Madhya Pradesh High Court
Dr. Vinod Bhandari vs Suresh on 1 February, 2022
Author: Anil Verma
Bench: Anil Verma
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 1st OF FEBRUARY, 2022
MISC. PETITION No. 1778 of 2020
Between:-
DR. VINOD BHANDARI S/O SHRI SHETANMAL BHANDARI ,
AGED ABOUT 67 YEARS, OCCUPATION: DOCTOR
181, CLERK COLONY, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANU MAHESHWARI, ADVOCATE)
AND
SURESH S/O RATAN PATEL
1. GRAM BHORASHLA, TEHSIL SANWER,
DIST INDORE (MADHYA PRADESH)
REVENUE INSPECTOR REVENUE
2. INSPECTOR CIRCLE -2 , TEHSIL SANWER,
DISTRICT INDORE (MADHYA PRADESH)
THE TEHSILDAR SANWER TEHSIL
3.
SANWER DISTRICT INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KAPIL MAHANT, P.L. )
(Heard through Video Conferencing)
This appeal coming on for admission this day, the court passed
the following:
ORDER
This petition has been filed under Article 227 of the Constitution of India being aggrieved by the impugned order dated 14/06/2019 passed by the President, Board of Revenue, Gwalior in revision no. 2696/2018/Indore/LR wehreby allowing the version filed by the respondent Suresh and setting aside the order dated 30/10/2017 passed by the Tehsildar, Sanwer, District-Indore in case no. 9/A-12/2017-18, which was proceeding in mutation.
2. Facts of the case in brief are that the petitioner moved an application for demarcation before the Tehsildar for demarcation of the land bearing survey nos. 6/2/1, 6/2/2/1, 7/3/1/1, 6/2/2/2, 7/3/2, 7/2, 5/24/2/2, 26/1. The Tehsildar, Sanwer has passed the order of demarcation vide order dated 30/10/2017, then respondent no. 1 moved an application under section 50 of the Madhya Pradesh Land Revenue Code ( in short "MPLRC") before the Board of Revenue and by the impugned order, the order of Tehsildar has been set aside. Thus, being aggrieved by the same, present petition is being filed.
3. Learned counsel for the petitioner has submitted that the impugned order passed by the Board of Revenue is incorrect and bad in law. Learned Authority below has failed to appreciate that detailed demarcation and field book were prepared by the Revenue Inspector at the time of demarcation. There is justifiable reason for demarcation. The impugned order is contrary to the settled position of law, hence he prays that the impugned order dated 14/06/2019 be quashed.
4. Learned counsel for the respondent/s has opposed the same and prays for its rejection by submitting that the impugned order passed by the Board of Revenue is just and proper and it be maintained.
5. Heard learned counsel for both the parties and also perused the relevant documents produced by them
6. On perusal of the impugned order passed by the President, Board of Revenue, it reveals that by the impugned order, the order of Tehsildar has been set aside, which was passed under section 44 of MPLRC, but no appeal has been filed before the Sub-Divisional Officer ( Revenue) against the impugned order passed by the Tehsildar, Sanwer under section 44(1)(a) of the MPLRC and no appeal has ben filed before the Collector and learned Court below the Board of Revenue entertained the application under section 50 of the MPLRC against the impugned orer, which is admittedly appealable under section 44 of the MPLRC.
7. This Court in the case of Arun Mohan Vs. Gita Patel ( ILR(2012) MP, 1802), has held as under :
14 The second issue as to whether it was lawful for revisional authority to have entertained an application u/s 50 of the Code 1959 against an order dated 26.9.2001, which admittedly was an appealable order u/s 44 of the Code,1959.
Clause (a) of sub-section (1) of Section 50 of the Code, 1959 stipulates that:
(i) no application for revision shall be entertained-
(a) against an order appealable under this Code;
Sub-section (1) of Section 44 of Code, 1959 provides that an appeal shall He from every original order under the Code if such order is passed by any Revenue Officer subordinate to Sub Divisional Officer, whether or not the officer passing the order is invested with the powers of the Collector to the Sub Divisional Officer. [Section 44(1)(a)].
15 In the case at hand order dated 26.9.2001 was passed by Tahsildar and as per Section 44(1)(a) appeal lies before Sub Divisional Officer; in view whereof the Board of Revenue was not justified in entertaining revision petition against the order dated 26.9.2001. Thus, entertainment of revision petition beside there being a bar was a nullity in the eyes of law when it is said it is not entertainable.
16 In this context reference can be had of a decision in Hiralal Thakurdas Chowkse Vs. Hate Singh Laxman Singh, wherein it is observed:
8. The difficulty arises on account of sub-section (2) of the section 12 which not only declares the prohibited transaction of loan to be absolutely null and void but also prohibits any Court to entertain any application or suit to enforce any claim of lender of money arising out of prohibited transaction of loan. Plainly read, it would mean that if by a suit or application any claim under a prohibited transaction of loan is sought to be enforced, such suit or application shall not be entertained by the Court. It means that whenever any application or suit involves a claim based on any prohibited transaction of loan, the application or suit must be rejected. The use of the word entertain in sub-section (2) of section 12 of the Adhiniyam is significant. As pointed out by a Division Bench of this Court in Khatumal Ghanshamdas Vs. Abdul Qadir Jamaluddin and Others, , the word entertain means to receive and take into consideration. It was pointed out that the plain reading of the expression no Court shall entertain" would mean that no Civil Court shall have jurisdiction to a suit in its inception. Thus, when the application or suit filed before the Civil Court itself discloses that the claim laid therein arises out of a prohibited transaction of loan, that application or suit shall not be considered and shall have to be rejected....
17 In view whereof since there is a specific bar stipulated under clause (a) proviso one sub-section (1) of Section 50, it was beyond the jurisdiction of Board of Revenue to have entertained revision petition against an order where against appeal u/s 44 lies. On this count also the impugned order deserves to be quashed.
8. After considering all the facts and circumstances of the case and in view of the law laid down by this Court in the case od Arun Moha (supra), it is clear that the order dated 30/10/2017 passed by the Tehsildar, Sanwer is an appealable order and no appeal has been filed against the same. The Revisional Authority has entertained an application under section 50 of the MPLRC against such order, therefore, the Board of Revenue have no jurisdiction to entertain such revision petition under the aforesaid clause.
9. Having this considered, there being substantial force in the petition, the impugned order dated 14/06/2019 deserves to be and is hereby quashed being not tenable in the eyes of law.
10. Present Miscellaneous Petition, thus disposed of finally in light of the above terms.
CC as per rules.
(ANIL VERMA) JUDGE Digitally signed by AMOL N MAHANAG Date: 2022.02.02 10:14:43 +05'30'