Madhya Pradesh High CourtIndradeo Singh vs The State Of M.P. And Anr. Judgement ... on 22 August, 2013Author:A.K. ShrivastavaBench:A.K. Shrivastava1                  Writ Petition No.1938 of 2004

        HIGH COURT OF MADHYA PRADESH JABALPUR
                           SINGLE BENCH:
               Hon'ble Shri Justice A.K. Shrivastava

                    Writ Petition No.1938 of 2004


PETITIONER:                               Indradeo, son of Shri Rang
                                          Bahadur Singh,aged about 43
                                          years, r/o Dhanpuri, through its
                                          Power of Attorny Holder Lav
                                          Kesh Singh (Adopted), r/o
                                          Dhanpuri, Behind Municipal
                                          Office, Police Station Dhanpuri,
                                          District Shahdol (M.P.)

                                  Versus

RESPONDENTS:                       1.     State of Madhya Pradesh,
                                          Through -Collector, Shahdol,
                                          District Shahdol (M.P.)

                                  2.      Sub Area Manager, S.E.C.L.,
                                          Burhar, Sub Area Post Office
                                          Dhanpuri, District Shahdol
                                          (M.P.)

______________________________________________________


      Shri D.N. Shukla, Advocate for the petitioner.

     Shri Sudesh Verma,                 Government     Advocate      for   the
respondent No.1/State.

     Shri Anoop Nair and Shri Rajas Pohankar, Advocates for the
respondent No.2.




                                ORDER(22.08.2013)

      By this petition underArticles 226and227of the Constitution

of India, the petitioner seeks following relief :-2               Writ Petition No.1938 of 2004"It is, therefore, prayed that the record
            relating to the case may be called after
            perusal of the same, the order impugned
            may be quashed and compensation may
            be paid to the petitioner."2.    The contention of       learned     counsel    for   the petitioner is

that there is   a   finding       recorded by the Collector, Shahdol          in

Annexure P/1 that upon petitioner's land ad measuring 0.40 acres,

the second respondent-SECL, Burhar had encroached upon. The

contention of learned counsel for the petitioner is that firstly the

respondent No.2 ought not to have encroached upon the agricultural

land ad measuring 0.40 acres of the petitioner who is the

Bhoomiswami of peasant agricultural land to earn his dry bread

(without butter) and secondly if it had so encroached the land of the

petitioner, after passing the order of Collector, the possession

should have been given back to the petitioner.3.    Shri Sudesh Verma, learned Government Advocate supports

the contention of learned counsel for the petitioner in the return and

has invited my attention towards para 2 of the return of the State.

However, Shri Anoop Nair, learned counsel for the respondent No.2

submits that once the Collector has directed the petitioner to

approach the appropriate forum by filing requisite application under

Section 250 of the M.P. Land Revenue Code, 1959 (in short 'the

Code'), the petitioner cannot be said to be an aggrieved party and,

therefore, he should have filed an application for obtaining the

possession from respondent No.2 instead of filing this petition.3               Writ Petition No.1938 of 2004Hence, it has been prayed that this petition be dismissed.4.    Having learned counsel for the parties,I am of the view that

this petition deserves to be allowed.5.    Indeed, the order and the finding of Collector, Shahdol has not

been challenged by respondent No.2 anywhere and thus the said

order had become final against respondent No.2. On bare perusal of

the said order as well as from the averments made in the return of

the State Government, it is revealed that the respondent No.2 had

encroached upon 0.40 acres of land of the petitioner. The stand of

the first respondent - State Government is that an area 0.10 acre

was acquired for mining operation under Section 247(5) of the Code.

However, instead of possessing 0.10 acre of the land, the second

respondent by transgressing its powers had encroached upon 0.40

acres of the land of which admittedly the petitioner is the

Bhoomiswami. According to me, since the respondent No.2 is the

instrumentality of the State and a statutory body, it should not act

like an ordinary litigant to ask the petitioner to file an application

under Section 250 of the Code before the Tehsildar and to file case

to fight for another several innings.       Because the order of the

Tehsildar will not be final since it is sub judice in first appeal, second

appeal and revision etc under the Code. Hence, looking to the

peculiar facts and circumstances of the case, since the impugned

order Annexure P/1 dated 30.12.2003 passed by the Collector,

Shahdol has never been challenged by the respondent No.2 and it4               Writ Petition No.1938 of 2004has become final, the possession of excess land 0.40 acres ought to

have been handed over to the petitioner.6.    However, after having obtained illegal possession from

petitioner, the respondent No.2- Company had dug several pits and

now the surface area is not cultivable. Hence, according to me,

since beneath the surface area the coal mines are there, therefore

the respondent no.2 is hereby directed to pay compensation to the

petitioner in terms of Section 247 (5) of the Code. What should be

the adequate compensation, let it be assessed by the Sub Divisional

Officer. However, if the petitioner feels that the compensation which

would be paid to him is not adequate, he shall be free to raise his

grievance before the appropriate forum by filing an appeal.7.    In view of above, this appeal is allowed to the extent indicated

herein above. Since by taking law in their own hands by respondent

No.2 which is a statutory body, the illegal possession of 0.40 acre of

petitioner's land has been obtained, therefore exemplary cost of

Rs.15,000/- (Rupees fifteen thousand) is imposed upon respondent

No.2. Let the exemplary cost be paid on or before 31st October,2013

failing which it shall carry interest @ 6% per annum from that date.(A.K.Shrivastava)
                                                   Judge
                                                22.08.2013
DV