Madhya Pradesh High Court
Kuldeep Sharma vs The State Of Madhya Pradesh on 7 January, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
The High Court of Madhya Pradesh
WP 28563 of 2019
Kuldeep Sharma vs. State of MP and Ors.
Gwalior, dtd. 07/01/2020
Shri Prashant Sharma, Counsel for the petitioner.
Shri RK Soni, Government Advocate for the respondent No.1/
State.
Shri HK Shukla, Counsel for the respondent No.2. Shri Mahesh Goyal, Counsel for the respondent No.3. This petition under Article 226 of the Constitution of India has been filed against the order dated 16/12/2019 passed by Additional Commissioner, Chambal Division, Morena in Case No.0228/2014- 15/Appeal.
(2) The necessary facts for disposal of the present petition in short are that the petitioner as well as respondent No.2 filed applications for their appointment as ''Pujari'' of Temple Shri Bihariji Maharaj. The applications filed by the petitioner as well as the respondent No.2 were rejected by SDO, Sub-Division, Morena by order dated 30 th May, 2011 passed in Case No.131/2008-09/B-121 and Case No.132/2008-09/B-
121. (3) It appears that the respondent No.2 did not challenge the order dated 30th May, 2011 passed by SDO, Sub-Division Morena, whereas the petitioner challenged the said order by filing an appeal before the Additional Commissioner, Chambal Division, Morena and the said 2 appeal was allowed by order dated 09/08/2012 passed by Additional Commissioner, Chambal Division Morena in Case No.99/2011- 12/Appeal. It appears that the order dated 09/08/2012 was challenged by respondent No.2 by filing a Writ Petition No.9273 of 2012 and the said writ petition was dismissed by the Single Judge of this Court by order dated 28/10/2013 by holding that the respondent No.2 has no locus standi to assail the order dated 09/08/2012. (4) Being aggrieved by the order passed by the Single Judge, the respondent No.2 filed a writ appeal which was registered as Writ Appeal No.585/2013. The said writ appeal was decided by the Division Bench of this Court by order dated 18/06/2015.
(5) It is clear from the said order that when the respondent No.2 was called upon to clarify as to how he can be said to be an aggrieved party because the order dated 09/08/2012 has been passed in favour of the petitioner, then the counsel for the respondent No.2 sought permission to withdraw the writ appeal with liberty to challenge the order dated 30 th May, 2011 passed by SDO and accordingly, the said writ appeal was disposed of with the following observations:-
''Keeping in view the aforesaid submission, we have carefully gone through the record available and in the available circumstances, by allowing prayer of the appellant's counsel, this appeal is hereby dismissed as withdrawn and not pressed. However, considering the oral prayer of the appellant's counsel, he is extended a liberty to challenge the aforesaid order of SDO in accordance with the procedure permissible under the law on the available grounds by way of appeal before the Additional 3 Commissioner, Chambal Division, Morena within 30 days. Pursuant to it, the Additional Commissioner is directed that, on filing the same, it be considered in accordance with the procedure prescribed and permissible under the law.'' (6) It appears that thereafter, the respondent No.2 filed an appeal before the Court of Additional Commissioner, Chambal Division, Morena against the order dated 30th May, 2011 passed by SDO, Sub-
Division Morena in Case No.131/2008-09/B-121. It appears that the appeal filed by the respondent No.2 was not only dismissed by the Additional Commissioner, Chambal Division Morena by order dated 16/12/2019 passed in Case No. 0228/2014-15/Appeal but the Additional Commissioner, Chambal Division, Morena has also set aside the order dated 9/08/2012 passed by Additional Commissioner, Chambal Division, Morena in Case No.99/2011-12/Appeal. It is not out of place to mention here that the order dated 09/08/2012 passed by Additional Commissioner, Chambal Division Morena in Case No.99/2011- 12/Appeal is the subject-matter of Writ Petition No.1711 of 2016 filed by respondent No.3. Thus, it is clear that the order dated 09/08/2012 is already sub judice before this Court. However, the Additional Commissioner, Chambal Division, Morena by passing the impugned order has set aside its own order dated 09/08/2012 by holding that the appointment has been procured by the petitioner by relying upon the fabricated and forged documents.
(7) Challenging the impugned order dated 16/12/2019 passed by 4 Additional Commissioner, Chambal Division, Morena, it is submitted by the counsel for the petitioner that the order dated 09/08/2012 was never challenged by the respondent No.2. Further, it is the subject- matter of the writ petition which is pending before this Court. In an appeal filed by the respondent No.2, the Additional Commissioner, Chambal Division Morena could not have set aside its own order dated 09/08/2012 because by setting aside the said order, the Additional Commissioner, Chambal Division, Morena has, in fact, exercised the power of review and the same cannot be exercised without following the procedure as laid down in Section 51 of MPLRC. Even if the Additional Commissioner, Chambal Division, Morena was of the view that he should exercise his suo motu powers to review the order dated 09/08/2012, then he should have registered the separate proceedings. Since the order dated 09/08/2012 was passed by the successor of present Additional Commissioner, Chambal Division, Morena, therefore, he should not have exercised his power of review without following procedure as laid down under Section 51(1)(i) of MPLRC. Furthermore, it is submitted that once the order dated 09/08/2012 is already subject-matter of Writ Petition No.1711 of 2016 filed by the respondent No.3, then there was no occasion for the Additional Commissioner, Chambal Division, Morena to give any finding with regard to correctness of the documents and thus, he has travelled beyond his jurisdiction.
5(8) Per contra, it is submitted by the counsel for the respondent No.2 that although respondent No.2 has not challenged the impugned order dated 16/12/2019 but he is intending to do so and in case, if this writ petition is finally decided, then it may adversely affect his rights, therefore, hearing of this petition be deferred till the order dated 16/12/2019 is challenged by respondent No.2.
(9) The Counsel for the respondent No.3 has submitted that since the petitioner had obtained the order by filing forged and fabricated documents, therefore, the finding recorded by Additional Commissioner, Chambal Division, Morena are perfectly correct and since the order dated 09/08/2012 was obtained by playing fraud, therefore, the same has been rightly quashed/set aside by Additional Commissioner, Chambal Division, Morena himself.
(10) Heard the learned counsel for the parties.
(11) The undisputed question of fact is that the petitioner as well as the respondent No.2 had filed applications for their appointment as ''Pujari'' of Temple Shri Bihariji Maharaj, Morena and the applications of the petitioner as well as the respondent No.2 were rejected by SDO, Sub-Division Morena by order dated 30th May, 2011. Initially, the respondent No.2 did not challenge the order dated 30 th May, 2011, however, the petitioner had challenged the said order by filing an appeal and the said appeal was allowed by Additional Commissioner, Chambal Division, Morena by order dated 09/08/2012 passed in Case 6 No.99/2011-12/Appeal. The writ petition filed by the respondent No.2 against the said order was dismissed as not maintainable on the ground of locus standi and the said observation made by the Single Judge was also affirmed by Division Bench of this Court in Writ Appeal. The order dated 09/08/2012 which has been passed in favour of the petitioner, is the subject-matter of Writ Petition No.1711 of 2016. (12) In the considered opinion of this Court when the appeal was filed by the respondent No.2 against the order dated 30 th May, 2011, then the Additional Commissioner, Chambal Division Morena should have confined its order to the subject-matter of the appeal. However, it appears that since the Additional Commissioner, Chambal Division, Morena came to a conclusion that the petitioner has obtained his appointment on the basis of forged documents, therefore, he has also quashed the order dated 09/08/2012 passed by his successor in Case No.99/2011-12/Appeal. The order dated 09/08/2012 was never under challenge before the Additional Commissioner, Chambal Division, Morena. If the Additional Commissioner, Chambal Division, Morena was of the view that the order dated 09/08/2012 has been obtained by playing fraud, then without exercising its power under Section 51 of MPLRC, he had no authority to set aside the order dated 09/08/2012 passed by his successor. Undisputedly, the Additional Commissioner, Chambal Division, Morena has not exercised its power under Section 51 of MPLRC after following the procedure as laid down in MPLRC. 7
Thus, the operative part of the impugned order dated 16/12/2019 by which the order dated 09/08/2012 passed by his successor in Case No.99/2011-12/Appeal is without jurisdiction and the findings that the said order has been obtained by playing fraud by filing forged documents, are also set aside, being without jurisdiction. So far as the dismissal of the appeal filed by the respondent No.2 is concerned, it is specifically clarified that this order shall not come in the way of the respondent No.2 in case, if he challenges the order dated 16/12/2019 passed by Additional Commissioner, Chambal Division, Morena in Case No.0228/2014-15/Appeal. Since the correctness of the order dated 09/08/2012 is already subject-matter of Writ Petition No.1711 of 2016 filed by the respondent No.3 which is still pending before this Court, therefore, it is clarified that the appointment of the petitioner shall be subject to the outcome of Writ Petition No.1711 of 2016 and this order shall not come in the way of disposal of the said writ petition. (13) With aforesaid observations, the operative part of the impugned order dated 16/12/2019 passed by Additional Commissioner, Chambal Division, Morena in Case No.0228/2014-15/Appeal including the findings regarding the nature of document is hereby set aside. (14) This petition succeeds and is hereby allowed.
(G.S.Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK VALSALA 2020.01.09 10:55:14 +05'30' VASUDEVAN 2018.10.26 15:14:29 -07'00'