Madhya Pradesh High Court
Sarnaam Singh vs Atar Singh on 29 November, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MP 5812/2019
Sarnam Singh vs. Atar Singh and Others
Gwalior, Dated 29/11/2019
Shri Vinod Kumar Sharma, Counsel for the petitioner.
This petition under Article 227 of the Constitution of India
has been filed against the order dated 20/05/2019 passed by SDO
(Rural), District Gwalior in Case No.58/B-121/2017-18.
(2) The necessary fact for disposal of the present petition in
short are that the order dated 31/08/2018 was passed against the
petitioner and his brothers under Section 250 of MP Land
Revenue Code and they were directed to remove their possession
from survey no. 149/1 min area 0.418 hectare situated in village
Sonpura, District Gwalior.
(3) It appears that in spite of the order dated 31/08/2016, the
petitioner and his brothers did not remove the possession and
accordingly, by order dated 06/10/2017, it was directed that the
petitioner and his brothers be evicted and the vacant possession
be handed over to the respondent No.1 and a fine of Rs.10,000/-
was also imposed. It appears that even thereafter, the petitioner and his brothers did not hand over the vacant possession of the land in dispute and accordingly,arrest warrant has been issued by order dated 20/05/2019.
2(4) It is submitted by the Counsel for the petitioner that on 01/11/2019, the petitioner had filed an application before the SDO (Rural), Gwalior for recall of the arrest warrant, however, the said application has not been decided as a result of which, the arrest warrant shall be executed at any time. It is submitted that in fact, the petitioner is not in possession of survey no.149/1 and he would unnecessarily suffer the consequences.
(5) Heard the counsel for the petitioner. (6) Whether in the entire miscellaneous petition there is no
averment that the order dated 31/08/2016 passed by Tahsildar was ever challenged by the petitioner or not ? When a specific question was put to him, the petitioner initially submitted that the said order has not been challenged. However, he submitted that in ground nos. 6.1 and 6.2 of miscellaneous petition, he has challenged the order passed under Section 250 of MPLRC, therefore, he may be heard on the merits of the said order. When this Court pointed out that in absence of any relief for quashment of order passed under Section 250 of MPLRC, he cannot be heard on the merits of the said order and enquired as to why the petitioner did not challenge the order passed under Section 250 of MPLRC, thereafter, the counsel for the petitioner submitted that the petitioner was not aware of the order passed under Section 3 250 of MPLRC and only after the arrest of his brothers, he came to know that about the said order. Since the reply given by the counsel for the petitioner was not to the satisfaction of the Court, therefore, again it was enquired as to why the appeal was not filed against the order passed under Section 250 of MPLRC, then it was submitted by Shri Vinod Kumar Sharma, that in fact, the brother of the petitioners had challenged the order passed under Section 250 of MPLRC and the said appeal has also been dismissed. When, again a specific question was put to the Counsel for the petitioner that as to why the petitioner did not file an appeal, then with great difficulty, it was admitted by Shri Vinod Kumar Sharma that in fact, along his brothers, the petitioner had also filed an appeal against the order under Section 250 of MPLRC but the same has been rejected.
(7) Thus, it is clear that not only the petitioner has suppressed the material facts in the miscellaneous petition but tried to mislead the Court by giving an evasive reply and only when this Court is insisted upon the specific reply, the counsel for the petitioner accepted that the appeal filed by the petitioner against the order passed under Section 250 of MPLRC has already been rejected. It is submitted by the Counsel for the petitioner that under his assessment, disclosure of the fact of dismissal of his 4 appeal was not important because the petitioner has approached this Court for a direction to the respondents to decide his application for recall of arrest warrant.
(8) Considered the submissions made by the Counsel for the petitioner.
(9) The application filed by the petitioner for recall of arrest warrant reads as under:-
vkosnu i= okLrs vukosnd ljukeflag ds fo:) tkjh fxjQnkjh okjaV vne okfil cqyk;s tkus ckorA ekuuh; U;k;ky;] vukosnd ljuke flag dh vksj ls vkosnu i= fuEu izdkj ls izLrqr gSA 1- ;g fd] vkosnd }kjk d``f"kZ Hkwfe dk dCtk okfil fnyk;s tkus gsrq ,d vkosnu vf/kuLFk U;k;ky; uk;o rg'khynkj egksn~; o`r gfLrukiqj eqjkj Xokfy;j ds l{ke /kkjk&250 e0iz0 Hkw0 jktLo lfgark ds rgr izLrqr fd;k x;k FkkA 2- ;g fd] mDr vkosnu vukosnd ljukeflag]ds vykok QqUnhflag]o fljnkj flag ds fo:) Hkh is'k fd;k x;k Fkk vukosnd ljukeflag] QqUnhflag] o fljnkj flag dk lxk HkkbZ gS rFkk bl dkj.k vkosnd }kjk ljukeflag dk uke Hkh ys[k fd;k x;k gSA 3- ;g fd] vukosndx.k us feydj fookfnr"d`f"kZ Hkwfe dks vkt djhcu 32 o"kZ iwoZ iw.kZ izfrQy vnk dj [kjhnk x;k Fkk ysfdu tehu dk lhekadu ugha gksus ds dkj.k vukosndx.k vkosnd ls mDr losZ uEcj 149@1 jftLVz~h ugha djk ik;s] ysfdu vukosndx.k yxkrkj 32 o"kZ mDr d``f"kZ Hkwfe ij [ksrh djrs pys vk jgs gSA 4- ;g fd] vukosnd ljukeflag dk vius HkkbZ;ksa ls vkt ls djhcu 15 o"kZ iwoZ cVkokjk gks tkus ls mDr fookfnr d``f"kZ Hkwfe vukosnd QqUnhflag o fljnkj flag ds fgLls esa vkbZ gS mDr nksuks gh fookfnr d``f"kZ Hkwfe ij [ksrh djrs pys vk jgs gSa vukosnd ljukeflag dk mDRk fookfnr d``f"kZ ls dksbZ ljksdkj ugha gS vkSj u gh vukosnd ljuke 5 flag dk mDr fookfnr d``f"kZ Hkwfe ij dCtk gS rFkk u gh dHkh igys jgk gS vkSj u gh orZeku esa gS bl dkj.k vukosnd ds fo:) tkjh fxjQnkjh okjaV vne okfil cqyk;k tkuk U;k; laxr gSA 5- ;g fd] vkosnu i= ln~Hkkouk ij gksus ls Lohdkj fd;s tkus ;ksX; gSA vr% ekuuh; U;k;ky; ls izkFkZuk gS fd vkosnu i= Lohdkj dj vukosnd ljukeflag ds fo:) tkjh fxjQnkjh okjaV iqfyl Fkkuk gfLrukiqj vne okfil cqyk;s tkus dk vkns'k ikfjr djus dh d``ik djsaA (10) From the reading of this application, it is clear that the petitioner has claimed that survey no.149/1 has been partitioned amongst the brothers for the last 15 years and he is not in possession of the same. In the considered opinion of this Court, the stand taken by the petitioner in his application for recall of arrest warrant touches the merits of the case which he could have taken in an appeal against the order passed under Section 250 of MPLRC. Since the order passed under Section 250 of MPLRC has already attained finality, therefore, the petitioner cannot claim that he is not bound by the order passed under Section 250 of MPLRC.
(11) Under these circumstances, if the SDO (Rural), Gwalior has not decided the said application, then no direction can be given to him to decide the said application before proceeding further as the application filed by the petitioner is frivolous.
Under these circumstances, this Court is of the considered 6 opinion that the petition filed by the petitioner is not only misconceived but it has been filed on misleading facts. Accordingly, it is dismissed with costs of Rs 20,000/- to be deposited in the account of Legal Aid Services Authority, Gwalior within a period of thirty days from today.
(G.S. Ahluwalia) Judge MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.12.03 10:50:41 +05'30'