Madhya Pradesh High Court
Mustaq Ahmad vs The State Of Madhya Pradesh on 3 September, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:44861
1 W.P. No.1144/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 3rd OF SEPTEMBER, 2024
WRIT PETITION No.1144 of 2022
MUSTAQ AHMAD AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri Deepak Sahu - Advocate for the petitioners.
Shri Dilip Parihar - Panel Lawyer for respondents No.1 & 2/State.
Shri Ashok Sinha - Advocate for respondent No.3.
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ORDER
This petition under Article 226 of Constitution of India has been filed seeking following relief(s):-
(i) To call for the records pursuant to the instant subject matter for kind perusal of this Hon‟ble Court.
(ii) To issue writ in the nature of certiorari wherein quashing the order dated 29.11.2021 passed by the respondent no.1 in the interest of justice.
(iii) To issue other relief which this Hon‟ble Court may deem just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner along with cost of the petition.
2. It is submitted by counsel for petitioners that a Patta in respect of Nazul Block No.39 was granted in favour of Abdul Hamid @ Kallu S/o Sheikh Shameem for a period of 20 years. However, because of cordial NEUTRAL CITATION NO. 2024:MPHC-JBP:44861 2 W.P. No.1144/2022 relationships, father of petitioners allowed his brother namely, Abdul Majeed to reside along with him. After death of Abdul Hamid @ Kallu and Abdul Majeed, respondent No.3 who is the son of late Abdul Majeed moved an application that the Patta was in fact granted in favour of Abdul Hamid @ Kallu and Abdul Majeed but by mistake only the name of Abdul Hamid @ Kallu was recorded. Therefore, the same may be corrected.
3. The said application was registered by Collector, Jabalpur as Review and sought report from SDO (Revenue) Adhartal, District Jabalpur. The SDO (Revenue) Adhartal submitted a report that Patta was granted to Abdul Hamid @ Kallu and accordingly, Collector Jabalpur vide order dated 05/09/2020 dismissed the review application on the ground that such an application has been preferred with inordinate delay of 45 years and no sufficient reason has been assigned to review the order passed in Nazul Case No.8327/A-20(1)/1975-76.
4. Respondent No.3 preferred an Appeal under Section 44 of M.P.L.R. Code and Additional Commissioner, Jabalpur Division Jabalpur by order dated 29/11/2021 allowed the Appeal in case No.324/Appeal/2020-21 and the Additional Collector, City Jabalpur was directed to examine Nazul Case No.8327/A-20(1)/1975-76 and if it is found that the name of father of respondent No.3 was erroneously left then the same may be modified.
5. Challenging the order passed by Additional Commissioner, Jabalpur Division Jabalpur, it is submitted by counsel for petitioner that father of respondent No.3 never moved an application for review during his life time. Furthermore, no Appeal lies against the order passed in review. No application for condonation of delay in filing the Appeal was NEUTRAL CITATION NO. 2024:MPHC-JBP:44861 3 W.P. No.1144/2022 filed.
6. Per contra, petition is vehemently opposed by counsel for respondent No.3. It is submitted that respondent No.2 had erroneously mentioned the word „review‟ in the order and therefore, petitioners also mentioned in memo of appeal that Appeal is being filed against order dated 30/06/1976 passed in Nazul Case No.8327/A-20(1)/1975-76 as well as order dated 05/09/2020 passed by Collector Jabalpur. However, it is fairly conceded by counsel for respondent No.3 that no application under Section 5 of Limitation Act was filed for condonation of delay in filing the Appeal.
7. Heard learned counsel for the parties.
8. Section 46 of M.P.L.R. Code reads as under:-
"46. No appeal against certain orders. - Notwithstanding anything contained in section 44,-
(a) no appeal shall lie from an order -
(i) allowing or rejecting an application for condonation of delay on the grounds specified in Section 5 of the Limitation Act, 1963 (No.36 of 1963); or
(ii) rejecting an application for review; or
(iii) allowing or rejecting an application for stay; or
(iv) of an interim nature; or
(v) passed under the provisions of sections 29, 30, 104, 106, 114A, 127, 146, 147, 150, 152, 161, 207, 208, 210, 212, 213, 215, 220 and 243; and
(b) no second appeal shall lie from an order passed in first appeal against an order passed under the provisions of sub-section (1) of Section 131, Section 134, Section 173, Section 234, Section 239, Section 240, Section 241, Section 242, Section 244 and Section 248."
NEUTRAL CITATION NO. 2024:MPHC-JBP:44861 4 W.P. No.1144/2022
9. From plain reading of this section, it is clear that no Appeal against an order rejecting an application for review is maintainable. Therefore, the Appeal against the order rejecting application for review was not maintainable. However, one thing is clear that a composite Appeal was filed against order dated 05/09/2020 passed by Collector Jabalpur in review application as well as order dated 30/06/1976 passed in Nazul Case No.8327/A-20(1)/1975-76.
10. Although the Appeal against an order passed in review was not maintainable but still the next question for consideration is as to whether Appeal against order dated 30/06/1976 passed in Nazul Case No.8327/A-20(1)/1975-76 was maintainable or not?
11. Admittedly, no application for condonation of delay was filed along with memo of appeal. Thus, it is clear that Appeal filed by respondent No.3 against order dated 30/06/1976 passed in Nazul Case No.8327/A-20(1)/1975-76 was hopelessly barred by time. In absence of any application for condonation of delay in filing an Appeal, the Additional Commissioner, Jabalpur Division Jabalpur should not have decided the Appeal on merits.
12. Accordingly, it is held that the Appeal filed by respondent No.3 against order dated 30/06/1976 passed in Nazul Case No.8327/A- 20(1)/1975-76 was hopelessly barred by time and accordingly, order dated 29/11/2021 passed by Additional Commissioner, Jabalpur Division Jabalpur in case No.324/Appeal/2020-21 is hereby set aside.
13. However, there is another aspect of the matter which cannot be lost sight of.
14. Petitioners have filed a copy of Patta on record as Annexure-P/1. From aforesaid Patta, it is clear that the lease was valid only up to NEUTRAL CITATION NO. 2024:MPHC-JBP:44861 5 W.P. No.1144/2022 31/03/1999. The relevant part of lease reads as under:-
"bl vuqca/k dh rkjh[k ls izkjaHk gksus okyh rFkk 31 ekpZ 1999 dks lekIr gksus okyh vof/k ds fy, vof/k mls /kkj.k djus gsrq fuEufyf[kr 'krksZa ds v/;/khu jgrs gq;s iV~VkUrfjr djrk gS ------"
15. The lease was granted in the month of July, 1976. Thus, it was valid only up to 31st March 1999. It is not the case of petitioners that lease was ever renewed.
16. Under these circumstances, it is clear that even the petitioners in absence of any renewal of lease are not entitled to possess the property in dispute. However, it is really surprising that the revenue Authorities have conveniently ignored this aspect.
17. Be that whatever it may be.
18. The Collector Jabalpur is directed to consider the fact that whether the lease granted in favour of late Abdul Hamid @ Kallu has already come to an end on 31/03/1999 or not and whether it has not been renewed.
19. Petitioners as well as respondent No.3 are directed to appear before Collector Jabalpur for adjudication of aforesaid aspect. The Collector, Jabalpur shall take a final call as to whether petitioners are entitled to maintain their possession from 01/04/1999 onwards or not. In case if it is found that petitioners are not entitled to protect their possession after 01/04/1999, then adequate steps should be taken for getting the property vacated.
20. Let the entire exercise be completed within a period of 3 months from the date of appearance of the parties.
21. Petitioners as well as respondent No.3 are directed to appear before Collector, Jabalpur on 14/10/2024.
NEUTRAL CITATION NO. 2024:MPHC-JBP:44861 6 W.P. No.1144/2022
22. With aforesaid observations, petition is finally disposed of.
(G.S. AHLUWALIA) JUDGE S.M. Digitally signed by SHUBHANKAR MISHRA Date: 2024.09.05 18:37:33 +05'30'