[1] The petitioner has filed the present writ petition claiming the benefit of regular pay-scale from the date of initial appointment in the light of the earlier orders passed by this Court.

[2] Learned counsel appearing for the petitioner submitted that the same issue has already been decided by order dated 24.08.1992 passed by the M.P. State Administrative Tribunal in O.A.No. 2745/2009 (Madhukant Yadu V/s State of M.P.). The S.L.P. No. 6092/93 preferred against this order was dismissed by the Supreme Court. He also submitted that similar writ petitions have already been disposed of by this Court by issuing directions in favour of the writ petitioners.

[3] Learned counsel for the petitioner has submitted that the concerned Respondent be directed to decide the petitioner's claim within a time bound period.

[4] Learned Govt. Advocate for the Respondents has no objection to the same.

[5] In view of the aforesaid, the present writ petition is disposed of by giving liberty to the petitioner to file an appropriate representation to the concerned respondent raising the grievance in respect of the non grant of regular pay-scale/increments from the date of initial appointment. If such a representation is submitted by the petitioner, the concerned respondent will consider and decide it within a period of four weeks from the date of its receipt keeping in view the judgment in the matter of Madhukant Yadu (supra) noted above and any other binding judgment on the point and if the petitioner is found to be entitled to the said benefit, the concerned respondent would extend such benefit to him without any delay. Any adverse order will be a reasoned speaking order.

[6] The writ petition is accordingly disposed of.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2871 of 2017 (S) 03.05.2017 :-

[6] The writ petition is accordingly disposed of.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.13187 of 2013.

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[ VIVEK RUSIA ] JUDGE (AKS) Criminal Appeal No.142 of 2012.

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[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.844 of 2016.

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Keeping in view the order passed in the aforesaid case, the demolition activities pursuance to Annexure P/1 shall remain stayed till the next date of hearing.

Issue notice to the Respondents on payment of process fee by tomorrow, failing which the writ petition shall stand dismissed without reference to this Court.

Notice be made returnable within ten days. List the matter on 19.05.2017 along with Writ Petition No.2552 of 2017.

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[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2745 of 2017.

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[2] Respondents Pannalal and Bhagwan filed the suit for declaration and permanent injunction against the State Government that they have become owner of land situated in Village Niranjanpur, Tehsil and District Indore bearing Survey No.235 area 5 bigha (0.025 hectare) by way of adverse possession and the defendants be restrained from interfering their peaceful possession. The plaintiffs and their ancestors were engaged in the business of bricks manufacturing over the suit land since last 50 years. Since their continuous and uninterrupted possession is more than 30 years, therefore, their right have been perfected as Bhumiswami. On 20.09.1995 the Revenue Authorities has tried to evict them from the suit property which give them cause of action to file the suit. After notice, the written statement was filed in which it is submitted that the said land is recorded in the revenue record as Charnoi land and the plaintiffs are trying to encroach over the Government land and under Sections 57 and 114 of the M. P. Land Revenue Code the jurisdiction lies with Revenue Court and the present suit is not maintainable. The present value of the land is Rs.9,17,980-00. Vide judgment dated 21.07.2005 the suit was dismissed as the plaintiffs have failed to prove their possession since 1946.

[3] Being aggrieved by dismissal of the suit, Bhagwan s/o Pannalal filed the First Appeal No.52-A/2005 before the District Judge. Vide judgment dated 29.07.2006 appeal was dismissed. Thereafter the plaintiff filed Second Appeal No.817 of 2006 and vide order dated 12.03.2007, second appeal was dismissed. This suit was pertaining to the land bearing Survey No.235.

[4] Pannalal and Bhagwan have also filed another suit which was registered as Civil Suit No.210-A/1996 for the land bearing Survey No.113 area 1.659 hectare situated at Village Kabitkhedi, Indore claiming title by way of adverse possession. In the second suit, the State Government remained ex-parte and vide judgment and decree dated 12.02.1997 the suit was decreed. Being aggrieved by the aforesaid judgment and decree, on 27.07.2000 the appellants preferred appeal before the District Judge along with an application under Section 5 of the Limitation Act. The appeal was registered as First Appeal No.28/2003 which was barred by 1230 days.

[5] Vide order dated 16.05.2003 the first appellate Court has condoned the delay subject to the cost of Rs.5,000-00. The appellants did not deposit the said cost, therefore, vide order dated 02.08.2003 the appeal was dismissed. The appellants filed Civil Revision No.483 of 2003 before this Court on 19.09.2003.

[6] Vide order dated 11.08.2005 civil revision was dismissed as not maintainable and the appellants/State were given liberty to challenge the impugned order before the appropriate forum. The appellants were also permitted to take back the certified copy of the impugned order dated 02.08.2003.

[7] After taking the aforesaid liberty, the present second appeal was filed by the State on 19.07.2008 i.e. delayed by 1733 days.

[8] Vide order dated 17.01.2011 this Court has directed the State Government to file an affidavit as to what action they have taken against the erring officer who were responsible for not filing the appeal in time. The said order has not been complied till today.

[9] Vide order dated 13.03.2014 this Court directed to explain the reason for obtaining the certified copy of the impugned order after 2 years 11 months and also directed to comply the order dated 17.01.2011. Again vide order dated 10.04.2014 this Court has observed that the certified copy of the impugned judgment has been received by the Office of Advocate General on 26.07.2008 and it is not clear how they have taken 2 years 11 months to receive the impugned judgment against which the appeal is filed. [10] Officer-in-charge of the Case has filed an affidavit in support of application under Order XLI Rule 5 of CPC submitting that the copy of order dated 11.08.2005 was received on 24.07.2008. An application for obtaining the copy of the order dated 11.08.2005 was submitted on the same day and the same was received on 24.07.2008 and thereafter the present appeal was filed on 28.07.2008. Therefore, the time spent in obtaining the certified copy may be condoned. Thereafter the Sub Divisional Magistrate (Nazul), Indore has filed an additional affidavit on 30.01.2016 in which also no satisfactorily explanation has been given.

[11] I have heard Shri P.R.Bhatnagar, learned Deputy Govt. Advocate on behalf of the appellants/State and Shri Vishal Baheti, learned counsel on behalf of Respondent No.1 - Bhagwan.

[12] There was an ex-parte decree against the appellants on 12.02.1997 and the State preferred first appeal which was barred by 1230 days. Despite the huge delay, the first appellate Court has condoned the delay subject to deposit of cost of Rs.5,000-00. The State Government has failed to deposit the cost, therefore, the first appellant Court had no option but to dismiss the appeal vide judgment dated 02.08.2003. The Government has preferred Civil Revision within time on 19.09.2003 which remained pending for 2 years and vide order dated 11.08.2005 the revision was dismissed with liberty to file second appeal and they were permitted to take back the certified copy of the impugned judgment. Therefore, they were only required to collect the certified copy from the office of this Court. They were even not required to obtain fresh certified copy of the impugned judgment from District Court. Despite that they filed second appeal on 19.07.2008 which was delayed by almost 3 years (1733 days); whereas the period of limitation is 90 days.

[13] The State Government has not only filed the second appeal before this Court within time but they filed the first appeal before the District Court with a delay of 1230 days. The first appellate Court allowed the application subject to deposit of cost of Rs.5,000-00. The State Government even did not deposit the said cost and the first appeal was dismissed as time barred. Despite direction given by this Court, the State Government did not file any affidavit to show what action they have took against the erring officer. There is no explanation also for not depositing the cost of Rs.5,000-00 before the first appellate Court. This is glaring example of negligence on the part of State Government.

[14] The dismissal of the appeal was very much within the knowledge of the Government as they preferred civil revision within time. The civil revision was dismissed vide order dated 11.08.2005 with a liberty to file second appeal. They were only required to take back certified copy of the impugned judgment dated 02.08.2003 from the office of this Court and file second appeal but they filed second appeal in the same Court with a delay of 1733 days. It is not the case that they had no knowledge about passing of order in civil revision because the civil revision was filed by the appellants themselves. Despite direction of this Court, they did not inform the Court what action they have took against the erring officer. It can safely be held that there is inadequate and unsatisfactory delay in filing the second appeal. The Officers of the State Government are highly negligence in pursuing the appeal either before the first appellate Court or before this Court. Till today they have not inform this Court also what action they took against the erring officer.

[15] The Apex Court in the case of M. P. Matsya Maha Sangh v/s Sudheer Kumar , reported in (2010) 15 SCC 179, held that the appellate Court has rightly refused to condone the delay of 948 days because the officers were negligence in causing the delay. The operative portion of the order is reproduced below :-

[16] In the case of Maniben Devraj Shah v/s Municipal Corporation of Brihan Mumbai, reported in (2012) 5 SCC 157, the apex Court has held that the liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act. If, on the other hand, the explanation given by the appellant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would not required to be condoned. Even in case where the State is litigant, no premium can be given for total lethargy or utter negligence on the part of the officers of the State. Para 18 of the order is reproduced below :-

(Emphasis supplied).

[17] In view of the law laid down, in the present case it can safely be held that the officers of the State Government are thoroughly negligent in prosecuting the case. They filed the appeal with the delay of 1230 days before the first appellate Court. Thereafter when the delay was condoned, they did not deposit the cost and appeal was dismissed. Thereafter they wrongly filed civil revision which was permitted to be withdrawn with liberty to file second appeal. The Court has directed to return the certified copy of the impugned judgment, they took 3 years in obtaining same certified copy from the record of High Court to file second appeal. No explanation has been given. No action has been taken against the erring officers. Therefore, this Court has no option but to dismiss the application for condonation of delay.

[18] This appeal is pending since 2008. More than 9 years have been passed. The State did not pursue their application for condonation of delay for 9 years. There is no justification to condone the delay after 9 years and heard the appeal on admission.

[19] Accordingly the appeal is dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.549 of 2010.

17.04.2017:-

Since the Respondents have already been marked their presence, no notice is necessary.

The appellant is directed to supply copy of Memo of Appeal along with questions of law formulated by this Court to the counsel for the Respondents within seven days.

List this appeal for final hearing in due course. Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.160 of 2017.

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[2] That Shri Pashupatinath Mandir is a Public Trust and the Collector is Manager of Trust and Respondent No.2 is a Pujari of the said Mandir. The Municipal Council organizing the Mela over the vacant land of Mandir with the prior permission of the Collector for which the Pujari of the said Mandir is demanding compensation from the Municipal Council. Vide Resolution No.340 dated 10.02.2014 Municipal Council has decided not to give any compensation to the Pujari i.e. Respondent No.2.

[3] Being aggrieved by the aforesaid resolution, Respondent No.2 filed an appeal under Section 308 of the M. P. Municipalities Act, 1961. The said appeal was registered as Case No.20/Appeal/14-15. Notices were issued to the petitioner. Though the appeal was filed under Section 308 (1) of the M. P. Municipalities Act, 1961 but the Collector has entertained the said appeal under Section 307 (1) of the M. P. Municipalities Act, 1961. After considering the appeal on merit, vide order dated 22.07.2016, the Collector has set-aside the Resolution No.340 dated 10.02.2014. Hence, the present petition.

[4] Shri V.K.Jain, learned counsel on behalf of the petitioner submits that the Collector has no authority and power under Section 307 of the M. P. Municipalities Act, 1961 to set-aside the resolution. He has only power under Section 323 of the M. P. Municipalities Act, 1961 to suspend the resolution but that has not been done in the present case. Hence, the order is beyond authority and liable to be set- aside.

[5] Shri Vivek Phadke, learned counsel on behalf of the Respondent No.2 tried to justify the action of the Collector that the order may be treated as passed under Section 323 of the M. P. Municipalities Act, 1961 and the Collector be directed to forward the same to the State Government under sub-section (2) of Section 323 of the M. P. Municipalities Act, 1961.

[6] Shri Rohit Mangal, learned Govt. Advocate on behalf of the Respondent No.1/State submits that in given circumstances looking to the facts of the case in totality, the Collector has passed the order which is just and proper.

[7] Provisions of Section 307 of the M. P. Municipalities Act, 1961 is reproduced below :-

(b) any notice or order issued or other action taken by the Chief Municipal Officer under Section 180 (1) and (2), 185, 187, 191, 192, 194, 208, 220, 221, 223, 227, 242, 251 and 285 or any rules or bye- laws made for the purpose of the said sections or any order granting or refusing to grant a licence or permission, may appeal to the Appeal Committee within thirty days from the date of such order and such appeal shall be heard and disposed of by the Appeal Committee in the prescribed manner.

(2) The Appeal Committee shall consist of President, Vice-President and two elected Councillors elected by the Council in accordance with the system of proportional representation by means of a single transferable vote in the meeting called under sub-section (1) of Section 55. The President shall be ex-officio Chairman of the Appeal Committee.

(2-a) In the even of any vacancy occurring in the Appeal Committee, it shall be reported to the authority prescribed under sub-section (1) of Section 55 and the vacancy shall be filled in, in accordance with the provisions of sub- section (2).

(3) The Council or the Appeal Committee may, for sufficient reasons to be recorded in writing, admit any appeal after the expiry of the period specified in sub-section (1).

(4) The Council or the Appeal Committee, as the case be, may remand any case for further enquiry or decision or may pass any other order that may be deemed just and proper; and no appeal or revision shall lie against this decision.

Provided that no orders shall be passed to the prejudice of any person until he has been given a reasonable opportunity of being heard.

(5) The Council or the Appeal Committee, as the case may be, may allow any Executive Officer or any other official deputed by the Chief Municipal Officer for the purpose to appear before it in any appeal and to watch or represent the interest of the Council.

(6) In case the Chief Municipal Officer himself or any other person is appointed to exercise all the powers and duties of the Council under Section 328 an appeal against orders passed by him pertaining to matters mentioned in sub- section (1) shall lie to such person or committee of persons as the State Government may, by notification, from time to time, appoint in this behalf and such person or committee of persons shall exercise all the powers of the Appeal Committee mentioned in this section."

[8] Under Section 307 of the M. P. Municipalities Act, 1961 appeal lies to the Municipal Council not to the Collector that to order passed under certain sections mentioned therein. There is no provision under Section 307 of the M. P. Municipalities Act, 1961 to file appeal against resolution. Even under /section 323 of the M. P. Municipalities Act, 1961, which is reproduced below, the Divisional Commissioner or the Collector, as the case may be, can suspend the resolution only. In the present case, the Collector did not exercise his power under Section 323 of the M. P. Municipalities Act, 1961 :-

[9] Since there is no provision under M. P. Municipalities Act, 1961 to file Appeal before the Collector against the resolution by the Municipality, the impugned order cannot be sustained in the eyes of law. The Collector has travelled and acted beyond its authority, hence impugned order is liable to be set-aside.

[10] In view of the above, the impugned order dated 22.07.2016 is hereby set-aside.

[11] The petition is allowed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5217 of 2015.

27.04.2017:-

[2] The petitioner also approached this Court by way of Writ Petition No.8939 of 2014 claiming the similar benefit. Vide order dated 10.12.2014 the writ petition was allowed with the direction to the Respondents to extend the benefit to the petitioner after verification. The operative portion of the order is reproduced below :-

[3] In compliance of the order, the Respondents have consider the case of the petitioner and rejected vide impugned order dated 23.04.2015 on the ground that from the date of reinstatement on 15.10.2007 he has not completed 10 years of service, therefore, he is not entitled for the benefit of the circular. The Respondents did not count his service from 1988 to 2000. Hence, the present petition.

[4] After notice, the Respondent has filed the return stating that the petitioner is not entitled for special allowance because he does not fulfill the conditions of Circular dated 16.05.2007, 08.02.1988 and 06.09.2008. Hence, the Respondent has rightly rejected his claim.

[5] The Respondent has rejected the claim of the petitioner only on the ground that he has not completed 10 years service. The petitioner was initially appointed on 06.06.1988. Thereafter by a common order his services were discontinued on 02.08.2000. Thereafter he was reinstated in the service in compliance of the order of Labour Court on 15.10.2007. When the order of reinstatement has been passed, then his entire service to be taken into consideration. There is a difference between 'order of reinstatement' and order for fresh appointment. Here in the case, the petitioner was directed to be reinstated it means he will be placed in the service which he was holding at the time of termination. The Apex Court in the case of Gurpreet Singh v/s State of Punjab [(2002) 9 SCC 492] has held that order of reinstatement means continuity in service. Therefore, the Respondent has wrongly rejected his claim on the ground that the petitioner has not completed 10 years of service.

[6] In view of the above, the impugned order dated 23.04.2015 is set-aside. The Respondents are directed to grant the benefit of special allowance of Rs.500 - 1000 after completing 10 and 20 years of service w.e.f. the date of his appointment treating him into the service w.e.f. his initial date of appointment. The order to this effect be passed within 45 days from today.

[7] So far as the regularization of petitioner is concerned, the State Government has now issued a Circular dated that the Respondent is directed to consider the claim of the petitioner for declaring the status of permanent employee under the respective categories in the light of the circular.

[8] With the above direction, petition is partly allowed. No order as to costs.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2648 of 2017.

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[3] Shri P.V.Bhagwat, learned counsel on behalf of the petitioners submits that Civil Suit No.12-A/2016 being a subsequent suit is liable to be stayed and the finding recorded in his Civil Suit No.37-A/2014 would operate as res judicata. The suit filed by him has reached to the stage of defendants evidence. In support of his contention, he placed reliance on the decision in the case of [4] As per Section 10 of CPC no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. But in the present case the petitioner filed the suit for partition and possession (Civil Suit No.37-A/2014) against his own brother and 4 sisters claiming 1/8th share in the property left by his father. The description of the properties are given in para 2. The Respondent No.1 filed the Civil Suit No.12-A/2016 against 3 brothers, including the petitioners, and M/s Magic Bullmart Private Limited in which certain agricultural lands are also there as a suit property bearing Survey Nos.313, 314, 316/2 and 317/1 which are not there in the earlier suit. The Respondent No.1 has also pleaded that his 4 sisters have relinquished their rights in the property. He has also challenged the sale-deed executed in the year 2012 - 2013 by defendant Nos.1 to 3 in favour of defendant No.4 which is also not there in the earlier suit filed by the present petitioners. Therefore, the finding of earlier suit would not operate as res judicata in which the present petitioner is only claiming 1/8th share in the property.

[5] Even, the scope of Article 227 of the Constitution of India in exercising jurisdiction is very limited in respect of interfering with the order of subordinate Court. Hon'ble Supreme Court in the case of Shalini Shyam Shetty and another v/s Rajendra Shankar Patil , reported in (2010) 8 SCC 329, wherein it has held that :-

[6] In view of the aforesaid observations, I do not find any infirmity or illegality in the order. The Trial Court has rightly exercised his discretion. Hence, the petition is fails and is hereby dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Civil Revision No.8 of 2016.

19.04.2017:-

The suit was also dismissed as time barred.

(c) Being aggrieved by the aforesaid judgment and decree, the plaintiff preferred first appeal. During the pendency of first appeal, Gordhanlal has died and his son Mukesh was brought on record as legal heir. In a pending appeal, the legal heir of the original plaintiff filed an application under Order XXIII Rule 1 of CPC for withdrawal of plaint on the ground that Late Gordhanlal had no knowledge of law, therefore, he could not present the suit in a proper manner and he wishes to file a fresh suit. Looking to the circumstances of relevant time, the plaintiff was not in a position to properly present his case, therefore, he is seeking permission to withdraw the suit with liberty to file a fresh suit.

(d) The aforesaid application was opposed by the defendants that the appellant may withdraw his suit but he is not entitled for liberty to file a fresh suit as there is a collusion between the plaintiff and the defendant Nos.2, 3 and 4. They wanted to fulfill the lacuna to bring the suit within limitation.

(e) Learned appellate Court vide order dated 30.09.2015 has allowed the application only in respect of withdrawal of the suit and declined liberty to file a fresh suit. Hence, the present revision before this Court.

[3] Shri S.C.Agrawal, learned counsel appearing on behalf of the petitioner submits that when the Court is granting permission to withdraw the suit, then the Court is bound to grant liberty to file a fresh suit. The learned appellate Court without considering the material on record has wrongly exercised its discretion by partly allowing the application. In support of his contention, he has placed reliance on the decisions in the case of Mario Shaw v/s Martin Fernandez [ AIR 1996 Bombay 116], D.P. Sharma v/s Banglore Mahanagara Palike [AIR 2001 Karnataka 401] and M.Subba Rao v/s Vasanth [AIR 2015 Hyderabad 68] and prayed for setting-aside of the impugned order so far as it relates to refusal to grant liberty to file a fresh suit.

[4] Per contra, Shri S.L.Gwaliory, learned counsel submits that it is a pure discretion of the Trial Court whether to grant liberty or not and it is not for this Court to interfere with the discretionary order passed by the Subordinate Court in writ petition under Article 227 of the Constitution of India.

[5] I have heard learned counsel for the parties. [6] The only controversy involved in this revision is whether while granting permission to withdraw the suit, the plaintiff as a matter of right can seek liberty to file a fresh suit. Sub-rule (3) of Rule 1 of Order XXIII of CPC is reproduced below :-

[7] The sub-rule (3) starts with the condition that "where the Court is satisfied that there are sufficient ground for allowing the plaintiff to institute a fresh suit for the same subject-matter, then the Court may permit, as it thinks fit". Therefore, satisfaction of the Court is important to the effect of availability of sufficient ground to grant permission to withdraw the suit with liberty to file a fresh suit. The ground which was given by the petitioner for withdrawal of the suit that original plaintiff i.e. his father had no knowledge about the law, therefore, he could not present the suit properly, hence he be permitted to file fresh suit. Para 2 of the application is reproduced below :-

[8] It is important to mention here that the Trial Court vide detailed order has dismissed the suit holding that the plaintiff has failed to prove hig right to claim 1/3 rd share in the property. Even the Trial Court has found that the suit for declaration is time barred. Para 17 of the order is reproduced below :-

[9] In the case of M.S.Subba Rao (supra), the Division Bench of Hyderabad High Court has held that - "If the suitor wants to bring fresh action on the self-same cause of action while asking for withdrawal of lis, then the power to allow such prayer is left with discretion of the Court and not with choice of the suitor. In other words, the suitor cannot claim, as a matter of right, the liberty to bring a fresh action on the self-same cause of action". Para 4 of the order is reproduced below :-

That, the judgment cited by the petitioner itself speaks contrary to his stand.

[11] There has to be a sufficient ground for allowing the plaintiff to institute a fresh suit but the ground raised in application under Order XXIII Rule 1 of CPC cannot be treated as sufficient ground as ignorance of the law cannot be a ground. The legal heir of original plaintiff i.e. the present petitioner has stated that his father had no knowledge about the law to file a proper suit. This cannot be treated as a sufficient ground to grant the liberty to file a fresh suit specially when the Trial Court has dismissed the plaint and at the appellate Court stage the plaintiff filed an application under Order XXIII Rule 1 of CPC . The Trial Court has rightly exercised its discretion which does not call for any interference.

[12] Hence, the revision is dismissed.

No order as to costs.

Shri Milind Phadke, learned counsel for the appellants. None for the Respondents.

All the pending IAs have already been decided earlier. This second appeal has been admitted on 08.10.2014. Respondents have already been served.

Let appeal be listed for final hearing in due course.

[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.44 of 2017.

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Even today also no one has appeared on behalf of the Respondents.

[4] It is settled law that the services of even contract employee cannot be terminated without affording opportunity of hearing.

[5] This Court in case of Deepak Nagle v/s State of M.P. , reported in 2014(3) MPLJ 188 has held that if the case of contractual Sub-Engineer is there, even then opportunity of hearing is necessary and the order of the termination has been quashed. Para operative part of the aforesaid order is reproduced below :-

[6] In case of Jitendra v/s State of M.P. & Others , reported in 2008(4) MPLJ 670 again this Court has held that if the order is stigmatic in nature, then opportunity of hearing is necessary. The similar view has again been taken by this Court in the case of Prem Chand v/s MPPKVV Co., reported in 2013(2) MPLJ 323 and while quashing the termination order, it has been held that the principle of natural justice and article 14 has a role to play even in case of termination of contractual appointment.

[7] In view of the above, the order dated 31.08.2016 is hereby set-aside. The matter is remitted back to the Executive Engineer to decide afresh after giving opportunity of hearing to the petitioner. If any enquiry was conducted behind the back of the petitioner, then the petitioner be supplied the copies of all documents before taking final decision. The entire exercise would be completed within a period of 30 days from production of certified copy of this order.

[8] The petition is disposed of.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2701 of 2016.

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Keeping in view the order passed in the aforesaid case, the demolition activities pursuance to Annexure P/1 shall remain stayed till the next date of hearing.

Issue notice to the Respondents on payment of process fee within a week, failing which the writ petition shall stand dismissed without reference to this Court.

Notice be made returnable within 2 weeks. List the matter on 09.05.2017 along with Writ Petition No.2552 of 2017.

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[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6185 of 2016.

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25.04.2017:-

Counsel for the Respondent submits that the learned Civil Judge, Class-II, Bagli, District Dewas has passed the judgment and decree in the said suit on 25.02.2017. Therefore, the present writ petition has rendered infructuous.

In view of the above, the present petition is dismissed as infructuous.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1662 of 2017.

24.04.2017:-

[5] In view of the law laid down by this Court, the present petition is also allowed. The order passed by the Collector dated 18.11.2016 is hereby set-aside.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.3644 of 2016.

24.04.2017:-

24.04.2017:-

24.04.2017:-

24.04.2017:-

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.136 of 2016.

24.04.2017:-

24.04.2017:-

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[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2603 of 2017 (S).

21.04.2017:-

[4] Resultantly, keeping in view the judgment delivered in the case of Smt. Prerna Khoranne (supra), with the consent of the parties, the present writ petition is disposed of with the following directions :-

(iii) The Respondents are directed to consider the case of the petitioner keeping in view executive instructions dated 21.03.1983, 19.04.1999 and 02.11.2001 and settle his claim within the period of six months from today and the arrears thereof be also released within the aforesaid period.

With the aforesaid directions, the petition is disposed of.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2586 of 2017.

21.04.2017:-

[2] Learned counsel for the petitioner has also stated before this Court that the aforesaid judgment has been affirmed by the apex Court in SLP No.6892 of 1993. The petitioner also contended that this petition be disposed of in terms of the order dated 05.05.2004 passed in Writ Petition No.561 of 2004 [Smt. Pushpa Mishra v/s State of M.P.] wherein the Respondents have been directed to pass a reasoned and cogent order.

[3] Keeping in view the judgment delivered in the case of Madhukant Yadu (supra), learned counsel for the petitioner has prayed for disposal of the representation.

[4] Learned Govt. Advocate for the Respondents/ State has fairly stated before this Court that the controversy involved in the present case is covered by the judgment delivered in the case of Madhukant Yadu (supra) and he has not objected to the reasonable prayer made by the counsel for the petitioner.

[5] Resultantly, without commenting upon merits of the case, the present writ petition stands disposed of with a direction to the Respondents to consider the petitioner's claim by passing a reasoned and cogent order and if the petitioner is entitled for the benefit, the same shall be extended to him, as has been extended in other identical matters. The aforesaid exercise shall be completed within a period of four months from the date of receipt of certified copy of this order.

[6] With the aforesaid directions, the writ petition stands disposed of.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2045 of 2017.

20.04.2017:-

[3] Vide letter dated 21.03.1994, the Municipal Corporation has granted permission to Indore Dugdh Sangh Sahakari Maryadit, Talawali Chanda Mangliya, Indore to install the Milk Booth Parlour with a condition that if there is any obstruction in the traffic, the same shall be removed without notice. The petitioner has obtained the telephone connection and electricity connection therein and he is regularly paying the taxes. That on 23.03.2017 the employees of Municipal Corporation came to his shop and started throwing the goods and directed him to remove the shop forthwith. The petitioner filed a complaint to the police station. Hence, the present petition was filed.

[4] Vide order dated 03.04.2017, the notices were issued and by way of interim relief, the Respondents were directed to maintain the status-quo.

[5] After notice, the Respondent No.1 filed the return specifically denying that no such incident has taken place on 23.03.2017. The employees of Municipal Corporation demanded the documents from the petitioner pertaining to his shop and the petitioner himself has agreed to remove his shop from the foot-path/Gumti. Instead of producing the documents and removing the shop, the he approached this Court and obtain the interim relief. The petitioner has no authority to run the Gumti over the foot-path. The petitioner has wrongly shifted the location of the Gumti and because of the said location, there is an obstruction in the traffic. The petitioner has also made encroachment and the Respondents are not adopted pick and choose method but taking action against all the encroachers and Gumti owners who have made illegal construction over the foot-path. Along with the return, Respondent No.1 filed the copies of orders passed in Writ Petition No.8853 of 2012 and Writ Petition No.7062 of 2014. He has also placed reliance on the order in the case of Akhilendu Arjaria v/s Banarasidas , reported in 1997 (1) MPLJ 376.

[6] I have heard learned counsel for the parties. [7] The petitioner has alleged that on 23.03.2017 the employees of Municipal Corporation approached his shop and started throwing the goods. This fact was specifically denied by the Corporation in their return. But the stand of Corporation is that the petitioner has illegally installed the Gumti over the foot-path and which is causing hindrance in the traffic. The petitioner has been granted licence by the Municipal Corporation to run the Sanchi Milk Parlour and the same has been renewed from 01.04.2017 to 31.03.2018. The copy of the licence is filed along with the rejoinder. Under Section 322 of the M. P. Municipal Corporation Act, 1956, no person has right to create obstruction in the street and the Corporation has right to remove such encroachment in a public place. Even under Section 320 of the M. P. Municipal Corporation Act, 1956 the Corporation or the Commissioner have no right to permit the use of public street, even the foot-path is a part of public street. The Corporation is having power under Section 366 of the M. P. Municipal Corporation Act, 1956 to give a permission and licence for doing any act under the Act and the Rules or bye- laws made thereunder. While granting such permission and licence, the Commissioner shall specify the date of the grant, the purpose and the period, the restrictions and the conditions etc. Not only to the petitioner but the Corporation has issued the licence and permission to various other persons to install and run the Sanchi Milk Parlour. But the fact remains that the owner of such Milk Parlour hav no right to use the public street or foot-path to do their business.

[8] Since in the present case no notice has been issued to the petitioner till date and the petitioner has approached to this Court with the allegation that the employees of the Municipal Corporation came to his shop for removal of Milk Parlour.

[9] The present petition is disposed of with the direction to the Municipal Corporation to issue a show- cause notice to the petitioner specifying the violation and the petitioner is directed to file a response to the said notice along with the all necessary documents and thereafter the Respondent Municipal Corporation shall consider and decide the same as early as possible. Since no notice has been issued in writing so far, therefore, it is expected from the Municipal Corporation that before taking any action, they shall not take any action against the petitioner.

[10] With the aforesaid directions, the petition stands disposed of.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2611 of 2017.

21.04.2017:-

[2] The Respondent No.1/plaintiff has filed the suit for decree of eviction and compensation for the Northern portion of Plot No.3664, Sector-E, Sudama Nagar, Indore with a constructed room therein. 4 years back he let out a shop on his portion to Respondent Nos.2 and 3. He has alleged that the Respondent Nos.2 and 3 have illegally sub- let the said shop to the present petitioner, who is real brother of Respondent No.1/plaintiff.

[3] The petitioner filed the written statement denying the allegations of sub-tenancy and stated that his wife Smt. Meera Mata has purchased the Southern portion of the said property and the plaintiff has purchased the Northern portion of the property. The said property was never let out to the Respondent Nos.2 and 3. The plaintiff has not impleaded Smt. Meera Mata as defendant in the suit.

[4] On the basis of the pleadings, the Trial Court has framed 9 issues for adjudication.

[5] At the stage of plaintiff's evidence, the present petitioner filed the application seeking amendment in the written statement on the ground that on 06.02.2017 he found 2 documents in his home and one of which is a receipt dated 16.04.2016 executed by the Respondent No.2 in favour of his wife and second is the document in respect of domestic gas consumer card. In both the documents, the address of Smt. Meera Mata is mentioned as "3663, Sector-E, Sudama Nagar, Indore". He has filed an application under Order VIII Rule 1 (3) of CPC for taking these documents on record. The aforesaid applications were opposed by the plaintiff and the learned Trial Court vide impugned order dated 07.04.2017 has rejected the applications. Hence, the present petition.

[6] I have heard learned counsel for the petitioner. [7] The plaintiff's evidence has been concluded on 06.10.2016 and the case is fixed for evidence of defendant No.3 and he is avoiding to give the evidence. The facts which he wants to bring on record by way of amendment were in the knowledge of defendant from the very beginning. He has failed to prove the requirement of proviso to Rule 17 of CPC . Therefore, the Trial Court has not committed error while rejecting the applications. Since the pleadings in respect of the document filed along with the application under Order VIII Rule 1 (3) of CPC has been rejected, therefore, the Trial Court has rightly rejected the application under Order VIII Rule 1 (3) of CPC . The High Court has already directed for early disposal of the suit. The defendant No.3 has been given time on 09.11.2016, 09.12.2016, 27.01.2017 and 07.02.2017 for evidence. It appears that in order to avoid evidence he has filed the present application to cause delay in early disposal of the suit.

[8] Even, the scope of Article 227 of the Constitution of India in exercising jurisdiction is very limited in respect of interfering with the order of subordinate Court. Hon'ble Supreme Court in the case of Shalini Shyam Shetty and another v/s Rajendra Shankar Patil , reported in (2010) 8 SCC 329, wherein it has held that :-

[9] In view of the aforesaid observations, I do not find any infirmity or illegality in the order. The Trial Court has rightly exercised his discretion. Hence, the petition is fails and is hereby dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5846 of 2015.

19.04.2017:-

[7] In view of the aforesaid observations, I do not find any infirmity or illegality in the order. Hence, the petition is fails and is hereby dismissed.

Shri H.C.Tripathi, learned counsel for the petitioner. Shri Rishi Agrawal, learned counsel for the Respondents.

Heard on the question of admission.

O R D E R THE plaintiff has filed the present petition being aggrieved by the order dated 22.07.2016 passed by 5th Civil Judge, Class-II, Ratlam.

[2] The plaintiff has filed the suit for declaration and permanent injunction along with an application under Order XXXIX Rule 1 & 2 of CPC . After notice, instead of filing written-statement, the defendants filed an application under Order VII Rule 11 of CPC that the civil suit has not been properly valued and the improper court-fees has been paid. The learned Trial Court vide order dated 22.07.2016 has allowed the application. Hence, the present petition.

[3] I have learned counsel for the parties. [4] The plaintiff has filed the suit for permanent injunction and declaration seeking relief that the decree of declaration to the effect be issued that the defendants have no right to flow the water and not to collect the said water near his house by digging the whole. They be further restrained by way of permanent injunction. He has valued the suit of Rs.55,000-00. The plaintiff has not claimed that the defendants who are collecting the water over the land belonging to him. He has not sought declaration about his ownership. He is seeking relief of a permanent injunction. It is not clear on what basis he has valued the suit at Rs.55,000-00. He has not alleged that the defendants have illegally encroached over his land and he has not sought the relief of possession. When he is not seeking declaration of title, relief of possession, then the plaintiff is not liable to pay ad volerum court-fees.

[5] In view of the above, the impugned order is set- aside. The plaintiff is directed to properly valued the suit and pay the fixed court-fees.

[6] With the aforesaid, the petition is allowed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1631 of 2017.

21.04.2017:-

06.04.2017:-

[2] The Respondent No.1 being a Charitable Religious Trust is the owner of shop situated in ground floor of House No.30. Khatipura Main Road, Indore which was given on rent to Late Ramsingh for non residential purpose. After the death of Ram Singh, Narayan Singh has came into the possession of said shop. The tenancy was monthly at the rate of Rs.85-00 per month for non residential purpose. The defendant has paid the rent by 31.05.1988 and thereafter stopped paying the rent and since last six months Narayan Singh - defendant No.1 is not using the shop. Therefore, the plaintiff has issued a notice on 21.01.1989 demanding arrears of rent and eviction from the said shop. When the defendants did not vacate the shop, the plaintiff - Trust instituted a suit on 12.06.1989 through Managing Trustee - Prahlad Das Singi. In the plaint, it is alleged that Narayan Singh has vacated the shop and sub-leased to Sohanlal and who is not paying the rent to the plaintiff, therefore, a decree of eviction, arrears of rent and mesne profit be granted.

[3] After notice, the defendant No.1 - Narayan Singh filed the written-statement submitting that he became tenant after the death of his elder brother Ram Singh and he used to pay the rent but the Trustee has refused to accept the same.

[4] Defendant Nos.2 and 3 filed the written statement submitting that Narayan Singh was never into the possession of suit shop and Late Ram Singh has given the shop to them by executing a Will dated 13.08.1987 and since then they are in possession. They sent rent by way of money order to the Trust but the Office Bearer of the Trust has refused to accept the rent. Therefore, up to 31.07.1990 they have deposited the rent into the Court. During the pendency of the suit, Sohanlal has expired and in his place his legal heirs - Mahesh, Om Prakash and Chandrakala were impleaded as defendants. They filed a separate written statement stating that the Registrar Public Trust has initiated proceedings under Section 26 of the M. P. Public Trusts Act, 1951 and the suit was filed before District Judge, Indore in which judgment was passed against the Trust to the effect that they are not properly managing the Trust. Therefore, they are not entitled for decree.

[5] On the basis of pleadings, the Trial court has framed as many as 10 issues for adjudication.

[6] By way of evidence, the plaintiff examined Prahlad Das Singi as PW-1 who is the Managing Trustee of the Trust and filed Registration Certificate of the Trust dated 07.09.1964 (Ex.P/1) by which the Trust was registered by the Registrar Public Trust; notice dated 20.01.1989 (Ex.P/2) and minutes of the meeting by which Prahlad Das Singi was authorized to file the present suit as Ex.P/3. By way of defence, the defendants examined Om Prakash as DW-1 and got exhibited 8 documents as Exs.D/1 to D/8.

[7] The learned Trial Court has recorded the finding on all issues in favour of the plaintiff. Issue No.6 was framed that w.e.f. 07.09.1989 the provisions of M. P. Accommodation Control Act, 1961 has been made applicable to the Religious and Charitable Trust. The suit was filed on 12.06.1989. Therefore, the present suit is not maintainable. The plaintiff is not entitled for decree of eviction under the provisions of M. P. Accommodation Control Act, 1961. The Trial Court has decided the issue that the suit for eviction under the provisions of Transfer of Property Act, 1882 was maintainable and the plaintiff has issued notice under Section 106 of the Transfer of Property Act, 1882 which has been proved, therefore, the suit was maintainable. By judgment and decree dated 09.12.2005, the defendants were directed to hand over the vacant possession of the suit Shop No.30, Khatipura Main Road, Indore to the plaintiff within a period of two months along with the arrears of rent from 01.06.1988 till handing over the possession.

[8] Being aggrieved by the aforesaid eviction judgment and decree, defendant Nos.2 and 3 through legal heirs filed the first appeal on the ground that there was a collusion between the plaintiff and Narayan Singh to obtain the decree of ejectment. Narayan Singh was never into the possession and the present appellants are in possession by virtue of Will dated 13.08.1987. It is further pleaded that they were ready to pay the rent but the Office Bearers of the Trust were not accepting the rent. No notice was sent to them under Section 106 of the Transfer of Property Act, 1882, therefore, the suit was liable to be dismissed. The Managing Trustee - Prahlad Das Singi was not authorized to file the suit. All Trustees ought to have been joined as a plaintiff along with the Trust. Vide judgment dated 08.08.2006, the first appellate Court has dismissed the appeal. Hence, the present second appeal before this court.

[9] The present second appeal has been filed on the ground that the Public Trust was not a juristic person. The Managing Trustee alone cannot file the suit in absence of the Trustees. No decree can be passed against the appellants when they were not served with the notice under Section 106 read with Section 111 of the Transfer of Property Act, 1882.

[10] The appellants have proposed the following substantial questions of law in this appeal :-

[11] The appellants have filed an application [I.A.No.7051/2011] under Order VI Rule 17 of CPC seeking amendment in the written statement. The appellants have sought the amendment on the ground that the Registrar Public Trust has passed the order dated 05.08.2002 regarding the functioning of the Trust. The Registrar has passed the order of appointing Receiver and send the matter to the District Court. Therefore, Trust is not in existence and against the order of District Judge, first appeal is pending before this Court. Therefore, the plaintiff had no right to file the suit.

[12] The Registrar has passed the order on 05.08.2002 i.e. much prior to the judgment and decree passed on 09.12.2005. In the written statement the legal heirs of Sohanlal has already taken a specific ground regarding pendency of the proceedings before the Registrar under Section 26 of the M. P. Public Trusts act, 1951. They have also not filed any application under Order XLI Rule 27 of CPC before the first appellate Court. Therefore, at this stage such an application seeking amendment in the written statement cannot be allowed. Hence, the same is rejected.

[13] I have heard Shri Kamal Airen, learned counsel for the appellants and Shri Himanshu Joshi, learned counsel for the Respondent No.1.

[14] That vide Ex.P/3 the Trust in its meeting dated 28.12.1988 has authorized Managing Trustee Shri Prahlad Das Singi to give the notice and file the suit. Therefore, Managing Trustees of the Trust has filed the suit against the defendants. At the time of filing the suit, the Trust was validly registered by Registrar Public Trust (Ex.P/1). Admittedly the suit shop was given on rent to Ram Singh who is elder brother of Narayan Singh. Ram Singh has died, hence being brother Narayan Singh has became the tenant of the Trust - plaintiff. Narayan Singh in his written statement did not disputed this fact. The notice of termination of tenancy (Ex.P/2) was issued to Narayan Singh which was duly received by him on 20.01.1989. In the notice it was alleged that you have inducted Sohanlal as sub- tenant. PW-1 in his cross-examination has specifically denied that he has never seen defendant Nos.2 and 3 doing the business in the shop and the defendant Nos.2 and 3 never paid the rent to the Trust also.

[15] The defendants examined Om Prakash as DW-1, who is son of defendant No.2 Sohanlal, who stated that after the death of Ram Singh, he gave an application to the Trust on 16.10.1987 that on the basis of the Will of Late Ram Singh they have become the tenant. In the cross- examination he has admitted that the plaintiff has never send notice demanding the arrears of rent from them. Ram Singh had no son and he adopted a girl and Ramesh was her husband i.e. defendant No.3. In the present case the tenancy of Ram Singh and the defendant No.1 in the suit premises is not disputed. At the time of filing the suit the Trust was duly registered and Prahlad Das Singi was the Managing Trustee of the Trust and who was authorized to file the suit. The suit was filed after giving notice of termination of tenancy under Section 106 of the Transfer of Property Act, 1882 and not under the provisions of M. P. Accommodation Control Act, 1961. The Registration was not cancelled by the Registrar. The Trust is owner of the shop and competent to file the civil suit. The original tenant of the shop was Ramsingh who died issueless and after his death his younger brother Narayan Singh become the tenant who was served with the notice and termination of tenancy. The defendant Nos.2 and 3 were claiming tenancy on the basis of the Will dated 13.08.1987 but the said Will has not been proved before the Court. Therefore, they cannot claim succession by way of said Will.

[16] Learned counsel for the appellant has emphasized on a issue that when the provisions of M. P. Accommodation Control Act, 1961 has been made applicable to the Trust before filing of the suit, then the suit ought to have been filed under the provisions of M. P. Accommodation Control Act, 1961. The learned Trial Court as well as the first appellate Court has came to the conclusion that the suit for eviction is maintainable after terminating the tenancy under Section 106 of the Transfer of Property Act, 1882.

[17] There is a concurrent finding recorded by both the Courts against the defendants/tenant and admittedly defendant Nos.2 and 3, who contested the suit by way of appeal, were not the tenant in the suit accommodation. They are claiming possession on the basis of Will dated 13.08.1987 which has not been proved. Therefore, I do not find any substantial question of law involved in this appeal.

[18] The Supreme Court in the case of Kshitish Chandra Bose v/s Commissioner of Ranchi , reported in (1981) 2 SCC 103 has held that the High Court cannot interfere with the conclusion of fact recorded by the Courts below, however, erroneous the said conclusion may appear. Para-11,12 & 13 of the aforesaid judgment is reproduced herein below :-

12. The same view was taken in two earlier decisions of this Court in the cases of D.Pattabhiramaswamy v. Hanymayya and Raruha Singh v. Achal Singh.

13. Thus, the High Court in this case had no jurisdiction after reversing the concurrent findings of fact of the Courts below on the question of adverse possession to remand the case to the Additional Judicial Commissioner on the question of title which also was concluded by the concurrent findings of fact arrived at by the two courts as indicated above.

[19] In view of the above, second appeal is dismissed. Since, the tenancy is very old and looking to the age of appellants, three months' time is granted to vacate the suit premises.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1061 of 2016.

18.04.2017:-

19.04.2017:-

[3] Vide order dated 28.02.2017 notices were issued and the Respondents were restrained from taking any coercive action in pursuant to the impugned notice.

[4] Shri Rishi Tiwari, learned counsel appearing on behalf of the Respondents filed the reply stating that the petitioner has made construction without sanction plan as required under Section 293 of the M. P. Municipal Corporation Act, 1956, there cannot be any construction without permission of Municipal Corporation. The illegal construction is liable to be demolished.

[5] The grievance of the petitioners is that the Respondents have violated the principles of natural justice.

[6] Counsel for the Respondents has fairly stated before this Court that the Respondents are ready to given an opportunity of hearing and will pass a reasoned and speaking order before taking any action in pursuance to the impugned notice against the petitioner.

[7] Keeping in view the aforesaid submission of learned counsel for the Respondents, the writ petition is disposed of at this stage by permitting the petitioners to file the detailed representation in response to the notice dated 26.02.2017. The petitioners will appear before the Respondent No.2 along with all the documents. The Respondent No.2 shall given an opportunity of hearing also to the petitioner and will pass an appropriate reasoned order. If the order is passed against the petitioners, then in order to give breathing time, Respondent No.2 shall not give effect of the said order for further two weeks from the date of passing of the order. The Respondents shall communicate to the final order to the petitioners. Till the final decision is taken, the interim protection granted by this Court on 28.02.2017 shall continue.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6855 of 2014 (S).

20.04.2017:-

[4] Since the impugned order is very vague, non speaking and return has not been filed despite order dated 12.01.2017, accordingly the order dated 21.07.2014 (Annexure-P/1) is quashed. The matter is remitted back to the Respondent Nos.2, 3 and 4 to consider the claim of the petitioner for regularization. If any juniors to the petitioner were appointed after 01.01.1995 have been regularized, then the case of the petitioner is also liable to be considered. The entire exercise be completed within four weeks from today. The competent authority is directed to pass speaking order.

[5] The petition stands disposed of.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.576 of 2017.

19.04.2017:-

Therefore, she is a necessary party in the present proceedings.

(d) Vide order dated 21.01.2017 learned Trial Court has allowed the application and she has been permitted to implead as defendant No.3 in the proposed suit. Hence, the present petition.

[3] Shri Nilesh Sharma, learned counsel on behalf of the petitioner submits that the petitioner has filed the suit against the Municipal Corporation, Indore and he has not sought any relief against the Respondent No.2, therefore, the learned Trial Court has wrongly allowed the application filed under Order I Rule 10 of CPC . The Respondent No.2 is a complainant who already initiated proceedings under Section 307 of the Municipal Corporation Act against his father. The High Court in the case of Shashi v/s Indore Municipal Corporation [2012 (2) MPLJ 78] has held that the complainant is not necessary party in a suit filed against the Municipal Corporation.

[4] Counsel appearing for the Respondents have opposed the prayer and prayed for dismissal of the writ petition.

[5] I have perused the application filed under Order I Rule 10 of CPC filed by the Respondent No.2. In para 6 she has specifically stated that by virtue of lease deed dated 13.12.1988 the property belongs to her for which the plaintiff has filed the suit. She has also submitted that she is in possession.

[6] In the plaint, the plaintiff is not only claiming the relief of permanent injunction against the Municipal Corporation but also claiming the relief of declaration that he is owner of the property. When the issue of ownership is involved and the Respondent No.2 is disputing the same, therefore, she is a necessary party as well as proper party in the suit. The Trial Court has not committed any error while allowing the application.

[7] I do not find any illegality, infirmity or jurisdictional error in the order passed by the learned 13 th Civil Judge, Class-II, Indore on 21.01.2017. The petition is dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8384 of 2016.

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21.12.2009 to 20.12.2012 and same was issued on 04.01.2010. Before this Court also the appellants have filed certified copy of the same driving licence which was shown to have been valid w.e.f. 21.12.2006 to 22.12.2009 with the same number and issued on 04.01.2010.

Let the Insurance Company verify validity of both the licence from RTO, Bhopal and submit the report before this Court.

List after four weeks in motion hearing.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1431 of 2008.

20.04.2017:-

13.04.2017:-

[3] The petitioner has challenged the impugned order (Annexure P/1) on the ground that the Chief Executive Officer, Jila Panchayat is not competent to pass the order of attachment under Panchayat Act and Rules made thereunder. There is no provision of attachment. The Panchayat Secretary can be de-notified, suspended and terminated but he cannot be attached by way of punishment. In the impugned order the allegations of negligence and dereliction of duties were levelled. Therefore, the impugned order is causing stigma. The violation of principle of natural justice has also been raised that without issuing show-cause notice and without affording an opportunity of hearing, the impugned order was passed.

[4] While issuing notices to the Respondents, vide order dated 30.08.2016 the effect of order dated 08.08.2016 was stayed.

[5] The Respondents filed the return along with an application [I.A.No.376/2017] for vacating the stay order. It is submitted that the services of the petitioner has been absorbed under the Madhya Pradesh Panchayat Service (Gram Panchayat Secretary recruitment and Conditions of Service) Rules, 2011 [in brief "the Rules, 2011"] and the appointing authority of Panchayatkarmi is Chief Executive Officer, Jila Panchayat. It is submitted that the various complaints were received against the working of the petitioner and because of those complaints, a show-cause notice was issued on 09.12.2015 and 08.03.2016 but the petitioner did not appear to submit the reply. The Block Panchayat Officer has recorded the statements of Sarpanch, Gram Panchayat Budi who has alleged that the petitioner is not performing his duties. On 07.06.2016 the report was submitted by the Chief Executive Officer, Janpad Panchayat Pati to the Respondent No.3. In pursuant to the said report, the impugned order was passed in accordance with law. The attachment with the Janpad Panchayat is not a punishment. Therefore, there is no need to conduct a detailed enquiry. Hence, the petition is devoid of merit and substance. The Division Bench of this Court in the case of Manoj Kumar Tiwari v/s Collector , reported in 2012 SCC Online MP 2358 has held that the Chief Executive Officer is having administrative and supervisory control over the Secretary. Therefore, he can place him under suspension.

[6] The petitioner filed the rejoinder to the return in which it is submitted that he has never received the show-cause notice dated 09.12.2015 and 08.03.2016. The petitioner is under the administrative control of Gram Panchayat, therefore, Gram Panchayat is competent to take disciplinary action. It is further submitted that the complaint was made by husband of Sarpanch who has no authority to interfere in the working of Panchayat and make complaint. The ex - Sarpanch and other villagers have given affidavits in support of the petitioner that he is doing the work in the interest of Panchayat. The petitioner has filed the copy of Circular of State Government dated 20.01.2006 by which direction has been given to constitute a Committee headed by Sub Divisional Officer to conduct the enquiry in respect of development work under the Gramin Rojgar Scheme. The Block Panchayat Officer is not competent to conduct the enquiry. Various photographs have been filed to establish that the development work was appreciated by the Panchayat by the News Channels.

[7] I have heard Shri Jitendra Verma, learned counsel on behalf of the petitioner and Shri Rohit Mangal, learned Govt. Advocate on behalf of the Respondents/State.

[8] The petitioner was initially appointed as Panchayatkarmi. Thereafter he was notified under Section 69 of Panchayat Act as Secretary. By virtue of Rule 5 of Rules, 2011 cadre has been made for Gram Panchayat Secretary in each district and all the previously appointed Gram Panchayat Secretary who are holding the office before amendment of this rules have been absorbed in the cadre of Panchayat Secretary. The other service conditions of the Panchayatkarmi has been prescribed in Rule 6 of Rules, 2011 and under sub-rule (7) of Rule 6 of Rules, 2011 services of Gram Panchayat Secretary are transferred on administrative ground under the policy of the State Government. The Gram Panchayat Secretary may be transferred, if necessary, after proper enquiry of the complaints on the recommendation of the Chief Executive Officer, Janpad Panchayat. Sub-rule (7) of Rule 6 of Rules, 2011 is reproduced below :-

[9] Rule 7 of Rules, 2011 provides for discipline and control under the Madhya Pradesh Panchayat Service (Conduct) Rules, 1998 which has been made applicable to the Gram Panchayat Secretary who shall be under the administrative control of the Gram Panchayat. Rule 7 of Rules, 2011 is reproduced below :-

[10] The Full Bench of this Court in the case of Chandrapal Yadav v/s State of M.P. [2016 (1) MPLJ 685] has held that no prior notice or opportunity of hearing before suspension of the Gram Panchayat Secretary or withdrawal of charge of Secretary (de-notified) is required to be given by the Competent Authority to the concerned employee who is facing serious criminal charges. Therefore, the Panchayat Secretary can be suspended on registration of criminal charges or against whom Departmental Enquiry is instituted. But in the present case the petitioner has not been placed under suspension on account of criminal case and no charge- sheet has been issued.

[11] The husband of Sarpanch has made a complaint to the Collector against the petitioner alleging that the construction work is not in progress, therefore, he be transferred to some other Panchayat. According to the Respondents the notice dated 09.12.2015 and 08.03.2016 were issued to the petitioner but he did not submit any reply. By way of rejoinder, the petitioner submitted that he has never received those notices. He has denied his signatures over these notice. No additional return has been filed to controvert this fact. The Block Panchayat Officer has conducted the enquiry and submitted its report. He recorded joint statements of Sarpanch and other local villagers on 18.05.2016. All these materials have been used against the petitioner for passing the impugned order of attachment. The petitioner has not been supplied the enquiry report as well as the statements recorded by the Block Panchayat Officer. The Respondents has submitted that the order of attachment is not by way of punishment. In the Rules, 2011 there is a provision of transfer even on complaint. But there is a provision of suspension under the Conduct Rules but there is no such provision of attachment of Secretary to the Janpad Panchayat because the Panchayat Secretary is the employee of Gram Panchayat. The Chief Executive Officer may be Competent Authority but the Panchayat Secretary are under the disciplinary control of Gram Panchayat. Therefore, on any allegation if any action is required to be taken against the petitioner, the Gram Panchayat is competent to take action under Rule 7 of Rules, 2011 and that order is appealable under Rule 8 of Rules, 2011. If on the charges the petitioner is required to be removed from the Gram Panchayat, that would be under sub-rule (7) of Rule 6 of Rules, 2011. He could have been transferred to other Gram Panchayat as Panchayat Secretary.

[12] Even otherwise in the impugned order dated 08.08.2016 charges of negligence and dereliction of duties have been levelled against the petitioner. It is settled law in service jurisprudence that if the order is stigmatic, then the same cannot be passed without affording opportunity of hearing to the petitioner. If any material is being used against the employee, then the employer is required to supply copies thereof and all these are subject to the cross- examination. The apex Court in the case of Ayaaubkhan Noorkhan Pathan v/s State of Maharashtra [(2013) 4 SCC 465] has considered the scope of providing reasonable opportunity. The apex Court has held that opportunity of cross-examination is an integral part and parcel of the principles of natural justice. Para 28, 29 and 30 is reproduced below :-

30. The aforesaid discussion makes it evident that, not only should the opportunity of cross- examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice."

[13] In view of the above, the impugned order cannot be sustained on violation of principles of natural justice.

[14] Learned Govt. Advocate has placed reliance on the judgment in the case of Manoj Kumar Tiwari (supra) in which order of attachment issued by the Chief Executive Officer was not interfered by the High Court as he is competent under Rules 3 and 4 of Madhya Pradesh Panchayat Service (Discipline & Appeal) Rules, 1999. The aforesaid order was passed placing reliance over the Madhya Pradesh Panchayat (Power and Functions of Chief Executive Officer) Rules, 1995 and Madhya Pradesh Panchayat Service (Discipline & Appeal) Rules, 1999. Under Rule 7 of Rules, 2011, the Panchayat Secretary are under the disciplinary control of Gran Panchayat. Even otherwise the order passed in the case of Manoj Kumar Tiwari (supra) was challenged by the petitioner in Writ Appeal No.529 of 2012 and vide order dated 18.02.2012 the writ appeal was disposed of directing the Collector to look into the matter and decide the same expeditiously and in accordance with law. The operative portion is reproduced below :-

[15] Since while issuing the notice, the operation of the impugned order was stayed by this Court. Therefore, the said interim protection shall continue for the period of further 60 days (sixty days) and the Collector, Badwani is directed to look into the matter and decide the same expeditiously in accordance with law. The petitioner is directed to file a detailed representation along with all the documents before the Collector, Badwani within a period of four weeks from today who shall decide the same in accordance with Panchayat Act and the Adhiniyam 1993, Rules 1999 and Rules 2011 within a period of 60 days (sixty days) and thereafter any action required to be taken against the petitioner, then he shall give a direction to the Competent Authority to take action against the petitioner if required. The impugned order dated 08.08.2016 is hereby set-aside.

[16] The petition stands allowed with above direction. No order as to costs.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7819 of 2016.

19.04.2017:-

[4] Shri B.L.Jain, learned counsel on behalf of the petitioner submits that the right of defence is a valuable right of the defendant and due to unavoidable circumstances the written-statement could not be filed. The Court has adopted hyper technical approach.

[5] Per contra, Shri Ajay Gupta, learned counsel on behalf of the Respondents submits that sufficient opportunity was granted to the defendant to file the written- statement and after expiry of 90 days, he is not entitled to file the written-statement.

[6] I have heard learned counsel for the parties. [7] That initially the Respondents filed the suit in which the defendant/present petitioner filed the written- statement but the Respondents permitted to withdraw the suit with a costs of Rs.1,000-00. Thereafter they filed the suit for eviction as well as permanent injunction along with an application under Order XXXIX Rule 1 & 2 of CPC . Initially the time was consumed in respect of the Cheque No.966870. Thereafter the petitioner was directed to deposit the rent in the CCD which he deposited on 02.05.2016. Thereafter transfer application was pending before the District Judge and the record was called. Vide order dated 26.04.2016 the record was sent to 5 th Civil Judge, Class-II, Ujjain. Thereafter arguments were heard on 13.05.2016 on application under Order XXXIX Rule 1 & 2 of CPC and order was passed which has caused delay in filing the written-statement. It is settled law that the defendant must get full opportunity to defend the case.

[8] In view of the above, the impugned order dated 04.10.2016 is hereby set-aside. The Trial Court is directed to take the written-statement on record which was filed along with the application under Section 151 of CPC. The petition is allowed with a costs of Rs.1,000-00 [One Thousand Rupees] payable to the District Bar Association, Ujjain. The petitioner is also directed to deposit the regular rent in the Court.

[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.191 of 2016.

19.04.2017:-

[2] The petitioner submitted a representation and when the benefit was not extended, hence present petition is filed.

[3] The Respondents have filed the return stating that vide order dated 08.09.2016 the claim of the petitioner has been rejected as the same is different from the case of Teju Lal Yadav v/s State of M.P. , reported in I.L.R. (2009) MP 1326.

[4] Since the Respondents have considered and rejected the claim of the petitioner by a detailed and speaking order, therefore, there is substance compliance by the Respondents.

[5] In view of the above, no contempt is made out. The contempt petition is hereby dropped with the liberty to the petitioner to assail the validity of the order dated 08.09.2016.

[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.745 of 2006.

06.04.2017:-

[2] The Respondent No.1 being a Charitable Religious Trust is the owner of shop situated in ground floor of House No.30. Khatipura Main Road, Indore which was given on rent to Late Ramsingh for non residential purpose. After the death of Ram Singh, Narayan Singh has came into the possession of said shop. The tenancy was monthly at the rate of Rs.85-00 per month for non residential purpose. The defendant has paid the rent by 31.05.1988 and thereafter stopped paying the rent and since last six months Narayan Singh - defendant No.1 is not using the shop. Therefore, the plaintiff has issued a notice on 21.01.1989 demanding arrears of rent and eviction from the said shop. When the defendants did not vacate the shop, the plaintiff - Trust instituted a suit on 12.06.1989 through Managing Trustee - Prahlad Das Singi. In the plaint, it is alleged that Narayan Singh has vacated the shop and sub-leased to Sohanlal and who is not paying the rent to the plaintiff, therefore, a decree of eviction, arrears of rent and mesne profit be granted.

[3] After notice, the defendant No.1 - Narayan Singh filed the written-statement submitting that he became tenant after the death of his elder brother Ram Singh and he used to pay the rent but the Trustee has refused to accept the same.

[4] Defendant Nos.2 and 3 filed the written statement submitting that Narayan Singh was never into the possession of suit shop and Late Ram Singh has given the shop to them by executing a Will dated 13.08.1987 and since then they are in possession. They sent rent by way of money order to the Trust but the Office Bearer of the Trust has refused to accept the rent. Therefore, up to 31.07.1990 they have deposited the rent into the Court. During the pendency of the suit, Sohanlal has expired and in his place his legal heirs - Mahesh, Om Prakash and Chandrakala were impleaded as defendants. They filed a separate written statement stating that the Registrar Public Trust has initiated proceedings under Section 26 of the M. P. Public Trusts Act, 1951 and the suit was filed before District Judge, Indore in which judgment was passed against the Trust to the effect that they are not properly managing the Trust. Therefore, they are not entitled for decree.

[5] On the basis of pleadings, the Trial court has framed as many as 10 issues for adjudication.

[6] By way of evidence, the plaintiff examined Prahlad Das Singi as PW-1 who is the Managing Trustee of the Trust and filed Registration Certificate of the Trust dated 07.09.1964 (Ex.P/1) by which the Trust was registered by the Registrar Public Trust; notice dated 20.01.1989 (Ex.P/2) and minutes of the meeting by which Prahlad Das Singi was authorized to file the present suit as Ex.P/3. By way of defence, the defendants examined Om Prakash as DW-1 and got exhibited 8 documents as Exs.D/1 to D/8.

[7] The learned Trial Court has recorded the finding on all issues in favour of the plaintiff. Issue No.6 was framed that w.e.f. 07.09.1989 the provisions of M. P. Accommodation Control Act, 1961 has been made applicable to the Religious and Charitable Trust. The suit was filed on 12.06.1989. Therefore, the present suit is not maintainable. The plaintiff is not entitled for decree of eviction under the provisions of M. P. Accommodation Control Act, 1961. The Trial Court has decided the issue that the suit for eviction under the provisions of Transfer of Property Act, 1882 was maintainable and the plaintiff has issued notice under Section 106 of the Transfer of Property Act, 1882 which has been proved, therefore, the suit was maintainable. By judgment and decree dated 09.12.2005, the defendants were directed to hand over the vacant possession of the suit Shop No.30, Khatipura Main Road, Indore to the plaintiff within a period of two months along with the arrears of rent from 01.06.1988 till handing over the possession.

[8] Being aggrieved by the aforesaid eviction judgment and decree, defendant Nos.2 and 3 through legal heirs filed the first appeal on the ground that there was a collusion between the plaintiff and Narayan Singh to obtain the decree of ejectment. Narayan Singh was never into the possession and the present appellants are in possession by virtue of Will dated 13.08.1987. It is further pleaded that they were ready to pay the rent but the Office Bearers of the Trust were not accepting the rent. No notice was sent to them under Section 106 of the Transfer of Property Act, 1882, therefore, the suit was liable to be dismissed. The Managing Trustee - Prahlad Das Singi was not authorized to file the suit. All Trustees ought to have been joined as a plaintiff along with the Trust. Vide judgment dated 08.08.2006, the first appellate Court has dismissed the appeal. Hence, the present second appeal before this court.

[9] The present second appeal has been filed on the ground that the Public Trust was not a juristic person. The Managing Trustee alone cannot file the suit in absence of the Trustees. No decree can be passed against the appellants when they were not served with the notice under Section 106 read with Section 111 of the Transfer of Property Act, 1882.

[10] The appellants have proposed the following substantial questions of law in this appeal :-

[11] The appellants have filed an application [I.A.No.7051/2011] under Order VI Rule 17 of CPC seeking amendment in the written statement. The appellants have sought the amendment on the ground that the Registrar Public Trust has passed the order dated 05.08.2002 regarding the functioning of the Trust. The Registrar has passed the order of appointing Receiver and send the matter to the District Court. Therefore, Trust is not in existence and against the order of District Judge, first appeal is pending before this Court. Therefore, the plaintiff had no right to file the suit.

[12] The Registrar has passed the order on 05.08.2002 i.e. much prior to the judgment and decree passed on 09.12.2005. In the written statement the legal heirs of Sohanlal has already taken a specific ground regarding pendency of the proceedings before the Registrar under Section 26 of the M. P. Public Trusts act, 1951. They have also not filed any application under Order XLI Rule 27 of CPC before the first appellate Court. Therefore, at this stage such an application seeking amendment in the written statement cannot be allowed. Hence, the same is rejected.

[13] I have heard Shri Kamal Airen, learned counsel for the appellants and Shri Himanshu Joshi, learned counsel for the Respondent No.1.

[14] That vide Ex.P/3 the Trust in its meeting dated 28.12.1988 has authorized Managing Trustee Shri Prahlad Das Singi to give the notice and file the suit. Therefore, Managing Trustees of the Trust has filed the suit against the defendants. At the time of filing the suit, the Trust was validly registered by Registrar Public Trust (Ex.P/1). Admittedly the suit shop was given on rent to Ram Singh who is elder brother of Narayan Singh. Ram Singh has died, hence being brother Narayan Singh has became the tenant of the Trust - plaintiff. Narayan Singh in his written statement did not disputed this fact. The notice of termination of tenancy (Ex.P/2) was issued to Narayan Singh which was duly received by him on 20.01.1989. In the notice it was alleged that you have inducted Sohanlal as sub- tenant. PW-1 in his cross-examination has specifically denied that he has never seen defendant Nos.2 and 3 doing the business in the shop and the defendant Nos.2 and 3 never paid the rent to the Trust also.

[15] The defendants examined Om Prakash as DW-1, who is son of defendant No.2 Sohanlal, who stated that after the death of Ram Singh, he gave an application to the Trust on 16.10.1987 that on the basis of the Will of Late Ram Singh they have become the tenant. In the cross- examination he has admitted that the plaintiff has never send notice demanding the arrears of rent from them. Ram Singh had no son and he adopted a girl and Ramesh was her husband i.e. defendant No.3. In the present case the tenancy of Ram Singh and the defendant No.1 in the suit premises is not disputed. At the time of filing the suit the Trust was duly registered and Prahlad Das Singi was the Managing Trustee of the Trust and who was authorized to file the suit. The suit was filed after giving notice of termination of tenancy under Section 106 of the Transfer of Property Act, 1882 and not under the provisions of M. P. Accommodation Control Act, 1961. The Registration was not cancelled by the Registrar. The Trust is owner of the shop and competent to file the civil suit. The original tenant of the shop was Ramsingh who died issueless and after his death his younger brother Narayan Singh become the tenant who was served with the notice and termination of tenancy. The defendant Nos.2 and 3 were claiming tenancy on the basis of the Will dated 13.08.1987 but the said Will has not been proved before the Court. Therefore, they cannot claim succession by way of said Will.

[16] Learned counsel for the appellant has emphasized on a issue that when the provisions of M. P. Accommodation Control Act, 1961 has been made applicable to the Trust before filing of the suit, then the suit ought to have been filed under the provisions of M. P. Accommodation Control Act, 1961. The learned Trial Court as well as the first appellate Court has came to the conclusion that the suit for eviction is maintainable after terminating the tenancy under Section 106 of the Transfer of Property Act, 1882.

[17] There is a concurrent finding recorded by both the Courts against the defendants/tenant and admittedly defendant Nos.2 and 3, who contested the suit by way of appeal, were not the tenant in the suit accommodation. They are claiming possession on the basis of Will dated 13.08.1987 which has not been proved. Therefore, I do not find any substantial question of law involved in this appeal.

[18] The Supreme Court in the case of Kshitish Chandra Bose v/s Commissioner of Ranchi , reported in (1981) 2 SCC 103 has held that the High Court cannot interfere with the conclusion of fact recorded by the Courts below, however, erroneous the said conclusion may appear. Para-11,12 & 13 of the aforesaid judgment is reproduced herein below :-

13. The same view was taken in two earlier decisions of this Court in the cases of D.Pattabhiramaswamy v. Hanymayya and Raruha Singh v. Achal Singh.

13. Thus, the High Court in this case had no jurisdiction after reversing the concurrent findings of fact of the Courts below on the question of adverse possession to remand the case to the Additional Judicial Commissioner on the question of title which also was concluded by the concurrent findings of fact arrived at by the two courts as indicated above.

[19] In view of the above, second appeal is dismissed. Since, the tenancy is very old and looking to the age of appellants, three months' time is granted to vacate the suit premises.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.109 of 2017.

12.04.2017:-

Since the plaintiff is in possession of the house and the defendants have filed the counter claim, therefore, if injunction is not granted, that would not affect her interest. The balance of convenience was also not found in her favour.

(e) Being aggrieved by the order dated 11.07.2016, the plaintiff filed appeal under Order XLIII Rule 1 of CPC . After notice the defendants/Respondents appeared along with a Map of the house and submitted that the portion marked in "red colour" is in possession of the plaintiff and she can be permitted to continue to reside in the said area. The possession of the plaintiff cannot be treated into the entire house. She cannot claim the right over the property of father-in-law. The learned first appellate Court vide order dated 20.12.2016 has partly modified the impugned order and permitted the plaintiff to reside in the area marked as "red colour" and the defendants were restrained not to interfere in her peaceful possession directly or through servant or agent during the pendency of the suit.

(f) Being aggrieved by the order dated 20.12.2016, the petitioner preferred the present petition on the ground that she is in possession of the entire house. The Respondents themselves left the house and now she cannot be dispossessed from the house. The Respondents themselves have admitted before the Family Court that the plaintiff is in possession of the entire house and not permitting the Respondent Nos.1 and 2 to enter into the house.

[3] Shri Rajendra Samdani, learned counsel on behalf of the petitioner vehemently argued that the learned first appellate Court has travelled beyond its jurisdiction by granting partial interim relief; whereas the plaintiff is entitled for temporary injunction to the effect that she is in possession of entire house and the Respondents be restrained not to interfere in her possession in the entire house.

[4] Per contra, Shri Ajay Jain, learned counsel on behalf of the Respondent Nos.1 to 4 submits that the order passed by the learned first appellate Court is very reasonable. The plaintiff is residing only in the limited portion of the house which is marked in the red colour. She cannot claim possession in the entire house as a matter of right which admittedly belongs to the Respondent Nos.1 to

4. [5] It is not disputed that the entire house bearing House No.2/30, Bharatpuri, Ujjain is owned by the defendant No.1 who is grand father-in-law of the plaintiff. The Respondent No.3 is a son of Respondent No.1 and the Respondent No.5, husband of the plaintiff, is the grant-son of the Respondent No.1. So long father and grand-father are alive, the Respondent No.5 has not right in the property, therefore, the plaintiff being wife of the Respondent No.5 cannot claim any right over the property. She has a right to reside in a shared household belonging to her husband only. Being a daughter-in-law the plaintiff has not right as against her father-in-law to occupy any portion of said property. The High Court of Delhi in the case of Mr. Barun Kumar Nahar v/s Parul Nahar , passed in CS (OS) 2795/2011 dated 05.02.2013, while deciding application under Order XXXIX Rule 1 & 2 of CPC , held as under :-

[6] The Respondent Nos.1 to 4 themselves offered that the plaintiff along with her daughter can reside in one room attached lat-bathroom and dressing room which is marked in red colour. The learned first appellate Court has not committed any error while granting such a relief to the plaintiff. Being a daughter-in-law she cannot claim possession over the entire house as she has no legal right as held by the High Court of Delhi in the case of Mr. Barun Kumar Nahar (supra).

[7] Therefore, I do not find any illegality or infirmity in the order passed by the learned 10 th Additional District Judge, Ujjain on 20.12.2016.

[8] The petition is hereby dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.2 of 2017.

17.04.2017:-

18.05.2009 claiming increment and up-gradation. The petitioner kept quite for number of years and submitted representation on 05.07.2016 that the order passed in Writ Petition dated 11.08.2006 has not been complied so far and thereafter now the present contempt petition is filed in the year 2017. The contention of the petitioner is that while reinstating him, the consequential benefits has not been granted by the Respondents, therefore, they have committed contempt of Court's order.

[3] The case of the petitioner before the High Court was that similarly placed person approached the M. P. State Administrative Tribunal against the termination and order of termination was quashed by the Tribunal with the direction to conduct the scrutiny in the matter and pass appropriate order. The said order was passed in M.A.No.17/1997 on 12.08.1997. It was submitted that after the order passed in M.A.No.17/1997, the petitioners have not been treated similar with the aforesaid employees and discriminated by the Respondents. The writ petition was disposed of vide order dated 11.08.2006 with the direction to extend the similar benefit as allowed to the aforesaid persons who were party in M.A.No.17/1997. The petitioner has not filed the copy of the order passed in M.A. No.17/1997 and compliance order so as to demonstrate that what types of consequential benefits were extended to Abrar s/o Iqbal Khan and others. Therefore, no documents are on record to compare the case of the petitioner with them. Therefore, the contempt proceedings cannot be initiated against the Respondents on the allegation made by the petitioner without documentary evidence. Even otherwise there is a delay of 10 years in approaching this Court for initiation of the contempt proceedings against the Respondent for non compliance of order passed on 11.08.2006.

[4] I do not find any reason to initiate the contempt proceeding against the Respondent. Hence, the contempt petition is dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1114 of 2017.

19.04.2017:-

[3] Similar controversy came up before this Court in the case of Govardhanlal v/s State of M.P. And others [Writ Petition No.1187 of 2008] decided on 14.02.2008. The order is reproduced below :-

[4] Keeping in view the submissions made by counsel for the parties, the present writ petition is also disposed of by directing that the order passed in W.P. No.1187/2008 (supra) will apply mutatis mutandis in the case of the present petitioners also and the direction issued in the said order will be applicable to the petitioners also.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8793 of 2015.

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Issue notice of the appeal to the Respondents along with question of law formulated by this Court on payment of process fee within a week.

Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Misc. Appeal No.325 of 2017.

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[3] The petitioners submitted a detailed reply to the said notice on 28.08.2015. Without deciding all these objections, the Respondents have issued the impugned notice. The writ petition was entertained by this Court on 01.10.2015 and the parties were directed to maintain Status-quo. After notice, Intervenor who is neighbour of the petitioners has filed an application seeking permission to intervene on the ground that the petitioners have made constructions over the entire plot and because of which his ease mentary rights are being affected. The Respondents/Indore Municipal Corporation has also filed a detailed reply of the writ petition.

[4] In the present petition disputed questions of facts are involved which required to be decided by the Competent Authority. Admittedly in the present case after issuance of show-cause notice, detailed reply was filed by the petitioners but speaking and reasoned order has not been passed by the Building Officer.

[5] The present petition is disposed of with the direction to the Building Officer, Zone No.12, Indore Municipal Corporation, Indore to pass a detailed and speaking order after giving opportunity of hearing to the petitioners as well as Intervenor. The Building Officer shall issue notices to all the affected persons/owner who are residing in the said house. The entire exercise be completed within a period of 60 days from today. It is made clear that this Court has not express any opinion on merit of the case. The Competent Authority is free to decide in accordance with law. For the period of 60 days and till the decision is taken by the authority "status-quo" be maintained. That if authority decide the issue against the petitioners then they are entitled for at least 15 days' time to approach Court of law. Hence, for the next 15 days from the date of order, the Respondents are restraint to take action against the petitioners.

[6] With the aforesaid directions, petition is disposed of finally.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.3688 of 2014 (O).

17.04.2017:-

[7] Shri R.S.Chhabra, learned counsel on behalf of the petitioner submits that the Bank has wrongly initiated the proceedings for recovery under the provisions of the Lok Dhan Adhiniyam, 1987. Under this Adhiniyam the loan falls under "socially desirable scheme" notified by the State Government can be recovered. The petitioner who has used the card out side the country through International Credit Card cannot be subject to recovery under the provisions of the Lok Dhan Adhiniyam, 1987. The entire proceedings are time barred and the learned Assistant Tehsildar ought to have closed the proceedings.

[8] Shri Sanjay Pathak, learned counsel on behalf of the Respondent No.3 - HDFC Bank submits that looking to the credential of the petitioner, the Bank on an application by him, has issued Gold Credit Card which can be used within India or Internationally. The petitioner has applied for Gold Card and, therefore, he was issued a Gold Card. Vide Notification dated 13th September, 2000, the provisions of the Lok Dhan Adhiniyam, 1987 has been made applicable for recovery of amount spend through credit cards. Therefore, recovery proceedings before the Assistant Tehsildar under the provisions of the Lok Dhan Adhiniyam, 1987 are maintainable. Notification dated 13th September, 2000 is reproduced below :-

88-IV, dated 5th November, 1988, the State Government hereby declare the following Scheme as "Socially Desirable Schemes", namely :-

[9] It is not disputed that the petitioner was having the Gold Credit Card which was used twice on 17.11.2007 when he was in Dubai. When he received the statement for payment, he made a complaint to the Bank that he is having doubt that Tayyab Raijgi and his brother Aamir Rejgi has used his card. The petitioner has not made any complant at the relevant time that his card is missing and someone else has used the same. The only objection of the petitioner is that the proceedings under the Lok Dhan Adhiniyam, 1987 are not maintainable because the loan does not fall under "Socially Desirable Scheme". This issue came up for consideration before Division Bench of this Court in the case of Sadhna Chourasia v/s Punjab National Bank [(2010) 4 MPLJ 708 (MP)]. Para 12 and 13 of the order is reproduced below :-

13. Thus, in the instant case, admittedly the loan was advanced to the appellant for purchase of a Tractor-Trolley. The Tractor-Trolley would fall within the expression "inputs and implements for promotion of agriculture". Therefore, in view of preceding analysis it can safely be held that the loan was advanced to the petitioner under "socially desirable scheme" and, therefore, under Section 3 (1) (B) of the 1987 Act the proceedings for recovery of the amount can be initiated against the appellant under the provisions of 1987 Act."

[10] Against this order, S.L.P.No.35619/2010 filed before Hon'ble the Supreme Court which was dismissed vide order dated 05.09.2014.

[11] Under Section 2 (i) of the Lok Dhan Adhiniyam, 1987 the State Government has notified "socially desirable scheme" under which the banking company advances money to any person by way of loan. By Notification dated 13 th September, 2000 the Government has included the "Kisan Credit Cards/Credit Cards". When the credit card has been included in the notification which includes all types of credit card either National or International. The credit card issued by the Bank in India can be used Internationally. Therefore, there is no separate credit card for use Internationally. Therefore, the objection taken by the petitioner that the proceedings are not maintainable as the International Credit Card has not been notified in the Notification dated 13st September, 2000 is misconceived. The Assistant Tehsildar has not committed any error while rejecting the application under Order VII Rule 11 of CPC .

[12] The petitioner has also raised the issue ot limitation that the application is time barred. The Respondent has submitted that the last payment made by the petitioner in the credit card account on 27.04.2009 and 27.05.2009 and they filed application before the Assistant Tehsildar for recovery under Form 3 on 20.08.2009, hence the same is within time. Therefore, the Assistant Tehsildar has rightly held that the proceedings are within limitation.

[13] I do not find any error or infirmity in the order passed by the Assistant Tehsildar. In view of the above, the petition fails and is hereby dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.466 of 2017.

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According to the petitioner, her husband was on Gujrat tour to attend some marriage from 12.01.2017 on wards and on the date of incident he was at Ahemdabad (Gujrat) which can be verified from his mobile location and the recording of CCTV footage of that area. If the police conducts fair investigation in right direction there could be a possibility of submitting closure report against them as they have been falsely implicated in criminal case.

[3] The Respondents were directed to seek instructions from the Investigating Officer.

[4] Shri Bhatnagar, learned Deputy Govt. Advocate on behalf of the Respondents submits that husband of the petitioner has been arrested and sent to the custody and the petitioner has no locus to file the present petition. He further submits that it is a discretion of Investigating Officer to conduct the investigation. The accused cannot insist that the material available of his favour be also considered.

[5] Since the petitioner's husband has been arrested, therefore, the relief as claimed in Para 7 (ii) cannot be granted. So far as the relief as claimed in Para 7 (iii) is concerned, there is no allegation against the police that they are not doing fair in investigating the crime in question. The only relief which petitioner is claiming that her representation submitted to the DIG, Indore be considered who can direct the Investigating Officer to conduct the fair investigation in right direction and in accordance with law and he may be directed to monitor the investigation so that innocent person may not suffer.

[6] The Hon'ble apex Court was pleased to observe in case of Nirmal Singh v/s State of Punjab and others , reported in (2009) 1 SCC 441, that the right to fair investigation and trial is applicable to the accused as well as the victim and such a right to a victim is provided under Article 21 of the Constitution of India. The observations of the Hon'ble apex Court is extracted hereunder :-

[7] In Azija Begum v/s State of Maharashtra , (2012) 3 SCC 126, the apex Court has held as follows :-

[8] In Subramanian Swamy v/s CBI (2014) 8 SCC 682, the apex Court has ruled that any investigation into crime should be fair and should not be tainted. It has been further held that Rule of Law is a facet of equality under Article 14 of the Constitution of India.

[9] Without entering into the merits of the case, the present petition is disposed of with the liberty to the DIG, Indore to consider the representation of the petitioner dated 18.01.2017 and act in accordance with law and under the provisions of Cr.P.C.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8736 of 2015.

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[4] As the facts of the case and prayer made by the petitioner are identical, hence, in terms of the directions issued by this Court in the matter of Champalal Patel (supra), the present petition is disposed of.

No order as to costs.

Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2497 of 2017 (S).

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[4] As the facts of the case and prayer made by the petitioner are identical, hence, in terms of the directions issued by this Court in the matter of Champalal Patel (supra), the present petition is disposed of.

No order as to costs.

Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2487 of 2017 (S).

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[4] As the facts of the case and prayer made by the petitioner are identical, hence, in terms of the directions issued by this Court in the matter of Champalal Patel (supra), the present petition is disposed of.

No order as to costs.

Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.675 of 2017.

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[6] The petitioner who was regularized as Helper and now promoted as Assistant Grade-III cannot be appointed or promoted as Driver. Both the orders have been accepted by him and did not challenge in this petition.

[7] I do not find any illegality or infirmity in the impugned order. In the result, this petition is dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1958 of 2017.

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[2] The petitioner was promoted to the post of Upper Division Teacher on 31.08.1996 and thereafter retired on 31.07.2001 on attaining the age of superannuation. The petitioner submitted representation for grant of seniority to the post of Upper Division Teacher w.e.f. 01.04.1967. The Respondents vide order dated 16.11.2006 (Annexure P/5) has rejected the representation by granting him the seniority w.e.f. 09.02.1979 but rejected his claim for seniority from 01.04.1967.

[3] Admittedly the petitioner has not challenged the said order dated 16.11.2006 at the relevant time and even in the present writ petition. The petitioner has approached this Court by filing this petition seeking relief that the Respondents be directed to decide his representation for grant of seniority w.e.f. 01.04.1967 in the light of judgment passed by this Court in the cases of Muralidhar Nema v/s State of M.P.; Mrs. Shobha Shekatkar v/s State of M.P. And Sultan Khan v/s State of M.P..

[4] The petitioner has already submitted the representation way back in the year 2006 claiming the seniority w.e.f. 01.04.1967 to the post of Upper Division Teacher, the Respondents vide order dated 16.11.2006 has already rejected his representation by a detailed and speaking order. The petitioner has not challenged the said order at the relevant time and even in the present writ petition and simply filed the petitioner to grant the benefit. The petition, which is filed for claiming the benefit w.e.f. 1967 cannot be entertained after the period of 50 years specially when his representation to that effect was rejected in the year 2006. There is a delay of 10 years in filing the present petition from the date of order passed on 16.11.2006. Therefore, the present petition is hopelessly time barred, without any explanation of delay. Hence accordingly dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.357 of 2017.

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IR to continue till the next date of hearing. Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8557 of 2016.

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Heard on admission as well as on I.A.No.3829/2016, I.A.No.4257/2016 and I.A.No.4258/2016.

For deciding these applications, facts of the case, in short, are as under :-

Pandit Ramdhan Joshi filed an objection on 04.08.1984 about the registration of the Trust (Ex.P/3). Vide order dated 12.09.1986 (Ex.P/4) the Registrar, Public Trust has rejected the application on the ground of limitation. The Registrar held that the application under Section 4 of the Trust Act, 1951 ought to have been filed within a period of three months from 21.09.1966.

Being aggrieved by order dated 12.09.1986, all the so called six Trustees jointly filed a suit under Order VII Rule 1 & 2 of CPC read with Section 8 of Trust Act, 1951 before the Civil Judge, Class-II, Indore on 12.03.1987 (Ex.P/5). In the said suit, Pandit Ramdhan Joshi has not been impleaded as defendant. The plaintiffs in the suit has only sought the relief that the order dated 12.09.1986 be set- aside, the application be treated as within limitation and the Registrar be directed to decide on its merit. Vide judgment and decree dated 11.10.1988 the suit was decreed in favour of the plaintiffs by setting aside the order of Registrar dated 12.09.1986 by directing him to register Public Trust.

The said Pandit Ramdhan Joshi came to know about passing of ex-parte judgment and decree dated 11.10.1988 filed the suit [Civil Suit No.74-A/2004] seeking the relief that the judgment and decree dated 11.10.1988 is void and not binding on him and the Registrar be restrained to register a Trust on the basis of judgment and decree dated 11.10.1988. In the said suit, all the present appellants, who filed earlier suit, were made as defendant Nos.2 to 7.

Vide judgment and decree dated 29.10.2005 the suit was decreed and judgment and decree dated 11.10.1988 was declared void and the Registrar was restrained from registration of the Trust on the basis of judgment and decree dated 11.10.1988. All the present appellants filed First Appeal No.7/2007 before the District Judge, Indore against the judgment and decree dated 29.10.2005. Vide judgment dated 07.07.2008 the appeal was dismissed and the judgment and decree passed by the Trial Court on 29.10.2005 has been affirmed.

The present appellants/defendant Nos.2 to 7 filed the present second appeal before this Court.

During pendency of the appeal before the first appellate Court, Pandit Ramdhan Joshi has expired and his legal representatives has been brought on record and they are Respondents in this appeal.

After filing this appeal, the appellant Nos.1 and 2 has also expired and application was filed for deleting their name and adding three new Trustees appointed in the Trust. The said application was opposed by the Respondents on the ground that since the Trust has not been registered, therefore, new Trustees cannot be appointed and the appeal has been abated on account of death of appellant Nos.1 and

2. Thereafter the appellants have filed I.A.No.4257/2016, an application under Order XXXI Rule 1 & 2 of CPC for deleting the name of appellant Nos.1 and 2 and adding three new Trustees as appellant Nos.1 to 3. The said application was also opposed by the Respondents on the ground that the property has not been vested into the Trust, therefore, the provisions under Order XXXI Rule 1 & 2 of CPC would not apply.

The appellants has also filed an application, I.A. No.4258/2016, under Order XXIII Rule 1 of CPC for withdrawal of this appeal with a liberty to file an application under the provisions of Trust Act, 1951 for registration of Public Trust. The aforesaid application was also opposed by the Respondents on the ground that no such relief can be granted to the appellants which can nullify the judgment and decree granted in favour of the plaintiffs.

Since the Respondents has filed an application under Order XXXI Rule 1, therefore, I.A.No.3829/2016, is hereby dismissed because the nature of both applications are same.

The provisions of Order XXXI Rule 1 & 2 of CPC applies to the property vested into the Trust. In the present case, it is not disputed that the Trust has not been registered so far, therefore, properties has not been vested into the Trust and the appellants have not acquired the status of Trustees. Therefore, provision of Order XXXI Rule 1 & 2 of CPC would not apply. Hence, this application is also rejected. Hence, the appeal against the appellant Nos.1 and 2 stands abated.

So far as application under Order XXXIII Rule 1 of the CPC for withdrawal of the appeal with liberty is concerned, earlier this this Court has allowed the application vide order dated 01.10.2014 without notice to the Respondents and appeal was dismissed as withdrawn with liberty. The operative part of order dated 01.10.2014 is reproduced below :-

Being aggrieved by the aforesaid order dated 01.10.2014, the Respondents preferred a Review Petition No.237/2015 and vide order dated 09.02.2016 the review petition was allowed on the ground that the aforesaid order was passed without hearing the petitioners (Respondents in this appeal) and remit the matter to the Court to decide it in accordance with law.

The provisions of Order XXIII Rule 1 of the CPC are reproduced below :-

Under these provisions the plaintiff at any time may abandon his suit or part of his claim and if the Court is satisfied may grant permission to withdraw of such suit or part of the claim with liberty to institute a fresh suit in respect of subject matter. Under Order XXIII Rule 1 of the CPC while withdrawing the suit, the Court can grant liberty to file a fresh suit. But in the present case the plaintiffs/ appellants are seeking withdrawal of this appeal with liberty to file fresh application before the Registrar, Public Trust. Proceedings of the second appeal is governed under the provisions of CPC . The Court cannot grant liberty which is not provided under the Code of Civil Procedure . Under Order XXIII Rule 1 of the CPC , there is only a provision for granting liberty to file a fresh suit but the present appellants are not seeking liberty for filing the suit. Therefore, no such liberty can be granted. They can simply withdraw the appeal and the consequences shall follow.

The application under Section 4 of the Trust Act, 1951 filed by the present appellants before the Registrar was dismissed as time barred. The order of Registrar was challenged by them in a civil suit which was decreed by judgment and decree dated 12.03.1987 but the said decree has been declared void and not binding on the plaintiffs in a suit filed by the Respondents and the Registrar was specifically directed not to register the Trust in pursuant to the decree dated 12.03.1987 which has been affirmed by the first appellate Court vide order dated 07.07.2008.

Since the appellants are withdrawing this appeal, therefore, the judgment and decree dated 29.10.2005 and 07.07.2008 are hereby affirmed and by which the decree in favour of the appellants dated 11.10.1988 has already been declared void. The claim of the appellants are based on the Trust Deed dated 21st September, 1966 which was not submitted for registration within a period of three months as required under Section 4 of the Trust Act, 1951. Therefore, liberty to the appellants cannot be granted for registration of the Trust on the basis of the Trust deed dated 21 st September, 1966.

Accordingly, the appeal is dismissed as withdrawn without any liberty.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7394 of 2016.

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[6] The petition is allowed.

No order as to costs.

[ VIVEK RUSIA ] JUDGE (AKS) Misc. Civil Case No.522 of 2015.

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Application stands allowed.

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[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6403 of 2016.

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[3] Once the representation has been rejected, the petitioner is required to challenge the same by way of separate proceedings.

[4] In view of the above nothing survive in the matter. The order has been complied with. The Contemnors are discharged.

[5] The contempt petition is dismissed with the aforesaid liberty.

[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.95 of 2017.

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[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.388 of 2011.

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The petitioner became major in the year 2011 and thereafter he submitted an application for compassionate appointment. Placing reliance over the Policy dated 13th January, 2011, the claim of the petitioner has been rejected by the Assistant Commissioner, Tribal Welfare Department. Hence, the present petition.

[3] Learned counsel for the petitioner submits that the Respondents has wrongly applied the Policy of 2011 which apply to a cases in which the death took place after 2001. But in the present case the death of the petitioner's father took place in the year 1999. Therefore, in the light of the judgment of apex Court in the case of Canara Bank v/s M. Mahesh Kumar [(2015) 7 SCC 412], the claim of the petitioner was liable to be considered under the policy prevailing as on 1999.

[4] The Respondents have filed the return and submitted that the case of the petitioner is hopelessly time barred as the rejection order was passed in the year 2011 and the petition was filed after a period of 5 years. Even otherwise at the time of death of the father of the petitioner, the Policy of the year 2000 was in force in which the right to claim for compassionate appointment was available only for the period of 3 years. Even if the Policy of 2000 is applied, the claim of the petitioner was liable to be rejected by the Respondents.

[5] I have heard learned counsel for the parties. [6] It is correct that as per the judgment of apex Court in the case of Canara Bank (supra) while considering the claim for compassionate appointment, the Respondents was required to consider prevailing policy of the year in which the death took place. Father of the petitioner died in the year 1999 and the Policy dated 10.06.1994 was in force.

[7] The petitioner become major after 10 years from the death of his father, therefore, under the said Policy of 1994 he was entitled to claim compassionate appointment.

[8] That controversy involved in the case of the petitioner is that whether his case would be covered under the Policy dated 18.08.2008 or Policy dated 10.06.1994. The apex Court in the case of Canara Bank (supra) has held that the policy in vogue on the time of death of the concerned employee would apply.

Paras 13 to 19 of the aforesaid judgment is reproduced below :-

bank are dismissed and the appellant bank is directed to consider the case of the respondents for compassionate appointment as per the Scheme which was in vogue at the time of death of the concerned employee. In the facts and circumstances of the case, we make no order as to costs."

[9] That in Policy dated 10.06.1994, the Clause which is relevant is clause No.5 which is reproduced below :-

[10] Under this clause, any member of the deceased's family can apply for the compassionate appointment after attaining the age of majority.

[11] In the present case, the petitioner became major in the year 2010 and within one year, he applied for compassionate appointment in the year 2011, therefore, the application was within time. Respondent has wrongly rejected the same by applying the Policy dated 13.01.2011.

[12] Thus, the impugned order is hereby set-aside. The Respondents are directed to reconsider the claim of the petitioner in light of the Policy dated 10.06.1994.

[13] With the aforesaid observation, the petition is hereby disposed of.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7972 of 2016.

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[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.66 of 2017.

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[8] Para 12 of the aforesaid judgment is reproduced below:

"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

[9] So far as the case of High Court of Punjab & Haryana & Ors. (supra) is concerned, in para 11 of the order, it has been specifically held that the principle enunciated in proposition (ii) and para 12 of the case of State of Punjab & Ors. (supra) cannot be applied to such a situation where the officer has given an undertaking while opting for revised pay scale.

[10] Para 11 of the aforesaid judgment is reproduced below :

[11] In present case, petitioner, being a Class-III employee would fall under principle (i) of para 12 mentioned in the case of State of Punjab & Ors. (Supra) as reproduced above.

[12] Hence, the writ petition filed by the petitioner is liable to be allowed as the petitioner is a Class-III employee and is not responsible for wrong fixation of pay by the respondent.

[13] In view of the aforesaid, recovery order dated 09/10/2015 (Annexure P/1) is set aside. The respondents are directed to refund the recovered to the petitioner within a period of 45 days from production of certified copy of this order.

[14] It is made clear that this Court has set aside the recovery order only and not the pay-fixation.

[15] The writ Petition is allowed. No order as to costs.

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(VIVEK RUSIA) Judge (AKS) Writ Petition No.5312 of 2016.

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[2] The petitioners are a Partnership Firm engaged in the work of development of land. The petitioners are owner, occupier and in possession of 27.94 hectares of land comprised in various suvery numbers of Village Baroda-Arjun, Tehsil Sanwer, District Indore. The details of the land is mentioned in para 5.2 of the writ petition. The petitioners decided to develop the land by constructing godown/logistic hub in the entire land and applied for development permission before the Department of Joint Director, Town & Country Planning, Indore. Vide order dated 03.04.2014 the permission for development was granted with various conditions as mentioned in Para 1, which is reproduced below :-

[3] After obtaining such permission, the petitioners applied for diversion of said land and the Sub Divisional Officer (Revenue), Sanwer under Section 172 of the M. P. Land Revenue Code, 1959 has passed the order for diversion dated 01.07.2014. The petitioners were also granted the Coloniser License by the Sub Divisional Officer (Revenue), Sanwer under the provisions of Madhya Pradesh Gram Panchayat (Registration of Coloniser Terms and Conditions) Rules, 1999 [in brief "the Rules, 1999"] with certain conditions. As per Condition No.5, before starting the development and construction work, the petitioners were required to take development permission from the office of Sub Divisional Officer. The aforesaid certificate was issued on 10.12.2013.

[4] The State Government in exercise of powers conferred under Section 95 read with Sections 61-A to 61-E of the Madhya Pradesh Raj Evam Gram Swaraj Adhiniyam, 1993 [in brief "the Adhiniyam, 1993"] has framed the new Rules called "Madhya Pradesh Gam Panchayat (Development of Colonies) Rules, 2014" by repealing the Rules of 1999. The petitioners submitted representation to the Collector, Indore that under the new Rules of 2014, there is no provision of taking development permission from the Panchayat in respect of development of land for non residential purpose which was required under the Rules of 1999. Therefore, they may be guided whether under the new Rules they are required to obtain a development permission from the Competent Authority. When the petitioners did not receive any reply, legal notice was issued.

[5] On the representation of the petitioners, the Collector sought information from the Sub Divisional Officer (Revenue) Sanwer who informed vide letter dated 20.03.2015 that Sub Divisional Officer (Revenue) has been appointed as a Competent Authority for granting development permission by way of Gazette Notification dated 24th December, 2014 by Panchayat and Rural Department. The petitioners approached this Court by way of Writ Petition No.2878 of 2015 alleging that the Respondents are restraining them from doing the construction activities. Government Advocate on instructions made statement that the authorities have not directed the petitioners to stop the construction work. Accordingly vide order dated 11.05.2015 the writ petition was disposed of.

[6] Thereafter the Sub Divisional Officer (Revenue) Sanwer has issued a show-cause notice dated 22.07.2015 alleging that the petitioners have started selling the plots and making constructions without the development permission. The petitioners submitted detailed reply on 04.09.2015 and vide order dated 15.01.2016 the petitioners have been directed to remove the illegal constructions as they have not obtained any development permission from the Competent Authority. Vide letter dated 06.10.2015 the petitioners have been directed to take a development permission from the Competent Authority (Collector) for non-residential development over their land. Being aggrieved by order dated 15.01.2016 and notice dated 06.10.2015, the petitioners have filed the present writ petition before this Court.

[7] After notice, the Respondents have filed the return in which it is stated that the petitioners have raised the construction on the land in question without taking any development permission from the Competent Authority. They have not even made an application seeking development permission. The petitioners have been issued the Coloniser License under the Rules of 1999. Despite repelling of the said rules by Rules of 2014. they are required to take a development permission for development of land. That under Sections 61-A to 61-E of the Adhiniyam, 1993 even for non-residential purpose, the development permission is required.

[8] Shri Vijay Assudani, learned counsel on behalf of the petitioners submits that the Joint Director, Town & Country Planning, Indore has granted the permission of development with the conditions to obtain a development permission under the Rules of 1999. Under Rules of 1999 the permission was required for residential as well as for non-residential purpose. As per Rule 3, the Rules 1999 has been repealed by the Rules of 2014 and the legislature has omitted the work "non-residential". Therefore, under the new Rules, the petitioners are not required to obtain the development permission for non- residential purpose. The Rules of 2014 has been framed only for the development of colonies for residential purpose. No separate rules has been framed for development of land for non-residential purpose. The petitioners have referred various provisions of Rules 2014 which deals with the development of land for construction of residential house and dwelling units. In support of his contention, he has placed reliance on various judgments of apex Court on the point that where the legislature has clearly declares its intention in the language of statute, it is the duty of the Court to give full effect to the same. The Court cannot read between lines in the statutory provisions which is plain and unambiguous. The Court can give only interpretation but cannot legislate it. The decisions cited by the petitioners are as follows : The Commissioner of Sales Tax, U.P. v/s M/s Parson Tools and Plants, Kanpur [(1975) 4 SCC 22]; Unique Butyle Tube Industries (P) Ltd v/s U.P.Financial Corporation [(2003) 2 SCC 455]; Mohammad Ali Khan v/s Commissioner of Wealth Tax [(1997) 3 SCC 511]; J.P. Bansal v/s State of Rajasthan [(2003) 5 SCC 134] and Illachi Devi (Dead) by Lrs. v/s Jain Society, Protection of Orphans India [(2003) 8 SCC 413].

[9] Shri P.R.Bhatnagar, learned Deputy Government Advocate refuted the arguments of Shri Assudani and emphasied that the Rules 2014 also deals with the development of land along with the development of colony within the Gram Panchayat Area. He has drawn attention of this Court to the Rule 9 para 1 where permission for development of colony is necessary if the registered Coloniser intend to develop any colony and take up development work. The word "development of land" has been used at various places in Rules of 2014. He has referred Sections 61-A to 61-E of the Adhiniyam, 1993 which is in part of Chapter VI-A which deals with the colonization. He has referred Section 61-B of the Adhiniyam, 1993 which mandates registration of the coloniser who intend to undertake the establishment of colony in Gram Panchayat Area for purpose of dividing the land into plots for construction of residential, non-residential or composite accommodation. Therefore, the authorities have not committed any error in passing the order by directing the petitioners to obtain a development permission.

[10] I have learned counsel for the parties. [11] The petitioners were granted development permission by Joint Director, Town & Country Planning with the condition that they are required to take permission under the Rules of 1999. At the time of passing this order dated 03.04.2014 by the Joint Director, Town & Country Planning, the Rules of 1999 were in force and it is also the case of the petitioners that they were required to take permission even for non-residential purpose in Rules 1999. The Rules of 1999 repealed by the Rules of 2014 w.e.f. 24 th December, 2014, therefore, from 03.04.2014 till 24th December, 2014, the Rules of 1999 were in force and under the Rules of 1999 the petitioners got registered themselves as Coloniser under Section 61-B of the Adhiniyam, 1993 and the certificate was issued on 10.12.2013 by Sub Divisional Officer (Revenue) Sanwer who was the Competent Authority. The said certificate is valid even in the Rules of 2014 because of the repeal Clause 24. The petitioners ought to have obtained the development permission under the Rules of 1999 at the relevant time. Under Rule 3 of the Rules 2014, any person who intends to develop a colony in any Gram Panchayat Area shall apply to the Competent Authority for registration in Form-1 appended to these rules. The certificate is granted in Form-2 under the provisions of Adhiniyam, 1993 and the Rules of 2014. The said certification is granted under Section 61-B of the Adhiniyam, 1993 which is for development of land for non-residential also. Section 61-B of the Adhiniyam, 1993 is reproduced below :-

[12] The word "Coloniser" means a person who intends to take up the work of developing a colony in accordance with the provisions of the Rules. Any Coloniser who has been issued registration certificate may develop a colony in Gram Panchayat Area under Section 61-C of the Adhiniyam, 1993. Therefore, the Rules of 2014 prima-facie applies for development of land as well as development of colony.

[13] The Rule 23 of the Rules 2014 provides that if any question arises as to the interpretation of these rules, the same shall be referred to the Government. The decision of the Department of Panchayat and Rural Development shall be final. The contention of the petitioners is that while framing the Rules 2014, the legislature has intentionally omitted the word "non-residential" which was there in the Rules of 1999. Both the rules were framed under the Madhya Pradesh Raj Evam Gram Swaraj Adhiniyam, 1993. Therefore, the Department of Panchayat is a competent to give interpretation whether the Rules 2014 applies for non-residential purpose also as provided under Rule 23. Therefore, the Sub Divisional Officer (Revenue), Sanwer is directed to refer the question involved in this petition to the Department of Panchayat and Rural Department for interpretation whether the petitioners are required to obtain a development permission for non- residential purpose under the Rules of 2014 ? The petitioners shall have a liberty to appear before the department to present their case. The Competent Authority is free to give interpretation without being influenced by the observations made above.

[14] With the aforesaid, the petition stands disposed of.

No order as to costs.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2218 of 2017.

07.04.2017:-

[4] As the facts of the case and prayer made by the petitioner are identical, hence, in terms of the directions issued by this Court in the matter of Champalal Patel (supra), the present petition is disposed of.

No order as to costs.

Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.5683 of 2016.

07.04.2017:-

[2] Notices were iossued. During pendency of this petition, the State Bank of Bikaner & Jaipur has been merged with the State Bank of India w.e.f. 01.04.2017. In the State Bank of India there is no scheme to engage VNS Deposit Collector. Since the Bank is no more, therefore, the relief of reinstatement cannot be granted.

[3] Shri K.P.S.Suresh submits that there are certain pending dues of the petitioner which has not been released.

[4] Let the petitioner is directed to submit a detailed representation to the Branch Manager, Branch Murai Mohalla, Sanyogitaganj, Indore about his pending claim and the Respondents shall consider the same and if any dues payable to him are found, the same shall be released in favour of the petitioner. That entire exercise be completed within 45 days from submitting detailed representation along with certified copy of this order.

[5] The petition is accordingly disposed of.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.3643 of 2016.

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[7] The petition stands disposed of.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2253 of 2017.

07.04.2017:-

[3] In the light of the above, present petition is also allowed. Respondents are directed to pass consequential orders in the light of the decision taken by the executive council w.e.f. 30.07.2011 and consequential confirmation order within 30 days. Petitioner shall be entitled for all consequential benefits arising out of his confirmation.

[4] With the aforesaid, the writ petition stands allowed.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2249 of 2017.

07.04.2017:-

[3] In the light of the above, present petition is also allowed. Respondents are directed to pass consequential orders in the light of the decision taken by the executive council w.e.f. 30.07.2011 and consequential confirmation order within 30 days. Petitioner shall be entitled for all consequential benefits arising out of his confirmation.

[4] With the aforesaid, the writ petition stands allowed.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2245 of 2017.

07.04.2017:-

[3] In the light of the above, present petition is also allowed. Respondents are directed to pass consequential orders in the light of the decision taken by the executive council w.e.f. 30.07.2011 and consequential confirmation order within 30 days. Petitioner shall be entitled for all consequential benefits arising out of his confirmation.

[4] With the aforesaid, the writ petition stands allowed.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2238 of 2017 (S) 07.04.2017 :-

[6] The writ petition is accordingly disposed of.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2235 of 2017 (S) 07.04.2017 :-

[6] The writ petition is accordingly disposed of.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2235 of 2017 (S) 07.04.2017 :-

[6] The writ petition is accordingly disposed of.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Misc. Criminal Case No.999 of 2017. 07.04.2017:-

[3] Counsel for the applicant submits that statement of brother of the deceased was also recorded under Section 164 of the Code on 02.12.2016 in which he made allegation of demand of dowry against the Non-applicant No.2. Thereafter Superintendent of Police, Mandsaur vide letter dated 06.12.2016 has informed the JMFC that there are allegations of demand of dowry against the accused persons. Therefore, the charge under Section 304-B of IPC has also been added in the FIR. Thereafter challan was filed on 06.01.2017 under Sections 304-B and 34 of IPC. When the bail application under Section 439 of the Code came up before this Court on 26.12.2016 it was the duty of the prosecution to inform about the statement recorded under Section 164 of the Code and the letter of Superintendent of Police, Mandsaur dated 06.12.2016 and there are charges under Section 304-B of IPC also against the accused persons, because of suppression of this material, this Court has granted the bail.

[4] Learned Deputy Govt. Advocate and Shri Saraswat has opposed the present application for cancellation of bail.

[5] I have heard learned counsel for the parties. [6] Non-applicant No.2 - Rahul filed the bail application before the Sessions Court as B.A.No.642/2016 for the offence under Section 306 / 34 of IPC and that was rejected on 25.11.2016. Thereafter he filed the bail application before this Court under the same offence as he was not aware about the communication dated 06.12.2016 and the statement of brother of the deceased recorded under Section 164 of the Code by JMFC because he was in custody. The challan was filed on 06.01.2017 under Sections 304-B and 34 of IPC and this Court granted the bail on 26.12.2016.

[6] Even otherwise under Section 304-B of IPC the maximum punishment is 7 years RI and under Section 306 of IPC also the maximum punishment is 7 years RI. The trial has reached to the stage of evidence and there is no allegations of misuse of the bail by the Non-applicant.

[7] Considering the aforesaid, no case for cancellation of bail is made out. Accordingly, the application is hereby dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2245 of 2017.

07.04.2017:-

[3] In the light of the above, present petition is also allowed. Respondents are directed to pass consequential orders in the light of the decision taken by the executive council w.e.f. 30.07.2011 and consequential confirmation order within 30 days. Petitioner shall be entitled for all consequential benefits arising out of his confirmation.

[4] With the aforesaid, the writ petition stands allowed.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2226 of 2017.

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[8] Misc. Civil Case stands dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7815 of 2016.

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Till the next date of hearing, the Court is directed not to dismiss the suit for want of court-fees.

Fresh process fee be paid for service of notice on Respondent No.7.

List on 19.04.2017.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Conc. No.77 of 2017.

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04.04.2017:-

It is alleged that 88 shops constructed in the premises of Krishi Upaj Mandi, Indore were put to auction in the year 2009 under the provisions of Madhya Pradesh Krishi Upaj Mandi (Allotment of Land and Structures) Rules, 2009. The petitioner was Chairman of Marketing Committee constituted under Section 11 of Mandi Adhiniyam. For 9 shops under reserved category, the up-set price of Rs.1,83,400-00 and the bids were received from 22.26 lakhs to 33.51 lakhs. In the year 2011 again these 9 shops were put under auction with the up-set price of Rs.7,64,309-00 and 14 bidders has offered the price 9.75 lakhs which was very low as compared to the price offered in the auction in the year 2009. It has been alleged that by accepting such bid the petitioner has caused the huge financial losses to the Mandi by not obtaining the directions from the Competent Authority. It is not disputed that the said auction was not finalized and later on the said allotment was cancelled by the Mandi and such cancellation is under challenge in the writ petition is pending before this Court filed by the successful bidders in whose favour the agreement has been executed.

The petitioner, who was holding the post of Chairman in the year 2011 and the said period has came to an end after completing 5 years terms. Thereafter again the petitioner has been elected as a Chairman and at present holding the post of the Chairman in the same Krishi Upaj Mandi. Therefore, the petitioner has challenged the authority of the Managing Director that no action can be taken under Section 55 against him in respect of the period which has already been over. Section 55 of Adhiniyam, 1972 is applicable for removal of any Chairman or Vice-Chairman of a market committee from his office, for misconduct, or neglect of or incapacity to perform his duty in his current tenure.

Shri Sethi, learned Senior Counsel submits that there is no provision in the entire Krishi Upaj Mandi Adhiniyam for taking any action against the Chairman for the period which has already been over. When the competency of Managing Director and applicability of Section 55 is under challenged, the writ petition cannot be dismissed prima-facie for want of alternative remedy under Section 59 of the Adhiniyam, 1972.

The operation of the order dated 28.03.2017 (Annexure-P/1) shall remain stayed till the next date of hearing.

The Respondents are directed to file the reply. List thereafter.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8304 of 2015.

03.04.2017:-

[2] Facts of the case are as under :-

parte against them vide judgment and decree dated 31.03.2011. The defendants/Respondent Nos.3 and 4 were directed to hand over the vacant possession to the plaintiff within a period of two months. Thereafter the petitioner filed the execution proceedings before the Executing Court. On 19.06.2015, the Respondent No.4 appeared before the Executing Court and stated that he has abandoned the suit property. The possession warrant was issued in favour of the petitioner and Process Server submitted its report dated 07.07.2015. The possession has been handed over to the petitioner/decree-holder. The Panchnama report was prepared on 07.07.2015. It has also been mentioned that the Respondent No.2 was found in possession and when the contents of Kabja Warrant was read over before him, he left the area and the possession was given to the plaintiff/decree- holder.

(b) The Respondent No.2 filed an application under Section 151 of the Code of Civil Procedure [in brief "the Code"] before the Executing Court stating that he is owner of the suit property which he purchased from one Iqbal Hussain vide registered sale-deed dated 30.01.2014 and he is in possession. Therefore, the possession warrant has wrongly been issued against him and the same is liable to be cancelled.

(c) The said application was opposed by the present petitioner. Learned Executing Court vide impugned order dated 20.11.2015 has held that under Order XXI Rule 35 of the Code, the possession can be handed over to the decree-holder from judgment-debtor. The Respondent Nos.1 and 2 were not party in the judgment and decree, therefore, the entire proceedings dated 07.07.2015 is illegal, contrary to law and hereby set-aside. Hence, the present petition before this Court.

[3] Shri Yash Pal Rathore, learned counsel appearing on behalf of the petitioner submits that the Executing Court has wrongly set-aside the proceedings dated 07.07.2015 because the possession has already been given to the petitioner and now the rights of the Respondent Nos.1 and 2 are liable to be decided under Section 47 of the Code or under Order XXI Rule 97 - 101 of the Code. The petitioner is apprehending his dispossession because of the impugned order dated 20.11.2015. Hence, he filed the petition before this Court.

[4] Smt. Mamta Shandilya, learned counsel appearing on behalf of the Respondent Nos.1 and 2 refuted the arguments and submitted that neither Respondent No.4 nor Iqbal Hussain, from whom he purchased the suit property, were party to the civil suit, therefore, the decree cannot be executed against them. It is submitted that he is in possession, got the electricity connection therein and paying the property tax. He had no knowledge about the ex-parte decree in favour of the petitioner. The Respondent Nos.1 and 2 filed an application under Section 47 read with Section 151 of the Code for restoration of the possession against the dispossession on 07.07.2015, the Executing Court may be directed to decide the application under Section 47 of the Code in accordance with law.

[5] I have heard learned counsel for the parties. [6] It is not disputed that by virtue of proceedings dated 07.07.2015 the present petitioner/decree- holder has been put into the possession of the suit property. When the possession has been taken from the Respondent Nos.1 and 2, the only remedy available with him is to file an application under Order XXI Rule 97 or Section 47 of the Code. The Respondent Nos.1 and 2 have already exercised their right by filing an application under Section 47 of the Code. Under Order XXI Rule 99 of the Code, where any person other than the judgment-debtor is dispossessed of immovable property by holder of a decree, therefore, he may make an application to the Court complaining of such dispossession and where any such application is made, the Court shall proceed to adjudicate in accordance with the provisions herein contained i.e. under Rule 100 and 101 of the Code. Under Rule 100 (a) of the Code, the Executing Court may make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application. Under Rule 101 of the Code, all questions relating to right, title or interest arising between the parties, shall be determined by the Court dealing with the application, and not by a separate suit for this purpose. Therefore, the right and title of the Respondent Nos.1 and 2 would be decided by the Executing Court in a pending executing proceedings. Rule 99, 100 and 101 of the Code are reproduced below :-

[7] Since the possession has already been taken from the Respondent Nos.1 and 2 and given to the petitioner and the right of the Respondent Nos.1 and 2 are liable to be decided, therefore, the impugned order is set-aside and the matter is remitted back to the authority to decide the same under the provisions of Order XXI Rule 99, 100 and 101 of the Code.

[8] The petition stands allowed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1986 of 2017.

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No rejoinder has been fined. Even today in second round no one is appeared on behalf of the petitioner.

The petition is dismissed in default of appearance.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1730 of 2017.

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Since the petitioner stands on the same footing, therefore, the petitioner's writ petition is also disposed of without expressing any opinion on the merits of the matter by permitting the petitioner to file an appropriate application along with the copy of the order passed in the matter of Smt. Madhubala (supra). If such a representation is filed by the petitioner, the same will be considered and decided by the competent authority in accordance with law having regard to the aforesaid judgment within a period of three months from the date of receipt of representation.

Cc.c as per rules.

Shri Akshat Pahadiya, learned counsel for the petitioner.

Shri P.R.Bhatnagar, learned Deputy Govt. Advocate for the Respondents/State, on advance copy.

Heard on the question of admission. Issue notice to the Respondents on payment of process fee within seven days by RAD mode.

By way of interim relief, any subsequent action would be subject to the out come of this writ petition.

C.c. as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1974 of 2017.

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[3] In the light of the above, the petition is also disposed of with the direction that if the affected family approaches the competent authority, then the list will be duly supplied to said affected party and the concerned authorities take expeditious action in terms of the order passed by the Hon'ble apex Court.

[4] Writ petition is accordingly disposed of. Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.2121 of 2017.

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Now the petitioner has filed an application [I.A. No.1878/2017] for withdrawal of the petition with liberty to file fresh petition if occasion so arises.

The application [I.A.No.1878/2017] is allowed. In the result, the petition is dismissed as withdrawn with the aforesaid liberty.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8888 of 2011.

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The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

[3] Therefore, no further direction is necessary in this petition. The aforesaid judgment of the apex Court is binding on the police authorities.

Shri A.K.Sethi, learned Senior Counsel with Shri Chetan Jain, learned counsel for the petitioner.

Shri Rohit Mangal, learned Govt. Advocate for the Respondent/State, on advance copy.

Heard on the question of admission.

O R D E R THE petitioner has filed the present petition being aggrieved by the order dated 16.02.2017 by which the Board of Revenue has refused to extend the interim stay order.

[2] Facts of the case are that :

The petitioner was granted a mining lease by the Government of Madhya Pradesh on 05.08.2010 in respect of Survey No.993/1 situated at Village Bapaiya, Tehsil Mahidpur, District Ujjain for the period of 10 years. A report was submitted by the S.D.O. (Revenue) that the petitioner is carrying out the mining operations on some other land. The petitioner has alleged that false report has been submitted against him at the instance of local M.L.A. On the basis of the said report, the S.D.O. (Revenue) registered a case and imposed the penalty to the tune of Rs.30,29,25,600-00 vide order dated 19.02.2016. Against the said order, the petitioner preferred appeal before the Additional Commissioner, Ujjain in which the stay was granted to the petitioner. But later on the said appeal has been dismissed vide order dated 18.11.2016. Thereafter the petitioner preferred an appeal to the Board of Revenue along with an application for stay. By order dated 23.11.2016 record of the lower authorities were summoned and the recovery of penalty was stayed by the Board of Revenue.

The stay order was continued and the appeal was fixed by the Board of Revenue at Ujjain Camp. For want of record, the argument could not take place. Thereafter the same was listed on 16.02.2017 on application for urgent hearing and extension of stay order but vide order dated 16.02.2017 without any reason the President of Board of Revenue has refused to extend the stay order, hence the present petition before this Court.

[3] Shri Sethi, learned Senior Counsel submits that the Board of Revenue in an arbitrary manner by non- speaking and unreasoned order has refused to extend the stay order which was granted in his favour. When appeal is pending for final hearing and stay was granted, then it ought to have been continued till the final disposal of appeal.

[4] Shri Rohit Mangal, learned Govt. Advocate on behalf of the State submits that the Board of Revenue may be directed to decide the appeal finally itself on merit.

[5] I have heard learned counsel for the parties. [6] The Board of Revenue vide order dated 23.11.2016 has granted the stay in favour of the petitioner. There is no application for vacating of stay order by Mining Department. The appeal is yet to be heard finally on its merit. Once the stay has been granted, in normal course it ought to have been continued till the final disposal of the appeal if there is no application for vacating the stay order.

[7] The Board of Revenue while passing the impugned order has not assigned any reason for not extending the stay order. The impugned order is set-aside. The Board of Revenue is directed to decide the pending Appeal Case No.3962/PBR/2016 within a period of two months from today and till then the interim order granted on 23.11.2016 shall continue.

[8] With the aforesaid, the petition is finally disposed of.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.6174 of 2016.

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[5] Therefore, the petition is disposed of with the liberty to the petitioner to approach the Wakf Tribunal in accordance with law.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.8322 of 2016.

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[5] Counsel for the petitioner submits that since the decree has not been drawn by the appellate Court, therefore, second appeal would not lie. Hence, the writ petition is filed.

[6] That the "decree" is defined under Section 2 (2) of the Code and according to which a formal expression of an adjudication which so far as regards the Court expresses between the parties. Section 2 (2) is reproduced below :-

Explanation.-- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"

20.03.2017:-

[2] The petitioners approached this Court by way of Writ Petition No.10782 of 2012 seeking extension of benefit of pay scale of Shiksha Karmi Grade-III of Rs.800-1200. This Court vide order dated 08.07.2013 disposed of the Writ Petition No.10782 of 2012 and another writ petition of similar nature i.e. Writ Petition No.10783 of 2012 in terms of the order passed in Writ Petition No.1570 of 2001 [Sayyed Imtiaz Ali v/s State of M.P.]. This Court in case of Sayyed Imtiaz Ali (supra) has directed the Respondents to grant pay scale to the petitioners of Rs.800-1200 on which they were appointed initially vide order dated 18.08.1998. After the aforesaid order, the petitioners submitted the representation claiming the pay scale of Rs.800-1200. When the said benefit was not extended to the petitioner, therefore, they filed the present contempt petition.

[3] After notice, the Respondents filed the return contending that the petitioners were appointed vide order dated 05.03.1999 in the Madarsa run under the Rajeev Gandhi Primary Education Mission, Ratlam on fixed honorarium of Rs.1,000-00 per month. Therefore, they are not entitled for the pay scale of Shiksha Karmi or Assistant Teacher. The Commissioner, Municipal Corporation, Ratlam has written a letter to the Collector for grant of necessary sanction for giving the pay scale of Rs.800-1200 but no sanction was granted by Government.

[4] The District Project Officer, Jila Shiksha Kendra also filed reply to the contempt petition submitting that the appointing authority of the petitioners is Municipal Corporation, therefore, even if the order is required to be complied, the same is to be complied by the Municipal Corporation not by the State Government. It is further submitted that along with the writ petition of the petitioners, another Writ Petition No.10783 of 2012 was decided which was filed by the employees of Municipal Council, Jaora and in compliance of the aforesaid order dated 08.07.2013 passed in the writ petition, the Municipal Council, Jaora vide order dated 08.11.2014 has rejected the representation of the petitioner and against which contempt petition has been dismissed and now the writ petitioner has challenged the said rejection order in the writ petition. Therefore, the present contempt petition is also liable to be dismissed.

[5] The petitioners filed rejoinder to the return filed by the Respondents submitting that the order passed in the case of Sayyed Imtiaz Ali (supra) has been complied with and the writ petitioners of that petition are getting the pay scale of Rs.800-1200 and they have been paid the arrears of salary also - Rs.23,30,664-00.

[6] Shri Raikwar, learned counsel on behalf of the petitioner submits that while deciding the writ petition filed by Sayyed Imtiaz Ali (supra), this Court has held that the petitioners were appointed as Shiksha Karmi Grade-III Madarsa on the pay scale of Rs.800-1200. The advertisement was issued on the same post in respect of other Shiksha Karmi employee by Respondent No.2. The petitioners who were also appointed in the Madarsa are also entitled to get the pay scale of Rs.800-1200 and the Respondents have committed contempt by not complying the directions given by this Court.

[7] I have heard the arguments of learned counsel for the parties.

[8] That the petitioners were appointed vide order dated 05.09.1999 issued by Municipal Corporation, Ratlam. In the order it is specifically mentioned that they are being appointed on the fixed honorarium of Rs.1,000-00 per month. The designation is mentioned as "Ustad" not the 'Shiksha Karmi'. Sayyed Imtiaz Ali, who filed the Writ Petition No.1570 of 2001 was appointed by Municipal Council, Jaora as Shiksha Karmi Grade-III Madarsa in the pay scale of Rs.800-1200. Vide order dated 12.01.1999 issued by Block Education Officer, the post of Shiksha Karmi has been changed and it has been ordered that now they would be designated as "Ustad" and they will be entitled to get the fixed honorarium of Rs.1,000-00 per month. In that factual background, this Court while allowing the writ petition vide order dated 22nd March, 2006 has held that the petitioners were initially appointed as Shiksha Karmi Grade-III Madarsa on the pay scale of Rs.800-1200, therefore, they are entitled for the said pay scale.

[9] In the present case, the petitioners were appointed as Ustad in the fixed honorarium of Rs.1,000-00 per month. Therefore, the facts of the present case are quite different from the case of Sayyed Imtiaz Ali (supra).

[10] Along with the writ petition of the petitioner, another writ petition i.e. Writ Petition No.10783 of 2012 was also disposed of. That was in respect of the appointment made by Municipal Council, Jaora. After the High Court order dated 08.07.2013, the Chief Municipal Officer, Municipal Council, Jaora has rejected the representation of the petitioners and the said order has been challenged by Shri Gopal Panchal and others by way of writ petition before this Court and the said writ petition is still pending. The contempt petition filed by Gopal Panchal has also been disposed of with liberty to file writ petition to challenge the rejection order. Since the Writ Petition No.10782 of 2012 and Writ Petition No.10783 of 2012 were decided by common order and in one petition the representation has been rejected and the petitioners therein have already filed the writ petition, therefore, in the present case also the writ petitioners are also liable to file the writ petition to challenge the action of Municipal Corporation, Ratlam. The Contempt Petition No.375 of 2014 has been dismissed vide order dated 10.11.2014. The order is reproduced below :-

Thereafter Gopal Panchal and others have filed Writ Petition No.59 of 2012 before this Court, which is still pending.

[11] In view of the above, the contempt petition is dismissed. The contemnors are dis-charged.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.358 of 2017.

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[7] I have heard learned counsel for the parties. [8] The State Government has framed the policy dated 24.01.2008 for granting benefit of Higher Pay Scale to their employees of Category A, B and C after completing 8 years and 10 years of service respectively. The scheme was made effective w.e.f. 01.04.2006. The criteria for grant of the said benefit was same as the criteria for promotion. In Clauses 9 and 10, it has been mentioned that the employees whose service of 8 years completed as on 01.04.2006 would be considered for grant of benefit w.e.f. 01.04.2006 and those employees who had completed more than 8 years service than the said extra period would be counted for granting 2nd Kramonnati. Clause 9 and 10 are reproduced below :-

[9] It is clear from the two clauses the benefit of Kramonnati is to be granted to those employees who had completed 8/10 years service on 01.04.2006, therefore, their service record/ACRs were liable to be considered up to 01.04.2006 not beyond that. In the present case the Respondents considered the ACRs of the year 2009, 2010 and 2011 i.e. after 01.04.2006. Therefore, the action of the Respondent is contrary to their own policy dated 24.01.2008. Therefore, the matter is remitted back to the Respondents to consider the case of the petitioner for grant of 1st Kramonnati considering his service record up to 01.04.2006 from the date of initial appointment. The entire exercise be completed within six weeks from production of certified copy of this order.

[10] The petition is stands allowed.

Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.473 of 2013.

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Record of the Labour Court be requisitioned. C.c. as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1518 of 2017.

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Record of the Labour Court be requisitioned. C.c. as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.412 of 2015 (S).

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Therefore, nothing survives in this petition and the petition is rendered infructuous.

[4] Counsel for the petitioner submits that though the petitioner is getting regular salary but salary of 5 months is not released so far and he has wrongly been declared surplus at Indore.

[5] The petitioner has not challenged the cancellation order dated 23.09.2013 in this petition. The Respondents has permitted the petitioner as well as Respondent No.4 to work at Indore and the petitioner is working since 2012. So far as the salary of 5 months is concerned, let the representation of the petitioner be decided by the Competent Authority within four weeks from production of the certified copy of this order.

[6] The petition is disposed of accordingly.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1710 of 2016.

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Advocate on behalf of the Respondents/State submits that there are serious allegations against the petitioner of demanding money from the In-charge of Public Utility Center which has been found proved by recording of conversation between the petitioner and Rituraj Singh. The petitioner has not denied such conversation. Therefore, no regular departmental inquiry is required under the provisions of M. P. Civil Services (Classification, Control and Appeal), Rules like government employee.

[6] It is not disputed that the petitioner was initially appointed for the period of one year vide order dated 20.03.2013. In this order it is specifically mentioned that this appointment is only for the period of one year and which is extendable for one year twice i.e. maximum three years. The said contract was extended vide order dated 24.04.2015 up to the period of 22.03.2016. In Clause 11 of the agreement, it is specifically provide that the services of contract appointment are liable to be terminated after giving a reasonable opportunity of hearing if he/she found involved in the mis-conduct or in criminal activities. Clause 11 is reproduced below :-

[7] The terms of appointment only provides reasonable opportunity of hearing. Since the petitioner was not regular government employee, therefore, the protection of M. P. Civil Services (Classification, Control and Appeal) Rules would not apply. The petitioner was issued a show- cause notice by Collector and the petitioner has appeared before the Collector and recorded her statement. She has categorically admitted her conversation with Rituraj Singh but she tried to justify her conduct by giving an explanation that she was trying to put pressure on the Director so that the charge of Public Utility Center, Nalchha can be taken. While passing the impugned order, the Collector has given the reasonable opportunity of hearing to the petitioner. Even otherwise the contract appointment was going to be end in the month of March, 2016.

[8] The only grievance of the petitioner is that the impugned order is casting stigma on her career and after this stigmatic order she cannot get appointment in any government department. Though the petitioner has admitted the conversation with Rituraj Singh which was recorded in the CD and the statement of Rituraj Singh has been used against the petitioner. The apex Court in the case of Ayaaubkhan Noorkhan Pathan v/s State of Maharashtra [(2013) 4 SCC 465] has considered the scope of providing reasonable opportunity. The apex Court has held that opportunity of cross-examination is an integral part and parcel of the principles of natural justice. Para 28, 29 and 30 is reproduced below :-

30. The aforesaid discussion makes it evident that, not only should the opportunity of cross- examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice."

[9] In the present case, the Collector did not provide the opportunity to the petitioner to cross-examine Rituraj Singh and his statement has been used against the petitioner. The statements were taken on 07.01.2016 and on the same day order has been passed. Since the contract period has came to end, therefore, no relief of reinstatement can be granted but since the petitioner was not given the opportunity of cross-examination and the apex Court has held that it is a violation of principle of natural justice. Therefore, it is held that the impugned order would not cast stigma on petitioner's career in getting future employment. Therefore, the petition is partly allowed with the aforesaid observations.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1307 of 2017.

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Shri Sharma submits that affidavit of all the witnesses have already been filed but they were not present for cross- examination due to some compelling reason. It was the plaintiff's suit. He himself interested in early disposal. The non-appearance of witnesses must be beyond his control. The plaintiff has examined himself and one witness. Two witnesses are required to be examined and prays for one opportunity that he shall keep two witnesses remain present before the Court for cross-examination.

Shri Dave opposes the prayer and submits that 11 opportunities has already been granted to the plaintiff.

During pendency of this writ petition, the sole plaintiff expired and his L.Rs. were brought on record. Though the learned Trial Court passed a detailed order therein each and every date has been mentioned on which the plaintiff's witnesses were not present. Though the suit is of the year 2012 but the records were summoned in the appeal and till 2015 due to pendency of appeal as well as writ petition, the proceedings of the suit were held-up. Since the plaintiff has examined himself and one witness and required to be examined two witnesses, hence in the interest of justice last opportunity is granted to the plaintiff to keep his witnesses present before the Court on 05.04.2017. On that date or next date of hearing the Court shall permit the defendant to cross- examine them. It is made clear that no further opportunity shall be granted to the plaintiff. By way of costs, petitioner shall deposit Rs.1,000-00 [One Thousand Rupees] in the District Bar Association, Narayangarh, District Mandsaur.

With the aforesaid, this writ petition is disposed of. C.c. as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1173 of 2016.

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This order would not be treated that this Court has interfere with the impugned order rejecting relief of temporary injunction. This Court has not expressed any opinion on merit of the case.

With the aforesaid direction, the present petition is disposed of. Parties are directed to co-operate for early disposal of the suit.

C.c.as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1665 of 2017.

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Therefore, the learned Family Court has not committed any error while allowing the application. He has rightly exercised its discretion. Looking to the averments made in the application and the nature of the case, I do not find any illegality in the order. The petition fails and is hereby dismissed.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.818 of 2017.

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This Court in Writ Petition No.4019 of 2016 has considered the writ petition in the light of the order passed by the apex Court in the case of Sudhir Bhaskar Rao Tambe (supra) and Hemant Yashwant Dhage v/s State of Maharashtra [(2016) 6 SCC 273] and dismissed the writ petition with liberty to the petitioner to approach the concerned Magistrate. The operative part of the order is reproduced below :-

Thereafter, the Division Bench of this Court in Writ Appeal No.709 of 2016 by order dated 13.10.2016 has dismissed the writ appeal and upheld the order of Single Judge with a view that the petitioner is having remedy to approach the Magistrate concerned under Cr.P.C . The order passed in writ appeal is reproduced below :-

Again the same issue came up for consideration before this Court in the case of Mrs. Nikita Kukreja v/s State of M.P. [Writ Appeal No.159 of 2016 decided on 27.04.2016]. The Division Bench has dismissed the writ appeal, affirmed the order of writ Court dismissing the writ petition. The operative part is reproduced below :-

The aforesaid order was assailed by the petitioner before the Supreme Court in S.L.P.No.22750/2016 and by order dated 12.08.2016 the SLP has also been dismissed.

Thus, the petition is dismissed with liberty to approach before the competent Magistrate under the provisions of Cr.P.C.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.4783 of 2016.

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The interim order was passed on 29.09.2016. Thereafter the appeal ought to have been decided by the Commissioner on merit. Sufficient time has been elapsed. If the appeal is not decided as yet, the same shall be decided within 45 days from production of certified copy of this order.

The petition is disposed of accordingly.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.7154 of 2016.

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In view of the above, the impugned order dated 04.02.2017 is hereby quashed. The matter is remitted back to the authority with a direction to issue show-cause notice and opportunity of hearing to the petitioner and pass the order in accordance with law.

Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1251 of 2017.

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In view of the above, the impugned order dated 04.02.2017 is hereby quashed. The matter is remitted back to the authority with a direction to issue show-cause notice and opportunity of hearing to the petitioner and pass the order in accordance with law.

Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1422 of 2017.

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Till the next date of hearing, the suit of the plaintiff be not dismissed for want of Court-fees.

Office is directed to reflect the name of AG and ASG in the cause-list.

Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1324 of 2017.

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Certified copy as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No.1110 of 2017.

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6/ The writ petition is accordingly disposed of.

C.C. as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Second Appeal No.745 of 2006.

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Let the record of the case out of which this appeal arises be requisitioned by the Registry from the concerned court within two weeks and list the appeal for admission along with the record immediately on receipt of the record.

In case if appellant fails to pay PF within time, as directed by this Court in accordance with the rules, the stay granted by this Court i.e. today shall stand automatically vacated on expiry of three days. It shall however, be the responsibility of the appellant to produce the acknowledgment before the learned trial Judge showing filing/paying the PF in the High Court/Registry in accordance with Rules, within three days so as to enable the trial court to know that the stay granted by this court is to continue even after expiry of three days. Failure to produce acknowledgment of payment of PF, before the trial court on the expiry of three days would be construed to mean non- compliance of conditions of stay, thereby enabling the trial court to proceed in the case on the expiry of three days as if no stay is in force. Cc as per rules.

[ VIVEK RUSIA ] JUDGE (AKS) Writ Petition No. of 2017.

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