10.2024, I.A. No.10378 of Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 17 2024 was filed by the respondent No.2 for modification of the interim order passed in favour of the petitioners on 03.10.2024, in which the entire transcript of the conversation/arguments, which took place before this Court, have been reproduced verbatim, and in the aforesaid application it was expected from this Court that this Court should have passed the orders on the entire submissions advanced by the counsel for the respondent No.2. It is also found that the same practice was also adopted by the respondent no.2 in W.A. No.793 of 2023 and vide order dated 02.11.2023 the Division Bench of this Court has also deprecated the practice adopted by the respondent no.2, however, no cost was imposed as a cost of Rs.25,000/- was already imposed by the writ Court in W.P. No.28458 of 2022 vide order dated 23.02.2023, but apparently, the respondent no.2 has not learnt any lessons from her past mistakes, it is also not known if she has already paid the aforesaid cost.
30] This Court is of the considered opinion that a Court is not obliged to record each and every submission of the counsel for the parties concerned, especially at the stage of motion hearing, as the same would consume and eat into the valuable time of an already burdened court, which is to be used sparingly and not spaciously.. Thus, the aforesaid pleadings appear to have been made only with a view to pressurize and browbeat this Court, which is highly deprecated.Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 18 31] So far as the reply to the writ petition is concerned, it runs into 157 pages, out of which, 22 pages have been devoted to the memo of reply itself, and the others are Annexures. On perusal of the same, it is also found that the same is not only verbose, but it is specifically stated in paras 2 and 3 of the same that the parawise reply is not being filed, and the respondents shall address and demonstrate, the illegality, unlawfulness, falsity, frivolity and fraud of Naib Tehsildar in collision and criminal conspiracy with petitioner Nos.1 to
3. In addition to that, a separate written arguments running into 126 pages was also filed on 04.12.2024. To say the least of an application, I.A. No.10622 of 2024, which was also filed on 11.11.2024, under Section 151 of C.P.C. for discontinuation of the interim order dated 12.09.2024 pursuant to an order passed by the Supreme Court in SLP No.26361 of 2024, basically an application for vacating the stay again running into 33 pages. Another application, I.A. No.10624 of 2024 dated 11.11.2024, which was an application under Order 12 Rule 6 read with Section 151 of CPC for judgement of admission on the part of the petitioners was totally unnecessary and out of place.
32] So far as the written arguments are concerned, it is found that the counsel for the respondent No.2 has also referred to the various decisions of the Supreme Court in support of his submissions that the Court has to consider the written arguments filed by a party. Thus, the intention of the counsel for the respondent no.2 was also that this Court should also devote its time to the aforesaid written Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 19 arguments, in addition to the reply and other applications, and the arguments advanced by Shri Murlidhar, the learned Senior Counsel for the respondent No.2. This Court makes it clear that it is certainly not averse to any petition or reply no matter how lengthy, but when such pleadings are made with an intent to satisfying once own ego and browbeat the Court, it certainly is a matter of grave concern, and such practice needs to be addressed.
33] Needless to say, the aforesaid applications, written arguments, reply etc. filed by the respondent No.2 have also resulted in filing counter replies, applications etc. by the petitioners, which has certainly added to the volume of the record of this case, and giving rise to unnecessary arguments.
34] In such facts and circumstances of the case, this Court while recording its disconcerting note, imposes an exemplary cost of Rs.75,000/- on the respondent No.2, which should be paid in the account of President and Secretary H.C. Employees Union H.C. (Account No.63006406008, Branch Code No. 30528, IFSC No. SBIN0030528, CIF No.73003108919) within a period of one month from the date of this order, and the acknowledgement of the same shall be filed before the Registry of this Court REGARDING THE CONDUCT OF THE RESPONDENT NO.2 IN UNDERMINING THE AUTHRORITY OF THIS COURT.Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 20 35] To top it all, it is also found that an application i.e., document No.8387 of 2024 dated 01.10.2024 has also been filed by the respondent No.2 which read as under:-:-
"1. That the Applicant is the Caveator/ Respondent No.2 in the above- captioned Writ Petition which is likely to be listed before this Hon'ble Court on 03.10.2024 and the copy of the memo of the petition has been served to the caveator on 30.09.2024 at 4.30pm.
2. That the Caveatees/ Petitioners of the present Petition are the family members of the brother-in-law, Mr. Sanjay Choudhary, of the Applicant.
3. That the Petition has its genesis in the dispute about the land admeasuring 13.2 hectares bearing Khasra No.3/1 & 3/2 (until February 2010). The litigation in this dispute has been widespread, wherein the Fard Batwara order dated 29.03.2010, demarcation order dated 25.10.2021, Registration of Assent Deed dated 03.05.2011 are challenged. The matter in these cases are still pending before this Hon'ble Court in W.A. No. 1049/2024 titled "Manjiri Choudhary v. State of M.P. & Ors."
and before the Hon'ble Supreme Court in Special Leave Petition 6672/ 2024 titled "Bhavya Choudhary & Anr. v. State of Madhya Pradesh & Ors."
4. The Caveatees/Petitioners have impugned the order of the Commissioner, Indore Division dated 12.09.2024 through the present Petition involving the sub-division and demarcation of the land bearing Khasra No. 3/2/1, 3/2/2 and 3/2/3 (old Khasra No.3/2). Such lands are purportedly being claimed by the Caveatees/ Petitioners pursuant to the purported Fard Barwara order dated 29.03.2010. This Fard Batwara order is pending adjudication before the Hon'ble Supreme Court in SLP No. 6672/ 2024 titled "Bhavya Choudhary & Anr. v. State of Madhya Pradesh & Ors." impugning the order dated 02.11.2023 passed by this Hon'ble Court in W.A. No.793/ 2023 titled "Bhavya Choudhary & Anr. v. State of M.P. & Ors.". The order in W.A. No.793/2024 was passed by a Division Bench comprising of HMJ S.A. Dharamadhikari and HMJ Pranay Verma.
5. That after perusal of the copies served to the Caveatee/Petitioner it was observed that the Caveatee/Petitioner have alleged/submitted the issues pertaining to Fard Batwara on Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 21 Page No. 1 at Sl. No.2; Page No.9 in Para No. 5.1, 5.2 and 5.3; Page No.21 in Para 6.7; Page No.(s) 28-36 being Annexure P-1; Page No.(s) 44-45.
6. The Caveatees/ Petitioners have alleged/ submitted the issues pertaining to the Seemankan/ Demarcation proceeding on Page No.21 in Paras 6.8, 6.9, 6.10, Page No.(s) 119-122 being Annexure P- 16, the order passed in W.P. No.27523/2021 by HMJ Vijay Kumar Shukla, Page 123-127 being Annexure P-17, the order passed in W.A. No. 1239/2022 by HMJ Vivek Rusia and HMJ Amar Nath (Kesarwani), Page No.(s) 128 being Annexure P-18, the order passed in R.P. No. 1247/ 2022 by HMJ Vivek Rusia and HMJ Amar Nath (Kesharwani), Page No. (s) 133-144 being Annexure P-20.
7. That the impugned order challenged by the Caveatees/ Petitioners also contains the issues and contentions regarding the ownership of the subject land (which has been derived through the order of Fard Batwara dated 29.03.2010) and the Seemankan/ Demarcation & Encroachment of the subject lands and the land of the Caveator/ Respondent No. 2.
8. That it is a fact on the face of the record of this Hon'ble Court that the following Hon'ble Justices had adjudicated and passed orders in issues and contentions which are also the issues and the contentions in the present Petition,
(i) HMJ S.A. Dharamadhikari;
(ii) HMJ Amar Nath (Kesharwani);
(iii) HMJ Vivek Rusia;
(iv) HMJ Vijay Kumar Shukla;
(v) HMJ Pranay Verma.
9. That in the interest of justice and to further ensure equality & impartiality in the adjudication of the present Petition, this Petition bearing W.P. No.29341/2024 titled "Devika Choudhary & Ors. v. State of M.P. & Anr." may not be listed before and/ or heard by Hon'ble Justices as mentioned above. The Caveator/ Respondent No. 2 has complete trust in the wisdom, competency and integrity of all the Hon'ble Justices as mentioned above. The matter in the cases regarding the Fard Batwara and Seemankan/ Demarcating have not attained their finality and are pending adjudication a higher judicial fora as submitted above. These Hon'ble Justices have passed orders in cases having the same issues/ contentions which are also alleged/ submitted in the present Petition.
Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 22
10. That it is for only these above-mentioned reasons that the Caveator/ Respondent No. 2 prays for the present Petition not being listed and/ or heard by the above-mentioned Hon'ble Justices.
11. That the Caveator/ Respondent No. 2 submits further fact on the face of the record of this Hon'ble Court that HMJ Vivek Rusia had recused himself from hearing W.P. No. 29242/2023 titled "Manjiri Choudhary v. State of M.P. & Ors." and W.A. No. 1049/2024 titled "Manjiri Choudhary v. State of M.P. & Ors.". The orders dated 18.12.2023 and 29.08.2024 passed in those cases are self- explanatory in nature. Copy of the order(s) dated 18.12.2023 and 29.08.2024 are annexed herewith as Annexure A-1 (Colly.). Copy of the memo of the Writ Petition No. 29341/ 2024 is annexed herewith as Annexure-A-2.
12. That the present Application is bona fide and in the interest of justice."
(Emphasis Supplied) 36] Thus, the aforesaid application has been filed seeking recusal of FIVE Judges of this Bench of the High Court, which has a strength of 10 judges only which is also rarely achieved, that they should not hear the matter. In this regard, reference may also be had to a decision rendered by the Supreme Court in the case of Kamini Jaiswal Vs. Union of India, reported as (2018) 1 SCC 156, wherein the Supreme Court has held as under:-
"24. There is no conflict of interest in such a matter. In case a Judge is hearing a matter and if he comes to know that any party is unscrupulously trying to influence the decision-making or indulging in malpractices, it is incumbent upon the Judge to take cognizance of such a matter under the Contempt of Courts Act and to deal with and punish such person in accordance with law as that is not the conflict of interest but the purpose for which the entire system exists. Such things cannot be ignored and recusal of a Judge cannot be asked on the ground of conflict of interest, it would be the saddest day for the judicial system of this country to ignore such aspects on the unfounded allegations and materials. It was highly improper for the petitioner to allege conflict of interest in the petition filed that the Hon'ble Chief Justice of India should Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41 NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 23 not hear on judicial side or allocate the matter on the administrative side. It appears that in order to achieve this end the particular request has been made by filing successive petitions day after the other and prayer was made to avoid the Hon'ble Chief Justice of India to exercise the power for allocation of cases which was clearly an attempt at forum hunting and has to be deprecated in the strongest possible words. Making such scandalous remarks also tantamount to interfering with administration of justice, an advocate cannot escape the responsibility on the ground that he drafted the same in his/her personal capacity as laid down in Shamsher Singh Bedi v. High Court of Punjab & Haryana [Shamsher Singh Bedi v. High Court of Punjab & Haryana, (1996) 7 SCC 99 : 1996 SCC (Cri) 181] . In Charan Lal Sahu v. Union of India [Charan Lal Sahu v. Union of India, (1988) 3 SCC 255 : 1988 SCC (Cri) 662] , this Court has observed that in a petition filed under Article 32 in the form of PIL attempt of mudslinging against the advocates, Supreme Court and also against the other constitutional institutions indulged in by an advocate in a careless manner, meaningless and as contradictory pleadings, clumsy allegations, contempt was ordered to be drawn. The Registry was directed not to entertain any PIL petition of the petitioner in future."
(Emphasis Supplied) 37] In the considered opinion of this Court, the aforesaid application, which has also been signed by the respondent No.2, appears to have been filed with ulterior motive and amounts to a criminal contempt on the face of it. Accordingly, a show cause notice is also issued to respondent No.2 Manjri Choudhary, who is also directed to disclose the name of the counsel, who has drafted the said application on her behalf. Respondent No.2 is directed to appear before this court and to file her affidavit on 03.03.2025 as to why she should not be punished for criminal contempt of this Court.
Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41NEUTRAL CITATION NO. 2025:MPHC-IND:194 WP No.29341 of 2024 24 38] Registry of this court is also directed to register a separate Criminal Contempt case against the respondent no.2 and list accordingly.
39] The petition is, accordingly, dismissed and disposed of.
(SUBODH ABHYANKAR) JUDGE Pankaj Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 15-01-2025 17:51:41