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2024 DIGILAW 70 (MP)

AJAY BAJAJ v. STATE OF Madhya Pradesh

2024-01-12

G.S.AHLUWALIA

body2024
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. 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.