Madhya Pradesh High Court
Manoj Kumar Singh vs Dr. Rajesh Malik on 7 March, 2017
RP-837-2016
(MANOJ KUMAR SINGH Vs DR. RAJESH MALIK)
07-03-2017
Shri Girish Shrivastva, Advocate for petitioner.
Shri N.S.Ruprah, Advocate for respondent No.1.
Shri R.N.Yadav, Panel Lawyer for the State.
Seeking review of the order dated 26.10.2016 passed by this Court in Writ Petition No.2257/2016 (Dr.Rajesh Malik Versus State of Madhya Pradesh & others) and Writ Petition No.2530/2016 (Smt.Dipti & another Versus State of Madhya Pradesh & others), these review petitions have been preferred and are being disposed of by this common order. After hearing learned counsel for the parties and on perusal of the order under review, it appears that as per the statements made by learned counsel for both the parties relying upon the provisions of Section 44(2) of the M.P.Land Revenue Code, 1959 (hereinafter shall be referred to as 'MPLRC'), the order was passed directing the respondent(s) in these cases to file an appeal before the Commissioner, Hoshangabad who shall decide the same in accordance with law. Accordingly, the appeals were preferred by the respondent(s), which are pending consideration. During pendency of the appeals, these review petitions have been preferred by the petitioner bringing the fact to the notice of this Court that Section 44(2) of MPLRC would not apply in the facts of the present cases. After going through the provisions of Section 44(2) of the MPLRC and the facts of the present cases whereby the order of mutation was passed somewhere in 1988 to which permission was granted for rectification by the Sub Divisional Officer (Revenue) on 12.6.2014 and pursuant thereto the Tahsildar has passed an order of rectification on 15.7.2014, therefore, against the order of Tahsildar, under Section 44(1) of MPLRC, appeal would lie to the Sub Divisional Officer. However, the direction as issued for filing of the appeal seems to be contrary to provisions of Section 44(1) of MPLRC.
After perusal of the provisions of Section 44 of MPLRC, it is apparent that against every original order, appeal would lie to the officers as specified from (a) to (f). This is a case wherein the original order has been passed by the Tahsildar, therefore, the appeal would lie to the Sub Divisional Officer (Revenue). It is not a case wherein the order has been passed in first appeal, therefore, Section 44(2) of MPLRC would not apply. It is the apprehension of learned counsel for respondent No.1 that because the permission for review has been granted by the Sub Divisional Officer on 12.6.2014 and as per the said permission the Tahsildar has passed an order on 15.7.2014, however, in case the order of Tahsildar dated 15.7.2014 is challenged before the Sub Divisional Officer, he may be biased because the Sub Divisional Officer has granted permission for review in exercise of the power under Section 51 of MPLRC. In respect to the aforesaid submission, it is clarified that the order granting permission for rectification is an order of predecessor Tahsildar and the Sub Divisional Officer has exercised the power only with respect to review and he has not seen the order of the Tahsildar passed on merits in exercise of the appellate jurisdiction, therefore, the said contention is misplaced. In any case, it is clarified that on filing an appeal by the respondent(s) within a period of one month from today before the Sub Divisional Officer (Revenue) challenging the order of Tahsildar dated 15.7.2014, it would be decided by the Sub Divisional Officer (Revenue) within a period of three months from the date of receipt of such appeal. As under the orders of this Court, the appeal which has been preferred before the Additional Commissioner by the respondent(s), be now consigned to the record on withdrawal by the respondent(s) and the stay order passed by him shall remain in operation for a period of one month from today. It is also made clear here that the respondent(s) may apply before the Sub Divisional Officer for further stay, who may consider the same without influencing with the order passed by the Commissioner or by this Court. It is also observed that on filing an appeal by the respondent(s) before Sub Divisional Officer Pipariya, District Hoshangabad, the same would be decided in view of the observations made hereinabove by this Court applying its mind independently affording an opportunity of hearing to both the parties and while passing the order on merits, the appellate authority shall not be influenced by any of the observation made by this Court or by the Commissioner.
With these observations, Review Petition No.837/2016 & Review Petition No.838/2016 stand disposed of.
(J.K. MAHESHWARI) JUDGE amit