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Madhya Pradesh High Court

Shyam Sunder vs Smt. Savitri Bai Deceased Through Lrs. ... on 7 December, 2023

Author: Vivek Rusia

Bench: Vivek Rusia, Anil Verma

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                                                    W.A. No. 909/2023


 HIGH COURT OF MADHYA PRADESH : BENCH INDORE
                              BEFORE

          HON'BLE SHRI JUSTICE VIVEK RUSIA
                                 &
          HON'BLE SHRI JUSTICE ANIL VERMA

                  WRIT APPEAL No. 909 of 2023

BETWEEN:-
   SHYAM SUNDER S/O SHRI GHASILAL GOYAL, AGED ABOUT 50
1. YEARS, OCCUPATION: BUSINESS TEHSIL SENDHWA, DISTRICT
   BARWANI (MADHYA PRADESH)
   SMT. VIMLA BAI W/O FUL CHAND GOYAL, AGED ABOUT 70
2. YEARS, OCCUPATION: HOUSEMAKER TEHSIL SENDHWA
   DISTRICT BARWANI (MADHYA PRADESH)
                                                .....APPELLANT
(SHRI VEER KUMAR JAIN, LEARNED SENIOR ADVOCATE WITH SHRI
RITESH KUMAR SHARMA, ADVOCATE FOR THE APPELLANTS.)

AND
   SMT. SAVITRI BAI DECEASED THROUGH LRS. GIRDHARILAL
   MAHAJAN W/O SMT. SAVITRI BAI, AGED ABOUT 74 YEARS,
1. OCCUPATION: RETIRED AGARWAL COLONY, WARD NO. 8,
   NIWAL ROAD, SENDHWA, DISTRICT BARWANI (MADHYA
   PRADESH)
   SMT. SAVITRI BAI THR LR SANJAY MAHAJAN S/O LATE SMT.
   SAVITRI BAI, AGED ABOUT 52 YEARS, OCCUPATION: VYAPAR
2.
   AGARWAL COLONY WARD NO. 8 NIWALI ROAD SENDHWA
   (MADHYA PRADESH)
   SMT. SAVITRI BAI THR LR SMT VARSHA MANGAL D/O SMT.
   SAVITRI BAI, AGED ABOUT 48 YEARS, OCCUPATION:
3.
   HOUSEWORK AGARWAL COLONY WARD NO. 8 NIWALI ROAD
   SENDHWA DISTRICT BARWANI (MADHYA PRADESH)
   SMT. SAVITRI BAI DECD. THR LR RITU MANGAL D/O SAVITRI
4. BAI OCCUPATION: HOUSEWORK AGARWAL COLONY WARD NO.
   8 NIWALI ROAD SENDHWA BARWANI (MADHYA PRADESH)
                                            .....RESPONDENTS
(SHRI   JAGDISH     BAHETI,    LEARNED    COUNSEL     FOR      THE
                                  - : 2 :-
                                                        W.A. No. 909/2023


RESPONDENTS.)



Reserved on               :      24.11.2023.
Pronounced on             :      07.12.2023.


      This appeal having been heard finally and reserved for
judgment, coming on for pronouncement this day, Hon'ble SHRI
JUSTICE VIVEK RUSIA pronounced the following :
                                ORDER

1. The appellants/petitioners have filed the present writ appeal challenging the order dated 30.6.2023 passed by the writ court in M.P. No.683/2022 whereby the petition has been dismissed and order dated 31.1.2022 passed by the Additional Commissioner, Indore and order dated 20.9.2019 passed by Sub Divisional Officer (Revenue), Sendhwa, District Barwani have been affirmed. 2 Facts of the case, in short, are as under :

2.1 Respondent No.1 - Smt. Savitri Bai (since dead) now represented through legal heirs purchased the land bearing Survey No. 187/3/1 area 01.10 Acre and land bearing Survey No. 190/7 area 01.90 Acres vide registered sale-dated 26.7.1986. She applied for demarcation before the Tehsildar which was carried out on 10.6.2007.

In the said demarcation present appellants were found in possession of an area measuring 0.390 Hect. of land belonging to Late Savitri Bai. Thereafter, on 1.11.2007 she filed an application u/s. 250 of the M.P. Land Revenue Code (MPLRC) before the Tehsildar for obtaining the possession. The said application was allowed and the matter was travelled up to the Board of Revenue. the details of the orders passed

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by other revenue authorities passed in between are not relevant to deciding this writ appeal . Vide order dated 15.10.2014 the Board of Revenue in Revision Case No. 1828/2013 remanded the matter back to the Tehsildar for deciding the matter afresh after carrying out the demarcation under the prosecution of section 250 of M.P. Land Revenue Code, 1959.

2.2 After the aforesaid remand, a team headed by the Assistant Superintendent conducted fresh demarcation after giving the opportunity of hearing to all the parties and owners of nearby land on 2.6.2018. In the said demarcation also land 0.310 Hect. of Survey No. 187/3/1, a boundary wall and a godown found in possession of the appellants. The signatures of all the parties were taken on panchnama report. Thereafter, the Tehsildar heard the matter finally and vide order dated 28.7.2018 dismissed the application u/s. 250 of the MPLRC on the ground maintainability as there is a construction of godown on the land and the same cannot be treated as vacant land. 2.3 Being aggrieved by the aforesaid order, Late Savitri Bai filed an appeal before the Sub Divisional Officer i.e. Appeal No. 2/A-70/2018-

19. Vide order dated 20.9.2019 the Sub Divisional Officer allowed the appeal by setting aside the order passed by the Tehsildar. The Sub Divisional Officer after considering the entire record came to the conclusion that Late Savitri Bai for the first time came to the knowledge about encroachment on 10.6.2007 on the basis of demarcation report, therefore, the proceedings u/s. 250 of the MPLRC initiated 1.7.2011 are within limitation. The SDO also held that the majority of the land i.e. dominent purpose is agricultural land and only on 2500 Sq.ft. the godown in delipidated condition is there, therefore,

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the remaining land admeasuring 30868 Sq.ft. is an open land covered by fencing and it cannot be treated as construction on the land. 2.4 Being aggrieved by the aforesaid order of the Sub Divisional Officer the appellants/petitioners approached the Additional Commissioner, Indore Division, Indore by way of Case No. 0298/Appeal/2019-20. Vide order dated 31.1.2022 the learned Additional Commissioner dismissed the appeal and affirmed the order of the SDO 2.5 Being aggrieved by the aforesaid order of Additional Commissioner, the appellants/petitioners preferred Misc. Petition under Article 227 of the Constitution of India before this Court.

3. The revenue authorities are not the Tribunal, or subordinate court of the High Court therefore, the appellants /petitioner wrongly filed the Misc. Petition and they ought to have filed a writ petition under Article 226 instead of Art. 227 of the Constitution of India.

However, the learned Writ Court vide order dated 30.6.2023 dismissed the Misc. Petition on merit . Hence, the present writ appeal before this Court.

3.1 Shri Jagdish Baheti, learned appearing for the respondents, submits that the present writ appeal is not maintainable as the Misc. Petition under Article 227 of the Constitution of India was filed and against which no writ appeal lies. In support of his contention, he placed reliance over the judgment/order passed by the co-ordinate Division Bench of this Court in W.A. No. 1814/2019 whereby the writ appeal has been held to be not maintainable as the petition was filed under Article 227 of the Constitution of India challenging the order passed by the Board of Revenue.

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3.2 Shri Veer Kumar Jain, learned senior counsel appearing for the appellants/petitioners, submits that this writ appeal is maintainable as the revenue authorities are not subordinate to the High Court, therefore, the High Court did not exercise the writ jurisdiction as a superintendence, hence the writ appeal is maintainable.

4. As stated above, the revenue authorities are quasi-judicial authorities under the M.P. Land Revenue Code, 1959. They are neither Courts nor Tribunal established under Article 323-A & 323-B of the Constitution of India. The Misc. Petition was filed under Article 227 of the Constitution of India and no objection was raised and it was heard and decided. But it ought to have been treated under Article 226 of the Constitution of India. Hence, the present writ appeal is maintainable.

4.1 So far as the case on merits is concerned, Shri Jain, learned senior counsel appearing for the appellants/petitioners, submits that the learned revenue authorities have wrongly passed the order u/s. 250 of the M.P. Land Revenue Code, 1959 by conducting the demarcation. Admittedly, the land in question is not an open land, therefore, the proceedings u/s. 250 of the M.P. Land Revenue Code, 1959 were not maintainable.

4.2 Shri Baheti, learned counsel appearing for the respondents, submits that the demarcation was carried out under a direction given by the Board of Revenue, otherwise the proceedings were initiated u/s. 250 of the MPLRC because the demarcation had already been conducted on 1.11.2007, in which, encroachment by the appellants were found established. In support of his contention, he has placed reliance over the judgment passed in the case of Narayan V/s. Mst.

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Nagubai & others : 1978 ILR 178 in which it is held that the provisions of the M.P. Land Revenue Code, 1959 are not confined only to agricultural lands. they also deal with non-agricultural lands situated in urban areaa also. It has also been held that according to the definition of land, it is apparent that the term 'land' does not only refer to open land but also includes every thing permanently fastened to earth and treated the same as a part of the land. He has also placed reliance over the order dated 22.3.1968 passed by this Court in the case of Krishnakumardas V/s. Balramdas : MANU/MP/0121/1968 in which it is held that Section 250 of the MPLRC clearly provides a speedy and summary remedy when the possession of the Bhumiswami was to be restored and the land is fictionally meant to include even buildings on the land. He has also placed reliance over the order dated 1.10.2020 passed in Misc. Petition No. 5156/2019 (Smt. Sunita V/s.

State of M.P.) in which it is held that if the construction is illegal that too on land without title, then it will not come in the way of exercise of powers of the Tehsildar u/s. 250 of the MPLRC.

We have heard the learned counsel for the parties at length and perused the record of the case.

5. Admittedly, in the present case, the application for demarcation was filed in the year 2007 which was carried out on 10.6.2007 and the appellants/petitioners were found in possession of 0.310 Hect. of land bearing Survey No. 187/3/1 belonging to Late Smt. Savitri Bai. Thereafter, an application u/s. 250 of the MPLRC was filed on 1.11.2007 and the matter travelled up to the Board of Revenue. The Board of Revenue remanded the matter back to the Tehsildar which was initiated u/s. 250 of the MPLRC. In the said proceedings the

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Board of Revenue directed for conducting fresh demarcation, but the proceedings were initiated u/s. 250 not u/s. 129 of the MPLRC. Even, sub-section (2) of Section 250 provides that the Tehsildar shall, after making an inquiry into the respective claims of the parties, decide the application and when he orders the restoration of the possession to the Bhumiswami, put him in possession of the land. Therefore, for the purposes of inquiry, the demarcation can be conducted and there is no illegality in it. The Sub Divisional Officer and the Additional Commissioner both have concurrently held that the appellants/petitioners are in illegal possession of 0.310 Hect. belonging to Late Savitri Bai, hence rightly directed for eviction of the appellants and restoration of possession of Late Smt. Savitri Bai.

6. So far as the construction on the land i.e. Survey No. 187/3/1 is concerned, the contention of Shri Veer Kumar Jain, learned senior counsel for the appellants/petitioners cannot be accepted in the light of the judgment passed in the case of Smt. Sunita V/s. State of M.P. (supra) that the construction is an illegal construction and no document or permission has been filed. According to Shri Baheti, learned counsel for the respondents, the said construction is not in existence and only the fencing is there. Even otherwise, the entire land bearing Survey No. 187/3/1 is open and agricultural land. The appellants had illegally encroached upon the said land and raised the construction which would not disentitle Late Savitri Bai, Bhumswami to invoke the provisions of Section 250 of the MPLRC. Otherwise, it would be very convenient for any person to encroach upon open land and raise construction to disentitle the Bhumiswami to invoke the provisions of Section 250 of the M.P. Land Revenue Code, 1959. Had

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it been a case that the Bhumiswami raised construction and thereafter the same was encroached by any other person, then the proceedings would not have been maintainable, but in the present case, Late Savitri Bai being a Bhumiswami of the open land did not raise any construction, therefore, the proceedings initiated by her cannot be held to be not maintainable. We do not find any ground to interfere.

7. This Writ Appeal is accordingly dismissed. No order as to costs.

         [VIVEK RUSIA]                       [ANIL VERMA]
             JUDGE.                             JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.12.08 12:35:39 +05'30'