Madhya Pradesh High Court
Deceased Nanuram Thru. Lrs. Bhanwarlal vs Babulal on 3 May, 2017
Writ Petition No.1030 of 2017.
03.05.2017:-
Shri R.N.Modi, learned counsel for the petitioner.
Shri M.L.Pathak, 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 04.02.2017 by which
application under Order VI Rule 17 of CPC seeking
amendment in the written statement has been rejected.
[2] The Respondent Nos.1 and 2/plaintiffs filed the
suit for eviction, arrears of rent and possession against the
present petitioner. After notice, the defendant filed a detailed
written statement on 14.05.2012. She has also filed a
counter claim to the effect that she is exclusive owner and in
possession of suit property and the plaintiffs be restrained
not to alienate the same. She has further sought the relief
that agreement dated 09.11.2011 be set-aside and on the
basis of the said agreement the sale deed dated 22.03.2013
be declared as void.
[3] During pendency of the suit, the defendant filed
an application under Order VI Rule 17 of CPC seeking
amendment in the counter claim which runs into 5 pages.
The learned Trial Court vide impugned order dated
04.02.2017 has rejected the application on the ground that
all these pleadings are already included by the defendant in
her counter claim and the said proposed amendment is not of
a nature to decide the real controversy between the parties.
Due to default in payment of regular rent, the right of
defence has already been closed.
[4] I have heard Shri R.N.Modi, learned counsel on
behalf of the petitioner and Shri M.L.Pathak, learned
counsel appearing on behalf of the Respondents suo motu.
[5] In the present suit the issues have already been
framed on 25.01.2016. The plaintiffs have filed their
affidavits by way of evidence on 20.06.2016 and they were
present for cross-examination on 24.11.2016 and
08.12.2016. The proceedings of the civil suit has already
commenced after framing of the issues and filing of
affidavits. Therefore, proviso to Order VII Rule 17 of CPC
has been attracted. The Trial Court has observed that the
facts pleaded in the proposed amendment were already in
the knowledge of the defendant because the documents to
that effect are already on record. Therefore, it is not a case
on discovery of new facts on which the amendment is
sought. By way of counter claim, the defendant has
challenged the title of the plaintiffs.
[6] Shri Pathak, learned counsel has placed reliance
on the judgment of Supreme Court in the case of Vidyabai
v/s Padmalatha [2009 (3) MPLJ 122], J.Samuel v/s Gattu
Mahesh [2012 (3) MPLJ 37], judgment of this Court in the
case of Nirmala Singh v/s Mahendra Pratap Sharma [2015
(3) MPLJ 93] and Mankunwarbai v/s Vinod Kumar [(2010
(4) MPLJ 643] in which it has been held that the amendment
cannot be allowed after the trial has commenced unless the
Court comes to a conclusion that in spite of due diligence
the the parties could not raise the matter before the
commencement of the trial.
[6] The most important fact is that the amendment is
sought only on the ground that Shri R.N.Modi, Advocate has
been engaged as counsel on 08.12.2016 and he has advised
for amendment after going through the plaint and counter
claim. Para 1 and 2 of the application are reproduced
below :-
"1& ;g fd mi;qZDr izdj.k esa izfroknh dh vksj ls i{k
leFkZu vfHkHkk"kd Jh iq:"kksRre lk- dj jgs Fks] muds LFkku
ij izfroknh us xr rkjh[k 08&12&2016 dks viuh vksj ls
Jh vkj-,u-eksnh vfHkHkk"kd dks i{k leFkZu gsrq fu;qDr fd;k
gSA
2& ;g fd vfHkHkk"kd Jh eksnh ds okn&i=] izfrokn&i= o
nLrkostksa ds fo'ks"k o foLr`r v/;;u ds i'pkr~ izfroknh ds
izdj.k esa fof/kd rFkk rF;kRed vfHkdFkuksa esa la'kks/ku djus
dh lykg iznku dhA rnuqlkj ;g la'kks/ku vkosnu&i=
izLrqr fd;k tk jgk gSA"
[7] The amendment cannot be allowed in the
pleadings only because of parties changed his counsel and in
the opinion of new counsel the amendment is necessary
which is beyond the purview of Order VII Rule 17 of CPC.
Therefore, the Trial Court has not committed any error while
rejecting the application. He has rightly exercised its
discretion.
[8] The petition stands dismissed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.6737 of 2017.
03.05.2017:-
Shri V.A.Katkani, learned counsel for the petitioners.
Shri Praveen Bhatt, learned counsel for the
Respondent.
Heard on the question of admission.
O R D E R
THE defendant Nos.1 to 3 have filed the present
petition being aggrieved by order dated 07.04.2016 by
which their application for deciding Issue Nos.4 and 5 as
preliminary issue has been rejected.
[2] The Respondent/plaintiff has filed the suit
against the present petitioners for recovery of
Rs.1,66,871-00. According to the plaintiff he is Contractor
of Acid Proof Brick Lining work and the resident of
Industrial Area, Ratlam. The defendant No.3 has made
contact on his mobile at Ratlam and gave a proposal for
Acid Proof Brick Lining work of his factory. The defendant
No.1 gave a work order dated 12.07.2014. The copy of the
work order was sent to his mobile number and on the basis
of the said work order, he started the work in the factory
premises. Most of the running bills have been paid, but the
payment of bills mentioned in para 6 of the plaint have not
been paid. Hence, the suit is filed for recovery of the said
amount. In para 12 of the plaint, the plaintiff has made
pleadings ion respect of territorial jurisdiction of Court at
Ratlam where the present suit is filed. On the basis of
pleadings, the Trial Court has framed 5 issues for
adjudication. The Issue Nos.4 and 5 are related with the
territorial jurisdiction of Civil Court and cause of action in
favour of the plaintiff. According to the petitioners, they
filed an application before the Trial Court for deciding Issue
Nos.4 and 5 as preliminary issue and the learned Trial Court
vide order dated 07.04.2016 has rejected the said application
on the ground that it would be necessary and proper to
decide alal the issues altogether looking to the facts and
circumstances of the case. Hence, the present petition.
[3] Shri V.A.Katkani, learned counsel on behalf of
the petitioners submitted that all the defendants are residents
of Udaipur. The work was executed by the plaintiff at
Udaipur. No cause of action arose at Ratlam. Therefore,
prima-facie the Court at Ratlam is not having any territorial
jurisdiction and this issue can be decided without any
evidence.
[4] Shri Praveen Bhatt, learned counsel on behalf of
the Respondent submits that the plaintiff received the work
order at Ratlam and the payment is required to be made at
Ratlam, therefore, the Civil Court at Ratlam is having
territorial jurisdiction.
[5] Admittedly all the defendants are residents of
Udaipur and the contents of para 12 of plaint in respect of
territorial jurisdiction of Ratlam is reproduced below :-
"12 ¼ckjg½ ;g gSa fd oknh jryke dk LFkkbZ fuoklh gSa ,oa
izfroknhx.k ds }kjk fd;s x;s dk;Z ds fy, t;sZ eksckbZy jryke esa gh
laidZ fd;k x;k] blfy, oknh ds lnj okn dks Jo.k djus dk
Jo.kkf/kdkj o fopkj.k djus dk {ks=kf/kdkj ekuuh; dks izkIr gksus
ls ;g okn izLrqr gSaA"
[6] According to the plaintiff, the Civil Court at
Ratlam is having jurisdiction because he is resident of
Ratlam and the defendant has contacted him through mobile.
Even this pleading is treated to be correct, no evidence is
required to decide this issue as preliminary issue. The Court
is required to decide the Issue No.4 about the territorial
jurisdiction under the provisions of Section 20 of CPC. So
far as Issue No.5 is concerned, the same cannot be decided
without evidence but the Issue No.4 can be decided without
evidence on the basis of the pleadings made in the plaint.
Therefore, the Trial Court has wrongly rejected the
application.
[7] In view of the above, the impugned order dated
07.04.2016 is hereby set-aside. The matter is remitted back
to the Trial Court to decide Issue No.4 as preliminary issue.
[8] Hence, the petition is partly allowed.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Second Appeal No.472 of 2015.
03.05.2017:-
Shri S.K.Meena, learned counsel for the appellant.
Heard on the question of admission.
O R D E R
THE present appeal is filed by the plaintiff being
aggrieved by judgment and decree dated 17.07.2013 passed
by Civil Judge, Class-II, Sardarpur, District Dhar and
judgment dated 06.08.2015 passed by Additional District
Judge, Sardarpur, District Dhar, by which civil suit as well
as first appeal both have been dismissed.
[2] In short, the facts of the case are as under :-
The plaintiff has filed the suit for declaration and
permanent injunction in respect of the land bearing Survey
Nos.351, 365, 367 and 368 area 3.615 hectare of Village
Songarh, Tehsil Sardarpur, District Dhar that he has acquired
title of ownership by way of adverse possession, therefore,
he be declared as owner and the defendants be restrained not
to interfere in his peaceful possession. According to the
plaintiff he is in possession since time of his fore father
which is more than 30 years. Therefore, he has perfected the
title as Bhumiswami.
[3] During the pendency of the suit, the defendants
remained ex-parte. On the basis of the pleadings, the Trial
Court has framed 4 issues in which the Issue No.1 was
whether the possession of the plaintiff over the suit land is
adverse to the defendants ? In support of the pleadings, the
plaintiff examined himself as PW-1; Roopa (PW-2) and
Baliya (PW-3). The plaintiff has also filed the Khasra
entries; payament of revenue receipts; electricity bill etc.
from Exs.P/21 to P/25. The learned Trial Court recorded the
finding in para 8 that the possession of the plaintiff is only
for the 19 years, therefore, he is not entitled for decree. Vide
judgment dated 17.07.2013, the suit was dismissed.
[4] Being aggrieved by dismissal of the suit, he
preferred first appeal before the Additional District Judge,
Sardarpur. The Additional District Judge has dismissed the
appeal. Hence, the present petition.
[5] Both the Courts have concurrently dismissed the
plaint of the appellant. In para 8 the learned Trial Court has
considered all the revenue record filed by the plaintiff in
which he has established that he is not in possession after
the year 1988. The plaintiff has himself admitted in evidence
that in the year 1988 the said land was leased out in favour
of Nana, who is father of defendants. Para 8 of the judgment
is reproduced below :-
" oknh ds dFkuks dk lw{erk ls voyksdu djus ij Li"V gksrk gS fd
tc og 20 lky dk Fk vkSj tkxhnkjh lekfIRk ds le; ls mldk dCtk Fkk
vkSj og oknxzLr Hkwfe dk yxku ljdkj dks nsrk FkkA vkt oknh dh vk;q 75
o"kZ dh gS blls Li"V gksrk gS fd oknxzLr Hkwfe ij oknh viuk dCtk 55 o"kZ ls
gksuk crkrk gS fdUrq oknh us oknxzLr Hkwfe losZ u- 351 iz0ih0 8 o"kZ 1978 ls
1983 dk [kljk iaplkyk is'k fd;k gS ftlesa dSfQ;r esa oknh dk uke vafdr gSa
losZ u- 365] iqjkuk losZ u- 1592 esa iz0ih0 6] o"kZ 1969 ls 1970 iz0ih0 8] o"kZ
1978 ls 1983] iz0ih0 14 o"kZ 1983 ls 1988] iz0ih0 16 o"kZ 1983 ls 1988]
[kljs [krkSuh is'k fd;s gS ftlds vuqlkj mDr losZ dz- 365 ij 1969 ls 1988
rd 19 lky rd oknh dk dCtk oknxzLr Hkwfe ij dkWye u- 12 dSfQ;r esa
vafdr gS mlh izdkj losZ u-367 es iz0ih0 8] o"kZ 1978 ls 1983] iz0ih0 9 esa
o"kZ 1969 ls 1974]"iz0ih0 10 es o"kZ 1969 ls 1974] iz0ih0 12 esa o"kZ 1974 ls
1978] iz0ih0 13 esa o"kZ 1979 ls 1983] iz0ih0 16 esa o"kZ 1983 ls 1988 rd
losZ dz- 367 ij yxHkx 19 lky rd oknh dk dCtk oknxzLRk Hkwfe ij dkWye
u- 12 dSfQ;r esa vafdr gS rFkk losZ dz 368 esa iz0ih0 14 esa o"kZ 1983 ls
1988 ] iz0ih0 15 esa o"kZ 1974 ls 1983 rd losZ dz- 368 ij yxHkx 19 lky
rd oknh dk dCtk oknxzLr Hkwfe ij dkWye u- 12 dSfQ;r esa vafdr gS fdUrq
mDr iz0ih0 2 esa o"kZ ls yxk;r 16 ds voyksdu ls Li"V gksrk gS fd lu~
1969 ls 1988 rd dh [kljk izof"V;k oknh us is'k dh gS ftlds vuqlkj
oknxzLr Hkwfe ij oknh dk dsoy 19 o"kZ dk dCtk nf'kZr gksrk gS fdUrq oknh us
o"kZ 1988 ds ckn ls vkt fnukad rd dksbZ [kljk izof"V;k dCts ds laca/k esa
is'k ugh dh gS A ;fn 1988 ds ckn [kljk izof"V;k is'k dh tkrh rks oknxzLr
Hkwfe ij fdldk dCtk gS U;k;ky; izhT;e'ku dj ldrh Fkh fdUrq oknh us Lo;a
vius dFku esa dgk gS fd 1988 ds ckn esa oknxzLr Hkwfe dk iV~Vk 'kklu us
ukuk uked O;fDr izfroknh dz- 1 o 2 ds firk dks ns fn;k FkkA "
[6] Even otherwise suit seeking decree of adverse
possession is not maintainable in the light of the judgment
of the Apex Court in the case of Gurudwara Sahib v/s
Gram Panchyat Village Sirthala, reported in 2014(3) MPLJ
36. The Apex Court has held that the suit is not maintainable
on the plea of adverse possession and that can be used as
defence in eviction proceedings. The Apex Court has also
held that if the possession is illegal, then at the most, he can
be removed after due process of law.
[7] When the suit for claiming decree on adverse
possession is not maintainable and the Apex Court has held
that the plaintiff at the most can take the defence in
ejectment proceedings. Therefore, I do not find any
substantial question of law is involved in this appeal. The
appeal is hereby dismissed. However, the plaintiff shall
have liberty to take the defence of adverse possession in the
suit filed against him.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1263 of 2017.
02.05.2017:-
Shri Sameer Athawale, learned counsel for the
petitioners.
Shri R.K.Pandagre, learned counsel for the Respondent
No.1.
Notices were not issued to L.Rs. of Respondent No.2
because Respondent No.2 was ex-parte before the Trial
Court.
Heard on the question of admission.
O R D E R
THE petitioners have filed the present petition
being aggrieved by order dated 15.02.2017 by which their
right to adduce evidence has been closed.
[2] On 15.02.2017 the trial was fixed for defendants'
evidence but instead of filing affidavit under Order XVIII
Rule 1 of CPC, the defendant Nos.2 and 3/petitioners have
filed an application under Order VII Rule 11 read with
Section 151 of CPC. Plaintiff filed the reply of the said
application and the case was fixed on 17.02.2017 for
arguments on application under Order VII Rule 11 of CPC.
On 17.02.2017 the application has been rejected.
[3] The petitioners have filed the present petition on
the ground that since they filed an application under Order
VII Rule 11 of CPC on 15.02.2017, therefore, they have not
filed the application under Order VII Rule 1 of CPC for
adjournment.
[4] Shri Pandagre, learned counsel on behalf of the
Respondent No.1/plaintiff submits that the defendant Nos.2
and 3/petitioners even did not file affidavit under Order
XVIII Rule 1 of CPC on the said date and earlier also
sufficient opportunities have already been granted to lead
the evidence. Therefore, no further opportunity is liable to
be granted to the petitioners.
[5] I have heard learned counsel for the parties.
[6] It is true that on 15.02.2017 the trial was fixed
for defendants' evidence but instead of filing affidavit,
defendant Nos.2 and 3 have filed an application under Order
VII Rule 11 of CPC. On the same day the plaintiff
submitted the reply to the said application and the Court has
fixed the case on 17.02.2017 for deciding the said
application. Since the defendants filed an application under
Order VII Rule 11 of CPC, therefore, they were under bona
fide impression that they are not required to file separate
application for adjournment because the Court has already
adjourned the case for deciding the said application. This is
bona fide mistake on behalf of the defendants. It has been
informed that though the suit is pending since last 5 years,
the plaintiff has concluded his evidence in the year 2016
itself. There is no delay on the part of defendant Nos.2 and
3. In the interest of justice, one opportunity is granted to the
defendant Nos.2 and 3 to adduce the evidence.
[7] In view of the above, the impugned order dated
15.02.2017 is set-aside. The defendant Nos.2 and
3/petitioners are directed to file affidavit of all his witnesses
before the Trial Court on or before 17.05.2017 thereafter the
Court shall fix a date for their cross-examination and
thereafter shall decide the suit by the end of July,2017.
[8] The petition stands allowed with the cost of
Rs.3,000-00 [Three Thousand Rupees] payable to the
District Bar Association, Jaora.
Cc as per rules.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.1708 of 2017.
02.05.2017:-
Shri Ashutosh Nimgaonkar, learned counsel for the
petitioners.
Shri Romesh Dave, learned Govt. Advocate for the
Respondent Nos.1 to 2/State.
Heard on the question of admission.
O R D E R
THE petitioners have filed the present petition
being aggrieved by order dated 21.02.2017 passed by the
State Government by which the State Government has fixed
the date of hearing on stay application after the date of
election.
[2] The Registrar, Firms & Societies vide order dated
02.02.2017 has directed Society Sheikh Nayata Jamat
Welfare Society, Dewas to conduct the election of office
bearers within a period of two months. Being aggrieved by
the order dated 02.02.2017, the petitioners preferred an
appeal under Section 40 of the M. P. Society Registration
Adhiniyam, 1973 before the Secretary, Commerce &
Industry along with an application for stay as scheduled on
16th March, 2017, but vide order dated 21.02.2017 instead of
hearing the application for stay before election, the hearing
was adjourned to 18.04.2017. Hence, the present petition
filed by the petitioners.
[2] Though the stay was not granted by this Court
while issuing notices to the Respondents of this writ
petition, but vide order dated 15.03.2017 it has been
observed that if any election held, same shall be subject to
the final out come of the writ petition.
[3] Thereafter the election has been held in pursuant
to the order dated 02.02.2017. Since election has been held,
therefore, this petition has rendered infructuous. However,
the appellate authority is directed to decide the appeal after
hearing all the parties, preferably within a period of 45 days
from today. The next date is fixed on 23.05.2017. Since the
elections have already made subject to the out come of the
writ petition, the same order shall continue and now the
election shall be subject to the out come of the appeal.
[4] The petition stands disposed of with aforesaid
observation.
[ VIVEK RUSIA ]
JUDGE
(AKS)
Writ Petition No.2900 of 2017 (S)
03.05.2017 :-
Shri S.R.Porwal, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy 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.2871 of 2017 (S) 03.05.2017 :-
Shri K.L.Purohit, learned counsel for the petitioner. Shri P.R.Bhatnagar, learned Deputy 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 her 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.13187 of 2013.
03.05.2017:-
Ms. Sangeeta Parsai, learned counsel for the petitioner. Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State.
Heard on I.A.No.6907/2016 and I.A.No.6908/2016 for bringing remaining legal heirs of Late Ramgopal on record. One of the legal heir has filed the present petition.
Considering the averments made in the applications, the same are allowed. Necessary amendment be incorporated in the cause-title. Vakalatnama of all the newly added petitioners be filed, if already not filed.
The petitioner to also require pay court-fee for each newly added petitioners.
IA No.6907/2016 and IA No.6908/2016 stand disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.21 of 2014.
03.05.2017:-
Shri R.K.Samdani, learned counsel for the appellant. None for the Respondent.
Shri Samdani submits that today he is filing reply of application for vacating stay [IA No.2038/2017].
Permission granted.
List after summer vacation.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.959 of 2014.
03.05.2017:-
Petitioner present in person. Shri Ashotush Nimgaonkar, learned counsel for the Respondents.
Vide order dated 21.12.2016 this contempt petition has been directed to be listed for final hearing under appropriate caption.
Office is directed to comply the order. List this petition after summer vacation in the week commencing 3rd July, 2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1730 of 2014.
03.05.2017:-
Shri Rohit Gupta, learned counsel for the petitioner. Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State.
Heard on I.A.No.2389/2017, an application for withdrawal of the writ petition.
The petitioner has filed the present petition seeking regularization into the service on the post of Workshop Attendant. Now the State Government has issued a Circular dated 07.10.2016 by which all the departments have been directed to classify the daily rated employee as "permanent employee" in respective categories.
The petitioner prays for withdrawal of this petition as the Respondents have assured him that his case would be considered in the light of the Circular dated 07.10.2016.
In view of the above, the present petition is dismissed as withdrawn with liberty to the petitioner to approach again, if occasion so arises.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.182 of 2015.
03.05.2017:-
Shri R.K.Samdani, learned counsel for the appellant. Shri Pankaj Jain, learned counsel for the Respondent. Heard on I.A.No.8265/2015, an application under Order XXII Rule 3 of CPC.
During the pendency of this appeal, the sole appellant has expired and application is moved by the daughter of the appellant on the basis of the Will executed in her favour by the appellant. On the basis of the Will, the name of Smt. Sakeena, present applicant, has been mutated in the revenue record.
Counsel for the Respondent submits that there are 3 other daughters of the deceased.
Shri Samdani submits that they have given a consent for which I.A.No.219/2016 has been filed.
At the risk and cost of the applicant, IA No.8265/2015 is allowed. The name of Smt. Sakeena be impleaded as legal heir of the appellant.
IA No.8265/2015 and IA No.219/2016 stand disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.230 of 2015.
03.05.2017:-
Smt. Rekha Shrivastava, learned counsel for the appellants.
Shri Virendra Khadav, learned counsel for the Respondents.
Heard on IA No.4152/2015, an application under Section 5 of the Limitation Act.
As per office objection there is a delay of 73 days. Notices were issued to the Respondents and the Respondents have filed the reply opposing the said application.
On affidavit appellants have submitted that the appellant No.1 is aged person unable to move and the appellant No.2 was suffering from jaundice, therefore, they could not contact their counsel which has caused the delay of 73 days. The application is supported by affidavit.
Consideration the averments made in the application [IA No.4152/2015], the same is allowed. The delay is hereby condoned.
Record of Courts below be requisitioned. List the appeal for admission after receipt of records.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.2041 of 2015.
03.05.2017:-
Shri R.T.Thanewala, learned counsel for the appellant. Shri Vinay Gandhi, learned counsel for the Respondent Nos.1 to 4.
Shri Sajid Ansari, learned counsel for the Respondent No.5.
All parties served.
With the consent of parties, list on 13.07.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Civil Case No.515 of 2016.
03.05.2017:-
Shri Himanshu Joshi, learned Panel Lawyer for the applicants/State.
Ms. Meghna Jain, learned counsel for the Respondent. Applicants are directed to supply copy of MCC and IA to counsel for the Respondent within 3 days.
List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.1049 of 2016.
03.05.2017:-
Shri J.M.Poonegar, learned counsel for the appellant. Service report of Respondent Nos.1 and 2 have not been received so far.
List after service is effected.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.1280 of 2016.
03.05.2017:-
Parties through their counsel. As prayed by counsel for the appellant, list after Summer Vacation.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.53 of 2017.
03.05.2017:-
Shri Siddharth Jain, learned counsel for the appellants. Heard on I.A.No.1803/2017, 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) Writ Petition No.145 of 2017.
03.05.2017:-
Shri Mitesh Patidar, learned counsel for the petitioner. The delay of 5 days in payment of process fee is condoned.
Office is directed to issue notice. IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.226 of 2017.
03.05.2017:-
Shri Gopal Yadav, learned counsel for the appellant. Record of Courts below be requisitioned. List the appeal for admission along with the records.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2779 of 2017.
03.05.2017:-
Shri V.K.Jain, learned counsel for the petitioner. Shri Rishi Tiwari, learned counsel for the Respondent No.2, on advance copy.
Heard on the question of admission. Issue notice to the Respondents. At this stage Shri Rishi Tiwari accepts notice on behalf of Respondent No.2 and submits that the pending representation of the petitioner has been rejected vide order dated 12.04.2017. Copy of the same has been handed over to Shri V.K.Jain, Advocate.
Shri Jain is directed to supply complete set of writ petition to Shri Rishi Tiwari.
Shri Tiwari prays for short time to seek instructions on the question of interim relief.
Let the notice be issued to Respondent Nos.1 and 3 only on payment of process fee by tomorrow, returnable in 4 weeks.
List on 11.05.2017 for consideration of interim relief as the same is being sought only against the Respondent No.2.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2887 of 2017.
03.05.2017:-
Shri Palash Choudhary, learned counsel for the petitioner.
As prayed, list after a week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2893 of 2017.
03.05.2017:-
Shri Palash Choudhary, learned counsel for the petitioner.
List after a week.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.424 of 2007.
03.05.2017:-
None for the appellants.
Shri V.K.Gangwal, learned counsel for the Respondent.
List on 09.05.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Criminal Appeal No.958 of 2010.
03.05.2017:-
Shri P.Shrivastava, learned counsel for the appellant. Shri Himanshu Joshi, learned Panel Lawyer for the Respondent/State.
Appellant did not appear before the Registry on 01.05.2017.
Let the appellant file an application for condonation of non appearance within ten days.
[ VIVEK RUSIA ] JUDGE (AKS) Criminal Appeal No.142 of 2012.
03.05.2017:-
Parties through their counsel. Report of bailable warrant is awaited.
[ VIVEK RUSIA ] JUDGE (AKS) Criminal Revision No.516 of 2017.
03.05.2017:-
Shri Neelesh Agrawal, learned counsel for the applicant.
Issue notice of I.A.No.3466/2017 to the Respondent on payment of process fee within 3 days.
Till the next date of hearing, the applicant shall pay Rs.12,000-00 per month as monthly maintenance to the Respondent.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) W.P.Nos.5157, 5171, 5523, 5524 and 5526 of 2015.
03.05.2017:-
Shri Vishal Baheti, learned counsel for the petitioner. Shri H.Y.Mehta, learned counsel for the Respondents. As prayed Shri Mehta, list on 16.05.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5305 of 2015.
03.05.2017:-
Shri Lokendra Joshi, learned counsel for the petitioner. Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent No.1/State.
Shri M.S.Dwivedi, learned counsel for the Respondent Nos.2 to 5.
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.6145 of 2015.
03.05.2017:-
Parties through their counsel. Counsel for the Respondents 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.6969 of 2015.
03.05.2017:-
Parties through their counsel. 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.7324 of 2015.
03.05.2017:-
Shri R.N.Modi, learned counsel for the petitioners. Shri B.L.Jain, learned counsel for the Respondent Nos.1 to 4.
Shri Yogesh Purohit, learned counsel for the Respondent No.8.
Office is directed to give the service report about the service of notice to L.R. No.5.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8289 of 2015.
03.05.2017:-
None for the petitioner.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.38 of 2016.
03.05.2017:-
Shri S.Tiwari, learned counsel for the appellant. As prayed, list after four weeks to argue on admission.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.219 of 2016.
03.05.2017:-
Parties through their counsel. Learned Deputy Govt. Advocate Shri Bhatnagar submits that today he has filed the reply.
Office is directed to place the same on record. List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.321 of 2016.
03.05.2017:-
Shri A.S.Kutumbale, learned Senior Counsel with Shri M.R.Sheikh, learned counsel for the appellant.
Shri V.K.Jain, learned counsel for the Respondent. As prayed, list after two weeks. IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.344 of 2016.
03.05.2017:-
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) Second Appeal No.422 of 2016.
03.05.2017:-
Shri D.C.Patel, learned counsel for the appellants. Shri Iqbal Khan, learned counsel for the Respondents. Counsel for the Respondents submits that despite the order, the appellants have not deposited the arrears of rent.
Conditional stay was granted to the appellants vide order dated 24.08.2016.
Let the Executing Court decide whether rent has been deposited or not. If the rent has not been deposited, then the Executing Court is free to execute the decree.
List after four weeks to argue on admission.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.495 of 2016.
03.05.2017:-
Shri A.K.Sethi, learned Senior Counsel with Shri Manoj Manav, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent Nos.1 and 2/State.
Shri M.S.Dwivedi, learned counsel for the Respondent No.3.
List in the next week before another Bench.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.800 of 2016.
03.05.2017:-
Shri Sumeet Samvatsar, learned counsel for the petitioner.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State.
Return has been filed.
Shri Samvatsar appearing for the petitioner prays for four weeks' time to file rejoinder.
Time is granted.
List after four weeks.
IR top continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.805 of 2016.
03.05.2017:-
Ms. Meghna Jain, learned counsel for the appellants. Shri Virendra Khadav, learned counsel for the Respondent Nos.1 and 2.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent No.3/State.
At the request of counsel for the appellants, list on 17.05.2017.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.844 of 2016.
03.05.2017:-
Parties through their counsel. IA No.1256/2017 has already been decided vide order dated 22.04.2017.
List after Summer Vacation.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.472 of 2015.
03.05.2017:-
Shri S.K.Meena, learned counsel for the appellant. Heard on the question of admission.
O R D E R THE present appeal is filed by the plaintiff being aggrieved by judgment and decree dated 17.07.2013 passed by Civil Judge, Class-II, Sardarpur, District Dhar and judgment dated 06.08.2015 passed by Additional District Judge, Sardarpur, District Dhar, by which civil suit as well as first appeal both have been dismissed.
[2] In short, the facts of the case are as under :-
The plaintiff has filed the suit for declaration and permanent injunction in respect of the land bearing Survey Nos.351, 365, 367 and 368 area 3.615 hectare of Village Songarh, Tehsil Sardarpur, District Dhar that he has acquired by way of adverse possession, therefore, he be declared as owner and the defendants be restrained not to interfere in his peaceful possession. According to the plaintiff he is in possession since fore father since last 30 years. Therefore, he has perfected the title as Bhumiswami.
[3] During the pendency of the suit, the defendants remained ex-parte. On the basis of the pleadings, the Trial Court has framed 4 issues in which the Issue No.1 was whether the possession of the plaintiff over the suit land is adverse to the defendants ? In support of the pleadings, the plaintiff examined himself as PW-1; Roopa (PW-2) and Baliya (PW-3). The plaintiff has also filed the Khasra entries; payament of revenue receipts; electricity bill etc. from Exs.P/21 to P/25. The learned Trial Court recorded the finding in para 8 that the possession of the plaintiff is only for the 19 years, therefore, he is not entitled for decree. Vide judgment dated 17.07.2013, the suit was dismissed.
[4] Being aggrieved by dismissal of the suit, he preferred first appeal before the Additional District Judge, Sardarpur. The Additional District Judge has dismissed the appeal. Hence, the present petition.
[5] Both the Courts have concurrently dismissed the plaint of the appellant. In para 8 the learned Trial Court has considered all the revenue record filed by the plaintiff in which he has established that he is in possession ................ not 1988. The plaintiff has himself admitted that in the year 1988 the said land was leased out in favour of Nana, who is father of defendants. Para 8 of the judgment is reproduced below :-
" oknh ds dFkuks dk lw{erk ls voyksdu djus ij Li"V gksrk gS fd tc og 20 lky dk Fk vkSj tkxhnkjh lekfIRk ds le; ls mldk dCtk Fkk vkSj og oknxzLr Hkwfe dk yxku ljdkj dks nsrk FkkA vkt oknh dh vk;q 75 o"kZ dh gS blls Li"V gksrk gS fd oknxzLr Hkwfe ij oknh viuk dCtk 55 o"kZ ls gksuk crkrk gS fdUrq oknh us oknxzLr Hkwfe losZ u- 351 iz0ih0 8 o"kZ 1978 ls 1983 dk [kljk iaplkyk is'k fd;k gS ftlesa dSfQ;r esa oknh dk uke vafdr gSa losZ u- 365] iqjkuk losZ u- 1592 esa iz0ih0 6] o"kZ 1969 ls 1970 iz0ih0 8] o"kZ 1978 ls 1983] iz0ih0 14 o"kZ 1983 ls 1988] iz0ih0 16 o"kZ 1983 ls 1988] [kljs [krkSuh is'k fd;s gS ftlds vuqlkj mDr losZ dz- 365 ij 1969 ls 1988 rd 19 lky rd oknh dk dCtk oknxzLr Hkwfe ij dkWye u- 12 dSfQ;r esa vafdr gS mlh izdkj losZ u-367 es iz0ih0 8] o"kZ 1978 ls 1983] iz0ih0 9 esa o"kZ 1969" "
[6] Even otherwise suit seeking decree of adverse possession is not maintainable in the light of the judgment of the Apex Court in the case of Gurudwara Sahib v/s Gram Panchyat Village Sirthala, reported in 2014(3) MPLJ 36, has held that the suit is not maintainable on the plea of adverse possession and that can be used as defence in eviction proceedings. The Apex Court has also held that if the possession is illegal, then at the most, he can be removed after due process of law. In the present case, Naib Tehsildar has already initiated the proceedings under section 248 of the M.P.L.R. Code, therefore, the State Government is following the procedure as contemplated under the MPLR Code and therefore, the petitioner is not having prima facie case and both the Courts have rightly declined the relief of temporary injunction.
[7] When the suit for claiming decree on adverse possession, the Apex Court has held that the plaintiff at the most can take the defence in ejectment proceedings. Therefore, I do not fine any substantial question of law is involved in this appeal. The appeal is hereby dismissed. However, the plaintiff shall have liberty to take the defence of adverse possession in the suit filed against him.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.182 of 2016.
03.05.2017:-
Shri N.S.Rathore, learned counsel for the appellant. As prayed by Shri Rathore, list for admission after Summer Vacation.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.462 of 2016.
03.05.2017:-
Shri Himanshu Joshi, learned counsel for the petitioner.
As prayed by Shri Joshi, list for admission after Summer Vacation.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.585 of 2016.
03.05.2017:-
Shri A.S.Parihar, learned counsel for the petitioner. As prayed by Shri Parihar, list for admission after Summer Vacation.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1016 of 2016.
03.05.2017:-
Parties through their counsel. At the request of Shri Praveen Bhatt, learned counsel for the petitioner, list after Summer Vacation.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4272 of 2016.
03.05.2017:-
Shri Zishan Khan, 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.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6494 of 2016.
03.05.2017:-
Shri S.K.Meena, 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 three days, returnable within four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.86 of 2017.
03.05.2017:-
Shri R.P.Joshi, learned counsel for the petitioner. Counsel for the petitioner is directed to supply copy of writ petition to Shri G.S.Patwardhan who is present in Court.
Shri Patwardhan is directed to file reply within four weeks.
List thereafter.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.108 of 2017.
03.05.2017:-
Shri B.L.Jain, learned counsel for the appellant. Shri Jain prays for time to go through the record of both the Courts.
Prayer is allowed.
List immediately after summer vacation for admission.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.215 of 2017.
03.05.2017:-
Shri Manish Manana, learned counsel for the appellant.
Record of both the Courts below are awaited. Shri Manana submits that the possession warrant has been issued, therefore, till the records are received, the possession of the appellant be protected.
Issue notice of IA No.2568/2017 to the Respondents on payment of process fee within three working days.
Till the next date of hearing, the execution of judgment and decree in respect of possession shall remain stayed. The appellant to comply the money part of the decree.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.134 of 2017.
03.05.2017:-
Shri S.Dwivedi, learned counsel for the appellants. Record of both the Courts below be requisitioned. List immediately after receipt of records for admission.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.221 of 2017.
03.05.2017:-
Shri Vinay Vijayvargiya, learned counsel for the appellant.
Record of both the Courts below be requisitioned. List immediately after receipt of records for admission and for consideration of IA No.2663/2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.528 of 2017.
03.05.2017:-
Parties through their counsel. Smt. Rekha Shrivastava, learned counsel for the petitioners submits that the suit itself has been dismissed on merit, therefore, the petition is rendered infructuous.
Accordingly, this petition is dismissed as having been rendered infructuous.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.837 of 2017.
03.05.2017:-
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.1235 of 2017.
03.05.2017:-
Shri Pramod Meetha, learned counsel for the petitioner.
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.1656 of 2017.
03.05.2017:-
Shri Ravindra Upadhyay, learned counsel for the petitioner.
Heard on the question of admission. At present, issue notice to the Respondent Nos.1 to 10 only on payment of process fee within three working days, returnable within four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.887 of 2017.
02.05.2017:-
Smt. Swati Ukhale, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State.
Counsel for the petitioner prays for two weeks' time to file rejoinder.
Time granted.
List immediately after summer vacation in the week commencing 19th June, 2017.
IR to continue till the next date of hearing. I.A.No.1798/2017 has rendered infructuous as the Respondents have filed the return. Accordingly IA is dismissed. The petitioner is not required to pay process fee.
IA No.1798/2017 stands disposed of. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1645 of 2017.
02.05.2017:-
Shri M.A.Khan, learned counsel for the petitioner. As prayed, list in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2619 of 2017.
25.04.2017:-
Shri A.S.Parihar, learned counsel for the petitioner. 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 by tomorrow, failing which the writ petition shall stand dismissed without reference to this Court.
Notice be made returnable within ten days. List the matter on 19.05.2017 along with Writ Petition No.2552 of 2017.
Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2745 of 2017.
02.05.2017:-
Parties through their counsel. Counsel for the Respondents prays for and is granted time to file additional reply to the rejoinder.
List on 28.06.2017 along with Writ Petition No.2835 of 2016.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1184 of 2016.
02.05.2017:-
Parties through their counsel. Counsel for the Respondents prays for and is granted time to file additional reply to the rejoinder.
List on 28.06.2017 along with Writ Petition No.2835 of 2016.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6466 of 2016.
02.05.2017:-
Shri Amit Pal, learned counsel on behalf of Shri Pourush Ranka, learned counsel for the petitioner.
Shri Rishabh Sethi, learned counsel for the Respondent No.1.
None for the Respondent Nos.2 to 5, though served by way of HUMDAST notice.
Shri Romesh Dave, learned Govt. Advocate for the Respondent Nos.7 to 11/State.
As prayed by Shri Sethi, list on 11.05.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6826 of 2016.
02.05.2017:-
Shri Ranjeet Sen, learned counsel for the petitioner. Shri Romesh Dave, 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.8601 of 2016.
02.05.2017:-
Parties through their counsel. Shri C.B.Patne, learned counsel for the Respondent No.5 prays for and is granted one week's time to file reply.
List after one week.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Civil Case No.82 of 2017.
02.05.2017:-
Parties through their counsel. Both the parties submit that in Mediation proceedings settlement has been arrived in which the Respondent has agreed to pay Rs.1,00,000-00 as a full and final settlement. Counsel for the Respondent submits that Respondent could not arrange the money for which he prays for four weeks' time. The parties are required to file an application under Section 13-B of the Hindu Marriage Act before the Family Court at Indore.
They are free to file an appropriate application before the Family Court. If such an application is filed before the Family Court, the Family Court is directed to consider the said application on its merit and for which the stay order dated 10.02.2017 will not come in the way and same is hereby modified to that extent.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.96 of 2017.
02.05.2017:-
Shri Anand Bhatt, learned counsel for the petitioner. Shri Prateek Patwardhan, learned counsel for the Respondents.
Counsel for the petitioner is directed to supply one set of contempt petition to Shri Patwardhan.
Shri Patwardhan is directed to seek instructions and file the compliance report.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.101 of 2017.
02.05.2017:-
Smt. Bhagyashri Sugandhi, learned counsel for the petitioner.
Shri Romesh Dave, learned counsel for the Respondent.
Counsel for the Respondents prays for two weeks' time to file compliance report/reply.
Time granted.
List on 18.05.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.244 of 2017.
02.05.2017:-
Shri Vivek Phadke, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State.
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.324 of 2017.
02.05.2017:-
Parties through their counsel. Counsel for the Respondents 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.443 of 2017.
02.05.2017:-
Shri V.P.Bhagwat, learned counsel for the petitioner. Let fresh process fee be paid by RAD mode within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.655 of 2017.
02.05.2017:-
Parties through their counsel. Shri Akshat Pahadiya, learned 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.695 of 2017.
02.05.2017:-
Parties through their counsel. Counsel for the Respondent prays for and is granted four weeks' time to file reply.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.713 of 2017.
02.05.2017:-
Parties through their counsel. As prayed by counsel for the Respondents, time is granted.
List after Summer vacation.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.993 of 2017.
02.05.2017:-
Shri M.S.Dwivedi, learned counsel for the petitioner. Shri Romesh Dave, 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.998 of 2017.
02.05.2017:-
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.1420 of 2017.
02.05.2017:-
Shri Ranjeet Sen, learned counsel for the petitioners. Shri Romesh Dave, learned Govt. Advocate for the Respondent/State seeks time to file the reply.
Time granted.
List after Summer Vacation.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1655 of 2017.
02.05.2017:-
Parties through their counsel. Counsel for the Respondent No.5 prays for and is granted four weeks' time to file the return.
List after four weeks.
IR to continue till the next date of hearing. Cc as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1849 of 2017.
02.05.2017:-
Shri Santosh Pandey, learned counsel for the petitioner. Shri Romesh Dave, learned Govt. Advocate for the Respondents/State.
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.1218 of 2017.
02.05.2017:-
Shri Prateek Patwardhan, learned counsel for the petitioner.
Shri Lokendra Joshi, learned counsel for the Respondent.
Counsel for the Respondent submits that today he is filing the return.
Permission granted.
Office is directed to place the same on record. Shri Patwardhan submits that the Labour Court has fixed the case for evidence on 05.05.2017.
List tomorrow i.e. 03.05.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.526 of 2008.
17.04.2017:-
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the appellants/State.
Shri Vishal Baheti, learned counsel for the Respondent No.1 - Bhagwan.
Heard on I.A.No.7300/2008, an application for condonation of delay in filing this appeal.
O R D E R THE State Government (appellants) has filed the present second appeal being aggrieved by judgment dated 16.05.2003 passed in Civil First Appeal No.28/2003 and judgment dated 21.07.2005 passed by 14th Civil Judge, Class-I, Indore in Civil Suit No.10-A/2003.
[2] Respondents Pannalal and Bhagwan filed the suit for declaration and permanent injunction against the State Government that they have become owner of land situated in Village Niranjanpur, Tehsil and District Indore bearing Survey No.235 area 5 bigha (0.025 hectare) by way of adverse possession and the defendants be restrained from interfering their peaceful possession. The plaintiffs and their ancestors were engaged in the business of bricks manufacturing over the suit land since last 50 years. Since their continuous and uninterrupted possession is more than 30 years, therefore, their right have been perfected as Bhumiswami. On 20.09.1995 the Revenue Authorities has tried to evict them from the suit property which give them cause of action to file the suit. After notice, the written statement was filed in which it is submitted that the said land is recorded in the revenue record as Charnoi land and the plaintiffs are trying to encroach over the Government land and under Sections 57 and 114 of the M. P. Land Revenue Code the jurisdiction lies with Revenue Court and the present suit is not maintainable. The present value of the land is Rs.9,17,980-00. Vide judgment dated 21.07.2005 the suit was dismissed as the plaintiffs have failed to prove their possession since 1946.
[3] Being aggrieved by dismissal of the suit, Bhagwan s/o Pannalal filed the First Appeal No.52-A/2005 before the District Judge. Vide judgment dated 29.07.2006 appeal was dismissed. Thereafter the plaintiff filed Second Appeal No.817 of 2006 and vide order dated 12.03.2007, second appeal was dismissed. This suit was pertaining to the land bearing Survey No.235.
[4] Pannalal and Bhagwan have also filed another suit which was registered as Civil Suit No.210-A/1996 for the land bearing Survey No.113 area 1.659 hectare situated at Village Kabitkhedi, Indore claiming title by way of adverse possession. In the second suit, the State Government remained ex-parte and vide judgment and decree dated 12.02.1997 the suit was decreed. Being aggrieved by the aforesaid judgment and decree, on 27.07.2000 the appellants preferred appeal before the District Judge along with an application under Section 5 of the Limitation Act. The appeal was registered as First Appeal No.28/2003 which was barred by 1230 days.
[5] Vide order dated 16.05.2003 the first appellate Court has condoned the delay subject to the cost of Rs.5,000-00. The appellants did not deposit the said cost, therefore, vide order dated 02.08.2003 the appeal was dismissed. The appellants filed Civil Revision No.483 of 2003 before this Court on 19.09.2003.
[6] Vide order dated 11.08.2005 civil revision was dismissed as not maintainable and the appellants/State were given liberty to challenge the impugned order before the appropriate forum. The appellants were also permitted to take back the certified copy of the impugned order dated 02.08.2003.
[7] After taking the aforesaid liberty, the present second appeal was filed by the State on 19.07.2008 i.e. delayed by 1733 days.
[8] Vide order dated 17.01.2011 this Court has directed the State Government to file an affidavit as to what action they have taken against the erring officer who were responsible for not filing the appeal in time. The said order has not been complied till today.
[9] Vide order dated 13.03.2014 this Court directed to explain the reason for obtaining the certified copy of the impugned order after 2 years 11 months and also directed to comply the order dated 17.01.2011. Again vide order dated 10.04.2014 this Court has observed that the certified copy of the impugned judgment has been received by the Office of Advocate General on 26.07.2008 and it is not clear how they have taken 2 years 11 months to receive the impugned judgment against which the appeal is filed. [10] Officer-in-charge of the Case has filed an affidavit in support of application under Order XLI Rule 5 of CPC submitting that the copy of order dated 11.08.2005 was received on 24.07.2008. An application for obtaining the copy of the order dated 11.08.2005 was submitted on the same day and the same was received on 24.07.2008 and thereafter the present appeal was filed on 28.07.2008. Therefore, the time spent in obtaining the certified copy may be condoned. Thereafter the Sub Divisional Magistrate (Nazul), Indore has filed an additional affidavit on 30.01.2016 in which also no satisfactorily explanation has been given.
[11] I have heard Shri P.R.Bhatnagar, learned Deputy Govt. Advocate on behalf of the appellants/State and Shri Vishal Baheti, learned counsel on behalf of Respondent No.1 - Bhagwan.
[12] There was an ex-parte decree against the appellants on 12.02.1997 and the State preferred first appeal which was barred by 1230 days. Despite the huge delay, the first appellate Court has condoned the delay subject to deposit of cost of Rs.5,000-00. The State Government has failed to deposit the cost, therefore, the first appellant Court had no option but to dismiss the appeal vide judgment dated 02.08.2003. The Government has preferred Civil Revision within time on 19.09.2003 which remained pending for 2 years and vide order dated 11.08.2005 the revision was dismissed with liberty to file second appeal and they were permitted to take back the certified copy of the impugned judgment. Therefore, they were only required to collect the certified copy from the office of this Court. They were even not required to obtain fresh certified copy of the impugned judgment from District Court. Despite that they filed second appeal on 19.07.2008 which was delayed by almost 3 years (1733 days); whereas the period of limitation is 90 days.
[13] The State Government has not only filed the second appeal before this Court within time but they filed the first appeal before the District Court with a delay of 1230 days. The first appellate Court allowed the application subject to deposit of cost of Rs.5,000-00. The State Government even did not deposit the said cost and the first appeal was dismissed as time barred. Despite direction given by this Court, the State Government did not file any affidavit to show what action they have took against the erring officer. There is no explanation also for not depositing the cost of Rs.5,000-00 before the first appellate Court. This is glaring example of negligence on the part of State Government.
[14] The dismissal of the appeal was very much within the knowledge of the Government as they preferred civil revision within time. The civil revision was dismissed vide order dated 11.08.2005 with a liberty to file second appeal. They were only required to take back certified copy of the impugned judgment dated 02.08.2003 from the office of this Court and file second appeal but they filed second appeal in the same Court with a delay of 1733 days. It is not the case that they had no knowledge about passing of order in civil revision because the civil revision was filed by the appellants themselves. Despite direction of this Court, they did not inform the Court what action they have took against the erring officer. It can safely be held that there is inadequate and unsatisfactory delay in filing the second appeal. The Officers of the State Government are highly negligence in pursuing the appeal either before the first appellate Court or before this Court. Till today they have not inform this Court also what action they took against the erring officer.
[15] The Apex Court in the case of M. P. Matsya Maha Sangh v/s Sudheer Kumar, reported in (2010) 15 SCC 179, held that the appellate Court has rightly refused to condone the delay of 948 days because the officers were negligence in causing the delay. The operative portion of the order is reproduced below :-
"7. As there is no satisfactory explanation for the neglect and delay, we put a specific question to the learned counsel for the petitioner as to what action had been taken with reference to the alleged negligence on the part of Chandrakant Nikam and why no material had been place before the High Court in that behalf. The learned counsel for the petitioner had no specific answer, but handed over a copy of a letter dated 16.08.2007, said to have been addressed by the petitioner to Chandrakant Nikam referring to his failure to intimate the progress of the suit on a regular basis and calling for his explanation. The learned counsel for petitioner was however not in a position to explain what happened after such show cause notice. Thus, petitioner in a vague manner has sought to place the entire blame on one of its officers, namely Chandrakant Nikam, but without initiating any disciplinary proceedings or without taking other action to fix the responsibility. Significantly the records of these SLPs show that Chandrakant Nikam, Assistant Engineer of petitioner continues to be the officer-in-charge of all these cases even now. An application (IA No.7 - 8) filed by the petitioner, as late as 7.10.2009, seeking permission to file additional documents in supported by an affidavit sworn to by Chandrakant Nikam as the officer-in-charge of these cases as on 6.10.2009. This clearly shows that the petitioner did not consider him to be negligent, but found him fit to continue as the officer-in-charge of these cases. The learned counsel had no explanation for this strange conduct on the part of the petitioner."
[16] In the case of Maniben Devraj Shah v/s Municipal Corporation of Brihan Mumbai, reported in (2012) 5 SCC 157, the apex Court has held that the liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act. If, on the other hand, the explanation given by the appellant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would not required to be condoned. Even in case where the State is litigant, no premium can be given for total lethargy or utter negligence on the part of the officers of the State. Para 18 of the order is reproduced below :-
"18. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies / instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."
(Emphasis supplied).
[17] In view of the law laid down, in the present case it can safely be held that the officers of the State Government are thoroughly negligent in prosecuting the case. They filed the appeal with the delay of 1230 days before the first appellate Court. Thereafter when the delay was condoned, they did not deposit the cost and appeal was dismissed. Thereafter they wrongly filed civil revision which was permitted to be withdrawn with liberty to file second appeal. The Court has directed to return the certified copy of the impugned judgment, they took 3 years in obtaining same certified copy from the record of High Court to file second appeal. No explanation has been given. No action has been taken against the erring officers. Therefore, this Court has no option but to dismiss the application for condonation of delay.
[18] This appeal is pending since 2008. More than 9 years have been passed. The State did not pursue their application for condonation of delay for 9 years. There is no justification to condone the delay after 9 years and heard the appeal on admission.
[19] Accordingly the appeal is dismissed.
[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.549 of 2010.
17.04.2017:-
Shri A.S.Garg, learned Senior Counsel with Ms. Swati Sharma, learned counsel for the appellant.
Shri Vinay Gandhi, learned counsel for the Respondent Nos.1 to 3.
Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondent No.4/State.
Heard on the question of admission. The appeal is admitted for final hearing on the following substantial questions of law :-
(i) Whether the findings of the Courts below that partition receipt dated 25/05/2001 signed by both the parties is not admissible in evidence are perverse because it was not a partition deed but was acknowledgment of oral partition ?
(ii) Whether the lower appellate Court was justified in setting aside the judgment and decree passed by the Trial Court ?
(iii) Whether the finding of the learned lower appellate Court that agricultural suit lands are not Joint Hindu Family properties is perverse in light of the partition receipt dated 25/05/2001 and evidence on record ?
(iv) Whether the appellant is entitled for 1/4 th share in suit agricultural lands after the death of Respondent No.1 Jagannath during the pendency of this appeal ?"
Since the Respondents have already been marked their presence, no notice is necessary.
The appellant is directed to supply copy of Memo of Appeal along with questions of law formulated by this Court to the counsel for the Respondents within seven days.
List this appeal for final hearing in due course. Certified copy as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.160 of 2017.
28.04.2017:-
Shri V.K.Jain, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondent No.1/State.
Shri Vivek Phadke, 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 22.07.2016 passed by Collector, Mandsaur by which Resolution No.340 dated 10.02.2014 passed by the Municipal Council, Mandsaur has been set-aside.
[2] That Shri Pashupatinath Mandir is a Public Trust and the Collector is Manager of Trust and Respondent No.2 is a Pujari of the said Mandir. The Municipal Council organizing the Mela over the vacant land of Mandir with the prior permission of the Collector for which the Pujari of the said Mandir is demanding compensation from the Municipal Council. Vide Resolution No.340 dated 10.02.2014 Municipal Council has decided not to give any compensation to the Pujari i.e. Respondent No.2.
[3] Being aggrieved by the aforesaid resolution, Respondent No.2 filed an appeal under Section 308 of the M. P. Municipalities Act, 1961. The said appeal was registered as Case No.20/Appeal/14-15. Notices were issued to the petitioner. Though the appeal was filed under Section 308 (1) of the M. P. Municipalities Act, 1961 but the Collector has entertained the said appeal under Section 307 (1) of the M. P. Municipalities Act, 1961. After considering the appeal on merit, vide order dated 22.07.2016, the Collector has set-aside the Resolution No.340 dated 10.02.2014. Hence, the present petition.
[4] Shri V.K.Jain, learned counsel on behalf of the petitioner submits that the Collector has no authority and power under Section 307 of the M. P. Municipalities Act, 1961 to set-aside the resolution. He has only power under Section 323 of the M. P. Municipalities Act, 1961 to suspend the resolution but that has not been done in the present case. Hence, the order is beyond authority and liable to be set- aside.
[5] Shri Vivek Phadke, learned counsel on behalf of the Respondent No.2 tried to justify the action of the Collector that the order may be treated as passed under Section 323 of the M. P. Municipalities Act, 1961 and the Collector be directed to forward the same to the State Government under sub-section (2) of Section 323 of the M. P. Municipalities Act, 1961.
[6] Shri Rohit Mangal, learned Govt. Advocate on behalf of the Respondent No.1/State submits that in given circumstances looking to the facts of the case in totality, the Collector has passed the order which is just and proper.
[7] Provisions of Section 307 of the M. P. Municipalities Act, 1961 is reproduced below :-
"307. Appeal against orders of President and Chief Municipal Officer.-- (1) In the case of Municipal Council any person aggrieved by--
(a) a notice or order issued or other action taken by the President under Sections 183 (5) (a) and (b), 184, 190, 203, 205, 206, 207, 209, 210, 211, 213, 229 and 283 or any rules or bye laws made for the purpose of the said sections for any order made appealable by such rules or bye-law or any order granting or refusing to grant a licence or permission, may appeal to the Council within thirty days from the date of such order and such appeal shall be heard and disposed of by the Council in the prescribed manner.
(b) any notice or order issued or other action taken by the Chief Municipal Officer under Section 180 (1) and (2), 185, 187, 191, 192, 194, 208, 220, 221, 223, 227, 242, 251 and 285 or any rules or bye- laws made for the purpose of the said sections or any order granting or refusing to grant a licence or permission, may appeal to the Appeal Committee within thirty days from the date of such order and such appeal shall be heard and disposed of by the Appeal Committee in the prescribed manner.
(2) The Appeal Committee shall consist of President, Vice-President and two elected Councillors elected by the Council in accordance with the system of proportional representation by means of a single transferable vote in the meeting called under sub-section (1) of Section 55. The President shall be ex-officio Chairman of the Appeal Committee.
(2-a) In the even of any vacancy occurring in the Appeal Committee, it shall be reported to the authority prescribed under sub-section (1) of Section 55 and the vacancy shall be filled in, in accordance with the provisions of sub- section (2).
(3) The Council or the Appeal Committee may, for sufficient reasons to be recorded in writing, admit any appeal after the expiry of the period specified in sub-section (1).
(4) The Council or the Appeal Committee, as the case be, may remand any case for further enquiry or decision or may pass any other order that may be deemed just and proper; and no appeal or revision shall lie against this decision.
Provided that no orders shall be passed to the prejudice of any person until he has been given a reasonable opportunity of being heard.
(5) The Council or the Appeal Committee, as the case may be, may allow any Executive Officer or any other official deputed by the Chief Municipal Officer for the purpose to appear before it in any appeal and to watch or represent the interest of the Council.
(6) In case the Chief Municipal Officer himself or any other person is appointed to exercise all the powers and duties of the Council under Section 328 an appeal against orders passed by him pertaining to matters mentioned in sub- section (1) shall lie to such person or committee of persons as the State Government may, by notification, from time to time, appoint in this behalf and such person or committee of persons shall exercise all the powers of the Appeal Committee mentioned in this section."
[8] Under Section 307 of the M. P. Municipalities Act, 1961 appeal lies to the Municipal Council not to the Collector that to order passed under certain sections mentioned therein. There is no provision under Section 307 of the M. P. Municipalities Act, 1961 to file appeal against resolution. Even under /section 323 of the M. P. Municipalities Act, 1961, which is reproduced below, the Divisional Commissioner or the Collector, as the case may be, can suspend the resolution only. In the present case, the Collector did not exercise his power under Section 323 of the M. P. Municipalities Act, 1961 :-
"323. Power to suspend execution of orders, etc., of Council.-- (1) If, in the opinion of the Divisional Commissioner, the Collector, or any other officer authorized by the State Government, in this behalf, the execution of any order or resolution of a Council, or of any of its Committee or any other authority or officer subordinate thereto, or the doing of any act which is about to be done or is being done by or on behalf of the Council, is not in conformity with law or with the rules or bye-laws made thereunder and is detrimental to the interests of the Council or the public or is causing or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace, he may, by order in writing under his signature, suspend the execution of such resolution or order or prohibit the doing of any such act.
(2) When any order under sub-section (1) is passed, the authority making the order, shall forthwith forward to the State Government and to the Council affected thereby a copy of the order with a statement of reasons for making it; and it shall be in the direction of the State Government to rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit :
Provided that the order shall not be revised, modified or confirmed by the State Government without giving the Council reasonable opportunity of showing cause against the order."
[9] Since there is no provision under M. P. Municipalities Act, 1961 to file Appeal before the Collector against the resolution by the Municipality, the impugned order cannot be sustained in the eyes of law. The Collector has travelled and acted beyond its authority, hence impugned order is liable to be set-aside.
[10] In view of the above, the impugned order dated 22.07.2016 is hereby set-aside.
[11] The petition is allowed.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5217 of 2015.
27.04.2017:-
Shri Manish Yadav, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt. Advocate for the Respondent No.1/State.
Shri Amit Singh Sisodiya, learned counsel for the Respondent No.2/IMC.
Heard on the question of admission.
O R D E R THE petitioner was initially appointed on daily wages on 06.06.1988 on Muster Roll. Since he was appointed after year 1988, therefore, his services were discontinued by a common order dated 02.08.2000. Being aggrieved by the order dated 02.08.2000, the petitioner approached the Labour Court by way of reference. The Labour Court vide Award No.418 dated 15.10.2007 has directed Municipal Corporation to reinstate the petitioner without back wages. In compliance of the order, the petitioner was reinstated into the service. The State Government has issued a circular dated 06.09.2008 by which daily wager on completion of 10 and 20 years of service are entitled for special allowance @ Rs.500-1000 respectively w.e.f. 01.09.2008. That similarly placed daily wagers approached this Court by way of writ petitions. One of the Writ Petition No.603 of 2014 [Vijay Rajak v/s State of M.P.] was decided by this Court and placing reliance over the Circular dated 16.05.2007, 08.02.2008 and 06.09.2008 directed State Government to consider the grant of special allowance. In compliance of the said order, vide order dated 19.01.2015 the Municipal Corporation, Indore has also granted special allowance to 7 daily rated employees counting their services from their initial appointments.
[2] The petitioner also approached this Court by way of Writ Petition No.8939 of 2014 claiming the similar benefit. Vide order dated 10.12.2014 the writ petition was allowed with the direction to the Respondents to extend the benefit to the petitioner after verification. The operative portion of the order is reproduced below :-
"In view of the above, the petition is allowed and the ratio of the case would apply mutatis mutandis to the present petition preferred by the petitioner and the respondent the Commissioner, Indore Municipal Corporation is directed to extend the benefit to the petitioner after verification."
[3] In compliance of the order, the Respondents have consider the case of the petitioner and rejected vide impugned order dated 23.04.2015 on the ground that from the date of reinstatement on 15.10.2007 he has not completed 10 years of service, therefore, he is not entitled for the benefit of the circular. The Respondents did not count his service from 1988 to 2000. Hence, the present petition.
[4] After notice, the Respondent has filed the return stating that the petitioner is not entitled for special allowance because he does not fulfill the conditions of Circular dated 16.05.2007, 08.02.1988 and 06.09.2008. Hence, the Respondent has rightly rejected his claim.
[5] The Respondent has rejected the claim of the petitioner only on the ground that he has not completed 10 years service. The petitioner was initially appointed on 06.06.1988. Thereafter by a common order his services were discontinued on 02.08.2000. Thereafter he was reinstated in the service in compliance of the order of Labour Court on 15.10.2007. When the order of reinstatement has been passed, then his entire service to be taken into consideration. There is a difference between 'order of reinstatement' and order for fresh appointment. Here in the case, the petitioner was directed to be reinstated it means he will be placed in the service which he was holding at the time of termination. The Apex Court in the case of Gurpreet Singh v/s State of Punjab [(2002) 9 SCC 492] has held that order of reinstatement means continuity in service. Therefore, the Respondent has wrongly rejected his claim on the ground that the petitioner has not completed 10 years of service.
[6] In view of the above, the impugned order dated 23.04.2015 is set-aside. The Respondents are directed to grant the benefit of special allowance of Rs.500 - 1000 after completing 10 and 20 years of service w.e.f. the date of his appointment treating him into the service w.e.f. his initial date of appointment. The order to this effect be passed within 45 days from today.
[7] So far as the regularization of petitioner is concerned, the State Government has now issued a Circular dated that the Respondent is directed to consider the claim of the petitioner for declaring the status of permanent employee under the respective categories in the light of the circular.
[8] With the above direction, petition is partly allowed. No order as to costs.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2648 of 2017.
26.04.2017:-
Shri P.V.Bhagwat, 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 16.03.2017 passed by 14 th Additional District Judge, Indore by which application under Section 10 of CPC has been rejected.
[2] The Respondent No.1 - Kailash Ahir being a plaintiff filed Civil Suit No.12-A/2016 on 24.09.2015 for declaration, partition, possession and permanent injunction against the present petitioners in respect of the property of Late Ramcharan Ahir. According to the petitioners, he has also filed the suit for partition against the Respondent Nos.2 and 3 and the sisters on 10.07.2012 which is registered as Civil Suit No.37-A/2014 and pending before XIXth Civil Judge, Class-I, Indore in which he is claiming 1/8 th share in the suit property. Undisputedly certain properties are come between both the suits, therefore, the present petitioners filed an application under Section 10 of CPC in Civil Suit No.12-A/16 filed by the Resopondent No.1 - Kailash Ahir on the ground that this is a subsequent suit, therefore, under Section 10 of CPC proceedings of this suit are liable to be stayed. The Additional District Judge vide order dated 16.03.2017 has rejected the application on the ground that the properties claimed in the present suit and the properties in case of Civil Suit No.37-A/2014 are altogether different, therefore, proceedings cannot be stayed. Hence, the present petition.
[3] Shri P.V.Bhagwat, learned counsel on behalf of the petitioners submits that Civil Suit No.12-A/2016 being a subsequent suit is liable to be stayed and the finding recorded in his Civil Suit No.37-A/2014 would operate as res judicata. The suit filed by him has reached to the stage of defendants evidence. In support of his contention, he placed reliance on the decision in the case of [4] As per Section 10 of CPC no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. But in the present case the petitioner filed the suit for partition and possession (Civil Suit No.37-A/2014) against his own brother and 4 sisters claiming 1/8th share in the property left by his father. The description of the properties are given in para 2. The Respondent No.1 filed the Civil Suit No.12-A/2016 against 3 brothers, including the petitioners, and M/s Magic Bullmart Private Limited in which certain agricultural lands are also there as a suit property bearing Survey Nos.313, 314, 316/2 and 317/1 which are not there in the earlier suit. The Respondent No.1 has also pleaded that his 4 sisters have relinquished their rights in the property. He has also challenged the sale-deed executed in the year 2012 - 2013 by defendant Nos.1 to 3 in favour of defendant No.4 which is also not there in the earlier suit filed by the present petitioners. Therefore, the finding of earlier suit would not operate as res judicata in which the present petitioner is only claiming 1/8th share in the property.
[5] 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."
[6] 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) Civil Revision No.8 of 2016.
19.04.2017:-
Shri S.C.Agrawal, learned counsel for the petitioner. Shri S.L.Gwaliory, learned counsel for the Respondents.
Heard on the question of admission.
O R D E R THE plaintiff has filed the present revision being aggrieved by order dated 30.09.2015 by which the appellate Court has permitted the plaintiff to withdraw the suit without liberty to file a fresh suit.
[2] Facts of the case, in short, are as under :-
(a) That Late Gordhanlal filed the suit for declaration of his title before the Civil Judge, Class-I, Sailana, District Ratlam that the House Nos.38 and 39 are an ancestral property and being legal heir of Late Bhuribai he is entitled for 1/3rd share along with his brother and he is entitled to get mutation in his name. Except the defendant No.1, defendant Nos.2 to 5 have supported the plaint of the plaintiff and admitted the oral partition.
(b) Vide judgment and decree dated 27.04.2012, the learned Civil Judge, Class-I, Sailana has dismissed the plaint of the plaintiff on Issue Nos.1 and 2.
The suit was also dismissed as time barred.
(c) Being aggrieved by the aforesaid judgment and decree, the plaintiff preferred first appeal. During the pendency of first appeal, Gordhanlal has died and his son Mukesh was brought on record as legal heir. In a pending appeal, the legal heir of the original plaintiff filed an application under Order XXIII Rule 1 of CPC for withdrawal of plaint on the ground that Late Gordhanlal had no knowledge of law, therefore, he could not present the suit in a proper manner and he wishes to file a fresh suit. Looking to the circumstances of relevant time, the plaintiff was not in a position to properly present his case, therefore, he is seeking permission to withdraw the suit with liberty to file a fresh suit.
(d) The aforesaid application was opposed by the defendants that the appellant may withdraw his suit but he is not entitled for liberty to file a fresh suit as there is a collusion between the plaintiff and the defendant Nos.2, 3 and 4. They wanted to fulfill the lacuna to bring the suit within limitation.
(e) Learned appellate Court vide order dated 30.09.2015 has allowed the application only in respect of withdrawal of the suit and declined liberty to file a fresh suit. Hence, the present revision before this Court.
[3] Shri S.C.Agrawal, learned counsel appearing on behalf of the petitioner submits that when the Court is granting permission to withdraw the suit, then the Court is bound to grant liberty to file a fresh suit. The learned appellate Court without considering the material on record has wrongly exercised its discretion by partly allowing the application. In support of his contention, he has placed reliance on the decisions in the case of Mario Shaw v/s Martin Fernandez [AIR 1996 Bombay 116], D.P. Sharma v/s Banglore Mahanagara Palike [AIR 2001 Karnataka 401] and M.Subba Rao v/s Vasanth [AIR 2015 Hyderabad 68] and prayed for setting-aside of the impugned order so far as it relates to refusal to grant liberty to file a fresh suit.
[4] Per contra, Shri S.L.Gwaliory, learned counsel submits that it is a pure discretion of the Trial Court whether to grant liberty or not and it is not for this Court to interfere with the discretionary order passed by the Subordinate Court in writ petition under Article 227 of the Constitution of India.
[5] I have heard learned counsel for the parties. [6] The only controversy involved in this revision is whether while granting permission to withdraw the suit, the plaintiff as a matter of right can seek liberty to file a fresh suit. Sub-rule (3) of Rule 1 of Order XXIII of CPC is reproduced below :-
"(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.
[7] The sub-rule (3) starts with the condition that "where the Court is satisfied that there are sufficient ground for allowing the plaintiff to institute a fresh suit for the same subject-matter, then the Court may permit, as it thinks fit". Therefore, satisfaction of the Court is important to the effect of availability of sufficient ground to grant permission to withdraw the suit with liberty to file a fresh suit. The ground which was given by the petitioner for withdrawal of the suit that original plaintiff i.e. his father had no knowledge about the law, therefore, he could not present the suit properly, hence he be permitted to file fresh suit. Para 2 of the application is reproduced below :-
";g gSa fd izdj.k esa oknhx.k ds iwoZ vfHkHkk"kd }kjk izfroknhx.k ds oknksRrj vkus ds mijkUr vkSj oknh dk 1@3 fgLlk dqN izfroknh }kjk Lohdkj dj ysus ds mijkUr Hkh izdj.k esa lgha :i ls lgk;r ugha pkgs tkus ls oknh dk okn fujLr dj nsus ls izLrqr dh gSaA pwafd oknh e`rd xksj/kuyky /kckbZ dks dksbZ dkuquh Kku ugha Fkk bl dkj.k ls og izfroknhx.k ds fo:) lgha :Ik ls viuk okn izLrqr ugha dj ldsaA ysfdu izdj.k dh fLFkfr;ksa dks ns[krs gq, vc oknhx.k lgha :i ls viuk okn uohu :i ls izLrqr djuk pkgrs gS] ftlds fy;s oknhx.k ;g okn foMªk dj uohu :i ls okn izLrqr djus dh vuqefr ekUkuh; U;k;ky; ls izkIr djuk pkgrk gSA "
[8] It is important to mention here that the Trial Court vide detailed order has dismissed the suit holding that the plaintiff has failed to prove hig right to claim 1/3 rd share in the property. Even the Trial Court has found that the suit for declaration is time barred. Para 17 of the order is reproduced below :-
"17. izfroknh 2 yxk;r 4 izLrqr fd;s oknksRrj esa rks oknh ds cVokjs laca/kh vfHkopuksa dk leFkZu djrs gS ijarq muds }kjk mDr laca/k esa vius vfHkopuksa ds leFkZu esa U;k;ky; esa mifLFkr gksdj 'kiFk ij dksbZ dFku ugha fd;k gSA ftl dkj.k Hkh oknh ds dFkuksa dh iqf"V gksuk ugha ekuh tk ldrhA vkSj ;g rF; izekf.kr ugha gksrk gS fd oknh dks oknxzLr laifÙk cVokjs esa izkIr gqbZ Fkh lkFk gh oknh us vius izfrijh{k.k ds pj.k 33 esa ;g Lohdkj fd;k gS fd izfroknh ckcwyky }kjk mlds uke ukekraj.k djkus ls badkj 15 lky iwoZ fd;k x;k Fkk vkSj 15 lky ls yxkrkj o"kZ 2008 rd mlus ckcwyky ds fo:) dksbZ dk;Zokgh ugha dh ,sls esa tc oknh dk ek= LoRo ?kks"k.kk dk okn gS rks mldk okn ifjlhek ckg; Hkh gS D;ksafd LoRo ?kks"k.kk ifjlhek dky 3 lky gS vkSj ,slh n'kk esa oknh LoRo ?kks"k.kk djkus dk vf/kdkjh ugha gSA "
[9] In the case of M.S.Subba Rao (supra), the Division Bench of Hyderabad High Court has held that - "If the suitor wants to bring fresh action on the self-same cause of action while asking for withdrawal of lis, then the power to allow such prayer is left with discretion of the Court and not with choice of the suitor. In other words, the suitor cannot claim, as a matter of right, the liberty to bring a fresh action on the self-same cause of action". Para 4 of the order is reproduced below :-
"4. While reading the aforestated provision, we are in agreement of with Sri Vedula Venkataramana, learned senior Advocate. It is the absolute right of the suitor as the suitor can bring his lis of his own choice and wishes. Neither the Court nor anyone else can compel any person to come to the Court. With the parity of reasoning after having brought action, the litigant decides not to continue with his lis, such decision is final and no one can sit on that claim. We feel that asking for leave is only matter of courtesy and respect and grant of leave is matter of course not of discretion and it is manifest in Clause (b) sub-rule (3) of Rule 1 of the Code, wherein words "may grant" are employed. If the suitor wants to bring fresh action on the self-same cause of action while asking for withdrawal of lis, then the power to allow such prayer is left with discretion of the Court and not with choice of the suitor. In other word the suitor cannot claim, as a matter of right, the liberty to bring a fresh action on the self-same cause of action. Clause (b) sub-rule (4) of Rule 1 of the Code wherein like Clause (b) sub-rule (3) of Rule 1 of the Code words "may grant permission" are not mentioned."
That, the judgment cited by the petitioner itself speaks contrary to his stand.
[11] There has to be a sufficient ground for allowing the plaintiff to institute a fresh suit but the ground raised in application under Order XXIII Rule 1 of CPC cannot be treated as sufficient ground as ignorance of the law cannot be a ground. The legal heir of original plaintiff i.e. the present petitioner has stated that his father had no knowledge about the law to file a proper suit. This cannot be treated as a sufficient ground to grant the liberty to file a fresh suit specially when the Trial Court has dismissed the plaint and at the appellate Court stage the plaintiff filed an application under Order XXIII Rule 1 of CPC. The Trial Court has rightly exercised its discretion which does not call for any interference.
[12] Hence, the revision is dismissed.
No order as to costs.
[ VIVEK RUSIA ]
(AKS) JUDGE
Second Appeal No.113 of 2013.
28.04.2017:-
Shri Milind Phadke, learned counsel for the appellants. None for the Respondents.
All the pending IAs have already been decided earlier. This second appeal has been admitted on 08.10.2014. Respondents have already been served.
Let appeal be listed for final hearing in due course.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.44 of 2017.
28.04.2017:-
Shri Subodh Choudhary, learned counsel for the appellant.
Heard on I.A.No.2178/2017, 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) Writ Petition No.2683 of 2017.
28.04.2017:-
None for the petitioner.
Petition perused.
Issue notice to the Respondents on payment of process fee within seven days.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2703 of 2017.
28.04.2017:-
Shri Anuj Bhargava, learned counsel for the petitioner. As prayed, list in the next week, along with Writ Petition No.2541 of 2017.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2753 of 2017.
28.04.2017:-
Smt. Bhagyashri Sugandhi, learned counsel for the petitioner.
As prayed, list after a week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2790 of 2017.
28.04.2017:-
None present for the petitioner even in the second round.
List after two weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2358 of 2017.
28.04.2017:-
Smt. Anamika Sen, learned counsel for the petitioner. As prayed, list in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6730 of 2016.
26.04.2017:-
Shri S.L.Gwaliory, learned counsel for the petitioner. None for the Respondents.
Heard on the question of admission.
O R D E R THE petitioner was appointed as Lineman on contract basis in the office of M. P. Pashchim Kshetra Vidyut Vitran Co. Ltd. He was posted in the Office of Executive Engineer (E&M) Division Jaora. He was granted appreciation letter on 11.05.2012 and Reward of Rs.1,000-00. This certificate establish that he is working prior to 2012.
[2] Vide order dated 29.07.2016 he was sent on deputation from 01.08.2016 to 04.08.2016 to O & M Division Jaora. According to the petitioner he became sick on 31.07.2016 and medical certificate was issued by the Authorized Medical Officer, Government Hospital to that effect. Since he could not joint on deputation that has annoyed the Executive Engineer. He submitted representation on 16.08.2016 that due to illness he could not attend the duties on deputation. Vide order dated 31.08.2016 Executive Engineer has terminated him from service making various false allegations against him.
[3] Notices were issued in this petition. Despite service no one is appearing on behalf of the Respondents. Even on 06.03.2017, 08.03.2017, 22.03.2017 and 06.04.2017 no one appeared on behalf of the Respondents.
Even today also no one has appeared on behalf of the Respondents.
[4] It is settled law that the services of even contract employee cannot be terminated without affording opportunity of hearing.
[5] This Court in case of Deepak Nagle v/s State of M.P., reported in 2014(3) MPLJ 188 has held that if the case of contractual Sub-Engineer is there, even then opportunity of hearing is necessary and the order of the termination has been quashed. Para operative part of the aforesaid order is reproduced below :-
"5. I have considered the respective submissions made by learned counsel for the parties and have perused the record. The petitioner was appointed on contract basis. Clause 15 of the contract of appointment provides that in case the petitioner is found guilty of any misconduct or is involved in any criminal activities, the Competent Authority shall afford an opportunity of hearing to the petitioner and can terminate the appointment. Thus, it is evident that before terminating the services of an employee, who is employed on contract basis, an opportunity of hearing has to be afforded to the delinquent employee."
[6] In case of Jitendra v/s State of M.P. & Others, reported in 2008(4) MPLJ 670 again this Court has held that if the order is stigmatic in nature, then opportunity of hearing is necessary. The similar view has again been taken by this Court in the case of Prem Chand v/s MPPKVV Co., reported in 2013(2) MPLJ 323 and while quashing the termination order, it has been held that the principle of natural justice and article 14 has a role to play even in case of termination of contractual appointment.
[7] In view of the above, the order dated 31.08.2016 is hereby set-aside. The matter is remitted back to the Executive Engineer to decide afresh after giving opportunity of hearing to the petitioner. If any enquiry was conducted behind the back of the petitioner, then the petitioner be supplied the copies of all documents before taking final decision. The entire exercise would be completed within a period of 30 days from production of certified copy of this order.
[8] The petition is disposed of.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2701 of 2016.
26.04.2017:-
Ms. Sangeeta Parsai, learned counsel for the petitioner. Shri R.C.Sinhal, learned counsel for the Respondent Nos.1 and 2.
Shri Sudhanshu Vyas, learned Panel Lawyer for the Respondent No.3/State.
Heard on the question of admission.
O R D E R THE petitioner has filed the present petition seeking direction to the Bank to return the amount of Rs.19,808-00 withdrawn from his Saving Account No.30996030506 by unknown person on 14.06.2014.
[2] The petitioner has filed photo copy of pass book as Annexure P/3. From the pass-book, it reflects that there are as many as 10 transactions have taken place on 14.06.2014. Most of the amounts under different head were paid to different persons on either through net banking or ATM. The petitioner has alleged that some unknown person has used his Debit-cum- ATM Card. The card cannot be used unless PIN is disclosed to some one. Cards are protected by way of password or PIN. All these are disputed questions of fact. Various disputed questions of facts are involved in this petition which cannot be decided under Article 226 of the Constitution of India. The petitioner is having alternate effective remedy by way of filing civil suit or to approach the Consumer Forum alleging deficiency in service.
[3] With the aforesaid liberty, the petition is dismissed.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.730 of 2017.
25.04.2017:-
Shri Manuraj Singh, learned counsel for the petitioners. Ms. Meghana Bais, 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. Meghana Bais, 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 disposed of as the relief claimed has been granted. 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) Misc. Civil Case No.81 of 2017.
26.04.2017:-
Shri Anupam Chouhan, learned counsel for the applicant.
Shri Jil Sharma, 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.1333/2016 from Family Court, Indore to Family Court, Mandleshwar, District Khargone.
[2] The marriage between applicant and the Non- applicant was solemnized on 21.04.2015 under the Hindu customs and rites at Indore. 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 Village Dhargaon, District Khargone to Indore is 100 kms. and the applicant is a house wife, therefore, it is very difficult for her to attend the Court at Indore on each and every date without any attendant.
[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 Village Dhargaon, District Khargone and having permanent resident there. Since 2016 the applicant is residing with her parents. The applicant is a house wife and is not in a position to attend every proceedings at Indore without attendant, 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.1333/2016 pending in the Court of learned Principal Judge, Family Court, Indore is transferred to Family Court, Mandleshwar, District Khargone.
Application stands allowed.
C.c. as per rules.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.3536 of 2016.
26.04.2017:-
Shri Prakhar Karpe, learned counsel for the petitioners. Shri Sudhanshu Vyas, learned Panel Lawyer for the Respondents.
Panel Lawyer submits that the return has already been filed.
Office is directed to place the same on record. List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7038 of 2016.
26.04.2017:-
Shri K.C.Raikwar, learned counsel for the petitioner. Shri Sudhanshu Vyas, learned Panel Lawyer for the Respondent Nos.1 to 4/State.
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.1480 of 2017.
26.04.2017:-
Shri Brajesh Garg, learned counsel for the petitioner. Service report to the Respondents are awaited. List on 17.05.2017.
[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.57 of 2014.
26.04.2017:-
Shri D.S.Panwar, learned counsel for the petitioner. None for the Respondents.
Counsel for the petitioner prays for time to argue the matter.
Prayer is allowed.
List after four weeks.
[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7265 of 2014.
26.04.2017:-
Parties through their counsel. Respondent Nos.8 and 9 have filed an application [IA No.1413/2017] seeking direction to the Respondents to pay the salary. The contention of the counsel for the Respondent Nos.8 and 9 is that because of pendency of this writ petition, the Respondents have with-held their salary.
Let the reply be filed to IA within 15 days. List in the week commencing 15th May, 2017.
[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.203 of 2015.
26.04.2017:-
Shri J.M.Punegar, learned counsel for the appellants. Copy of complete Memo of Appeal with award be supplied to Shri Manoj Jain, learned counsel on behalf of the Respondent No.2/Insurance Company.
Office is directed to reflect the name of Shri Manoj Jain in the cause-list.
List in the next week.
[ VIVEK RUSIA ] JUDGE (AKS) 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.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.8085 of 2016.
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."
[7] 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.
03.05.2017:-
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.
03.05.2017:-
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.
03.05.2017:-
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)