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2021 DIGILAW 242 (MP)

Ramdas Lodhi v. State of M. P.

2021-02-25

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. The present petition is being filed by the petitioner under Article 227 of the Constitution of India seeking following reliefs :- "(I) That, the impugned order of Annexure P/1, P/2 and P/7 may kindly be quashed. (II) That, the order of Annexure P/3 dated 08.05.1990 may kindly be confirmed. (III) That, any other relief which this Hon'ble Court may deem fit may kindly be granted." 2. The present petition is being filed by aggrieved by the impugned order dated 15.10.2019 passed by the Additional Commissioner, Gwalior Division, Gwalior (M.P.) whereby the appeal has been dismissed stating that the same is not maintainable against the order passed by the learned S.D.O. whereby the appeal has been dismissed on the ground of limitation. 3. It is argued that the ownership has already granted to father of the petitioners by the Tehsildar in Case No. 232/89-90- vide order dated 08.05.1990 with respect to Survey No. 33 Rakwa 0.60 Hectare and similarly Survey No. 33/1 Rakwa 0.40 Hectare, Survey No. 76/2 Rakwa 1.00 Hectare. It is submitted that the name of father of the petitioners was duly recorded in the revenue record and continued up the year of 2017-2018 but khasra entries is not attached alongwith the petition. The entries are also made in Daiyara Panji at Serial No. 170. The petitioners were in possession of cultivating land in question since from the year 1988-89. Thereafter, an order has been passed by the Tehsildar, Tehsil Karera, District Shivpuri on 25.10.2017 making an observation that the lease was illegally granted in favour of the petitioners and has cancelled the entries recorded in the name of the petitioners' father. No notice was issued to the petitioners nor any opportunity of hearing was granted prior to passing such orders. Merely on the basis of Patwari's report, the order has been passed. The father of the petitioner's has expired, therefore, the appeal was preferred by the petitioners against the order passed by the Tehsildar. As the order was passed by the Tehsildar which was not in the knowledge of the petitioners, therefore, the petitioners have filed an appeal alongwith application under Section 5 of the Limitation Act as claiming the reasons for the delay before the S.D.O. Karera. The S.D.O., Karera has dismissed the appeal holding that the same is barred by limitation and the limitation has not been properly explained. The S.D.O., Karera has dismissed the appeal holding that the same is barred by limitation and the limitation has not been properly explained. Again the order passed by the S.D.O. a revision was preferred before the Additional Commissioner, District Gwalior. The same has also been dismissed and is not to be maintainable. It is pointed out that the Bhumiswami Rights were conferred by the father of the petitioners far back in the year 1990 and since they were cultivating and were in possession of the property in question and continued upto the year 2017. The names were also recorded in the revenue record but after elapse of almost 30 years, the action has been taken against the petitioners by the learned Tehsildar without providing of any opportunity to them. He has placed reliance the Section 117 of Madhya Pradesh Land Revenue Record (M.P.L.R.C.) and has argued that the aforesaid legal provision has not been considered by the authorities. He has further relied upon the judgment in the case of E. Parashuraman (deceased by L.Rs.) vs. V. Doraiswamy (deceased by L.Rs.) with G. Ramachandran v. V. Doraiswamy (deceased by L.Rs.), AIR, 2006 (SC) 376 and Karewwa and others v. Hussensab Khansaheb Wajantri and others, AIR, 2002 (SC) 504 and has submitted that the provision of Section 117 of MPLRC is ex parte which was followed by the authorities prior to passing such order. It is submitted that the order is per se illegal and arbitrary and is violative of principles of natural justice. In such circumstances, the order is unsustainable. He prayed for quashment of the same. 4. Per contra, learned counsel appearing on behalf of the State has supported the impugned order and has submitted that the same has rightly been passed and as the inquiry was conducted in the matter and it was found that the same has been wrongly been extended in favour of the petitioners without any legal authority. But he fairly admits the fact that the opportunity of hearing was granted to the petitioners is not reflected in the impugned order. He submits that the matter may be remanded back to the authorities for reconsideration and the authorities will provide opportunity of hearing to the petitioners and decide the case afresh. 5. But he fairly admits the fact that the opportunity of hearing was granted to the petitioners is not reflected in the impugned order. He submits that the matter may be remanded back to the authorities for reconsideration and the authorities will provide opportunity of hearing to the petitioners and decide the case afresh. 5. Learned counsel for the petitioners has submitted that as they are in possession of the property till date, therefore, the parties may be directed to be maintained status quo till the decision on the appeal passed by the S.D.O. 6. Heard the leaned counsel for the parties and perused the record. 7. From the perusal of the record, it is seen that the petitioners are in possession of the property since from 1990 and they were conferred the Bhumiswami Rights over the property in dispute by the order of Tehsildar passed in the year 1990. Therefore, the impugned order has been passed in the year 2017 and the name of father of the petitioners was directed to be deleted from the revenue records. No opportunity of hearing was granted to the petitioners as is reflected from the impugned order. The State counsel has fairly admitted the aforesaid proposition and has submitted that the matter may be remanded back, in such circumstances, the order impugned dated 15.10.2019 (Annexure P/1) passed by the Court of the Additional Commissioner, Gwalior Division, Gwalior and the order dated 16.10.2018 (Annexure P/2) passed by the S.D.O., Karera, District Shivpuri and the order dated 25.10.2017 (Annexure P/7) passed by the Tehsildar, Karera, District Shivpuri are unsustainable and is hereby quashed. The matter is remanded back to the learned S.D.O. for reconsideration and after providing an opportunity of hearing to the petitioners the appeal may be decided by the S.D.O. again. The aforesaid exercise be completed within a period of 90 days from the date of receipt of the certified copy of this order. 8. Needless to say that as the petitioners are in possession of the property till date, the parties are directed to be maintained the status quo till the decision on the appeal given by the S.D.O. 9. The petition is disposed of. 10. E-copy/certified copy as per the rules/directions.