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2012 SCC OnLine Bom 247 : (2012) 4 Mah LJ 173 : (2012) 4 Bom
CR 382
In the High Court of Bombay
Maharashtra Land Revenue Code, Section 247
(Nagpur)
(BEFORE R.K. DESHPANDE, J.)
Sudhabai Manohar Meshram and others …
Petitioners;
Versus
Wasudeo Chattumal Jhamnani and others …
Respondents.
W.P. No. 3426 of 2011
Decided on February 21, 2012
(a) Maharashtra Land Revenue Code (41 of 1966), SS. 247, 257 and
Civil Procedure Code. S. 54 — Revision — Powers of State Government to
call for and examine records of subordinate officers — If it decides not to
invoke its powers, there is no right to relief as is available in appeal to
aggrieved party.
A comparative study of section 154 of the Maharashtra Co-operative Societies
Act considered by the Apex Court and the provision of section 257 of MLR Code
shows similarity in the language employed in both the provisions. It is in respect of
(i) calling for examining record of inquiry, (ii) satisfying about legality/propriety and
regularity of proceedings and there is power to modify, annul or reverse the
decision after giving affected party an opportunity of being heard. It is the discretion
of the authority under section 257 to call for and examine the record. If it decides
not to call and examine the record, then there would not be any occasion for the
applicant to ask for the decision as a matter of right. There is no right to relief as is
available in appeal to the party aggrieved. In view of this, it cannot be said that
section 257 of the MLR Code provides statutory remedy of revision as an alternate
and efficacious remedy to challenge the order passed in appeal under section 247
of the MLR Code.
(Para 9)
(b) Maharashtra Land Revenue Code (41 of 1966), S. 247 and Civil
Procedure Code. S. 54 — Appeal — Refusal to grant stay — Two questions
were raised in appeal under section 247 before the S.D.O., i.e. (i) that no
notice was issued to the respondent No. 1 and (ii) that the partition was hit
by the
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Page: 174
provisions of section 8AA of the Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947 — These are the questions which are required
to be gone into the appeal preferred by petitioners — Additional Collector ought to
have stayed the order of the S.D.O.
(Para 10)
For petitioners: M.G. Bhangde, Senior Counsel assisted by V.V.
Bhangde
For respondent No. 1: A.M. Gordey, Senior Counsel assisted by Smt.
R.D. Raskar
For respondent No. 2: A.D. Patil
For respondent Nos. 3, 4 and 5: Smt. K.R. Deshpande, Additional
Government Pleader
For intevernors: Smt. M.P. Munshi
None for respondent No. 6
List of cases referred:
1. Sales Tax Officer, Jodhpur v. Shiv Ratan G. (Para 6)
Mohatta, AIR 1966 SC 142
2. Champalal Binani v. Commissioner of Income Tax, (Para 6)
West Bengal, (1971) 3 SCC 20 : AIR 1970 SC 645
3. Everest Apartments Co-operative Housing Society (Paras 7, 8)
Ltd. v. State of Maharashtra, 1966 Mh.L.J. (S.C.)
643 : AIR 1966 SC 1449
4. Shreensami Gadiali v. Spenta Co-operative (Para 7)
Housing Society Ltd., 2011 (3) Mh.L.J. 486
ORAL JUDGMENT
1. Rule made returnable forthwith.
Heard Shri Bhangde, the learned Senior Counsel assisted by Shri
V.V. Bhangde, for the petitioners, Shri Gordey, the learned Senior
Counsel assisted by Smt. Raskar, for respondent No. 1, Shri Patil,
learned counsel for respondent No. 2, Smt. Deshpande, the learned
Assistant Govt. Pleader for respondent Nos. 3, 4 and 5. Though
respondent No. 6 is served, none appears for her. Hence, it is not
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necessary to issue fresh notice to respondent No. 6.
2. The Tahsildar, Hingna, has passed an order under section 54 of
Civil Procedure Code effecting partition of the suit property on 14-9-
2010. The partition was done pursuant to the judgment and decree
passed in Special Civil Suit No. 925/1998, dated 21st November, 2006.
Accordingly, the parties are put in possession of the property on 18-5-
2011. The entries in 7/12 extract in respect of the property in question
have also been taken in the name of the respective parties.
3. The respondent No. 1, who claims to be the purchaser of the suit
property, pending the decision of the suit, preferred an appeal under
section 247 of the Maharashtra Land Revenue Code (in short MLR
Code). The Sub Divisional Officer, Nagpur, has decided the said appeal
on 14th June, 2011, setting aside the order dated 14-9-2010, passed
by the Tahsildar, Hingna and directing remand of the matter to the
Tahsildar for fresh enquiry and for passing order as per the provisions of
law.
4. Aggrieved by the order passed by the Sub Divisional Officer on
14th June, 2011, the petitioners herein who are the plaintiffs and the
defendants in the Special Civil Suit No. 925/1998 have preferred the
Revenue Appeal No. 109/SRV-43/2010–11 under section 247 of MLR
Code. The same is pending before the Additional Collector, Nagpur. In
that appeal, an application for grant
Page: 175
of stay to the order of remand dated 14-6-2011 passed by the S.D.O.,
Nagpur, was moved. The said application has been rejected by the
Additional Collector by order dated 4th July, 2011, holding that the
S.D.O. has already remanded the matter back to the Tahsildar for fresh
enquiry and passing the order as per the provisions of law and hence it
will not be proper to grant stay to the order under challenge in the
interest of justice. This is the order which is the subject-matter of
challenge in this petition.
5. On 21st July, 2011, this Court issued notices to the respondents
and granted ad interim relief in terms of prayer clause (ii) of the
petition. The interim relief is to the stay to the order dated 14-6-2011
passed by the S.D.O. and the order restraining the respondents from
disturbing the possession of the plaintiffs over the suit property,
pending the decision of the petition.
6. Shri Gordey, the learned Senior Counsel appearing for respondent
No, 1 has raised the preliminary objection as to the existence of an
alternate efficacious remedy by way of revision under section 257 of
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MLR Code. He submits that power under section 257 is as wide as the
power of the Appellate Court and the petitioners can move the
Commissioner under section 257 of MLR Code, challenging the legality
and propriety of the decision refusing to grant stay. He has relied upon
the decision of the Apex Court reported in AIR 1966 SC 142, Sales Tax
Officer, Jodhpur v. Shiv Ratan G. Mohatta to urge that it is not the
object of Article 226 of the Constitution of India to convert the High
Court in Original or Appellate jurisdiction to determine the questions.
He has also relied upon the decision of the Apex Court reported in
(1971) 3 SCC 20 : AIR 1970 SC 645, Champalal Binani v. The
Commissioner of Income Tax, West Bengal, to urge that the writ of
certiorari is discretionary and it is not issued merely because it is lawful
to do so.
7. Replying to the preliminary objection, Shri Bhangde, the learned
Senior Counsel for the petitioners has urged that the remedy under
section 257 of the MLR Code is not as a matter of right and the
Commissioner may at his discretion call for and examine the record of
any enquiry or proceeding. He has relied upon the decision of the Apex
Court reported in 1966 Mh.L.J. (S.C.) 643 : AIR 1966 SC 1449, Everest
Apartments Co-operative Housing Society Ltd v. State of Maharashtra,
wherein the provision of section 154 of the Maharashtra Co-operative
Societies Act as it then existed regarding revisional jurisdiction of the
State Government has been construed. He submits that what the Court
is required to see is whether the party has right to move the authority
under section 257 so as to make it an alternate efficacious remedy. He
has further relied upon the Full Bench decision of this Court reported in
2011 (3) Mh.L.J. 486, Shreensami Gadiali v. Spenta Co-operative
Housing Society Ltd., wherein the amended provision of section 154 of
the Maharashtra Co-operative Societies Act has been considered and it
has been held to be the remedy as a matter of right.
8. In the decision of the Apex Court in Everest Apartments Co-
operative Housing Society Ltd.'s case, the provisions of section 154 of
the Maharashtra Co-operative Societies Act fell for consideration. The
question was whether it provided an efficacious alternate statutory
remedy to the person aggrieved. The
Page: 176
provisions of section 154 as it then existed is reproduced in para 2 of
the said judgment. The same is, therefore, reproduced here also, as
under;
“154. Power of State Government and Registrar to call for
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proceedings of subordinate officer and to pass orders thereon. The
State Government and the Registrar may call for and examine the
record of any inquiry or the proceedings of any other matter of any
officer subordinate to them, except those referred to in sub-section
(9) of section 149 for the purpose of satisfying themselves as to the
legality or propriety of any decision or order passed, and as to the
regularity of the proceedings of such officer. If in any case, it
appears to the State Government, or the Registrar, that any decision
or order or proceedings so called for should be modified, annulled or
reversed, the State Government or the Registrar, as the case may
be, may after giving persons affected thereby an opportunity of
being heard pass such order thereon as to it or him may seem just.”
Paras 5 and 6 of the said judgment are relevant and hence, the same
are reproduced below.
“5. There is no doubt that section 154 is potential but not
compulsive. Power is reposed in Government to intervene to do
justice when occasion demands it and of the occasion for its
exercise, Government is made the sole judge. This power can be
exercised in all cases except in a case in which a similar power has
already been exercised by the Tribunal under section 149(9) of the
Act. The exception was considered necessary because the legality or
the propriety of an order having been considered once, it would be
an act of supererogation to consider the matter twice. It follows,
therefore, that Government can exercise its powers under section
154 in all cases with one exception only and that the finality of the
order under section 23(3) does not restrict the exercise of the power.
The word “final” in this context means that the order is not subject
to an ordinary appeal or revision but it does not touch the special
power legislatively conferred on Government. The Government was
in error in considering that it had no jurisdiction in this case for it
obviously had.
6. There remains the question whether a party has a right to
move Government. The Tribune Trust case is distinguishable and
cannot help the submission that Government cannot be moved at all.
The words of the two enactments are not materially equal. The
Income Tax Act used the words “suo motu” which do not figure here.
It is, of course, true that the words “on an application of a party”
which occur in section 150 of the Act and in similar enactments in
other Acts, are also not to be found. But that does not mean that a
party is prohibited from moving Government. As Government is not
compelled to take action, unless it thinks fit, the party who moves
Government cannot claim that he has a right of appeal or revision.
On the other hand, Government should welcome such applications
because they draw the attention of Government to cases in some of
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which, Government may be interested to intervene. In many
statutes, as for example the two major procedural Codes, such
language has not only not inhibited the making of applications to the
High Court, but has been considered to give a right to
Page: 177
obtain intervention, although the mere making of the application has
not clothed a party with any rights beyond bringing a matter to the
notice of the Court. After this is done, it is for the Court to consider
whether to act or not. The extreme position does not obtain here
because there is no right to interference in the same way as in a
judicial proceeding. Government may act or may not act; the choice is
of Government. There is no right of relief as in an appeal or revision
under the two Codes. But to say that Government has no jurisdiction at
all in the matter is to err, and that is what Government did in this
case.”
It is thus apparent that section 154 of the Maharashtra Co-operative
Societies Act was held to be potential but not compulsive. It has been
held that neither the word “suo motu” nor the word “on an application
of the party” have been used under section 154. It has been held that
mere making of an application does not clothe a party nor any right
beyond bringing the matter to the notice of the Court and if after the
application is made, it is for the Court to consider whether to act or not.
It has been held that there is no right to interference and there is no
right to relief as in an appeal or revision.
9. Section 257 of the MLR Code being relevant, is reproduced below:
“257. Power of State Government and of certain revenue and survey
officers to call for and examine records and proceedings of
subordinate officers.— (1) The State Government and any revenue or
survey officer, not inferior in rank to an Assistant or Deputy Collector
or a Superintendent of Land Records, in their respective
departments, may call for and examine the record of any inquiry or
the proceedings of any subordinate revenue or survey officer, or the
purpose of satisfying itself or himself, as the case may be, as to the
legality or propriety of any decision or order passed, and as to the
regularity of the proceedings of such officer.
(2) A Tahsildar, a Naib Tahsildar, and a District Inspector of Land
Records may in the same manner call for and examine the
proceedings of any officer subordinate to them in any matter in
which neither a formal nor a summary inquiry has been held.
(3) If in any case, it shall appear to the State Government, or to
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any officer referred to in sub-section (1) or sub-section (2) that any
decision or order or proceedings so call for should be modified,
annulled, or reversed, it or he may pass such order thereon as it or
he deems fit: Provided that, the State Government or such officer
shall not vary or reverse any order affecting any question of right
between private persons without having to the parties interested
notice to appear and to be heard in support of such order:
Provided further that, an Assistant or Deputy Collector shall not
himself pass such order in any matter in which a formal inquiry has
been held, but shall submit the record with his opinion to the
Collector, who shall pass such order thereon as he may deem fit.”
Perusal of the said section shows that words “suo motu” or “on an
application of the party” are not used. A comparative study of section
154 of the Maharashtra Co-operative Societies Act considered by the
Apex Court and the provision of
Page: 178
section 257 of MLR Code reproduced above shows similarity in the
language employed in both the provisions. It is in respect of (i) calling
for examining record of inquiry, (ii) satisfying about legality/propriety
and regularity of proceedings and there is power to modify, annul or
reverse the decision after giving affected party an opportunity of being
heard. It is the discretion of the authority under section 257 to call for
and examine the record. If it decides not to call and examine the
record, then there would not be any occasion for the applicant to ask for
the decision as a matter of right. There is no right to relief as is
available in appeal to the party aggrieved. In view of this, it cannot be
said that section 257 of the MLR Code provides statutory remedy of
revision as an alternate and efficacious remedy to challenge the order
passed in appeal under section 247 of the MLR Code. The two decisions
cited by Shri Gordey lay down general propositions of law which are not
disputed.
10. Coming to the merits of the matter, the order impugned in this
petition nowhere records the reason for refusing to grant stay which
was asked for. It prima facie appears from the order of the Tahsildar
dated 14-9-2010 and the document of delivery of possession dated 18-
5-2011 along with 7/12 extract, in which entries were taken after 18-5-
2011, that the property was partitioned and the parties were put in
possession of the same. Prima facie, two questions were raised in
appeal under section 247 before the S.D.O., i.e. (i) that no notice was
issued to the respondent No. 1 and (ii) that the partition was hit by the
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provisions of section 8AA of the Bombay Prevention of Fragmentation
and Consolidation of Holdings Act, 1947. These are the questions which
are required to be gone into the appeal preferred by the present
petitioners. In view of this, the Additional Collector, Nagpur, ought to
have stayed the order of the S.D.O. passed on 14-6-2011.
11. Shri Gordey, the learned Senior counsel appearing for
respondent No. 1 has invited my attention to the communication dated
18-6-2011 and the pursis dated 29-6-2011 to urge that the order of
the S.D.O. passed on 14-6-2011 has already been implemented. This
Court has already passed an order of injunction restraining the
respondents from disturbing the possession of the petitioners, pending
the decision of this petition. The perusal of the pursis and the
communication dated 18-6-2011 nowhere indicates that the petitioners
have been displaced from the suit property. The contention cannot be
accepted.
12. In view of above, writ petition is allowed. The interim order
granted by this Court on 21-7-2011 is made absolute and the same
shall continue till the decision of the Appeal No. 109/SRV-43/2010–11,
pending before the Additional Collector, Nagpur. No orders as to costs.
13. There are some applications for intervention filed in this writ
petition. It is not necessary for this Court to consider those applications
for intervention in this writ petition. Shri Bhangde, the learned Senior
Counsel, however, submits that the petitioners shall not have any
objection for permitting these interveners to intervene in the appeal,
which is pending before the Additional Collector, Nagpur. In view of
this, the interveners are, at liberty to file application for intervention
before the Collector. The applications for intervention stand disposed of
accordingly.
Petition allowed.
———
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