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Madhya Pradesh High Court · body

2021 DIGILAW 44 (MP)

Daulat Singh v. State of M. P.

2021-01-18

VISHAL MISHRA

body2021
Advocate Appeared : Vishal Mishra, J. 1. With the consent of the parties, the matter is finally heard through VC. 2. The present misc. petition is being filed challenging the order dated 7.09.2020 passed by the Sub-Divisional Officer Basoda, District Vidisha, whereby the application filed by the petitioners under Section 89 of the MPLRC has been rejected. 3. Counsel for the petitioners submits that although he is having a remedy of appeal but looking to the facts and circumstances of the case he has preferred to file a petition directly before this Hon'ble Court for the reasons that after rejection of application under Section 89 by the SDO he has preferred an application under Section 115 to the Commissioner. The Commissioner has considered the application and has not passed any order upon the application and he remanded the matter back to the concerning SDO for consideration pointing out the fact that after the amendment in MPLRC on 27.07.2018 the provisions are repealed. Therefore, the present petition has been filed directly. It is pointed out that he has preferred an application under Section 115 and 116 of MPLRC for correction in the land records on the basis of premise that father of the petitioner No. 1 late Shri Hazarilal was owner of survey no. 332, 334 (old survey no. 211 & 232) and survey No. 371 (old no. 228 & 260) and his name was recorded in the revenue records since 1914-15. This entry existed even in land records of Samvat 2007 (year 1950) and the entry continued upto 1997-98. Suddenly, the name of the petitioners was deleted from the records without any order of the competent authority. Therefore, an application has been filed for correction in the revenue records. The aforesaid application came up for hearing before the learned Collector on 8.6.2017 and the learned Collector has opined that the said application is maintainable under Section 89 of MPLRC before the SDO which is competent authority and the application was rejected. Thereafter, an application under Section 89 of MPLRC with a prayer to make correction in records was moved before the SDO. The SDO being satisfied with the report of the Tahsildar for corrections of the records make a representation before the Collector for further action vide order sheet dated 7.3.2019 and on 16.04.2019 the records were called with the report from the Superintendent of land records. The SDO being satisfied with the report of the Tahsildar for corrections of the records make a representation before the Collector for further action vide order sheet dated 7.3.2019 and on 16.04.2019 the records were called with the report from the Superintendent of land records. Notices were issued to applicant for producing documents and accordingly on 11.09.2019 reply was filed. On 22.10.2019, the learned SDO passed an order overruling the order dated 17.09.2019 passed by the Tahsildar and forwarded the representation for correction in the records to the Collector for further action. It was again sent back to the SDO for information on 8 points vide order dated 3.1.2020. The same were answered by the Tahsildar on 17.01.2020. The Tahsildar has again recommended for correction in the revenue records. The Collector vide order dated 24.7.2020 (Annexure P/9) forwarded the same to the SDO recommending that correction should be made in the land records. The learned SDO without considering the representation and report of Tahsildar has dismissed the application of the petitioners without even complying with the orders passed by the superior authorities on 7.9.2019. It is argued by the counsel for the petitioners that the earlier application filed under Section 89 has been repealed and the application under Section 115 of MPLRC has been dismissed with a direction to file an application under Section 89 of MPLRC. It is submitted that the learned SDO should have considered the application and has passed the order on merits without making observation that as Section 89 of MPLRC is repealed no orders can be passed on application. It is argued that the application under Section 89 of MPLRC was filed prior to the amendment, therefore, as the amendment is prospective in nature, the application should have been considered by the SDO and decided on merits. It is argued that the application under Section 89 of MPLRC was filed prior to the amendment, therefore, as the amendment is prospective in nature, the application should have been considered by the SDO and decided on merits. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Commissioner of Income Tax, Bangalore vs. Smt. R. Sharadamma, reported in 1996 Scale (3) 343 and has argued that in cases of Repealed Act if there is no specific assertion with respect to applicability of the Act from retrospective effect then it is always considered to be from prospective effect and amendment is always considered to be prospective and if an application is filed prior to the amendment then the authorities are bound to consider it and decided on merits in terms of the pre-amendment propositions. In such circumstances, it is argued that the impugned order is per se illegal and the matter should be remanded to the SDO to decide it on merits as per the laws. 4. Per contra, counsel for the State has opposed the petition supporting the judgment passed by the learned SDO and has argued that he is having an alternative and efficacious remedy of filing an appeal against the impugned order. But he could not give justification to the effect that once the Section 89 provisions have already been repealed then under which provisions the application should have been filed and whether the provisions should be applicable from prospective or retrospective effect. It is argued that the application is dealt by the SDO is under Section 115 of MPLRC and the application was considered on merits. The learned SDO has not passed any order on merits rather on the basis of the repealed Act the application was disposed of. But he fairly submits that if the amendment is incorporated and there is no mentioning of enforcement of the aforesaid amendment from retrospective effect then it is always considered to be prospective in nature. In such circumstances, the SDO should have decided the matter on merits according to the existing laws. 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record it is seen that the amendment in MPLRC was made applicable from 27.07.2018 and the application Annexure P/4 was filed on 28.06.2017. In such circumstances, the SDO should have decided the matter on merits according to the existing laws. 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record it is seen that the amendment in MPLRC was made applicable from 27.07.2018 and the application Annexure P/4 was filed on 28.06.2017. Although, there is a remedy of filing an appeal against the impugned order but the fact remains that already an application under Section 115 of MPLRC and thereafter application under Section 89 of MPLRC on the basis of directions given by the Additional Collector was filed by the petitioners and the same has remained again unaddressed pointing out that in terms of the repealed provisions the application is not maintainable and the same was rejected. The law with respect to consideration of Repealed Act was considered by the Hon'ble Supreme Court in 1996 Scale (3) 343 (supra) and has held as under :- "The right becomes vested when the proceedings are initiated in the Tribunal or the court of first instance and, The principal underlying the said decision is squarely applicable herein. In this case also, a reference was made to the Inspecting Assistant Commissioner in accordance with the law in force on the date of reference. Once the Inspecting Assistant Commissioner was thus seized of the matter, he did not lose seizin thereof on account of the decision of sub-section (2) of Section 274. This is also the principle underlying Section 6 of the General Clauses Act." 7. Admittedly, the amendment is not applicable from retrospective effect it is prospective in nature and the application was filed prior to amendment, in such circumstances, the authorities should have considered and decided the application on merits as per the existing laws. In such circumstances, the prayer made by the petitioners appears to be reasonable and justified. Accordingly, the misc. petition is allowed. Impugned order is hereby quashed. Matter is remanded back to the SDO to reconsider the application and decide the same on merits and pass a speaking order and communicate the outcome to the petitioners within a period of three months from the date of communication of this order. He supposed to give audience to all the parties concerned. 8. It is made clear that this Court has not commented upon the merits of the case.