Madhya Pradesh High Court
The State Of Madhya Pradesh vs Shailendra Singh Yadav on 24 July, 2019
1 R.P.No.82/2016
THE HIGH COURT OF MADHYA PRADESH
R.P. No.82/2016
(State of M.P. Vs. Shailednra Singh Yadav)
Gwalior, Dated 24.07.2019
Shri Gaurav Mishra, Advocate for the applicant.
Shri Sushant Tiwari, Government Advocate for the
respondent/State.
The delay pointed out by the Registry of 23 days is inconsequential since the provisions of Limitation Act do not apply in writ jurisdiction. However, 23 days of delay in filing this petition is condoned. Since, it does not appear to be unconscionable.
Present review petition seeks review of final order dated 06.01.2016 passed in W.P.No.16/2016 whereby this Court while declining interference in the matter assailing the order of Tahsildar passed u/S.248 of MPLRC, relegated the petitioner to avail remedy of first appeal u/S.44 of MPLRC to the Collector instead of SDO on the strength of submission made by the petitioner in W.P.No.16/2016 that the SDO is prejudiced.
Ground raised by the State in this review petition is that the statute does not provide for first appeal u/S.44 of MPLRC to the Collector.
The provision relied upon is reproduced below :-
"44. Appeal and appellate authorities. - (1) Save where it has been otherwise provided, an appeal shall lie from every original order under this Code or the rules made there under--
(a) if such order is passed by any Revenue Officer 2 R.P.No.82/2016 subordinate to the Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Collector--to the Sub-Divisional Officer ;
(b) if such order i s passed by the Sub-Divisional Officer, whether or not invested with the power s of the Collector--
to the Collector ;
(c) if such order is passed by any Revenue Officer subordinate to the Settlement Officer -- to the Settlement Officer ;
(d) if such order is passed by any Revenue Officer in respect of whom a direction has been issued under sub- section (3) of Section 12 or subsection (2) of Section 21-- to such Revenue Officer as the State Government may direct;
(e) if such order is passed by a Collector whether exercising the powers of Collector or Settlement Officer, during the currency of the term of settlement -- to the [Commissioner];
(f) if such order is passed by a Settlement Officer, whether exercising the power s of Settlement Officer or the powers of a Collector in connection with any settlement operation unless otherwise expressly provided-- to the Settlement Commissioner;
(g) if such order is passed by the Commissioner or the Settlement Commissioner--to the Board.
(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder --
(i) by the Sub-Divisional Officer or the Collector to the Commissioner;
3 R.P.No.82/2016
(ii) by the Settlement Officer to the Settlement Commissioner;
(iii) by the Commissioner to the Board --
(a) if the original order has in the fir st appeal been varied or reversed otherwise than in a matter of cost; or
(b) on any of the following grounds and no other, namely:-
(i) that the order is contrary to law or usage having the force of law; or
(ii) that the order has failed to determine some material issue of law or usage having force of law; or
(iii) that there has been a substantial error or defect in the procedure as prescribed by this Code,which may have produced error or defect in the decision of the case upon merits.
Bare perusal of the aforesaid provision reveals that admittedly no first appeal lies from an order of Tahsildar to the Collector directly, but the argument raised by State herein could have been accepted if any particular statutory remedy available to the petitioner had been taken away. In the instant case the Court while passing of the order in writ jurisdiction was given the impression that SDO is prejudiced against the petitioner and therefore, this Court in the attending facts and circumstances, where adjudication required going into disputed questions of fact, decided to adopt via media by directing that petitioner should avail the remedy of appeal not to the SDO but to the next higher authority i.e. Collector.
If petitioner avails the aforesaid remedy of first appeal to the 4 R.P.No.82/2016 Collector against the order of Tahsildar then he can still avail further remedy of second appeal to the Commissioner u/S. 44 (2) (i) of MPLRC as reproduced above and therefore, both the statutory remedies of first appeal and second appeal continue to be available to the petitioner to be availed.
In view of above, the contention raised by the State of any palpable error having crept in the order under review does not hold any water.
Accordingly, in the absence of any error apparent on the face of record present review petition stands dismissed.
(Sheel Nagu)
Ashish* Judge
ASHISH
CHOURASIYA
2019.07.25
18:12:34
-07'00'