Nahar Singh vs Collector / District Magistrate ...
2023 Latest Caselaw 12182 MP

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                                 IN THE HIGH COURT OF MADHYA PRADESH
                                              AT I N D O R E
                                                                      BEFORE
                                              HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                     WRIT PETITION No. 3357 of 2011

                           BETWEEN:-
                           1. NAHAR SINGH S/O UMRAO SINGH, R/O
                              VILLAGE AGARWADA, TEHSI BADWAH,
                              DISTRICT KHARGONE (MADHYA PRADESH)
                           2. NARAYAN S/O UMRAO SINGH, R/O VILLAGE
                              AGARWADA, TEHSIL BADWAH, DISTRICT
                              KHARGONE (MADHYA PRADESH)
                                                                                                         .....PETITIONERS
                           (SHRI ADITYA GARG, ON BEHALF OF SHRI SATISH JAIN, LEARNED
                           COUNSE FOR THE PETITIONERS.)

                           AND
                              THE STATE OF MADHYA PRADESH, THROUGH
                           1. COLLECTOR,     KHARGONE,      DISTRICT
                              KHARGONE (MADHYA PRADESH)
                                THE DEPUTY COLLECTOR, KHARGONE,
                           2.
                                DISTRICT KHARGONE (MADHYA PRADESH)
                              MANOHAR S/O SITRAM SIRVI, R/O VILLAGE
                           3. NANDIYA   TEHSIL  BADWAH      DISTRICT
                              KHARGONE (MADHYA PRADESH)
                                                                                                        .....RESPONDENTS
                           (SHRI SUDARSHAN JOSHI, LEARNED GOVERNMENT ADVOCATE FOR THE
                           RESPONDENT / STATE)
                                              Reserved on                    :        24.07.2023
                                              Delivered on                   :        01.08.2023
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                                   This petition coming on for orders this day, the court passed the




Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 01-08-2023
18:48:45
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                           following:

                                                           ORDER

[01] The petitioners have filed the present petition being aggrieved by order dated 25.02.2011 passed by Additional Collector / Appellate Authority whereby the order passed by Sub-Divisional Officer (SDO) dated 15.10.2010 has been set aside. [02] The petitioner No.1 is the owner of agricultural land bearing survey No.82/3 measuring 2.87 Hectare situated at Gram Agarwada. The said land was mortgaged with respondent No.3 vide mortgage deed dated 07.06.2000 for a sum of Rs.21,000/-. Likewise, petitioner No.2 is owner of land bearing survey No.82/3 area 2.87 Hectare which was mortgaged with respondent No.3 to get the loan of Rs.56,000/- and he has also got executed a sale-deed in Rs.80,000/-. [03] Both the petitioners approached the Sub-Divisional Officer under Section 5 and 6 of Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (hereinafter referred to as 'Adhiniyam of 1976').. The Sub-Divisional Officer after issuing notice to respondent No.3 considered the case on merit on 5 issues and declared mortgage-deed and sale-deed dated 05.05.1998 and 07.06.2000 respectively void and directed respondent No.3 to hand-over the possession.

[04] Being aggrieved by the aforesaid order, respondent No.3 preferred an appeal before the Collector which came to be allowed on the ground that the petitioner approached the SDO beyond the period of

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 01-08-2023 18:48:45

limitation prescribed under Section 5 and 6 of the Adhiniyam of 1976, therefore, the SDO had no authority to decide the case hence, this petition before this Court.

[04] Learned counsel for the petitioners submit that the issue on which the appeal has been allowed is no more res integra as Co-ordinate Bench of this Court in case of Ramjilal v/s Ganesha [1995 M.P.L.J. 6772] and Division Bench in case of Jahar Singh and another v/s Collector, Shivpuri District and others [AIR 1988 Madhya Pradesh 311] has held that Adhiniyam is not a temporary enactment but a perpetual one. The SDO has authority to declare the sale-deed void on an application or in exercise of suo-motu power. Paragraph No.12 and 13 of the Judgment Jahar Singh and another (supra) is reproduced below:

12. Although an application under Section 5 may be made in "such form and within the time and manner as may be prescribed" to avail protection and relief under the Adhiniyam, the power of the Sub-Divisional Officer to act suo motu under Section 6 is not affected thereby. True, there is some doubt about the time within which such application may be made as Rule 3 of 1978 Niyam is not clear. But, on that account, due to defect in Rule 3, jurisdiction to initiate, continue or conclude proceedings by the Sub-Divisional Officer under the Adhiniyam cannot be denied to him, when a defective application is made, not conforming to the requirement of Rule 3 law is well-settled. Rules cannot control or defeat any provision of the parent Act. According to us, it would be competent for the Section D. O. to act "on his own motion" when any "prohibited transaction of loan" is brought to his notice informally, in other words, in a manner which does not conform to the strict requirement of Section 5 of the Adhiniyam or Rule 3 of 1978 Niyam.

13. The power of the Section D. O. to act suo motu under Section 6 is not circumscribed. Indeed, neither in Section 5, nor in 6, nor in any other provision of the Adhiniyam, nor in Rule 3

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 01-08-2023 18:48:45

itself, any specified period of limitation is postulated. Limitation is a matter of procedure. Unless it is envisaged as a condition- precedent annexed to the enforcement of a substantive right, it is not permissible to create any time-bar on the basis of ambiguous subsiduary provision so as to impair the substantive right, making it unenforceable. Law of limitation, it is well-settled, is construed always in favour of the right to proceed (see-- Lala Balmukund, AIR 1975 SC 1089).

I have heard learned counsel for the petitioners.

[05] No one is appearing on behalf of respondent to oppose this petition, although, the reply has been filed. In view of the law laid down by the Co-ordinate Bench of this Court, the order is set aside, the matter is remitted back to the Collector to decide the same on merit.

Certified copy as per Rules.

(VIVEK RUSIA) JUDGE Divyansh

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 01-08-2023 18:48:45