ANIL KUMAR DIKSHIT Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE petitioner has filed this petition under Article 226 of the Constitution of India, (the same appears to be under Article 227 of the Constitution of India) being aggrieved by the order dated 12.2.2013 (Annexure-P-7) passed by the Board of Revenue in Second Appeal No. A 3027-I/2012, whereby, his second appeal filed under Section 44(2) of Madhya Pradesh Land Revenue Code (in short 'the Code') against the order dated 30.11.2010 (Annexure-P-4) passed by the Commissioner, Jabalpur Division in case No. 89/A-73/2009-10, without examining the merits of the matter, only by rejecting the application under Section 5 of the Limitation Act, filed for condoning the delay in filing such appeal, has been dismissed.

(2.) SHRI Ramashankar Yadav, learned appearing counsel for the petitioner after taking me through the papers placed on the record by referring the copy of the order dated 6.8.2012 (Annexure-P-5) passed by this Court in writ petition No.4345/11(0) said that, subsequent to passing the order (Annexure-P-4) by the Commissioner Jabalpur Division Jabalpur, instead to file the second appeal, under the bonafide advise, he has filed the abovementioned writ petition No.4345/11(0) on dated 07.03.2011. In view of availability of alternate forum of appeal under the Code the same was disposed of by this Court vide order dated 6.8.2012 by extending him a liberty to assail the order of Commissioner (Annexure-P-4) availing the remedy provided under the Code with a further observation that if such appeal or revision is filed within four weeks along with a copy of the aforesaid order of the writ petition, then the authority concerned to hear and decide the same on merits and shall not dismiss it only on the ground of limitation. In continuation he said that, subsequent to order Annexure-P-5, the petitioner herein filed the impugned second appeal before the Board of Revenue along with the application under Section 5 of the Limitation Act for condoning the delay in filing the appeal. In such application the averments regarding period spent in prosecuting of the aforesaid writ petition and it's order was stated, but in the lack of proper advice on the cause title of the application Section 14 of the Limitation Act was not stated. He further said that as per Section 14 of the Limitation Act, the party is entitled to get exclusion of the period of limitation spent by him in prosecuting the proceedings before the wrong forum under the bonafide advise, but in the lack of mentioning the Section 14 of the Limitation Act, on cause title in such application such provision was not taken into consideration by the Board of Revenue and by holding that no sufficient cause is made out to condone the alleged delay, such application was dismissed and pursuant to that, without examining the merits of the matter, the appeal was also dismissed. With these submissions, prayed to set aside the impugned order (Annexure-P-7) and allowing his application filed under Section 5 of the Limitation Act, by admitting and allowing this petition and pursuant to that, matter be remitted back to the Board of Revenue with a direction to decide the same afresh on merits.

(3.) HAVING heard the counsel, keeping in view their arguments, I have carefully gone through the papers placed on the record. It is apparent that subsequent to passing the order Anenxure-P-4, by the Commissioner Jabalpur, on 30.112010 after obtaining the copy of the same within limitation, the petitioner has filed the aforesaid writ petition No. 4545/11, which was disposed of by this Court vide order (Annexure-P-