Anubai vs State of M. P. - 2023 Supreme(MP) 309

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(MP) 309

IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Anubai (Smt.) v. State of M.P. and others
Writ Petitions No. 13204 of 2022, 13638 of 2022, 13642 of 2022 and 13644 of 2022 (Indore); Decided on 27.6.2023

Advocates appeared:
Nitin Phadke for petitioners; Devaasheesh Dubey, Government Advocate for respondent No. 1/State; Pradyuman Kibe for respondents No. 4 and 5.

Headnote:
¼1½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 129 ¼4½] 129 ¼5½ rFkk 129 ¼6½ && rglhynkj us lhekadu çfrosnu vfÒiq"V fd;k && iquZlhekadu d¢ fy, mi[kaM vfèkdkjh d¢ le{k vkosnu çLrqr && fgrc) O;fä;¨a d¨ lwpuk fn, fcuk] mi[kaM vfèkdkjh us uoxfBr ny d¨ iqu% lhekadu djus dk funs'k fn;k && ;kph us LFky ij vkifÙk çLrqr dh && ny }kjk lhekadu fd;k x;k ,oa lhekadu çfrosnu çLrqr fd;k x;k && lwpuk fn, fcuk] lquokÃ dk volj çnku fd, fcuk rFkk vkifÙk ij fopkj fd, fcuk] mi[kaM vfèkdkjh }kjk lhekadu çfrosnu vfÒiq"V fd;k x;k && mi[kaM vfèkdkjh dk vkns'k èkkjk 129 ¼6½ d¢ vèkhu fofgr çfØ;k d¢ çfrdwy && vikLrA ¼iSjk 10 ls 14
¼2½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 129 ¼4½] 129 ¼5½ rFkk 129 ¼6½ && rglhynkj }kjk lhekadu çfrosnu vfÒiq"V && iqu% lhekadu fd, tkus d¢ fy, mi[kaM vfèkdkjh d¢ le{k vkosnu && mi[kaM vfèkdkjh d¢ fy, ;g vko';d fd ftl O;fä d¢ i{k esa vkns'k ikfjr fd;k x;k gS] mls lquokÃ dk volj çnku djus d¢ i'pkr~ loZçFke rglhynkj }kjk ikfjr vkns'k dk ijh{k.k djs && rc lhekadu çfrosnu vfÒiq"V djus dk fofu'p; djs ;k iqu% lhekadu djus d¢ fy, ny d¨ çfrfu;qä djs && ,slk èkkjk 129 ¼6½ ds v/khu fofgr fd, x, vuqlkj ugÈ fd;k x;k && uoxfBr ny }kjk çLrqr lhekadu çfrosnu mi[kaM vfèkdkjh }kjk vfÒiq"V && vikLr fd;k x;k && lhekadu djus d¢ fy, ;g çdj.k fdlh vU; mi[kaM vfèkdkjh d¨ vkcafVr djus d¢ fy, dysDVj funsf'krA ¼2004½ 5 ,l lh lh 518 vuqlfjrA ¼iSjk 10 ls 14
(1) Land Revenue Code, 1959 (M. P.) -- S. 129 (4), 129 (5) and 129 (6) -- demarcation report confirmed by Tahsildar -- application for re-demarcation filed before Sub Divisional Officer -- without notice to interested persons, Sub Divisional Officer directed newly constituted team to conduct demarcation again -- petitioner filed objection on spot -- demarcation made and report submitted by team -- demarcation report confirmed by SDO without notice, without providing hearing opportunity and without considering objection -- order of SDO against prescribed procedure under section 129 (6) -- set aside. [Paras 10 to 14
(2) Land Revenue Code, 1959 (M. P.) -- S. 129 (4), 129 (5) and 129 (6) -- demarcation report confirmed by Tahsildar -- application before SDO to carry out demarcation once again -- incumbent upon SDO to first examine order passed by Tahsildar after giving opportunity to person in whose favor order is passed -- then decide to confirm report of demarcation or depute team to carry out demarcation once again -- same not done as prescribed uder section 129 (6) -- fresh demarcation report submitted by newly constituted team confirmed by SDO -- set aside -- Collector directed to allocate this case to other Sub Divisional Officer for carrying out demarcation. (2004) 5 SCC 518 followed. [Paras 10 to 14

ORDER

1. As the controversy involved in all these petitions is identical, therefore, they are being decided by this common order. For the sake of convenience, the facts narrated in W.P.No.13204/2022 are being taken into consideration.

2. The private respondents approached the Tehsildar under section 129 of the Madhya Pradesh Land Revenue Code, 1959 seeking demarcation of boundaries of their land with an allegation that the present petitioners have encroached their land. The Tehsildar directed for demarcation through Revenue Inspector, who conducted the demarcation and submitted the report to the Tehsildar in favor of the petitioners. The Tehsildar under Sub-section (4) of section 129 of MPLRC has confirmed the said demarcation report.

3. After nine months, the respondents exercised their right of appeal under section 129 (5) of the MPLRC by filing an appeal before the SDO. The appeal was taken up on 3.9.2020 by the Sub-Divisional Officer, Sendhwa and on very first date passed an order under section 129 (5) & (6) of the MPLRC for fresh demarcation. When the petitioners received the notice of the demarcation, they reached to the spot and thereafter submitted an objection before the SDO. Meanwhile, the newly constituted team conducted a demarcation and submitted a report to the SDO. Since, the report was against the present petitioners, therefore, they submitted an objection. The SDO considered the report and objection and held that these petitioners are in possession of the land belonging to the private respondents and directed to the Tehsildar to remove them and possession be handed over to the respondents. Thereafter, the proceeding under section 250 of the MPLRC has been initiated. The petitioners filed this petition in which this Court has directed to maintain the status-quo.

4. Inter alia the petitioners have assailed the impugned order on the ground that the SDO has not followed the procedure prescribed under sub-section (6) of section 129 of the MPLRC.

5. On the very first day after filing the appeal the order of fresh demarcation has been passed without giving any opportunity of hearing to the petitioners. Thereafter, the SDO affirmed the demarcation under sub-section (7) of section 129 of the MPLRC against which the petitioners have no remedy of appeal or revision by virtue of sub-section (8) of section 129 of the MPLRC, therefore, there is misuse of process of law and the impugned order is liable to be set aside.

6. Shri Kibe, learned counsel appearing for the respondents submits that even if the order of fresh demarcation has been passed by the Sub-Divisional Officer, the petitioners participated in the demarcation proceeding and thereafter submitted the report. The SDO has consider the report and objection in detail and passed the order, therefore, no prejudice has been caused to the petitioners by not giving notice to them before directing for fresh demarcation.

7. Shri Dubey, learned Panel Lawyer appearing for the respondent/State has argued in support of the impugned order by submitting that the petitioners have been found encroached in the land and the order passed by the SDO is not liable to be interfered.

Section 129 of the Madhya Pradesh Land Revenue Code, 1959 is reproduced below:-

“129. Demarcation of boundaries of survey number or subdivision of survey number or block number or plot number-

(1) The Tahsildar may, on application of a party depute a Revenue Inspector or Nagar Sarvekshak to demarcate the boundaries of a survey number or of a sub-division of survey number or of a block number or of a plot number and construct boundary marks thereon.

(2) The Revenue Inspector or Nagar Sarvekshak so deputed shall, after giving notice to parties interested including the neighbouring land holders, demarcate the boundaries of a survey number or of a sub-division of survey number or of a block number or of a plot number, construct boundary marks thereon and submit a demarcation report to the Tahsildar in such manner as ma

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