Madhya Pradesh High Court
Devika Choudhary vs Commissioner on 15 January, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
WRIT PETITION No. 29341 of 2024
DEVIKA CHOUDHARY AND OTHERS
Versus
COMMISSIONER AND OTHERS
Appearance:
Shri R. S. Chhabra - Senior Advocate with Shri Harsh Arora -
Advocate for the petitioners.
Shri S. Murlidhar - Senior Advocate with Shri Vivek Patwa and Shri
Akshat Kothari- Advocate for the respondent No.2.
Reserved on : 10.12.2024
Pronounced on : 15.01.2025
This writ petition having been heard and reserved for order, coming
on for pronouncement this day, the court passed the following:
ORDER
1] Heard finally, with the consent of the parties.
2] This writ petition has been filed by petitioners under
Article 226 of the Constitution of India against order dated
12.09.2024, passed by respondent No.1 – Commissioner, Indore
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
2
Division, Indore whereby the order dated 17.03.2023, passed by the
Additional Collector, Indore in Appeal No.16/22-23 has been
reversed, and consequently, the order passed by Naib Tehsildar,
Malharganj, Indore on 05.09.2020 has also been set aside, directing
that all the revenue records, Khasra, Map, trace etc. be restored to its
original position as it existed prior to the order dated 05.09.2020.
3] In brief the facts of the case are that the petitioners, along
with other members of the family had an undivided joint ownership in
lands bearing Survey Nos.3/1 and 3/2 situated at Village Nainod,
Tehsil Malharganj, District Indore, and pursuant to an order of
subdivision (Fardbatwara) dated 29.03.2010, petitioners viz., Devika
Chaudhary, Dhruvraj Chaudhary and Madhuri Choudhary became the
independent owners of the land bearing Survey Nos.3/2/1, 3/2/2 and
3/2/3 respectively.
4] The petitioners‟ case is that on the basis of the aforesaid
Fardbatwara, on 19.06.2020, an application was filed by them for
sub-division of land bearing Survey Nos.3/2/2 and 3/2/3 into 3/2/2/1,
3/2/2/2, 3/2/3/1 and 3/2/3/2, pursuant to which, a public notice was
also issued by the Tehsildar on 19.06.2020, and finally the sub-
division was allowed by the Tehsildar vide its order dated 05.09.2020.
Against said order dated 05.09.2020, an appeal was preferred by the
respondent no.2 Manjri Chaudhary on 30.12.2021, under Section
44(1) of the M.P. Land Revenue Code, 1959 (in short „the MPLRC‟)
along with an application for condonation of delay before the Sub-
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
3
Divisional Officer, (Revenue), Malharganj, Indore. However, on the
objections filed by the petitioners, the Sub-Divisional Officer
dismissed the appeal on 23.05.2022, holding that the respondent No.2
Smt. Manjri Choudhary was not a party to the previous proceedings
and also that no leave to appeal was obtained by respondent No.2.
However, a liberty was also granted to the respondent No.2 to file a
fresh appeal, after obtaining the leave to appeal in accordance with
law. The petitioners‟ further case is that instead of seeking leave to
appeal, on 13.06.2022, the respondent No.2 filed a review petition
under Section 51 of the MPLRC. However, the aforesaid review
petition also came to be dismissed on 12.09.2022 by the Sub-
Divisional Officer holding that no new grounds are made out.
5] Against the aforesaid order dated 12.09.2022, a first appeal
under Section 44(3) of the MPLRC was also preferred by the
respondent no.2 before the Additional Collector, Indore. However,
according to the petitioners, it was in fact a second appeal. In the
aforesaid appeal, an application was also filed by the petitioners for
dismissal of the appeal on the ground that against an order of review,
an appeal cannot be filed in terms of Section 46(a)(ii) of the MPLRC.
However, vide its order dated 17.03.2023, the Additional Collector,
Indore dismissed the appeal on the ground that the respondent No.2
failed to establish as to how her right was affected on account of the
order of sub-division (Batankan) of the petitioners‟ land. The
aforesaid order dated 17.03.2023 was also challenged by the
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
4
respondent No.2 by filing a second appeal under Section 44(2) of the
MPLRC before the respondent No.1, Commissioner, Indore Division,
who has allowed the appeal by setting aside the order of Additional
Collector, and consequently, the order of sub-division (Fard batwara)
dated 05.09.2020, passed by the Tehsildar has also been set aside.
6] Shri Ravindra Singh Chhabra, learned Senior counsel
appearing for the petitioners has submitted that the Commissioner has
erred in allowing the aforesaid appeal, despite the fact that it was
practically a third appeal before him, which is not even maintainable
under the MPLRC. Shri Chhabra has also submitted that the
Commissioner has also lost sight of the fact that the first appeal under
Section 44(1) of the MPLRC, which was filed by the respondent No.2
before the SDO, was filed along with an application for condonation
of delay, but the aforesaid delay has not even been condoned, and
thus, the appeal before the Commissioner was liable to be dismissed
on this ground only. It is also submitted that the Commissioner has
also lost sight of the fact that under Section 46(a)(ii) of the MPLRC,
the appeal against an order of review has been specifically prohibited.
Thus, it is submitted that the impugned order is liable to be quashed.
7] Shri Chhabra has also submitted that the Commissioner has
given undue importance to Section 73, and Sections 109 and 110 of
the MPLRC to hold that the aforesaid application u/s. 73 of MPLRC,
for subdivision of land itself was not maintainable before the
Tehsildar, whereas the mentioning of Section 73 in the application
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
5
was only a typographical error, and the sub-division/demarcation of
the land was actually carried out in accordance with Section 129 of the
MPLRC. It is also submitted that under Section 129(8) of the MPLRC,
there is no appeal maintainable against an order passed under this
Section. Shri Chhabra has also submitted that even otherwise,
respondent No.2 does not hold any adjoining land in Survey Nos.3/2/2
and 3/2/3, which were to be sub-divided, hence the respondent No.2
had no locus to challenge the order of sub-division of land of the
petitioners. It is also submitted that the boundary of the land bearing
Survey Nos.3/2/2 and 3/2/3 were not even changed, and there was
only a sub-division carried out with an intent to change the land use of
part of the land, whereas the respondent No.2 is the owner of the land
bearing Survey No.3/1/3, which is not adjoining the land at Survey
Nos.3/2/2 and 3/2/3.
8] Shri Chhabra has also submitted that the second appeal was
in fact, a de facto, third appeal, which has been entertained by the
respondent No.1 the Commissioner, Indore, despite the fact that under
the provision of MPLRC there is no provision of third appeal against
an order passed in the second appeal. Shri Chhabra has also submitted
that although the application for demarcation and mutation was filed
by the applicant(s)/petitioners under Sections 109 & 110 of MPLRC,
however, it is wrongly mentioned as an application under Section 73
by the Tehsildar, and thus, no benefit has accrued to the respondent
No.2 on account of a typographical error made by the Tehsildar in the
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
6
order that he is invoking the powers under Section 73 of the MPLRC.
It is also submitted that no leave to appeal before the SDO was filed
by the respondent No.2 despite the fact that the respondent No.2 was
also granted opportunity to file the aforesaid application, but instead, a
review application was filed, which has been rightly rejected by the
SDO holding that no new grounds are made out.
9] Senior counsel has also submitted that even otherwise, the
application for condonation of delay filed before the SDO along with
the original first appeal was not decided by the SDO. This aspect has
also not been considered by the Commissioner in the impugned order,
despite the fact that it was raised specifically by the petitioners. It is
also submitted that apparently the Commissioner has also not taken
into account the fact that against an order of review, no appeal in
terms of Section 46(a)(ii) of MPLRC is maintainable.
10] Finally, it is also submitted that the respondent No.2 has
nothing to do with the lands of the petitioners as she is not the adjacent
land owner, particularly of land bearing Survey Nos.3/2/2 and 3/2/3,
which belong to the petitioner Nos.2 and 3, respectively. Thus, it is
submitted that the impugned order be set aside, and the order passed
by Tehsildar be sustained.
11] On the other hand, the prayer is vehemently opposed by
the Senior Counsel Shri S. Murlidhar, assisted by Shri Vivek Patwa
and Shri Akshat Kothari- Advocates. Shri Murlidhar has drawn the
attention of this Court to the fact that in the application filed by the
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
7
petitioners for demarcation, sub-division and correction of map,
neither the provision of law, under which it has been filed, nor the
date, have been mentioned, whereas, in his order dated 19.06.2020, the
Naib Tehsildar, Malharganj, Indore has treated the aforesaid
application to be an application filed under Section 73 of the MPLRC.
Attention of this Court has also been drawn to Section 73 of the
MPLRC, which provides all lands liable to assessment, that the
District Survey Officer shall make assessment on all lands to which
the survey extends where such lands are liable to the payment of land
revenue or not. Thus, it is submitted that any action under Section 73
can only be taken by the District Survey Officer, and not the Naib
Tehsildar, and in such circumstances only, the Tehsildar has acted
without jurisdiction.
12] Shri Murlidhar has submitted that the aforesaid mentioning
of Section 73 of the MPLRC in the order dated 19.06.2020 was not a
mere typographical error as is apparent from the Vigyapti also, which
has also been issued by the same Tehsildar on 19.06.2020, in which it
is clearly stated that the aforesaid Vigyapti is being published under
Section 73 of the MPLRC. Attention of this Court has also been
invited to the fact that in the aforesaid Vigyapti dated 19.06.2020, the
last date for filing the objection is mentioned as 03.07.2020, whereas
the aforesaid Vigyapti has been affixed on the Tehsil Office‟s notice
board only on 07.07.2020. Thus, it is submitted that the objections
were invited till 03.07.2020, whereas the notice of the same was
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
8
affixed on 07.07.2020 i.e., after the period of filing the objections had
already expired. Thus, it is submitted that the entire proceedings have
been initiated only with a view to ensure that the petitioners get the
benefit of the same as there was no question of any objection being
invited, when the notice itself was affixed on 07.07.2020, whereas in
the Vigyapti, the last date to submit the objections was 03.07.2020.
13] Shri Murlidhar has also drawn the attention of this Court to
the proceedings, which took place before the Revenue Inspector, who
had issued the notice to the petitioners on 24.08.2020, wherein the
petitioners were directed to remain present on the spot at 11:00 AM in
the morning on 27.08.2020. So far as the Panchnama, which was
prepared on 27.08.2020, senior counsel has again drawn the attention
of this Court to the fact that although it has been mentioned in the
aforesaid Punchnama that the petitioners and the adjacent
agriculturists are also present, however, their signnatures are not
appended to the aforesaid Panchnama, hence it is not known as to
who were the other adjacent agriculturists, who were present on the
spot. Thus, it is submitted that the mutation and the correction of map,
on the basis of the aforesaid proceedings have already been held to be
bad in law by the Commissioner in the impugned order, which does
not call for any interference.
14] Senior Counsel has also submitted that the present
respondent No.2 Manjri Choudhary shares a common boundary with
the petitioner No.1 Devika Choudhary as the respondent No.2 holds
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
9
the adjacent land at Survey No.3/1, whereas Devika Choudhary holds
land bearing Survey No.3/2/1. It is also submitted that a boundary
dispute is already going on between the respondent No.2 and the
petitioner No.1, as in an earlier proceedings it has already been found
that Devika Choudhary has encroached upon Khasra No.3/1/3, which
belongs to the respondent No.2 as has been found by the order of
Tehsildar dated 21.07.2021. It is also submitted that the aforesaid
dispute is still pending before the Division Bench of this Court in Writ
Appeal No.1049 of 2024, and in such circumstances, it cannot be said
that the respondent No.2 was not a party to the dispute.
15] Shri Murlidhar, Sr. Counsel for the respondent no.2 has
also submitted that although a review application was filed before the
SDO, but in sum and substance, it was an application for leave to
appeal only, but the SDO has not considered the contents of the
aforesaid application in which it is apparent that a leave to appeal was
also made, but treating it to be a review petition only, has rejected the
same that no new grounds are made out. Senior counsel has also
submitted that even otherwise, no leave to appeal was required to be
sought by the respondent No.2, as she was very much an interested
party in the dispute and not an alien. Shri Murlidhar, however, has
fairly admitted that the second appeal before the Additional Collector
was not maintainable. However, even if it is dismissed on merits, it
cannot be said to be a second appeal, and for all the practical purposes,
the appeal preferred before the Commissioner under Section 44(2) of
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
10
the MPLRC was the second appeal, and in such circumstances, no
case for interference is made out, and the petition is liable to be
dismissed.
16] In support of his submissions, Shri Murlidhar has also
relied upon various judgements of the Supreme Court and a written
argument has also been filed by the counsel for the respondent no.2, in
addition to the detailed arguments advanced by Shri Murlidhar.
17] Heard counsel for the parties and perused the record.
18] On careful perusal of the record, for the reasons as assigned
infra, this Court finds that grave illegalities have been committed by
the Tehsildar, SDO and Additional Collector in passing the orders,
whereas the Commissioner has taken care of all such orders to hold
that the same cannot be sustained in the eyes of law and has set aside
the same, with liberty reserved to the petitioners to apply afresh for
division, demarcation and correction of map.
19] This Court does not find any force in the submissions as
advanced by Shri Ravindra Singh Chhabra, learned Senior Counsel for
the petitioners that the Commissioner could not have entertained the
de facto third appeal under the provisions of the MPLRC, which does
not provide for any third appeal. This Court also finds that, admittedly,
against the order of Tehsildar, the first appeal under Section 44(1) of
the MPLRC was filed before the Sub Divisional Officer, Malharganj,
Indore in which, it was clearly pleaded that the respondent No.2 is also
a party to the litigation. The aforesaid application was indeed filed
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
11
along with an application under Section 5 of the Limitation Act, 1963
in which it was also stated that the delay was caused as the respondent
No.2 was not even a party before the Tehsildar, and only after she
came to know about the order, the appeal was filed.
20] The aforesaid first appeal was rejected by the SDO on
23.05.2022, holding that since the appellant/the respondent No.2
herein was not a party before the Tehsildar, and in such circumstances,
she ought to have obtained a leave to appeal, and a liberty was also
given to the respondent No.2 to obtain the leave to appeal, and
although, the respondent No.2 did not file any leave to appeal, but on a
close reading of the application for review filed under Section 51 read
with Section 32 of MPLRC, it is found that in para 4 of the aforesaid
application, the respondent No.2 has clearly made a specific prayer
that she may be allowed to file an appeal against the order passed by
the Tehsildar. In the considered opinion of this court, in such
circumstances, there was no occasion for the SDO to hold that it was
purely an application for review only, without going into the contents
of the same.
21] So far as the order of the Additional Collector dated
17.03.2023 is concerned, this Court appalled to see the manner in
which the order has been passed, running into around 10(ten) pages. It
is not just the pages which concern this court, but the fact that an
Additional Collector, who is supposed to know the MPLRC like the
back of his hand, would entertain a second appeal filed before him
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
12
under Section 44(3) of MPLRC, despite the fact that no such second
appeal lies before the Collector under Section 44(3) of the MPLRC in
the first place, which lies only under Section 44(2) of the MPLRC
before the Commissioner or the Board of Revenue, as the case may be.
At this juncture, it would be apt to refer to S.44 of MPLRC, which
reads as under:-
“[44.Appeal and appellate authorities. –
(1) Save where it has been otherwise provided, an appeal shall lie from
every original order of a Revenue Officer competent to pass such order
under this Code or the rules made thereunder-
(a) if such order is passed by any Revenue Officer subordinate to the
Sub-Divisional Officer – to the Sub-Divisional Officer;
(b) if such order is passed by any Revenue Officer subordinate to the
Deputy Survey Officer – to the Deputy Survey Officer;
(c) if such order is passed by the Sub-Divisional Officer – to the
Collector;
(d) if such order is passed by the Deputy Survey Officer – to the District
Survey Officer;
(e) if such order is passed by any Assistant Collector, Joint Collector or
Deputy Collector to whom the powers have been conferred under-section
24-to the Collector;
(f) if such order is passed by any Revenue Officer in respect of whom a
direction has been issued under sub-section (3) of section 12 – to such
Revenue Officer as the State Government may direct;
(g) if such order is passed by a Collector or District Survey Officer -to
the Commissioner;
(h) if such order is passed by the Commissioner – to the Board.
(2) Save as otherwise provided, a second appeal shall lie against every
order passed in first appeal under this Code or the rules made thereunder
–
(a) by the Sub-Divisional Officer or the Deputy Survey Officer or the
Collector or the District Survey Officer – to the Commissioner;
(b) by the Commissioner – to the Board.
(3) The second appeal shall lie only –
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
13
(a) if the original order has in the first appeal been varied or reversed
otherwise than in a matter of cost; or
(b) on any of the following grounds and no other, namely :-
(i) that the order is contrary to law or, usage having the force of law; or
(ii) that the order has failed to determine some material issue of law, or
usage having force of law; or
(iii) that there has been a substantial error or defect in the procedure as
prescribed by this Code, which may have produced error or defect in the
decision of the case upon merits.
(4) An order passed in review varying or reversing any order shall be
appealable in like manner as the original order.]”
(Emphasis Supplied)
22] On perusal of the said provision, this Court has no
hesitation to hold that the order dated 17.03.2023 passed by the
Additional Collector while entertaining a second appeal is an illegal
order, passed without jurisdiction, because, when an appeal, being an
appeal non-est in the eyes of law, was preferred by the respondent
No.2 before the Additional Collector, and which is also rejected by
him/her on merits, it cannot be said that the respondent No.2 had
already availed the remedy of second appeal before the Additional
Collector, and thus no third appeal lies before the Commissioner under
Section 44(2) of the MPLRC.
23] This Court is of the considered opinion that when the
second appeal itself was not maintainable before the Additional
Collector, he ought not to have entertained the same, and ought to
have returned the same to the respondent No.2 to file the same before
the concerned Court. However, instead of passing such an order of
returning the appeal, the Additional Collector has gone on to decideSignature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194WP No.29341 of 2024
14
the matter on merits, which has been rightly reversed by the
Commissioner in the impugned order.
24] This Court is also of the considered opinion that when the
dispute is already going on between the parties, and the question of
demarcation is already pending before this Court in W.A. No.1049 of
2024, it cannot be said that the respondent no.2 was not a party to the
demarcation proceedings initiated by the petitioners. Although, Shri
Ravindra Singh Chhabra has also drawn the attention of this Court to
the fact that in a subsequent proceedings, the Tehsildar has also found
that there was no encroachment on the part of the petitioner no.1
Devika, however, the fact remains that the issue still pending before
the Division Bench of this Court in the aforesaid writ appeal, and thus,
the concerned authority was at least required to pass an appropriate
order, after inviting objection from the respondent No.2 also.
25] In this context, it would be also interesting to note that in
his proceedings dated 19.06.2020, the Tehsildar has treated the
application filed by the petitioners without referring to any provision
of law, as an application u/s.73 of MPLRC, apparently, u/s.73 only the
District Survey Officer has the power to pass an order. Similarly, in
the Vigyapti dated 19.06.2020 also, inviting the objections on the
application of the petitioners, it is mentioned that it is being issued
u/s.73 of MPLRC, in such circumstances, when such a misleading
publication (vigyapti) is made, referring to a wrong provision of law,
even assuming that it was affixed at the right place, it cannot be saidSignature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194WP No.29341 of 2024
15
with any certainty that it also attracted the interested persons/adjacent
landowners to file their objections because, after looking at it one
might be misled that it is a notice u/s.73 only and not u/s.109, 110 or
129 of MPLRC as contended by the learned Sr. Counsel for the
petitioners. Similarly, the contents of Panchnama dated 27.08.2020
which was prepared after service of notice to the petitioners, also
reveals that in the Panchnama there are no signatures of petitioners,
despite mentioning that the petitioners were also present on the spot,
and so far as the other signatures appended to the said Panchnama are
concerned, there is no reference as to which adjacent plots belong to
them. Thus, the aforesaid entire proceedings appear to be a mere
eyewash, and hence rightly set aside by the Commissioner, Indore in
the impugned order.
26] In view of the same, this Court finds that the petitioners
have not been able to make out any case for interference. Accordingly,
petition being devoid of merits, is hereby dismissed with cost of
Rs.50,000/-, considering the manner in which the lower revenue
authorities have played into the hands of the petitioners. The cost of
Rs.50,000/- shall be paid by the petitioners in the account of
“President and Secretary High Court Employees Union” {Account
No.63006406008, Branch Code No.30528, IFSC No. SBIN0030528,
CIF No.73003108919} within a period of one month from the date of
receipt of certified copy of this order, and the acknowledgement of the
same shall be also filed before the Registry of this Court.
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
16
27] An exemplary cost of Rs.75,000/- is also being imposed on
the respondent no.2 for the following reasons :-
A DISCORDENT NOTE REGARDING THE CONDUCT OF
THE RESPONDENT NO.2 THROUGHOUT THE PROCEEDINGS
OF THIS PETITION:-
28] Although, the aforesaid order has been passed in favour of
the respondent No.2, however, this Court records its utter
dissatisfaction and disappointment towards the manner in which the
entire case has been conducted by the counsel who have drafted the
reply and other applications on behalf of the respondent No.2, of
course, with the consent of the respondent no.2.
29] From the pleadings of the respondent no.2, it is apparent
that both the parties are well endowed and consider themselves as the
richest persons in Indore. This Court is of the considered opinion that
it was not a complicated case, but the respondent No.2 in her
pleadings, has tried to project the same as the one, involving various
complications. It is surprising that the impugned order runs into hardly
eight to nine pages, but the respondent no.2 had initially filed
preliminary objection on 01.10.2024, running into seventy (70) pages,
out of which 31 pages were devoted to the memo of objection only,
whereas the documents annexed along with the said objection were
various police complaints running into 39 pages, made by the
respondent No.2 against the petitioners which were not relevant to
decide the issue involved. Thereafter, on 26.10.2024, I.A. No.10378 ofSignature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194WP No.29341 of 2024
17
2024 was filed by the respondent No.2 for modification of the interim
order passed in favour of the petitioners on 03.10.2024, in which the
entire transcript of the conversation/arguments, which took place
before this Court, have been reproduced verbatim, and in the aforesaid
application it was expected from this Court that this Court should have
passed the orders on the entire submissions advanced by the counsel
for the respondent No.2. It is also found that the same practice was
also adopted by the respondent no.2 in W.A. No.793 of 2023 and vide
order dated 02.11.2023 the Division Bench of this Court has also
deprecated the practice adopted by the respondent no.2, however, no
cost was imposed as a cost of Rs.25,000/- was already imposed by the
writ Court in W.P. No.28458 of 2022 vide order dated 23.02.2023, but
apparently, the respondent no.2 has not learnt any lessons from her
past mistakes, it is also not known if she has already paid the aforesaid
cost.
30] This Court is of the considered opinion that a Court is not
obliged to record each and every submission of the counsel for the
parties concerned, especially at the stage of motion hearing, as the
same would consume and eat into the valuable time of an already
burdened court, which is to be used sparingly and not spaciously..
Thus, the aforesaid pleadings appear to have been made only with a
view to pressurize and browbeat this Court, which is highly
deprecated.
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
18
31] So far as the reply to the writ petition is concerned, it runs
into 157 pages, out of which, 22 pages have been devoted to the
memo of reply itself, and the others are Annexures. On perusal of the
same, it is also found that the same is not only verbose, but it is
specifically stated in paras 2 and 3 of the same that the parawise reply
is not being filed, and the respondents shall address and demonstrate,
the illegality, unlawfulness, falsity, frivolity and fraud of Naib
Tehsildar in collision and criminal conspiracy with petitioner Nos.1 to
3. In addition to that, a separate written arguments running into 126
pages was also filed on 04.12.2024. To say the least of an application,
I.A. No.10622 of 2024, which was also filed on 11.11.2024, under
Section 151 of C.P.C. for discontinuation of the interim order dated
12.09.2024 pursuant to an order passed by the Supreme Court in SLP
No.26361 of 2024, basically an application for vacating the stay again
running into 33 pages. Another application, I.A. No.10624 of 2024
dated 11.11.2024, which was an application under Order 12 Rule 6
read with Section 151 of CPC for judgement of admission on the part
of the petitioners was totally unnecessary and out of place.
32] So far as the written arguments are concerned, it is found
that the counsel for the respondent No.2 has also referred to the
various decisions of the Supreme Court in support of his submissions
that the Court has to consider the written arguments filed by a party.
Thus, the intention of the counsel for the respondent no.2 was also that
this Court should also devote its time to the aforesaid writtenSignature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194WP No.29341 of 2024
19
arguments, in addition to the reply and other applications, and the
arguments advanced by Shri Murlidhar, the learned Senior Counsel for
the respondent No.2. This Court makes it clear that it is certainly not
averse to any petition or reply no matter how lengthy, but when such
pleadings are made with an intent to satisfying once own ego and
browbeat the Court, it certainly is a matter of grave concern, and such
practice needs to be addressed.
33] Needless to say, the aforesaid applications, written
arguments, reply etc. filed by the respondent No.2 have also resulted
in filing counter replies, applications etc. by the petitioners, which has
certainly added to the volume of the record of this case, and giving
rise to unnecessary arguments.
34] In such facts and circumstances of the case, this Court
while recording its disconcerting note, imposes an exemplary cost of
Rs.75,000/- on the respondent No.2, which should be paid in the
account of President and Secretary H.C. Employees Union H.C.
(Account No.63006406008, Branch Code No. 30528, IFSC No.
SBIN0030528, CIF No.73003108919) within a period of one month
from the date of this order, and the acknowledgement of the same
shall be filed before the Registry of this CourtREGARDING THE CONDUCT OF THE RESPONDENT
NO.2 IN UNDERMINING THE AUTHRORITY OF THIS COURT.
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
20
35] To top it all, it is also found that an application i.e.,
document No.8387 of 2024 dated 01.10.2024 has also been filed by
the respondent No.2 which read as under:-:-
“1. That the Applicant is the Caveator/ Respondent No.2 in the
above- captioned Writ Petition which is likely to be listed before
this Hon’ble Court on 03.10.2024 and the copy of the memo of
the petition has been served to the caveator on 30.09.2024 at
4.30pm.
2. That the Caveatees/ Petitioners of the present Petition are the
family members of the brother-in-law, Mr. Sanjay Choudhary, of
the Applicant.
3. That the Petition has its genesis in the dispute about the land
admeasuring 13.2 hectares bearing Khasra No.3/1 & 3/2 (until
February 2010). The litigation in this dispute has been
widespread, wherein the Fard Batwara order dated 29.03.2010,
demarcation order dated 25.10.2021, Registration of Assent
Deed dated 03.05.2011 are challenged. The matter in these cases
are still pending before this Hon’ble Court in W.A. No.
1049/2024 titled “Manjiri Choudhary v. State of M.P. & Ors.”
and before the Hon’ble Supreme Court in Special Leave Petition
6672/ 2024 titled “Bhavya Choudhary & Anr. v. State of Madhya
Pradesh & Ors.”
4. The Caveatees/Petitioners have impugned the order of the
Commissioner, Indore Division dated 12.09.2024 through the
present Petition involving the sub-division and demarcation of
the land bearing Khasra No. 3/2/1, 3/2/2 and 3/2/3 (old Khasra
No.3/2). Such lands are purportedly being claimed by the
Caveatees/ Petitioners pursuant to the purported Fard Barwara
order dated 29.03.2010. This Fard Batwara order is pending
adjudication before the Hon’ble Supreme Court in SLP No. 6672/
2024 titled “Bhavya Choudhary & Anr. v. State of Madhya
Pradesh & Ors.” impugning the order dated 02.11.2023 passed
by this Hon’ble Court in W.A. No.793/ 2023 titled “Bhavya
Choudhary & Anr. v. State of M.P. & Ors.“. The order in W.A.
No.793/2024 was passed by a Division Bench comprising of
HMJ S.A. Dharamadhikari and HMJ Pranay Verma.
5. That after perusal of the copies served to the
Caveatee/Petitioner it was observed that the Caveatee/Petitioner
have alleged/submitted the issues pertaining to Fard Batwara on
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
21
Page No. 1 at Sl. No.2; Page No.9 in Para No. 5.1, 5.2 and 5.3;
Page No.21 in Para 6.7; Page No.(s) 28-36 being Annexure P-1;
Page No.(s) 44-45.
6. The Caveatees/ Petitioners have alleged/ submitted the issues
pertaining to the Seemankan/ Demarcation proceeding on Page
No.21 in Paras 6.8, 6.9, 6.10, Page No.(s) 119-122 being
Annexure P- 16, the order passed in W.P. No.27523/2021 by
HMJ Vijay Kumar Shukla, Page 123-127 being Annexure P-17,
the order passed in W.A. No. 1239/2022 by HMJ Vivek Rusia
and HMJ Amar Nath (Kesarwani), Page No.(s) 128 being
Annexure P-18, the order passed in R.P. No. 1247/ 2022 by
HMJ Vivek Rusia and HMJ Amar Nath (Kesharwani), Page
No. (s) 133-144 being Annexure P-20.
7. That the impugned order challenged by the Caveatees/
Petitioners also contains the issues and contentions regarding the
ownership of the subject land (which has been derived through
the order of Fard Batwara dated 29.03.2010) and the
Seemankan/ Demarcation & Encroachment of the subject lands
and the land of the Caveator/ Respondent No. 2.
8. That it is a fact on the face of the record of this Hon’ble
Court that the following Hon’ble Justices had adjudicated
and passed orders in issues and contentions which are also
the issues and the contentions in the present Petition,
(i) HMJ S.A. Dharamadhikari;
(ii) HMJ Amar Nath (Kesharwani);
(iii) HMJ Vivek Rusia;
(iv) HMJ Vijay Kumar Shukla;
(v) HMJ Pranay Verma.
9. That in the interest of justice and to further ensure
equality & impartiality in the adjudication of the present
Petition, this Petition bearing W.P. No.29341/2024 titled
“Devika Choudhary & Ors. v. State of M.P. & Anr.” may not
be listed before and/ or heard by Hon’ble Justices as
mentioned above. The Caveator/ Respondent No. 2 has
complete trust in the wisdom, competency and integrity of all
the Hon’ble Justices as mentioned above. The matter in the
cases regarding the Fard Batwara and Seemankan/ Demarcating
have not attained their finality and are pending adjudication a
higher judicial fora as submitted above. These Hon’ble Justices
have passed orders in cases having the same issues/
contentions which are also alleged/ submitted in the present
Petition.
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
22
10. That it is for only these above-mentioned reasons that the
Caveator/ Respondent No. 2 prays for the present Petition not
being listed and/ or heard by the above-mentioned Hon’ble
Justices.
11. That the Caveator/ Respondent No. 2 submits further fact on
the face of the record of this Hon’ble Court that HMJ Vivek
Rusia had recused himself from hearing W.P. No. 29242/2023
titled “Manjiri Choudhary v. State of M.P. & Ors.” and W.A. No.
1049/2024 titled “Manjiri Choudhary v. State of M.P. & Ors.“.
The orders dated 18.12.2023 and 29.08.2024 passed in those
cases are self- explanatory in nature. Copy of the order(s) dated
18.12.2023 and 29.08.2024 are annexed herewith as Annexure
A-1 (Colly.). Copy of the memo of the Writ Petition No. 29341/
2024 is annexed herewith as Annexure-A-2.
12. That the present Application is bona fide and in the interest
of justice.”
(Emphasis Supplied)
36] Thus, the aforesaid application has been filed seeking
recusal of FIVE Judges of this Bench of the High Court, which has a
strength of 10 judges only which is also rarely achieved, that they
should not hear the matter. In this regard, reference may also be had to
a decision rendered by the Supreme Court in the case of Kamini
Jaiswal Vs. Union of India, reported as (2018) 1 SCC 156, wherein
the Supreme Court has held as under:-
“24. There is no conflict of interest in such a matter. In case a Judge is
hearing a matter and if he comes to know that any party is
unscrupulously trying to influence the decision-making or indulging in
malpractices, it is incumbent upon the Judge to take cognizance of such
a matter under the Contempt of Courts Act and to deal with and punish
such person in accordance with law as that is not the conflict of interest
but the purpose for which the entire system exists. Such things cannot
be ignored and recusal of a Judge cannot be asked on the ground of
conflict of interest, it would be the saddest day for the judicial system of
this country to ignore such aspects on the unfounded allegations and
materials. It was highly improper for the petitioner to allege conflict of
interest in the petition filed that the Hon’ble Chief Justice of India shouldSignature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194WP No.29341 of 2024
23
not hear on judicial side or allocate the matter on the administrative side.
It appears that in order to achieve this end the particular request has been
made by filing successive petitions day after the other and prayer was
made to avoid the Hon’ble Chief Justice of India to exercise the power for
allocation of cases which was clearly an attempt at forum hunting and has
to be deprecated in the strongest possible words. Making such
scandalous remarks also tantamount to interfering with administration
of justice, an advocate cannot escape the responsibility on the ground
that he drafted the same in his/her personal capacity as laid down
in Shamsher Singh Bedi v. High Court of Punjab &
Haryana [Shamsher Singh Bedi v. High Court of Punjab & Haryana,
(1996) 7 SCC 99 : 1996 SCC (Cri) 181] . In Charan Lal Sahu v. Union
of India [Charan Lal Sahu v. Union of India, (1988) 3 SCC 255 : 1988
SCC (Cri) 662] , this Court has observed that in a petition filed under
Article 32 in the form of PIL attempt of mudslinging against the
advocates, Supreme Court and also against the other constitutional
institutions indulged in by an advocate in a careless manner, meaningless
and as contradictory pleadings, clumsy allegations, contempt was ordered
to be drawn. The Registry was directed not to entertain any PIL petition
of the petitioner in future.”
(Emphasis Supplied)
37] In the considered opinion of this Court, the aforesaid
application, which has also been signed by the respondent No.2,
appears to have been filed with ulterior motive and amounts to a
criminal contempt on the face of it. Accordingly, a show cause notice
is also issued to respondent No.2 Manjri Choudhary, who is also
directed to disclose the name of the counsel, who has drafted the said
application on her behalf. Respondent No.2 is directed to appear
before this court and to file her affidavit on 03.03.2025 as to why she
should not be punished for criminal contempt of this Court.
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
NEUTRAL CITATION NO. 2025:MPHC-IND:194
WP No.29341 of 2024
24
38] Registry of this court is also directed to register a separate
Criminal Contempt case against the respondent no.2 and list
accordingly.
39] The petition is, accordingly, dismissed and disposed of.
(SUBODH ABHYANKAR)
JUDGE
Pankaj
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 15-01-2025
17:51:41
[ad_1]
Source link