Madhya Pradesh High Court
Bhavya Choudhary Through General Power ... vs The State Of Madhya Pradesh on 23 February, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 23 rd OF FEBRUARY, 2023
WRIT PETITION No. 28458 of 2022
BETWEEN:-
1. BHAVYA CHOUDHARY D/O VIJAY KUMAR
CHOUDHARY, AGED ABOUT 35 YEARS,
OCCUPATION - BUSINESS
2. DIVYA CHOUDHARY D/O VIJAY KUMAR
CHOUDHARY, W/O VISHNU BAJPAI) AGED ABOUT
33 YEARS, OCCUPATION- BUSINESS THROUGH
GENERAL POWER OF ATTORNEY HOLDER MRS.
MANJRI CHOUDHARY W/O VIJAY KUMAR
CHOUDHARY.
BOTH R/O 905-906 INDRADARSHAN BUILDING 19,
NEAR MILLAT NAGAR, NEW LINK ROAD,
ANDHERI (WEST) MUMBAI, MUMBAI
MAHARASHTRA
.....PETITIONERS
(BY SHRI MOHIT JOLLY-ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH SUB
DIVISIONAL OFFICER (REVENUE) MALHARGANJ,
INDORE COLLECTORATE MOTI TABELA, INDORE
(MADHYA PRADESH)
2. SMT. MADHURI CHOUDHARY W/O SANJAY
KUMAR CHOUDHARY, AGED ABOUT 55 YEARS,
OCCUPATION: BUSINESS E-13 SAKET NAGAR
INDORE (MADHYA PRADESH)
3. DHRUV CHOUDHARY S/O SANJAY KUMAR
CHOUDHARY, AGED ABOUT 33 YEARS,
OCCUPATION: BUSINESS 905-906,
INDRADARSHAN BUILDING NO. 19, NEAR
MILLAT NAGAR, NEW LINK ROAD, ANDHERI
(WEST) MUMBAI (MAHARASHTRA)
Signature Not Verified
Signed by: PRAVEEN
NAYAK
Signing time: 28-02-2023
18:44:45
2
4. DEVIKA CHOUDHARY D/O SANJAY KUMAR
CHOUDHARY, AGED ABOUT 30 YEARS,
OCCUPATION: BUSINESS R/O E-13, SAKET NAGAR,
INDORE, (MADHYA PRADESH)
5. SMT. MANJRI CHOUDHARY W/O VIJAY KUMAR
CHOUDHARY, AGED ABOUT 56 YEARS, R/O 905-906
INDRA DARSHAN BUILDING NO. 19
LOKHANDWALA NEAR MILLAT NAGAR ANDHERI
WEST MUMBAI (MAHARASHTRA)
.....RESPONDENTS
(BY SHRI RAVINDRA SINGH CHHABRA SENIOR ADVOCATE ALONGWITH
SHRI MUDIT MAHESHWARI-ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
Heard on the question of admission.
Petitioners have filed present petition being aggrieved by the order dated 22.09.2022 whereby Sub Divisional Officer (Revenue) Malhargarh, Indore has dismissed the Revenue Appeal No.27/Appeal/2021-22 on the ground of delay.
The land bearing survey No.3 was initially registered in the name of Late Mitthulal Choudhary. In the year 1984-85, it was diverted into two survey i.e. No.3/1 and 3/2 admeasuring 6.576 hectare each and recorded in the name of Late Mitthulal Chouhdary and his wife Laxmi Bai respectively. Late Mitthulal Choudhary executed a notarized will on 06.10.1989, thereafter he died on 26.10.1989. He bequeathed his property between petitioners and respondent No.2,3 and 5 equally i.e. 1.315 hectare each. According to the petitioners Laxmi Bai was also executed a notarized will on 21.10.1992 before her death on 19.10.1993 by dividing the land equally between the petitioners and respondent No.3 and 4 giving 1.644 hectare each. Thereafter vide order dated 01.04.1993, the said land was mutated in the name of petitioners and the respondents.
Signature Not Verified Signed by: PRAVEEN NAYAK Signing time: 28-02-2023 18:44:45 3Similarly on the basis of will of Laxmi Bai, the land survey No.3/2 was mutated.
According to the petitioners the respondent No.2 to 4 without the knowledge and consent of the petitioners filed joint application by forging their signature under Section 178 of M.P.L.R.C. for recording the Fard Batwara on 22.02.2010. The statements were recorded and thereafter the order of partition was passed on 29.03.2010 and land admeasuring 13.152 hectare was divided equally at the ratio of 2.192 hectare in favour of the petitioners and respondent No.2 to 5. According to the petitioners, as per Fard Batwara their share has been reduced from 2.959 to 2.192 hectare in the land. They had no knowledge about the aforesaid order dated 29.03.2010. Rin Pustika prepared and handed over to the father of the petitioners. In the year 2015, father of the petitioners submitted an application before the Town & Country Planning for diversion. On 15.01.2019, the petitioners again applied for diversion of the land came into their share by way of Fard Batwara. The father of the petitioners entered into an agreement for development of the land on 22.10.2022 for development of Samarth Diamond Exotica. A dispute in respect of demarcation of the land was raised and came up before this Court number of times by way of Writ Petitions filed by mother of the petitioners. According to the petitioners in the said dispute, they examined the record and found that their signature in the Fard Batwara are forged. At the relevant time, the petitioner No.1 was in Oman and Petitioner No.2 was in USA. On 01.10.2021, the petitioners filed an appeal before the SDO alongwith an application under Section 5 of Limitation Act challenging the validity of Fard Batwara dated 29.03.2010. The respondents appeared and filed an objection. The SDO has dismissed the application for condonation of delay. Hence, this petition before this Court.
Learned counsel appearing on behalf of the petitioners raised various Signature Not Verified Signed by: PRAVEEN NAYAK Signing time: 28-02-2023 18:44:45 4 grounds in respect of validity of order, forgery of signature of petitioners, limitation and pressed an application for calling the record from Bureau of Immigration, New Delhi for verification of the visits of the petitioners in India at the relevant point of time.
Respondent Nos. 2 to 5 raising serious objection about the facts suppressed in the Writ Petition. Shri Chhabra, learned Senior Counsel submits that the petitioners have complete knowledge about the Fard Batwara as they have participated in it. The delay of 4203 days in filing the appeal under Section 44 of M.P.L.R.C.was not liable to be condoned merely on the averments that the petitioners had no knowledge about the said order. It is further submitted that the mother of the petitioners was present and signed the Fard Batwara. She never raised any objection about the signature in the said order sheet. Therefore, at this stage, petitioners cannot say that they were not present or they had no knowledge about the Fard Batwara. The petitioners applied the certified copy of the Khasra Panchshala on 03.02.2011. The copy was supplied in the Month of July. They filed the Writ Petition Nos. 27542/2021 and 27563/2021 and withdrawn on 26.07.2022 without any liberty to file fresh petition, therefore, second Writ Petition is not maintainable. The petitioners have applied for sanction of lay out in the year 2015. They applied for demarcation in the year 2015 and 2019 but did not filed any appeal to challenge the Fard Batwara. It is further submitted that the petitioners have filed this petition through power of attorney of mother but no such power of attorney has been filed in this petition. The present petition nothing but misuse of process of law as the petitioners can afford the litigation hence, petition is liable to be dismissed with heavy costs.
Heard both sides.
Signature Not Verified Signed by: PRAVEEN NAYAK Signing time: 28-02-2023 18:44:45 5It is correct that the petitioners have filed this Petition without power of attorney. Even the date, time and registration number of power of attorney not mentioned in the memo of petition. The petitioners are not disclosed that whether they are in India or abroad. If they gave power of attorney from abroad that requires registration. There is absolutely no pleading. In the Vakalatnama, the date of power of attorney is not mentioned, therefore, this petition is liable to be dismissed for want of the authority of Ms.Manjri Choudhary who swear affidavit in support of facts stated in the Writ Petition. Counsel for the petitioners has not disputed that earlier on the same ground the Writ Petitions 27542/2021 was filed by petitioner No.1 and Writ Petition No. 27563/2021 was filed by petitioner No.2 and both the Writ Petitions opposed by the respondents on the ground of suppression of facts and abuse of process. Both the petitioners withdrew their respective Writ Petitions and liberty was granted to respondents to constitute the proceedings against the petitioners in accordance with law, therefore, second writ petition on the same facts and grounds are not liable to be entertained.
Rin Pustika was prepared and supplied to the father of the petitioners, thereafter they applied for diversion and thereafter for approval of building plan before Town and Country Planning. They entered into development agreement and at any point of time they did not raise any objection their forge signature in Fard Batwara especially when in the Fard Batwara their mother was also present and signed the Fard Batwara. Their presence are also recorded in the order sheet which was signed by Naib Tehsildar in three different dates.
In view of above, no case is made out for interference.The Writ Petition is dismissed with cost of Rs.25,000/- which shall be paid by the petitioners Signature Not Verified before the Legal Service Authority, Indore within 30 days.
Signed by: PRAVEEN NAYAK Signing time: 28-02-2023 18:44:45 6(VIVEK RUSIA) JUDGE Praveen Signature Not Verified Signed by: PRAVEEN NAYAK Signing time: 28-02-2023 18:44:45