IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA nd ON THE 22 OF FEBRUARY, 2024 WRIT PETITION No. 32121 of 2023 BETWEEN:-

SHANTILAL @ SANTOSH S/O KASHIRAM KULMI, AGED ABOUT 38 YEARS, OCCUPATION: AGRICULTURIST VILLAGE BODHWADA BUJURG, TEHSIL AND DIST.

DHAR (MADHYA PRADESH)

.....PETITIONER (BY SHRI AKASH RATHI- ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH DEPARTMENT OF REVENUE THROUGH PRINCIPLE SECRETARY VALLABH BHAWAN, ARERA HILLS, BHOPAL (MADHYA PRADESH)

2. ADDITIONAL COLLECTOR DHAR (MADHYA PRADESH)

3. SUB DIVISIONAL OFFICER (REVENUE) DHAR (MADHYA PRADESH)

4. ADDITIONAL TEHSILDAR CIRCLE TIRLA TEHSIL DHAR DIST DHAR (MADHYA PRADESH)

5. RATANBAI W/O DURGASHANKAR OCCUPATION:

AGRICULTURIST VILLAGE TIRLA TEHSIL AND DISTRICT DHAR (MADHYA PRADESH)

.....RESPONDENTS ( RESPONDENTS/STATE BY SHRI MUKESH PARWAL - GOVT. ADVOCATE AND RESPONDENT NO.5 BY SHRI ROHIT SINNARKAR - ADVOCATE)

This petition coming on for admission this day, the court passed the following:

ORDER

Signature Not Verified Signed by: NEERAJ

1. With consent heard finally.

2. By this petition preferred under Article 226 of the Constitution of India the petitioner has challenged the order dated 30.11.2023 (Annexure P/6) passed by the Additional Collector, District Dhar whereby the Revision preferred by respondent No.5 has been allowed.

3. The facts in brief are that the Nayab Tehsildar, Circle 2, Tirla passed an order on 11.11.2005 in a mutation proceeding. Being aggrieved by that order respondent No.5 preferred an appeal under Section 44 of M.P. Land Revenue Code, 1959 before the Sub Divisional Officer, Dhar, District Dhar. Since the same was barred by time an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal was also filed by her. By order dated 05.09.2022 the Sub Divisional Officer rejected the application under Section 5 of the Limitation Act preferred by respondent No.5 and consequently dismissed the appeal as barred by time. Being aggrieved by that order respondent No.5 preferred a Revision under Section 50 of the Code, 1959 before the Additional Collector, who by the impugned order has decided the matter on merits itself and has consequently set aside the order dated 05.09.2022 passed by the Sub Divisional Officer as well as the original order dated 11.11.2005 passed by the Nayab Tehsildar.

4. The record shows that the appeal preferred by respondent No.5 before the Sub Divisional Officer was dismissed as barred by time upon rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the same. In the Revision preferred against that order the only jurisdiction vested with the Additional Collector was to examine as to whether the Sub Divisional Officer has rightly refused to condone the delay in filing the appeal. If he was of the opinion that the delay ought to Signature Not Verified Signed by: NEERAJ have been condoned by the Sub Divisional Officer, then the only course available to him was to condone the delay and thereafter remand the matter back to the Sub Divisional Officer for decision of the appeal on merits. If he had held that the Sub Divisional Officer had rightly refused to condone the delay, then he ought to have affirmed the said order on that ground itself. In either of the cases he had no jurisdiction whatsoever to have decided the dispute between the parties on merits and to have passed a final order therein. The impugned order dated 30.11.2023 passed by the Additional Collector shows that he has not recorded a finding either way as to whether the delay in preferring of the appeal ought to have been condoned by the Sub Divisional Officer. The impugned order hence cannot be sustained.

5. As a result the petition deserves to be and is accordingly allowed.

The impugned order dated 30.11.2023 passed by the Additional Collector is set aside and the matter is remanded back to him for deciding the same in accordance with law and in view of the observa