ORDER

Heard on the question of admission and interim relief.

The present writ appeal has been preferred under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya(Khandpeeth Ko Appeal) Adhiniyam, 2005 assailing the order dated 20.12.2023, passed in W.P. No.23054/2021 whereby writ petition filed by the appellant has been partly allowed by remanding back the matter to the Sub Divisional Officer.

2. Brief facts of the case in nutshell are that appellant's showroom and godown were sealed in compliance of the order dated 23.09.2021 passed by the Collector, Jhabua on the basis of report submitted by the Sub Divisional Officer after conducting inquiry that the land in question is a Government land.

Against the said order, appellant has preferred writ petition which was partly allowed by the learned Single Judge by remitting the matter back to the Sub Divisional Officer for deciding the same afresh after giving opportunity of hearing to the appellant and other stakeholders as well as the Gram Panchayat with a stipulated time and now the present writ appeal is preferred against the order passed by the learned Single Judge as appellant's petition was partly allowed.

3 . Learned counsel for the appellant submitted that learned Single Judge failed in not considering the fact that the neither the order passed by the Collector nor the inquiry conducted by the SDO mentions the provision under which the said inquiry has been conducted or order has been passed. Learned Single Judge has further erred in not considering the fact that there is a specific provision i.e. Section 248 of the M.P. Land Revenue Code (referred to as "MPLRC" hereinafter) regarding encroachment on Government land wherein it is specifically stated that the Tehsildar has powers to eject the encroacher and the SDO as well as the Collector are appellate authority. However, in the case of appellant, order has been passed by the Collector without jurisdiction. It is further submitted that the impugned order was passed on the basis of spot panchanama prepared by the Tehsildar in the absence of appellant. Hence, such panchnama cannot be made the basis for passing an order against the appellant.

Further both the Collector as well as the Sub Divisional Officer are appellate authority. Under such circumstances, the appeal filed by the appellant deserves to be allowed setting aside the order passed by the learned Single Judge.

4. Learned counsel for the respondent /State submits that Section 248 of the MPLRC provides that :

"Under Section 248 of the Madhya Pradesh Land Revenue Code, 1959, any person who unauthorisedly takes or remains in possession of any unoccupied land, service land or any other which has been set apart for any special purpose under Section 237 may be summarily ejected by the order of the Tahsildar and any crop which may be."

Hence, this Court may dispose off this appeal by remitting the matter back to the Tehsildar to decide the matter afresh.

5. Heard learned counsel for the appellant and perused the record.

6. Admittedly, the learned Single Judge while partly allowing the writ petition has directed the Sub Divisional Officer to decide the matter afresh after giving opportunity of hearing to the appellant and other stake holders as well as Gram Panchayat. Hence, it cannot be said that the order passed by the learned Single Judge is erroneous as learned Single Judge has very well given direction to decide the matter after giving opportunity to all the parties as well as further directed to prepare mauka panchnama after giving opportunity of hearing to all the parties. The only part of the order passed by the learned Single Judge that is required to be modified is that invoking the provision of Section 248 of the MPLRC, the learned Single Judge ought to have remitted the matter back to the Tehsildar in place of Sub Divisional Officer as SDO is the appellate authority.

7. Accordingly, this writ appeal is disposed off to the following extent: (