Madhya Pradesh High Court
Biharilal vs Pallu on 3 May, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 3 rd OF MAY, 2023
MISC. PETITION No. 2164 of 2023
BETWEEN:-
BIHARILAL S/O DHARAMDAS LODHI, AGED ABOUT 65
YEAR S, OCCUPATION: AGRICULTURE R/O LADWARI
TEHSIL BALDEVGARH DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SAKET AGRAWAL - ADVOCATE )
AND
1. PALLU S/O VRINDAVAN LODHI R/O VILLAGE
LADWARI TEHSIL BALDEVGARH DISTRICT
TIKAMGARH (MADHYA PRADESH)
2. RAJARAM S/O VRINDAVAN LODHI R/O VILLAGE
LADWARI TEHSIL BALDEVGARH DISTRICT
TIKAMGARH (MADHYA PRADESH)
3. BALKISHAN S/O VRINDAVAN LODHI R/O
VILLAGE LADWARI TEHSIL BALDEVGARH
DISTRICT TIKAMGARH (MADHYA PRADESH)
4. THAKUR DAS S/O JASHRATH LODHI R/O VILLAGE
LADWARI TEHSIL BALDEVGARH DISTRICT
TIKAMGARH (MADHYA PRADESH)
5. SUB DIVISIONAL OFFICER (REVENUE) DISTRICT
TIKAMGARH (MADHYA PRADESH)
6. T E H S I L D A R B A L D E V G A R H DISTRICT
TIKAMGARH (MADHYA PRADESH)
7. JAGDEESH S/O JASHRATH LODHI R/O LADWARI
TEHSIL BALDEVGARH DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: MANOJ NAIR
Signing time: 5/6/2023
11:42:24 AM
2
(BY SHRI SANJEEV KUMAR SINGH - PANEL LAWYER )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed this petition assailing the order dated 03.03.2023 (Annexure-P/1) in Case No.0164/Appeal/2022-23 passed by Sub Divisional Officer, Baldeogarh District Teekamgarh by which, an appeal preferred in terms of Section 129(5) of the M.P. Land Revenue Code, 1959 (herein after referred as MPLRC) by the respondent has been entertained and while setting aside the order of the Tahsildar dated 30.08.2022 (Annexure-P/2), the matter has been remitted back to carry out the demarcation afresh.
2 . Learned counsel for the petitioner contends that the petitioner herein moved an application for demarcation before the Tahsildar. The Tahsildar then initiated the procedure which is laid down in Section 129 of the MPLRC. The Tahsildar issued notices to all the parties including the respondent to remain present on the scheduled date of demarcation. Though the respondents were present on the scheduled date i.e. 08.05.2020 but refused to acknowledge the said notice and, therefore, an endorsement was made on the notice itself which has been brought on record at page no.24. Accordingly, the Tahsildar proceeded further and passed an order of demarcation dated 30.08.2022. The order passed by the Tahsildar was then challenged by the respondents by filing an appeal under Section 129(5) of the MPLRC. The same has been allowed by the Sub Divisional Officer and the matter has again been referred to Tahsildar to carry out demarcation afresh.
3. Learned counsel for the petitioner contends that an appeal under Section 129(5) of the MPLRC is confined to the statutory grounds which are Signature Not Verified Signed by: MANOJ NAIR Signing time: 5/6/2023 11:42:24 AM 3 available under Section 129(5)(a)(b) of the MPLRC whereas, the Sub Divisional Officer apart from the aforesaid statutory ground and on other grounds also has entertained the appeal whereby the Sub Divisional Officer has ventured upon to examine the field map and also the non-availability of the Map Trace. Learned counsel contends that these are not the grounds which are available with the Sub Divisional Officer to entertain an appeal under Section 129(5) of the MPLRC.
4. Learned counsel for the petitioner also contends that when an appeal is moved before the Sub Divisional Officer under Section 129(5) of the MPLRC, in terms of Section 129(6) of the MPLRC, the Sub Divisional Officer, is empowered to conduct a demarcation himself and in the present case, self demarcation was conducted by the Sub Divisional Officer which is evident from the perusal of the Panchnama (Annexure-P/5). Therefore, even otherwise there could not have been any order of remand to the Tahsildar to conduct a demarcation afresh. It is also contended by the counsel that the respondents were very well present at the time of demarcation, therefore, this was a question which was required to be appreciated by the Sub Divisional Officer but he proceeded in a purely mechanical manner to allow the appeal in terms of Section 129(5) of the MPLRC.
5 . Learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Commissioner of Income Tax vs. Premium Capital Market (2005 SCC OnLine MP 710) Learned counsel has further submitted that the demarcation, carried out by the Tahsildar was conducted in terms of M.P. Bhoorajasv Sahita Seemankan Niyam, 2018 which has been framed in purported exercise of powers conferred under Section 258 read with Section 129 of the M.P. Land Revenue Code.
Signature Not Verified Signed by: MANOJ NAIR Signing time: 5/6/2023 11:42:24 AM 4Therefore, in absence of any infirmity in the demarcation by Tahsildar, the Sub Divisional Officer could not have interfered with the order.
6. Having heard the submissions advanced on behalf of the counsel for the petitioner.
7. A perusal of order impugned dated 03.03.2023 reflects that the Sub Divisional Officer has set aside the order passed by the Tahsildar dated 30.08.2022 and has remitted back the matter to the Tahsildar, Baldeogarh, to carry out the demarcation in terms of Section 129(6) of the MPLRC. To arrive at the ultimate findings, the Sub Divisional Officer has considered that in the notice there were no signature of the respondents (Objectors therein) and in the field map, the exact portion of the property on which the unauthorized occupation of the objector was found is not mentioned and also the map trace was not produced by the Revenue Officer to ascertain the encroachment made by the Objector.
8. Undisputedly, an application under Section 129(5) of the M.P. Land Revenue Code which has not been filed by the petitioner, was moved before the Sub Divisional Officer on the ground that the respondents were not heard in terms of Section 129(4) of the MPLRC and no notice was issued to them. If according to the petitioner, the respondents were noticed, the petitioner was required to demonstrate as to how, the notice of proposed demarcation was served upon the respondents.
9. The reliance which is being placed on the notice dated 10.05.2022 (Annexure-P/24), is of no assistance to the petitioner. No evidence or material was produced before the Sub Divisional Officer or even before this Court to substantiate the said contention. In the present case, neither the application filed Signature Not Verified Signed by: MANOJ NAIR Signing time: 5/6/2023 11:42:24 AM 5 under Section 129(5) of the MPLRC has been produced on record nor the reply thereof. The Sub Divisional Officer after considering the application/appeal filed under Section 129(5) of the MPLRC and also reply thereof, concluded that there was no notice to the respondents herein before passing an order of demarcation and, therefore, concluded that there was violation of Section 129(4) of the MPLRC which is evident from the perusal of operative paragraph of the order passed by Sub Divisional Officer dated 03.03.2023. The Sub Divisional Officer, upon receipt of the report of the Revenue Inspector also considered the irregularities which are detailed in second last paragraph of the impugned order.
10. In absence of any infirmity or perversity, this Court, does not find any ground to interfere with the impugned order inasmuch as, the Sub Divisional Officer having considered the fact that the respondents were not issued notice in terms of Section 129(4) of the MPLRC, concluded a fresh demarcation is required in terms of Section 129(6) of the M.P. Land Revenue Code.
11. The reliance as placed on the decision of this Court in the case of Commissioner of Income Tax (supra) is misplaced, inasmuch as, in the present case, the petitioner was required to demonstrate that the respondents were duly noticed in terms of Section 129(4) of the MPLRC.
12. In view of the aforesaid, this Court does not find any merit in the present petition, accordingly, the same stands dismissed.
(MANINDER S. BHATTI) JUDGE mn Signature Not Verified Signed by: MANOJ NAIR Signing time: 5/6/2023 11:42:24 AM 6 Signature Not Verified Signed by: MANOJ NAIR Signing time: 5/6/2023 11:42:24 AM