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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
G.S. AHLUWALIA, J.
AJAY BAJAJ – Petitioner
Versus
STATE OF M.P. – Respondent
W.P. No. 21296 of 2023
Decided On : 12-01-2024
ARTICLE 226 - MPLR CODE - The court interpreted Section 46(b) of the MPLR Code, determining that a second appeal was not maintainable for orders under Section 248. The court concluded that the Additional Collector's dismissal of the revision was erroneous, leading to the remand of the case for a merits-based decision.
Fact of the Case:
The petitioner challenged an eviction order and penalty imposed by the Tahsildar under Section 248 of the MPLR Code. After the SDO dismissed the appeal, the petitioner filed a revision before the Additional Collector, which was dismissed on grounds of maintainability.
Finding of the Court:
The court found that the Additional Collector incorrectly held that a second appeal was maintainable, as Section 46(b) of the MPLR Code explicitly prohibits it for orders under Section 248.
Issues: Whether the Additional Collector's dismissal of the revision was maintainable under the MPLR Code, specifically regarding the applicability of Section 46(b).
Ratio Decidendi: The court held that since the order under Section 248 was the subject of the revision, the second appeal was not maintainable, and the Additional Collector's ruling was a material illegality.
Result: The court set aside the Additional Collector's order and remanded the matter for a decision on the merits.
ORDER :
1. This petition under Article 226 of Constitution of India has been filed against the order dated 26-7-2023 passed by Additional Collector, Damoh in Revision/007/2022-23 by which the revision filed by petitioner has been held to be not maintainable in the light of section 44(2) of MPLR Code.
2. It is submitted by counsel for petitioner that in exercise of power under section 248 of MPLR Code, the Tahsildar, Tahsil Hata, District Damoh in Case No. 202/A/68/2022-23 dated 15-1-2023 had passed an order of eviction and also imposed a penalty of Rs. 2000/-. The said order was assailed by petitioner by filing an appeal before SDO (Revenue), Hata, District Damoh, which was registered as appeal No. 85/Appeal/year 2022-23, which was dismissed by order dated 2-5-2023.
3. Being aggrieved by the said order, the petitioner preferred a revision before Collector, Damoh, however the said revision has been dismissed by the impugned order dated 26-7-2023 on the ground of maintainability.
4. Challenging the order passed by the Additional Collector, Damoh, it is submitted by counsel for petitioner that in fact, the second appeal is not maintainable in the light of section 46(b) of MPLR Code. It is submitted that since the question passed under section 248 of MPLR Code was the subject matter of the revision, therefore no second appeal lies and the Additional Collector, Damoh committed a material illegality by holding that the second appeal would lie and revision is not maintainable.
5. Per contra, the petition is vehemently opposed by counsel for State. It is submitted that in fact the petitioner should have filed a miscellaneous petition under Article 227 of Constitution of India and not a writ petition under Article 226 of Constitution of India.
6. Heard the learned counsel for parties.
7. So far as the nature of writ petition filed by the petitioner is concerned, the counsel for respondent is correct that petitioner should have filed a miscellaneous petition under Article 227 of Constitution of India. However, the forum would not change and, therefore this petition is being decided as a petition under Article 227 of Constitution of India.
8. Section 46(b) of MPLR Code reads as under:
“(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.”
9. The undisputed fact is that an order under section 248 of MPLR Code was passed against petitioner, which was the subject-matter of challenge before the Additional Collector. Thus, in the light of section 46(b) of MPLR Code, the second appeal was not maintainable and revision under section 173 of MPLR Code was rightly filed.
10. Accordingly, the order dated 26-7-2023 passed in Revision No. 07/2023-24 passed by Additional Collector, Damoh is hereby set aside.
11. The matter is remanded back to the Additional Collector, Damoh to decide the revision on merits.
12. The parties are directed to appear before the Additional Collector, Damoh on 13-2-2024.
13. With aforesaid observation, the petition is allowed.
AI
A second appeal is not maintainable against orders passed under Section 248 of the MPLR Code, as per Section 46(b), necessitating a revision instead.
The court established that revisional authority cannot interfere with interlocutory orders lacking sufficient reasoning, emphasizing the need for a reasoned decision.
A writ of mandamus can be issued to direct statutory authorities to decide pending applications within a stipulated time frame after due notice to parties.
The court emphasized that the issue of limitation must be resolved before considering the merits of a case, reinforcing procedural correctness in judicial decisions.
Point of law: Protection of possession - specific instances given in writing in the memo of appeal to point out that in few cases, enormous delay is condoned by the very authority, but the same has n....
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