Madhya Pradesh High Court
Mohammad Ayub@ Munna Ansari vs Dasrath Prasad Gupta on 9 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:1009
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 9 th OF JANUARY, 2025
WRIT APPEAL No. 1875 of 2024
MOHAMMAD AYUB@ MUNNA ANSARI AND OTHERS
Versus
DASRATH PRASAD GUPTA AND OTHERS
Appearance:
None for the appellants.
Shri Ritwik Parashar- Government Advocate for the respondent/State.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
This appeal under Section 2(1) of Madhya Pradesh Uchcha Nyalaya
(Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed being
aggrieved by the order dated 26.07.2024 passed in M.P. No.3996/2024, by
which the said petition was dismissed with direction to the petitioner to
remove the encroachment within 15 days' and restrained the respondent-
authority from taking any action against the petitioners for 15 days'.
2. Brief facts of the case are that the present appellants had filed a
Miscellaneous Petition against the impugned order dated 08.04.2024, passed
by the SDO and Land Revenue Officer, Hanumana, District Mauganj and
impugned order dated 15.05.2024 passed by Tahsildar, Tahsil Hanumana,
District Mauganj. Being aggrieved by the same, the present appellants filed
the Miscellaneous Petition No.3996/2024 before the learned Single Judge
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which was also dismissed vide order dated 26.07.2024. Being aggrieved by
the order passed by the learned Single Judge, the appellants have preferred
this writ appeal
3. At the very outset, in the present appeal, the office has pointed out the
objection that this appeal is not maintainable since it is being filed against the
orders passed by the learned Single Judge in a Miscellaneous Petition while
exercising jurisdiction under Article 227 of the Constitution of India.
4. Perused the record.
5. It is an axiomatic fact that as per Section 2(1) of the Madhya Pradesh
Uchcha Nyalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 a writ
appeal lies against the order passed in a writ petition filed under Article 226
of the Constitution of India. In the present case, it is not disputed that the
impugned order is passed in a Miscellaneous Petition filed under Article 227
of the Constitution of India and even the learned Single Judge passed the
impugned order while exercising jurisdiction under Article 227 of the
Constitution of India.
6. For ready reference, Section 2(1) of Madhya Pradesh Uchcha Nyalaya
(Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is reproduced as below :-
"2. Appeal to the Division Bench of the High Court
from a judgment or of one Judge of the High Court
made in exercise of original jurisdiction.--
(1) An appeal shall lie from a Judgment or order passed
by one Judge of the High Court in exercise of original
jurisdiction under Article 226 of the Constitution of
India, to a Division Bench Comprising of two Judges of
the same High Court: Provided that no such appeal shall
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lie against an interlocutory order or against an order
passed in exercise of supervisory jurisdiction under
Article 227 of the Constitution of India.
{2} An appeal under Sub-section {1} shall be filed
within 45 days from the date of order passed by a
Single Judge :
Provided that any appeal may be admitted after the
prescribed period of 45 days, if the petitioner satisfies
the Division Bench that he had sufficient cause for not
preferring the appeal within such period.
Explanation - The fact that the petitioner was misled by
any order, practice or judgment of the High Court in
ascertaining or computing the prescribed period may be
sufficient cause within the meaning of this sub-section."
7. In the case of Jaidev Siddha (DR) and others Vs. Jaiprakash Siddha
and others reported in 2007(3) M.P.L.J. 595 it has been held as under:-
"12. At this juncture, it would be appropriate to mention
a fact that we are not considering the power of High
Court under Article 226 or under Article 227, but are
considering the scope of Section 2 of Adhiniyam of
2005 specifically the matters arising out of order passed
by Courts or Tribunals. The remedy of appeal has been
provided under Section 2. The aforesaid provision
specifically provides two circumstances, one of original
exercise of the jurisdiction under Article 226 of the
Constitution and another supervisory jurisdiction under
Article 227 of the Constitution. In first case, the right of
appeal is available while in latter, the aforesaid right is
not available. In the appeal matter is to be examined in
the facts and circumstances of the each case and in case
original jurisdiction is not exercised by the High Court
under Article 226, right of appeal is not available."
8. In view of the law laid down by the by the Division Bench of this of
this Court in the case of Jaidev Siddha (DR) (supra) , this Court is of
considered opinion that this appeal is not maintainable.
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9. Accordingly, the same is hereby dismissed.
10. No order as to cost(s).
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
AL
