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Prem Shankar Mishra v/s Chief Municipal Officer

    Miscellaneous Petition Nos. 154 & 155 of 2021

    Decided On, 11 June 2021

    At, High Court of Madhya Pradesh Bench at Gwailor


    For the Appearing Parties: Manish Sharma, Sankalp Sharma, Advocates.

Judgment Text

Anand Pathak, J.

1. Regard being had to the commonality of the issue involved, both the cases are heard analogously and disposed of by common order.

2. The instant petition has been preferred under Article 226 of the Constitution of the India seeking quashment of impugned order dated 08.12.2020 (Annexure P/1) passed by the court of Collector, District Shivpuri, whereby appeal preferred by the petitioner as appellant under Section 9 of Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam (for brevity "the Act"), has been dismissed.

3. Precisely stated facts of the case are that the Chief Municipal Officer, Municipal Council, District Shivpuri (respondent herein) submitted application under Sections 4 and 5 of the Adhiniyam, 1974 before the competent authority/SDO against the petitioner for vacating the premises occupied by the petitioner. Admittedly, house is owned by the Municipal Council and the same was allotted to one Devkinandan Mishra (father of petitioner) on rent. Later on, council intended to get the premises vacated, but faced resistance from petitioner, therefore, filed the case before the SDO.

4. It appears from the pleadings and documents that SDO, Shivpuri, as competent authority passed the order dated 29.01.2018 (Annexure P/2) and allowed the application so preferred by the council and directed the petitioner to vacate the premises within 14 days. Being aggrieved by the said order, petitioner preferred appeal under Section 9 of the Adhiniyam before the court of Collector, District Shivpuri instead of Commissioner, District Shivpuri, because under the Act, appellate authority is the Commissioner, not the Collector, but it appears that said legal position has not been brought on record and the Collector, District Shivpuri has passed impugned order which according the counsel for the petitioner is without jurisdiction, hence void as initio.

5. Learned counsel for the respondent could not dispute the said legal position but referred the fact that said jurisdiction has been chosen by the petitioner himself and appeal has wrongly been preferred before the court of Collector, Shivpuri by the petitioner, therefore, he cannot be allowed to get the premium over his own folly.

6. Heard learned counsel for the parties and perused the documents appended thereto.

7. This is a case under Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam,1974. Relevant provision is Section 9 of the Bedakhali Adhiniyam and is material for adjudication of the controversy.

Section 9 of the Adhiniyam reads as under:-

Appeals.- (1) The State Government may, by notification, appoint such person being an officer not below the rank of Collector as appellate authority for the purpose of this Act in respect of such areas as may be specified in the notification.

(2) An appeal shall lie from every order of the competent authority made in respect of any public premises under Section 5 or Section 7 to the appellate authority appointed under sub-section (1).

(3) An appeal under sub-section (1) shall lie,-

(a) in case of an appeal from an order under Section 5, within fifteen days from the date of publication of the order under sub-section (1) of that section; and

(b) in the case of an appeal from an order under Section 7, within fifteen days from the date on which the order is communicated to the appellant:

Provided that the appellate authority may entertain the appeal after the expiry of the said period of fifteen days, if such authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(4) Where an appeal is preferred from an order of the competent authority, the appellate authority may stay the enforcement of that order for a total period not exceeding sixty days and on such conditions as it may deem fit.

(5) Every appeal under this section shall be disposed of by the appellate authority as expeditiously as possible.

(6) The costs of any appeal under this section shall be in the discretion of the appellate authority.]

8. After due search, it is found that as per notification dated 12.06.1981, No.13-45/80-2A(3) issued by the Under Secretary, Home (General) Department indicates that under the Bedakhali Adhiniyam, Divisional Commissioner has been notified as Appellate Authority for the purpose of Section 9 of the Act. Therefore, appropriate Appellate Authority is Divisional Commissioner.

9. No other document / notification or any circular has been placed by either of the parties to demonstrate any change in the jurisdiction of Divisional Commissioner as Appellate Authority. In absence of the same, it appears that Collector did not have the authority to hear the appeal. He exceeded the jurisdiction while acting as appellate authority.

10. Resultantly, impugned order dated 08.12.2020 passed by the Collector, Shivpuri is hereby set aside on the point of jurisdiction.

11. Consequently, petitioner is at liberty to file appeal and appropriate application for stay if advised so, within 15 days from the date of passing of this order before the Divisional Com

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missioner alongwith copy of this order. If the appeal and appropriate application are being preferred within aforesaid time, competent appellate authority shall deal with the matter on its own merits without stressing over the delay caused. Appellate Authority is at liberty to decide the application for stay first. 12. Needless to say that case, in hand, shall be heard and decided by the Appellate Authority as expeditiously as possible preferably within three months from the date of filing of appeal. 13. Petition stands allowed and disposed of in above terms.