ORDER

1. The present petition under Article 226/227 of the Constitution of India is not directed against any particular order, but is preferred against the observation made by the Commissioner in its order dated 5.4.2007, whereby while setting aside the order of Collector dated 17.8.2005 remanded the matter back with an observation that the present petitioner be given certain Government land in exchange to the land which was taken for the purpose of constructing road and Kabristan in the year, 1978-1979 in accordance with law or the proceedings under the Land Acquisition Act may be initiated.

2. Learned Sr. Counsel for the petitioner along with Shri Rahul Jha has argued before this Court that in the year, 1978-79 land bearing survey Nos. 1400 (new No.1400/2) and 1542 were taken by the State Government for laying down road as well as for the purpose of development of Kabaristan, without acquiring the said land or paying compensation to the petitioner on an assurance that the adjacent land bearing survey Nos.1518 and 1519 admeasuring 0.042 and 0.240 hectares respectively would be given to him, but even after repeated requests documentation/transfer or handing over of the said land was not done. Thus, constrained, the petitioner moved an application on 21.4.2005 before the Collector, Vidisha in pursuance of which Tehsildar was directed to submit his report which was submitted on 24.6.2005 from where it was evident that after following due procedure of issuance of proclamation, calling objections from the general public, it was found that there is no impediment in handing over of lands bearing survey Nos. 1518 and 1519 which were the Government lands in exchange to the petitioners.

3. It was further argued that though the report was in favor of present petitioner, the Collector vide order dated 17.8.2005 rejected the application holding that there is no provision under the Revenue Book Circular (Kandika-20 khand-4 Kramank-3) for exchange of lands in such type of cases, therefore, the application is not maintainable. It was further argued that against the said order the petitioner has preferred an appeal before the Commissioner which was disposed of vide order dated 5.4.2007, wherein though it was held by the Commissioner that there is a provision under the Revenue Book Circular for exchange of the lands between private persons and the Government and had set aside the order passed by the Collector, but while remanding the matter has wrongly observed that the petitioner would be entitled for grant of any Government land in exchange, if he submits an application, instead of observing that the petitioner is entitled for the land bearing survey Nos.1518 and 1519 for which already a report was submitted by Tehsildar. It was, thus, submitted that when after adopting due procedure Tehsildar has already recommended for transferring a part of land bearing survey Nos. 1518 and 1519 to the petitioner as there was no objection from anyone or general public and also there was no other legal impediment, therefore, the said observation made by the Commissioner be deleted and directions be issued to the respondents to transfer survey Nos. 1518 and 1519 ad-measuring 0.042 and 0.240 hectares respectively in favor of the present petitioner.

4. On the other hand, learned counsel for the respondent/State while referring to the contents of reply had submitted that the observation made by the Commissioner in no way can be said to be perverse as the petitioner cannot as a matter of right claim a particular peace of land in exchange. It is also submitted that the application of the petitioner was time barred, therefore no relief could have been granted.

5. It was further argued that the petitioner had illegally encroached upon the said survey numbers and no right as such accrued in favor of the present petitioner on the basis of such illegal encroachment and demand for transfer of that land in his favor. Thus, had prayed for dismissal of the present petition.

6.