Badri Prasad Modi vs Sanjay Modi

Heard Mr. B.P. Sharma, learned counsel for the appellant. Also heard Mr. Siddharth Shukla, learned counsel, appearing for respondent No. 1 and Mr. Vikram Sharma, learned Deputy Government Advocate, appearing for respondents No. 2 to 5.

This writ appeal is presented against an order dated 29.03.2022 passed by the learned Single Judge in Writ Petition (C) No. 1508 of 2022.

I.A. No. 3 of 2022 is an application for grant of leave to appeal.

Mr. B.P. Sharma submits that an order dated 27.09.2021 was passed by the Tehsildar, Korba, at the instance of the appellant, as against which the respondent No. 1/writ petitioner filed the writ petition before this Court without arraying him as party-respondent. As the writ petition came to be disposed of in his absence and as the appellant is aggrieved, leave to appeal may be granted.

Mr. Shukla submits that leave to appeal ought not to be granted as the order dated 27.09.2021 was passed at the instance of the appellant in absence of the writ petitioner/respondent No. 1.

Mr. Vikram Sharma, learned Deputy Government Advocate, appearing for respondents No. 2 to 5 has no objection for grant of leave to appeal.

How the order dated 27.09.2021 came to passed may not be relevant for the purpose of consideration of an application for grant of leave to appeal against a judgment passed by a learned Single Judge. Fact remains, the same was passed on an application filed by the appellant, and therefore, it was necessary for the writ petitioner to implead the appellant in the writ proceedings as party-respondent.

As the order dated 27.09.2021 was set aside by the learned Single Judge, we are of the opinion that the appellant has made out a case for grant of leave to appeal and accordingly, the leave to appeal is granted.

I.A. No. 3 of 2022 is allowed.

On the prayer of the learned counsel for the parties, the appeal is also taken up for consideration.

The submission of Mr. Shukla that order dated 27.09.2021, setting aside the order dated 07.09.2021, which was in favour of the respondent/ writ petitioner, was passed in his absence, is not disputed by Mr. B.P. Sharma.

It appears that with regard to demarcation of the land of the petitioner, a report was submitted to Tehsildar, Korba on 10.03.2021. With regard to demarcation proceedings, some objections were lodged which resulted in passing of the order dated 07.09.2021 by the Tehsildar, Korba, which was in favour of the respondent No.1 / writ petitioner.

By the order dated 27.09.2021, the order dated 07.09.2021 was set aside. It is an admitted position that respondent No.1 / writ petitioner was not heard while passing the order dated 27.09.2021.

The order dated 07.09.2021 could not have been set aside in absence of the party, in whose favour the same was made and accordingly, the learned Single Judge set aside the order dated 27.09.2021 and had directed compliance of the order dated 07.09.2021.

But, we cannot lose sight of the fact that an application was filed by the appellant in connection with the order dated 07.09.2021 and therefore, the order of the learned Single Judge is modified providing that the application filed by the appellant based on which the order dated 27.09.2021 was passed, shall again be taken up for consideration and appropriate order shall be passed by the Tehsildar, Korba after hearing the appellant as well as respondent No. 1 / writ petitioner.

It is also made clear that if any demarcation had taken place pursuant to the order of the learned Single Judge, the same will be treated as non-est.

The writ appeal stands disposed of.

The Tehsildar, Korba will decide the application within a period of six weeks from today.

The appellant and the respondent No. 1/writ petitioner will appear before the Tehsildar, Korba on 20.07.2022 and thereafter, the Tehsildar, Korba will regulate the proceedings, in accordance with law.