Madhya Pradesh High Court
Soneram Verma (Dead) Through Lrs 1) Smt. ... vs Rairu Distillery Ltd. (Deleted) Bapuna ... on 19 February, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:3607
1 WP-801-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 19th OF FEBRUARY, 2025
WRIT PETITION No. 801 of 2015
SONERAM VERMA (DEAD) THROUGH LRS 1) SMT. VIMLA VERMA
AND OTHERS
Versus
RAIRU DISTILLERY LTD. (DELETED) BAPUNA ALCOBREW
PRIVATE LIMITED THROUGH ITS AUTHORIZED SIGNATORY P.V
Appearance:
Shri Rohit Bansal - Advocate for petitioner.
Shri Sameer Kumar Shrivastava - Advocate for the respondent [R-1].
ORDER
This petition under Article 226 of the Constitution of India has been
filed by the petitioner against the order dated 04.12.2014 passed by Board of
Revenue, Gwalior in Revision No.4512-PBR/13 whereby revision preferred
by the petitioner against the order dated 10.12.2013 passed by the
Commissioner Gwalior Division in Appeal No. 322/12-13 arising out of the
order dated 31.08.2012 passed by SDO in Appeal No.168/2011/12 was
dismissed.
2. Learned counsel for the petitioner has further challenged the
impugned order dated 10.12.2013 passed by Commissioner, Gwalior
Division on the ground that without condoning delay, the appeal could not
have been heard and considered on merits.
3. In the present case, initially the petitioner had executed a sale-deed
NEUTRAL CITATION NO. 2025:MPHC-GWL:3607
2 WP-801-2015
in favour of Rairu Distillery Limited on 07.08.89. Since the said sale-deed
was executed in contravention of Section 165(7-b) of M.P. Land Revenue
Code, 1959, therefore, on the complaint of sons of petitioner, the Additional
Collector had taken up the matter in suo motu revision, which was disposed
off on 20.12.2006. Thereafter, under the order of this Court passed in W.P.
No.3287/2008, the petitioner preferred an application u/S. 165 of M.P. Land
Revenue Code, 1959 before the Collector. The Collector had sent the matter
to Tehsildar to conduct enquiry and submit report. Thereafter, the Tehsildar
started proceedings by registering case No.45/2008-09/B-121 and by order
dated 12.03.2012 had directed to delete the name of respondent from the
revenue records with further direction to substitute the names of petitioners.
Against the order dated 12.03.2012, the Rairu Distillery Limited had filed an
appeal before SDO which was dismissed vide order dated 31.08.2012.
Thereafter against the said order dated 12.03.2013 passed by the Tehsildar
and the order dated 31.08.2012 passed by SDO, an appeal was preferred
by Rairu Distillery Limited before Additional Commissioner, Gwalior
Division which was allowed by order dated 10.12.2013, which when
challenged in revision before Board of Revenue, was reversed vide order
dated 4.12.14. Aggrieved by the said order, this petition had been filed.
4. It is submitted by learned counsel for the petitioner that since the
appeal preferred before the Additional Commissioner was with a delay of
three and a half months, learned Additional Additional without condoning
the delay, had allowed the appeal while setting aside orders dated 12.03.2013
and 31.08.2012 which is per se illegal as it is a settled law that before
NEUTRAL CITATION NO. 2025:MPHC-GWL:3607
3 WP-801-2015
condoning the delay, there would be no appeal/revision in the eyes of law
before the authority, which could be heard. Further the respondent alongwith
the appeal had preferred an application under Section 5 of Limitation Act
which was duly replied by the petitioner and though learned Additional
Commissioner in its order (Annexure P/20) had admitted the fact that the
appeal was barred by limitation and notices were issued to the respondent
but thereafter final order dated 10.12.2013 was passed without considering
the delay and when this objection was raised before learned Board of
Revenue, learned Board of Revenue had also held that though delay was
there, but it was only three and a half month which can be foregone after
considering the merits of the case and on this technical ground alone no
interference is the order of Commissioner is required.
5. It is also submitted that the respondent has also admitted the fact that
delay had not been condoned by the Additional Commissioner before
passing the order and without considering the application under Section 5 of
Limitation Act preferred by the respondent, the order dated 10.12.2013 was
passed by the Additional Commissioner which is nonest in the eyes of law,
thus, it is prayed that the order dated 10.12.2013 be set-aside.
6. No other ground has been raised by learned counsel for petitioner.
7. Per contra, learned counsel for the respondent submits that though it
was fairly admitted by him that delay, if any, occurred in preferring appeal,
ought to be condoned before adverting upon merits, but this is not the cause
of prejudice to the petitioner because the appeal was well within the
limitation. The SDO has passed the order on 31.08.2012 and as per Section
NEUTRAL CITATION NO. 2025:MPHC-GWL:3607
4 WP-801-2015
47 of Madhya Pradesh Land Revenue Code, 1959, the period of limitation
for filing first or second appeal shall be forty-five days from the date of the
order, thus, in legal parlance, the period in the hands of respondents were till
15.10.2012. The respondent had applied for grant of cerfitied copy of the
order on 10.10.2012 which was within limitation and thereafter, the certified
copy of the order dated 31.08.2012 was delivered to it on 04.02.2013 which
is endorsed on the certified copy and the appeal was preferred before the
learned Additional Commissioner on 05.02.2013, thus after adjusting the
copying days and calculating the period of limitation, the appeal was very
well within limitation. Therefore, learned Board of Revenue had held that the
appeal preferred before the learned Commissioner was well within limitation
and the period required for obtaining the certified copy of the order has to be
excluded. It is further submitted that just because an Advocate had
mistakenly filed an application under Section 5 of Limitation Act does not
render the appeal barred by limitation. Hence, it is prayed that the present
petition be dismissed.
8. Heard counsel for the parties and perused the record.
9. It is not disputed that learned SDO had passed the order on
31.08.2012 and as per Section 47 of Madhya Pradesh Land Revenue Code,
1959, the period of limitation for filing first or second appeal shall be forty-
five days from the date of the order and the said period of forty-five days
was to be over by 15.10.2012. The respondent had applied for certified copy
of the order dated 30.08.2012 passed by learned SDO on 10.10.2012 which
was within limitation and was served with the copy on 04.02.2013.
NEUTRAL CITATION NO. 2025:MPHC-GWL:3607
5 WP-801-2015
10. Sub-Section (2) of Section 12 of the Limitation Act 1963 in the
present context is relevant which is reproduced hereunder:-"
12. Exclusion of time in legal proceedings.
xxx xxx xxx xxx
(2) In computing the period of limitation for an appeal or an
application for leave to appeal or for revision or for review of a
judgment, the day on which the judgment complained of was
pronounced and the time requisite for obtaining a copy of the
decree, sentence or order appealed from or sought to be revised or
reviewed shall be excluded".
11. In the light of Section 12 (2) of Limitation Act, 1963, if the time
taken for obtaining the certified copy of the order passed by SDO is
excluded, then the limitation period was to be expired on 09.02.2013 and as
appeal was preferred by the respondent before learned Additional
Commissioner on 08.02.2013, it could be said that the appeal preferred
before the learned Additional Commissioner was within limitation, thus,
there was no need as such to file any application u/S. 5 of Limitation Act,
though it was filed, which since was not considered would not cause any
prejudice to the petitioner. Hence, no illegality has been committed by
learned Additional Commissioner in passing the order dated 10.12.2013 on
merits without considering the application filed by the respondent under
Section 5 of Limitation Act.
12. Consequently, the petition being devoid of merits, is hereby
dismissed.
(MILIND RAMESH PHADKE)
JUDGE
ojha
NEUTRAL CITATION NO. 2025:MPHC-GWL:3607
6 WP-801-2015
