HRADESH KUMAR Vs. MITHLESH KUMAR

JUDGEMENT

(1.) The present miscellaneous petition has been preferred under Article 227 of the Constitution of India, against the order dtd. 23/10/2019 passed in Case No.562/15- 16/Appeal by the Additional Commissioner, Gwalior (Annexure P/1), order dtd. 5/5/2016 passed in Case No. 85/2014-15/Appeal by the Sub-Divisional Officer, Dabra District Gwalior (Annexure P/2) and order dtd. 16/4/2015 passed in Case No. 238/14-15/B-121 by the Tahsildar Dabra, District Gwalior (Annexure P/3).

(2.) The brief facts of the case are that the respondent No.1 Mithlesh Kumar filed an application before the Tahsildar requested to short out the road of 20x12 feet from survey no. 674 min 4, 675 min 9, 676 min 2, 699 min 13, 700 min 13, 700 min 11, 711 min 51, 717 min 52, 701 min 7, 711 min 10 situated in village Ramgarh by converting the aforesaid land plot area into road. On account of that, Tahsildar asked the Patwari report wherein it was submitted that for the convenience of the purchaser of the lands the aforementioned area be declared as road as the father of Mithlesh Kumar namely Keshav Dayal sold out the aforesaid lands on 26/12/1992. After including the aforementioned land, no any space was available for other co-owners to use as road. The petitioner is coowner of the land and was necessary party. Despite Tahsildar overlooked the aforesaid facts and passed the impugned order dtd. 16/4/2015 without giving notice to the present petitioner. It is also submitted that opportunity of hearing was not given to the present petitioner while considering the aforesaid order based on evidence recorded of Awadhesh Dwivedi and Brajesh. The witnesses misrepresented the facts before the Tashsildar despite the impugned order has been passed which is absolutely illegal and incorrect. Accordingly, the order passed by SDO and Additional Commissioner, Gwalior are also illegal and incorrect. Along with the petition copy of the application filed by Mithlesh Kumar before the Tahsildar has been produced i.e. Annexure P/4 dtd. 29/10/2014, copy of order of Tahsildar dtd. 3/11/2014 is annexed as Annexure P/5, Patwari report is Annexure P/6. The statement of Gulab Devi is Annexure P/7 and the statement of Awadesh Dwivedi is annexed as Annexure P/8. Being aggrieved by the aforesaid impugned order, this petition has been preferred.

(3.) The grounds raised by the petitioner in this petition are that the order impugned as well the order of SDO and Additional Commissioner are patently illegal and without jurisdiction, therefore, deserve to be quashed. Under the provisions of Sec. 131 of MPLRC the Tahsildar has only power to reopen the approach road which has been closed by the villagers but have no right to construct a new road, herein the case the Tahsildar not only created a new road but also approved the creation of new road by deleting the area of said road from the survey number. The respondent Mithlesh Kumar had suppressed the facts that the present petitioner is his brother and cosharer. Without the knowledge/information of petitioner his brother Mithlesh Kumar got created/mutated the aforesaid road, therefore, the courts below order deserves to be quashed. As the petitioner was the co-sharer to the aforesaid lands, therefore, without his consent no land could be converted into a road. The courts below have wrongly marshalled the statements of Gulab Devi and Awadesh Dwivedi and have violated the principles of natural justice by depriving the petitioner from his right of hearing. The land was illegally sold out as was of joint ownership and this fact had not been considered. Hence, the present petition has been filed.