1. This is a petition under Articles 226 and 227 of the Constitution of India by the petitioners praying for quashing of the order dated 25-9-1982 (Annexure VII) passed by respondent No. 4.
2. The undisputed facts of this case are that the petitioners are the legal heirs of the deceased Gokulchand Gupta who died on 12-5-1981 during the pendency of the appeal before respondent No. 4 the appellate authority and were brought on record as such.
3. Shri I. S. Rathore, Deputy Collector was appointed as competent authority for Rajgarh Biora and Khilchipur Tahsils by the Collector, Rajgarh under Section 3 of the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam 1974 (hereinafter referred to as the Adhiniyam) vide Notification dated 21-2-1975. Proceedings before Shri Rathore commenced on 28-3-1975. It is also not in dispute that by the subsequent Notification dated 17-7-1975 the Collector, Rajgarh appointed Shri S. P. Sonkia, Deputy Collector as the competent authorityunder the Adhiniyam for Narsinghgarh and Sarangpur Tahsils. However, Shri I. S. Rathore continued to be the competent authority for Rajgaarh and Khilchipur Tahsils vide Annexure II. Thereafter Shri L. C. Malviya, Deputy Collector was appointed as competent authority for Rajgarh and Khilchipur Tahsils vide Notification dated 2-1-1976 (Annexure III to the petition). The petitioners have also filed certified copy of the proceedings before the competent authority as Annexure IV.
4. On an application preferred by the Executive Engineer P.W. D., Rajgarh (respondent No. 5) proceedings against the original petitioner Gokulchand Gupta were initiated for eviction from 'Baggikhana' and 'Bhandar' situated in Rajgarh and were said to be in an unauthorised possession of the said Gokulchand Gupta. The respondent No. 3 issued a show cause notice under Section 4 of the Adhiniyam against Gokulchand Gupta on 28-3-1975. Gokulchand Gupta submitted his reply to the said show cause notice on 17-4-1975 stating that the premises were not public premises and according to him he had purchased the same from the Ruler of the erstwhile State of Rajgarh vide registered sale deed dated 23-12-1971.
5. The competent authority (respondent No. 3) on holding an inquiry came to the conclusion that the respondents have failed to prove that the premises in question were the public premises and held that the late Gokulchand Gupta was the owner of the properties in question. The order passed by the competent authority on 15-3-1976 is also filed as Annexure V to the petition.
6. The State preferred an appeal before the District Judge, Rajgarh. The appeal memo is Annexure VI. As a result of amendment to the Adhiniyam the Commissioner (respondent 4) was appointed the appellate authority and as such the appeal stood transferred to him. Respondent No. 4 by his order dated 25-9-1982 (Annexure VII) held that initiation of proceedings before the competent authority was without jurisdiction and the matter was further remanded back to thecompetent authority for disposal in accordance with law. It is against this order that the petitioners have preferred the present petition.
7. Shri Chhazed, learned counsel for the petitioners has assailed the order dated 25-9-1982 (Annexure-VII) as per se illegal and that the finding arrived at by him is based on misreading of evidence and misconstruction of the law.
8. Shri Solanki, Dy. Govt. Advocate has contended before us that the application dated 17-1-1975 preferred by respondent No. 5 was addressed to the Sub-Divisional Officer and as such it was not presented before the competent authority. It is on this basis that he contends that the proceeding has been vitiated right from its inception and in this view of the matter the order passed by respondent No. 4 does not call for any interference.
9. Having heard the learned counsel we are of the view that this petition deserves to be allowed. We do not find any justification in taking the hypertechnical view of the fact that the application dated 17-1-1975 (Annexure-R/1) having been addressed to the Sub-Divisional Officer, Rajgarh results in vitiating the proceedings as a whole. It is evident from the proceeding dated 28-3-1975 that the competent authority (respondent No, 3) had taken cognizance of the matter only after the order dated 21-2-1975 appointing the Sub-Divisional Officer, Rajgarh as competent authority under the Adhiniyam was passed by the Collector, Rajgarh. We do not find any illegality in the initiation of the proceedings. It is also apparent from the impugned order Annexure VII that respondent No. 4 has proceeded to decide the appeal on a ground which had not yet even been raised in the appeal memo Annexure VI to the petition. Shri Chhazed submits that it was nobody's case before respondent No. 4 that the proceedings were vitiated for want of jurisdiction.
10. We find substance in this argument. There is material on record to show that Shri I. S. Rathore wus duly appointed as competent authority under the Adhiniyam, Even though the application was preferred before hisappointment as such but the cognizance of the application was taken only after his appointment as a competent authority was made by the Collector, Rajgarh.
11. It appears that the finding arrived at by the competent authority has resulted in dissatisfaction of respondent No. 5 who had all along been participating in the proceedings before respondent No. 3 without raising any objection whatsoever as regards jurisdiction of the competent authority so much so even in the appeal memo such an objection has not been raised. On the other hand as is evident from ground No. 4 of the appeal memo (Annexure VI) it is want of fairness and impartiality which is imputed to Shri Malviya who passed the original order dated 15-3-1976 (Annexure-V).
12. Shri Solanki's contention that there was inherent lack of jurisdiction on the ground that the application was addressed to the Sub-Divisional Officer and not the competent authority under the Adhiniyam cannot be accepted inasmuch as as slated earlier cognizance of the application was taken only after the appointment of Shri I. S. Rathore as competent authority.
13. No other point is urged before us.
14. This petition is therefore allowed. The order dated 25-9-1982 (Annexure VII) passed by the respondent No. 4 is quashed. However in the circumstances of the case we direct the parties to bear their own costs. The outstanding amount of the security deposit after verification be refunded to the petitioners.