(BY SHRI MAKBOOL AHMAD MANSOORI - ADVOCATE) v. SITAMAU, (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI ANAND BHATT – G.A./P.L. FOR STATE AND SHRI ARJUN PATHAK – ADVOCATE FOR RESPONDENT NO.5) …............................................................................................................ This petition coming on for admission this day, the court passed the following: Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 9/2/2023 4:08:55 PM 2 ORDER Although, on 19.01.2023, notices were issued to the respondents and the interim order was also passed in favour of the petitioner, but till date the State has not filed the reply. 2] Counsel for the respondent/State submits that he is ready to argue the matter on merits. 3] 4] Thus, heard the matter finally, with the consent of the parties. In brief, the facts of the case are that the petitioner has filed this petition under Article 226 of the Constitution of India being aggrieved by the order dated 10.01.2023, passed by the Additional Commissioner in Appeal No.1009/Appeal/2021-22, whereby the order dated 21.02.2022, passed by SDO, in appeal No.38/Appeal/2021022 at the instance of the present petitioner, whereby the order passed by the Tehsildar on 07.06.2021, in Case No.0134/A-6/2021-22 reviewing his own order dated 30.04.2021 was challenged. 5] The case of the petitioner is that he purchased the property from the respondent No.5 through a registered sale deed 11.11.2020. Thereafter, he applied for mutation of the same, and the order of mutation was also passed in favour of the petitioner on 30.04.2021 by Tehsildar. However, subsequently, Tehsildar, on his own, reopened the matter and sought the sanction for review of the case under Section 51 of the M.P. Land Revenue Code, 1959 (in short 'Code of 1959') from the SDO, and the SDO, vide its order dated 03.06.2021, has granted the sanction to review the same, and consequent thereto, Tehsildar has recalled his earlier order of mutation, which was passed in favour of the petitioner. 6] Counsel for the petitioner has submitted that both the authorities, namely, Tehsildar, as also the SDO, have erred in not giving any opportunity of hearing to the petitioner before passing the Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 9/2/2023 4:08:55 PM 3 orders on review. It is also submitted that as per Section 51 of the Code of 1959, it was necessary for the authorities to hear the petitioner before passing any order, which is also mandated as per Sub-section (1)(ii) of Section 51 of the Code of 1959. 7] It is also submitted that the transaction of sale of land was between the private parties only and in such circumstances, Sub- section (1)(iv) of Section 51 of the Code of 1959 would also be applicable and Tehsildar has no jurisdiction to review the order. Thus, it is submitted that the Additional Commissioner has also erred in affirming the aforesaid orders stating that the petitioner was not required to be heard before passing the aforesaid orders. 8] Counsel for the respondent/State has opposed the prayer, and it is submitted that no illegality has been committed by the Additional Commissioner in affirming the orders passed by the Tehsildar and SDO, as even as per the subsequent report of Patwari, the land has not been found at the place which is mentioned in the sale deed. 9] Counsel for the respondent No.5, who happens to be the seller of the land submits that the petition deserves to be allowed. 10] On due consideration of submissions, perusal of the documents filed on record, this Court finds that it is not disputed that neither the Tehsildar before passing the order dated 07.06.2021, nor the SDO, who sanctioned the review by Tehsildar vide order dated 03.06.2021, the petitioner was given any opportunity of hearing. 11] So far as Sub-sections (1) (ii) & (iv) of Section 51 of Code of 1959 are concerned, which are relevant to this petition, the same read as under:- “51. Review of orders.— (1)xxxxxxxxxx no order shall be varied or reversed (ii) unless notice has been given to the parties interested to appear and be heard in support of such order; Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 9/2/2023 4:08:55 PM 4 xxxxxxxxxxxx (iii) no order affecting any question of (iv) between private persons shall be reviewed except on the application of a party to the proceedings, and no application for the review of such order shall be entertained unless it is made within forty-five days from the passing of the order.” 12] It is apparent from the aforesaid provision, that the notice of hearing is intrinsic in s.51(1)(ii), particularly, to the interested party, and since it is not denied that the petitioner has not been served any notice before passing the aforesaid orders, the finding recorded by the Additional Commissioner that notice to the petitioner is not necessary appears perverse and cannot be sustained in the eyes of law. In view of the same, impugned order dated 10.01.2023 is hereby set aside, and the matter is remanded back to the SDO with a direction to pass the order afresh, after giving due opportunity of hearing to the petitioner. 13] Petitioner is also directed to appear before the SDO on

19.09.2023. 14] It is made clear that this Court has not reflected upon the merits of the case. With the aforesaid, the petition stands disposed of. (Subodh Abhyankar) Judge Pankaj Signature Not Verified Signed by: PANKAJ PANDEY Signing time: 9/2/2023 4:08:55 PM