Bombay High Court
Smt.Shireen Sami Gadiali And vs Spenta Co.Op.Hsg.Soc.Ltd on 21 April, 2011
Equivalent citations: AIR 2011 (NOC) 398 (BOM.) FULL BENCH, 2011 (3) AIR BOM R 594
Author: D.K.Deshmukh
Bench: D.K. Deshmukh, Anoop V.Mohta, R. V. More
1
Kambli
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6403 OF 2010
...
Smt.Shireen Sami Gadiali and
another ...Petitioners
v/s.
Spenta Co.op.Hsg.Soc.Ltd.
and others ...Respondents
WITH
WRIT PETITION NO.7293 OF 2010
...
Shri Vasantrao Madhavrao Deshmane
and ors. ...Petitioners
v/s.
The Asst.Registrar,
co.operative Societies,
Chandwad and others ...Respondents
...
Mr.D.S.Joshi for Petitioners in WP No.6403 of 2010.
Mr.R.M.Haridas i/bMr.P.N.Joshi for Petitioners in WP No.7293
of 2010.
Mr.S.R.Nargolkar, Addl.G.P. for Respondents.
CORAM: D.K.Deshmukh ,
Anoop V. Mohta, &
Ranjit More, JJJ.
DATED: 21st April, 2011
JUDGMENT:(PER D.K.DESHMUKH, J.)
1. The questions of law that have been referred by the learned single Judge in these two petitions relates to the provisions of Section 154 of the Maharashtra Co.operative ::: Downloaded on - 09/06/2013 17:12:23 ::: 2 Societies Act therefore, they can be conveniently answered by a common judgment.
2. The questions of law referred in Writ Petition No. 6403 of 2010 are
1. Whether Sub-section (1) of Section 154 of the Maharashtra Co.operative Societies Act, 1950 gives concurrent jurisdiction to the Registrar and the State Government to exercise power/
2. Whether the power of revision under Sub-section (1) of Section 154 of the said Act can only be exercised once and cannot be exercised twice over?
3. The questions of law referred in Writ Petition No. 7293 of 2010 are,
1. Whether the remedy under Section 154 of the Maharashtra Co.operative Societies Act, 1960 is available to an aggrieved party as a matter of right?
2. Whether the remedy available under Section 154 of the ::: Downloaded on - 09/06/2013 17:12:23 ::: 3 said Act can be said to be efficacious and adequate remedy?
3. The questions of law referred in Writ Petition No. 6403 of 2010 are hereinafter referred to as the First question and the questions of law referred in Writ Petition No.7293 of 2010 are hereinafter referred to as the Second question.
4. So far as the first question is concerned, it arose in following factual background. The Co.operative Housing Society registered under the Maharashtra Co.operative Societies Act (hereinafter referred to as "the Act" for the sake of brevity) applied to the Deputy Registrar for grant of recovery certificate under Section 101 of the Act. The Petitioner in Writ Petition No.6403 of 2010 against whom that recovery certificate was sought contested that application.
The Deputy Registrar rejected that application. A revision application under Section 154 of the Act was preferred by the Society before the Divisional Joint Registrar. The Divisional Joint Registrar allowed that revision and the order passed by ::: Downloaded on - 09/06/2013 17:12:23 ::: 4 the Deputy Registrar was set aside. The Petitioner challenged that order by filing the revision under section 154 before the State Government. The State Government by order dated 19th July, 2010 held that the revision against the order of the Divisional Joint Registrar before the State Government under the provisions of Section 154 was not maintainable. Writ Petition No.6403 of 2010 challenges the order of the State Government holding that the revision under Section 154 against the order passed under that very provision by the Divisional Joint Registrar is not maintainable. It appears that when the matter came before the learned single Judge, various judgments of the learned single Judges of this court as also the Division Bench were referred to by both the sides, which showed that conflicting views have been taken by different single Judges on this question. The following observations from the judgment of the learned single Judge are relevant.
(i) The submission of the learned counsel appearing for the Petitioners is that the revision application made before the State Government was maintainable as it was the first ::: Downloaded on - 09/06/2013 17:12:23 ::: 5 revision application filed by the Petitioners. He pointed out that the 1st Respondent- Society had filed the first revision application before the Divisional Joint Registrar. The learned counsel appearing for the Petitioners relied upon a decision of the learned Single Judge of this Court in the case of Kunbi Sahakari Bank Ltd. v. Shakti Paper Company & Others, ( 2009(1) Mh.L.J. 696 ). He submitted that this Court after considering a decision of the Apex Court came to a conclusion that in such a case the second revision application was maintainable. He invited attention of the Court to what is observed in Paragraph 12 of the said decision. He submitted that on plain reading of Sub-section (1) of Section 154 of the said Act, successive revision applications are provided before the Registrar and the State Government. He submitted that if a revision application is allowed by the Registrar, the said Respondent can file a revision application before the State Government.
(ii) Learned counsel appearing for the 1st Respondent relied upon decisions of the learned Single ::: Downloaded on - 09/06/2013 17:12:23 ::: 6 Judges of this Court viz. Virendra Bhanji Rathod and Others v. Anand Vihar Co-operative Housing Society Ltd., Mumbai and Others, ( 2004(1) Mh.L.J. 656 ) Dadar Avanti Co-
operative Housing Society Limited v. State of Maharashtra & Others ( 2005(2) Bom.C.R. 604 ) and Videocon Appliances Limited v. Maker Chambers V. Premises Co-operative Society Limited and Others, ( 2006(2) Mh.L.J. 388 ). He submitted that a consistent view taken by the learned Single Judges in the aforesaid decision is that under Section 154 of the said Act only one revision application is contemplated and once revisional power is exercised by the Registrar, the second revision application against the order passed in exercise of revisional jurisdiction was not maintainable. He submitted that a decision of the learned Single Judge in the case of Kunbi Sahakari Bank Limited (supra) is per in curiam in as much as binding precedents in the form of the aforesaid decisions of the learned Single Judges of this Court were not brought to the notice of the learned Judge. He submitted that the said judgment is per in curiam as the decision of the Apex Court in the case of Sita Ram Gupta v. Punjab National Bank ::: Downloaded on - 09/06/2013 17:12:23 ::: 7 & Others, [ (2008)5 SCC 711 ] relied upon by the learned Judge for coming to the conclusion that the second revision application was maintainable does not deal with the issue of maintainability of the second revision application. He, therefore, submitted that the decision in the case of Kunbi Sahakari Bank Limited (supra) cannot be read as a binding precedent.
(iii) I have given careful consideration to the submissions. In the case of Virendra Bhanji Rathod (supra), the same issue arose for consideration. This Court relied upon its several earlier decisions and the decision of the Apex Court in the case of Everest Apartments Co-operative Housing Society Limited, Bombay v. State of Maharashtra, ( AIR 1966 SC 1449 ). The Learned Single Judge held thus:-
"5. ..... It was held that the revisional jurisdiction having once exercised by one authority under the section 154, merely because a person was not a party to the said proceedings, it cannot be said that the State Government can exercise the revisional ::: Downloaded on - 09/06/2013 17:12:23 ::: 8 jurisdiction under the section 154 of the said Act in relation to the order passed by an authority in its revisional jurisdiction even at the instance of such a person. In other words, by number of decisions delivered by various Benches of this Court, it has been well-settled that once the revisional authority in exercise of power under the section 154 of the said Act deals with a matter, there cannot be a second revision against such order passed by the revisional authority under the section 154 of the said Act."
(emphasis added) In the case of Videocon Appliances Limited (supra), the same issue arose for consideration of this Court.
After considering the earlier decisions of this Court, this Court held thus:-
"5. ..... In contrast to the same, the provisions of section 154 does not give a concurrent jurisdiction to the Registrar and the State Government because the words prescribed thereunder are "the State Government or the Registrar may call for and examine the records." The wording in that section by substitution of the word "or" in place of "and" is materially significant because in case where the word "and" is used is a conjoint power conferred both on the Registrar as well as the Government whereas the word ::: Downloaded on - 09/06/2013 17:12:23 ::: 9 "or" indicates that it is the power conferred on 'either' or 'or' in such cases the power cannot be exercised by both but it can be exercised by one of the two and in that view of the matter, I am not inclined to accept the contention that by virtue of the judgment of the Apex Court in the case of Ishwar Singh vs. State of Rajasthan and others (supra) all the learned Single Judges judgments of this Court interpreting the very section 154 are deemed to be impliedly overruled. Thus, the contention that the order passed by the Secretary holding that the second revision is not maintainable is bad in law is rejected. The order passed by the Secretary holding that the second revision is not maintainable is upheld."
(emphasis added)
(iv) In the case of Dadar Avanti Co-operative Housing Society Ltd. vs. State of Maharashtra and Others ( 2004(5) Mh.L.J. 222 ), this Court held that Section 154 of the said Act does not provide for a second revision from the order passed in the revision by the Registrar.
(v) Now coming to the decision in the case of Kunbi Sahakari Bank Limited (supra), it was a case where recovery certificate was issued against the guarantors was set aside by the Revisional Authority. The bank filed a ::: Downloaded on - 09/06/2013 17:12:23 ::: 10 revision application to the State Government against the order passed by the Revisional Authority. This Court held that as far as the bank was concerned, it was the first revision application and the same was maintainable.
Paragraph 12 of the said decision reads thus:-
"12. At the outset, I must observe that the revision application which was dismissed by the State Government, holding it to be not maintainable being a second revision petition, is palpably erroneous and suffers from non-application of mind. In view of judgment of this Court in the case of Sita Ram Gupta vs. Punjab National Bank and others, ( 2008)5 SCC 711 Revision Petition, at the instance of the petitioner-bank, which was a first revision at their instance was very much maintainable."
. My attention was invited to the decision of the Apex Court in the case of Sita Ram Gupta (supra). Prima facie, it appears to me that the said decision in the case Sita Ram Gupta (supra) does not deal with the issue of maintainability of the second revision application, and therefore, the said decision has no bearing on the issue.
::: Downloaded on - 09/06/2013 17:12:23 ::: 11(vi) The learned counsel appearing for the 1st Respondent appears to be right in contending that at least three judgments of the learned Single Judges of this Court on the issue were not brought to the notice of the learned Single Judge when the case of Kunbi Sahakari Bank Limited (supra) was decided.
(vii) In any event, the aforesaid decision is in clear conflict with the view taken by this Court in the case of Virendra Bhanji Rathod (supra), Videocon Appliances Limited (supra) and Dadar Avanti Co-operative Housing Society Limited (supra). Propriety requires that the issue arising in this Petition should be heard by a larger bench of this Court. Even otherwise, it will be more advantageous if the said issue is resolved by a larger bench of this Court.
5. In this background, therefore, now firstly we have to consider whether the revisional jurisdiction conferred by Section 154 on the State Government and the Register is ::: Downloaded on - 09/06/2013 17:12:23 ::: 12 concurrent. For that purpose, it is necessary to peruse the provisions of Section 154 of the Act. Sub-sections 1 & 2 of Section 154 are relevant for our purpose. They read as under:
154(1) The State Government or the Registrar, suo motu or on an application, may call for and examine the record of any inquiry or proceedings of any matter, other than those referred to in sub- section (9) of section 149, where any, decision or order has been passed by any subordinate officer, and no appeal lies against such decision or order for the purpose of satisfying themselves as to the legality or propriety of any such decision or order, and as to the regularity of such proceedings. If in any case, it appears to the State Government, or the Registrar, that any decision or order so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may, after giving the person affected thereby an opportunity of being heard, pass such orders, thereon as to it or him may seem just.
(2) Under this section, the revision shall lie to the State Government if the decision or order is passed by the Registrar, the Additional Registrar or a Joint Registrar, and to the Registrar if passed by any other officer.
6. Perusal of the provisions of sub-section 1 of Section 154 shows that the revisional jurisdiction is conferred by that provisions on both the State Government and the ::: Downloaded on - 09/06/2013 17:12:23 ::: 13 Registrar. That revisional jurisdiction can be exercised by them either suo motu or on application. The revisional jurisdiction can be exercised in relation to decision or orders by sub-ordinate officers and no appeal lies against such decision or orders. In our opinion, the provisions of sub-
section 2 of Section 154 hold the key for deciding whether the revisional jurisdiction conferred on the State Government and the Registrar is concurrent or not. The provisions show that the revisional jurisdiction conferred on the State Government and the Registrar is not concurrent. Sub-section 2 of Section 154 lays down that the State Government has revisional jurisdiction against the decisions or orders passed by the Registrar, Additional Registrar or Joint Registrar and the Registrar has revisional jurisdiction in relation to the decisions or orders passed by officers sub-ordinate to him. Thus, the State Government does not have revisional jurisdiction in relation to decisions or orders passed by officers who are sub-ordinate to the Registrar, Additional Registrar or Joint Registrar and the Registrar does not have any revisional jurisdiction in relation to the orders passed by the Additional ::: Downloaded on - 09/06/2013 17:12:23 ::: 14 Registrar or Joint Registrar. He has revisional jurisdiction in relation to the orders or decisions passed by officers who are sub-ordinate to him, except Additional Registrar and Joint Registrar. Thus, the revisional jurisdiction conferred by Section 154 on the State Government and the Registrar is in two separate compartments. The State Government exercises revisional jurisdiction in relation to orders and decisions of the Registrar, Additional Registrar and Joint Registrar. Whereas the Registrar has revisional jurisdiction in relation to orders or decisions passed by any other officer. In our opinion, useful reference in this connection can be made to the provisions of Section 3 of the Co.operative Societies Act. It reads as under:
3. Registrar (and his subordinate) The State Government may appoint a person to be the Registrar of Co.operative Societies for the State; and may appoint `one or more persons to assist such Registrar (with such designations, and in such local areas or throughout the State, as it may specify in that behalf) and may, by general or special order, confer on any such person or persons all or any of the powers of the Registrar under this Act. The person or persons so appointed to assist the Registrar and on whom ::: Downloaded on - 09/06/2013 17:12:23 ::: 15 any powers of the Registrar are conferred, shall work under the general guidance, superintendence and control of the Registrar.
(They shall be subordinate to the Registrar, and subordination of such persons amongst themselves shall be such as may be determined by the State Government).
7. Perusal of the above provisions show that the State Government has power to appoint one or more persons to assist the Registrar and to confer on such persons powers of the Registrar, and such persons who have been appointed to assist the Registrar and on whom powers of the Registrar are conferred work under the general guidance, superintendence and control of the Registrar. Thus, so far as the officers sub-ordinate to the Registrar are concerned, they are under the control of the Registrar and therefore, it is the Registrar who has the revisional jurisdiction in relation to the decisions or orders passed by such officers who are under his control and supervision. So far as the State Government is concerned, it exercises revisional jurisdiction in relation to the decisions and orders passed by the Registrar. In our opinion, therefore, it is apparent that the revisional jurisdiction ::: Downloaded on - 09/06/2013 17:12:23 ::: 16 conferred on the State Government and the Registrar is not concurrent jurisdiction.
8. Now, so far as the question whether an order passed in revision in exercise of revisional jurisdiction by the Registrar can be challenged in revision before the State Government is concerned, in our opinion, for considering that question it is necessary to refer to the provisions of Section 152 of the Act which confers appellate power. Section 152 of the Act reads as under:
152.Appeals (1)An appeal against an order or decision (under sections 4, 9, 11, 12, 13, 14, 17, 18, 19, 21, 21A, 29, 35, 77A, (78, 79, 88, and 105 including an order for paying compensation to a society) shall lie.-
(a) if made or sanctioned or approved by the Registrar, or the Additional or Joint Registrar on whom the powers of the Registrar are conferred, to the State Government,
(b) if made or sanctioned by any person other than the Registrar, or the Additional or Joint Registrar on whom the powers of the Registrar are conferred, to the Registrar.
::: Downloaded on - 09/06/2013 17:12:23 ::: 17(2)Where an appeal against anorder or decision to the Co-operative Appellate Court has been provided under this Act, it shall lie to the Co.operative appellate Court. (3)An appeal under sub-section (1) or (2) shall be filed within two months of the date of the communication of the order or decision.
(4)Save and expressly provided, no appeal shall lie against any order, decision or award passed in accordance with the provisions of this Act, and every such order decision or award shall, whether expressly provided or not, be final, but shall always be subject to the provisions for revision in this Act; and where an appeal has been provided for, any order passed on appeal shall likewise be final, but be subject to such revision provisional.
9. Perusal of sub-section 1 of Section 152 shows that appeal is provided against the original orders made under certain provisions of the Act. If those orders are passed either by the Registrar or Additional Registrar or the Joint Registrar, then appeal lies to the State Government. If the orders are passed by the officers other than the Registrar, Additional Registrar or Joint Registrar, then appeal lies to the Registrar. Sub-section 4 of Section 152 lays down that no appeal shall lie against any order or decision made under the Act, save and except where express provision for appeal has been made. But every order or decision made shall be ::: Downloaded on - 09/06/2013 17:12:23 ::: 18 subject to the revisional jurisdiction. It further lays down that even an order made in an appeal is subject to revisional jurisdiction. It is, thus, clear that if an order is made by the Registrar, Additional Registrar or Joint Registrar, appeal against that order lies to the State Government and if the order is made in appeal by the State Government, there is no question of any revision lying against that order to any authority. If the order is made by an authority or officer, who is sub-ordinate to the Registrar, Additional Registrar or Joint Registrar, then appeal lies to the Registrar and if the appellate order is made by the Registrar, the revision will lie before the State Government. In case an order against which there is no appeal provided and which is made by an officer sub-
ordinate to the Registrar, Additional Registrar or Joint Registrar, in terms of the provisions of Section 154 revision will lie to the Registrar and in that case then the question will arise whether revision under Section 154 will lie before the State Government against the order passed by the Registrar in exercise of revisional jurisdiction. In our opinion, answer to that question is contained in sub-section 4 of Section 152.
::: Downloaded on - 09/06/2013 17:12:24 ::: 19Section 152(4) lays down that in so far as those orders against which there is no provisions for appeal is made are concerned, they are final subject to the provision of revision in the Act. Thus, an order made under the Act, against which no appeal lies can be subjected to revisional jurisdiction under the Act, but that can be done only once. Because it is a well settled law that the purpose of conferring revisional jurisdiction on higher authority is to see that the lower authorities act within their jurisdiction. Therefore, there is no question of conferring successive revisional jurisdiction on different authorities against the orders which are passed in revision. In our opinion, in this context reference can be usefully made to the decision of the Supreme Court in the case of Vishesh Kumar v/s. Shanti Prasad, (1980 2 Supreme Court Cases 378. In that case, it appears that the revisional jurisdiction conferred by the Provincial Small Causes Courts Act was conferred on the District Judge and the question that arose for consideration was whether a revision before the High Court under Section 115 of the Civil Procedure Code would lie against the order made by the District Judge in a ::: Downloaded on - 09/06/2013 17:12:24 ::: 20 revision filed under Section 25 of the Provincial Small Causes Courts Act. The observations of the Supreme Court found in paragraphs 12, 13 and 14 of that judgment are relevant. They read as under:
12. The question before us arises in those cases only where the District Judge has exercised revisional power under S.25. Is an order so made open to revision by the High Court under s. 115, Code of Civil Procedure ? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self-sufficient code so far as the present enquiry is concerned. For the purpose of correcting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under s. 24 and s. 25 respectively. Cases in which the District Judge and the High Court respectively exercise revisional power, revisional powers are specifically mentioned. A complete set of superior remedies has been incorporated in the Act.
Moreover,s. 27 of the Act provides:
"27. Finality of decrees and orders.-Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall befinal."
The Legislature clearly intended that a decree or order madeby a Court of Small Causes should be final subject only to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had s.25, in its application to the State of UttarPradesh continued in its original form the High Court would have ::: Downloaded on - 09/06/2013 17:12:24 ::: 21 exercised the revisional power under s. 25, and no question could have arisen of invoking the revisional power of the High Court under s. 115 of the Code. All the indications point to the conclusion that a case falling within the Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure. By way of abundant caution s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act. Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small ig Cause Courts Act. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under s. 25 before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s.25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute.
13. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Ltd. that a revisional order of ::: Downloaded on - 09/06/2013 17:12:24 ::: 22 the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s.115, Code of Civil Procedure.
In our opinion, the view taken by the High Court is not correct.
14 Accordingly, we hold that an order passed under s.25, Provincial Small Cause Courts Act by a District Court is not amenable to the revisional jurisdiction of the High Court under s. 115, Code of Civil Procedure.
10. It is further to be seen that the provisions of Section 154 before they were amended in the year 1974 were considered by the Supreme Court in its judgment in the case of Everest apartments Co-operative Housing Society Ltd. v/s. State of Maharashtra and ors, AIR 1966 SC 1449.
We have quoted above the provisions of sub-section 1 of Section 154 after they were amended in the year 1974.
Perusal of those provisions shows that no revision lies against an order referred to in sub-section 9 of Section 149.
That provision was present in Section 154 even before its amendment in 1974. The Supreme Court in its judgment in Everest Apartment's case has considered the purpose why that provision has been made in Section 154. In paragraph 5 ::: Downloaded on - 09/06/2013 17:12:24 ::: 23 the Supreme Court observed "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 S.149(9) of the Act. The exception was considered necessary because the legality or the propriety of an order having once been considered, it would be an act of supererogation to consider the matter twice." The Supreme Court, thus, has clearly held that once legality or the propriety of an order has been examined by an authority possessing revisional jurisdiction, there is no question of another authority in exercise of the same revisional jurisdiction again considering the legality and propriety of the decision in revision. In other words, a decision taken in revisional jurisdiction cannot be subjected to a further revision unless there is a specific provision made in that regard. In our opinion, therefore, in view of the clear scheme of Section 152 and Section 154 and the observations of the Supreme Court referred to above, the position is absolutely clear that an order passed in exercise of the revisional jurisdiction under section 154 cannot be subjected to scrutiny in exercise of revisional jurisdiction again under the provision ::: Downloaded on - 09/06/2013 17:12:24 ::: 24 of Section 154 of the Act. The question is, therefore, answered accordingly.
11. So far as the second question is concerned, it appears that Writ Petition No.7299 of 2010 was filed challenging the order passed by the Divisional Joint Registrar in appeal against an order passed by the Deputy Registrar under Section 78 of the Act appointing the administrator on a Co.operative Society. At the hearing of that Writ Petition, an objection was raised that the court should not entertain that Writ Petition, because alternate efficacious remedy of filing a revision under Section 154 was available to the Petitioner. At the hearing of that Writ Petition the learned single Judge has referred to various decisions of different learned single Judges taking different views regarding revisional jurisdiction under Section 154. What is observed by the learned single Judge in paragraphs 3, 4, 5, 6, 7 and 8 of the order, in our opinion, is relevant. It reads as under:
th 3 The learned counsel appearing for the 8 ::: Downloaded on - 09/06/2013 17:12:24 ::: 25 respondent has raised a preliminary objection for entertaining this writ petition on the ground that an efficacious and adequate remedy of filing a revision application under Section 154 of the said Act was available to the Petitioners. He relied upon a decision of this Court in the case of Shri. Dilip s/o Devaji Yenorkar Vs. The Divisional Joint Registrar, Co-
operative Societies, Nagpur & Ors [(2009) (4) ALL MR 84]. He submitted that this Court has held that a revision application under Section 154 of the said Act was maintainable before the State Government against an order of Divisional Joint Registrar and that the remedy was adequate and efficacious. He pointed out that this Court held that in view of availability of the said remedy, a writ petition cannot be entertained. He also placed reliance on a decision of Division Bench of this Court in the case of The Beed District Central Co-
operative and Milk Production and Distribution Federation Vs. The State of Maharashtra and others (1984 CTJ 196) in Special Civil Application No. 83 of 1978, decided on 9 September, 1983 . He submitted th that even the Division Bench has held that in view of ::: Downloaded on - 09/06/2013 17:12:24 ::: 26 availability of an efficacious remedy in the form of a revision application under Section 154 of the said Act, a writ petition cannot be entertained.
4 The learned counsel appearing for the Petitioners submitted that the well settled law is that a revision under Section 154 of the said Act is not available as a matter of right and therefore, writ jurisdiction can be always invoked without taking recourse to the said remedy. He placed reliance on the decision of the learned Singled Judges of this Court in the case of Balasaheb Kondiram Pawar and others Vs. State of Maharashtra and others [(1999 (3) Mh.L.J. 982] as well as a decision in the case of Dinkar Uttamrao Patil and another Vs. State of Maharashtra and others [(2010) (5) Mh.L.J. 637.
5 I have given careful consideration to the preliminary objection. In the case of Dilip (supra), in paragraph No.12 of the judgment, this Court has observed thus:
"12. Thus, the clear ratio is that the court should not ::: Downloaded on - 09/06/2013 17:12:24 ::: 27 entertain when statutory remedy is available. We have seen that the revision does lie to the State Government against the order of Joint Registrar. The remedy is both adequate and efficacious. When a particular forum is provided that remedy must be availed. The restraint has to be observed or else the High Court would be flooded with litigation and the very purpose of creating alternate forum would be defeated. That has to be avoided and the forum created under the Act must be left to deal with the disputes.
Therefore, I do not find that the writ petition can be entertained. Same is dismissed."
(Underline supplied) 6 On this aspect, it will be necessary to make a reference to the decision of the learned Single Judge of this Court in the case of Balasaheb (supra). In paragraph No.5, this Court held thus:
"5. It is, therefore, clear that the party cannot claim as a matter of right to move the Government for revision of the impugned orders. If that is so, section 154 cannot be called as an alternative and efficacious remedy. The Supreme Court has indeed, very succinctly described section 154 being potential but not compulsive. This power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, the Government is made the sole Judge. According to me, therefore, the present writ petition is maintainable."
(Underline supplied) ::: Downloaded on - 09/06/2013 17:12:24 ::: 28 7 In the case of Balasaheb (supra), the learned Single Judge has placed reliance on the decision of the Apex Court in the case of The Everest Apartments Co-operative Housing Society Ltd., Bombay Vs. The State of Maharashtra and others, [1966 Mh.LJ 643]. In paragraph No.4 and 5 of the said decision, the Apex Court observed thus:
"4. 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 once been considered, it would be an act of supererogation to consider the matter twice. It follows, therefore, that a Government can exercise its power 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.
5. 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 ::: Downloaded on - 09/06/2013 17:12:24 ::: 29 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 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 obtain intervention, although the mere making of the application has not clothed a party with any rights beyond brining 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 to 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."
(Underline supplied) In the case of Balasaheb (supra), this Court held that remedy of revision under Section 154 of the said Act cannot be called as an efficacious remedy.
::: Downloaded on - 09/06/2013 17:12:24 ::: 308 However, another learned Single Judge in the case of Dilip (supra) has held that the remedy of revision under Section 154 of the said Act is both adequate and efficacious. The decision of the Division Bench in the case of the Beed District Central Co-
operative (supra) does not deal with the issues whether remedy under Section 154 of the said Act can be said to be an efficacious remedy and whether the said remedy is available as a matter of right. It was submitted by the learned counsel for the Petitioners that in view of the decision of the Apex Court in the case of Everest (supra), the decision in the case of Dilip (supra) is per in curiam. However, the decision in the case of Dilip (supra) has taken a note of contrary view in the case of Balasaheb (supra) which in turn makes a reference to the decision in the case of Everest (supra).
12. It appears from the observations of the learned single Judge that whole debate as to the revisional jurisdiction conferred on the State Government and the Registrar by section 154 arose because of the judgment of the Supreme court in Everest Apartment's case and the observations of the ::: Downloaded on - 09/06/2013 17:12:24 ::: 31 Supreme Court in that judgment that the jurisdiction conferred by Section 154 is potential but not compulsive. In our opinion, what is said by the Supreme Court in relation to the revisional jurisdiction under Section 154 not being compulsive is based on the provisions of Section 154 before their amendment in the year 1974. The provisions of Section 154 which the Supreme Court was considering in its judgment in Everent Apartment's case have been reproduced by the Supreme Court in its judgment in paragraph 2 as follows:
2. ...154. Power of State Government and Registrar to call for 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 Ss.(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 threron as to it or him may seem just."::: Downloaded on - 09/06/2013 17:12:24 ::: 32
13. Comparison of provisions of Section 154 as it now stand and we have quoted above with the provisions of Section 154 which is quoted in the judgment of the Supreme Court in Everest Apartment's case shows that before its amendment Section 154 conferred concurrent revisional jurisdiction on the State Government and the Registrar.
Secondly, the revisional jurisdiction which was vested in the State Government and the Registrar could be exercised by them only suo-motu and not on an application made. Now, after amendment of Section 154 in the year 1974, the revisional jurisdiction can be exercised either suo motu or on an application. The Supreme Court while considering the question whether a party has a right to move the Government under Section 154 considered the language used in Section 154 as it then stood and has observed thus in paragraph (6).
"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 ::: Downloaded on - 09/06/2013 17:12:24 ::: 33 course, true that the words "on an application of a party" which occur in S. 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 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 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 to 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."
14. The observations of the Supreme Court in its judgment in the case of Everent Apartment's case are thus based on the unamended provisions of Section 154 when there was no right in a party to move the revisional authority ::: Downloaded on - 09/06/2013 17:12:24 ::: 34 by an application. In other words, provision was not made for invoking revisional jurisdiction of the State Government or the Registrar by making an application. But now because of the amendment in Section 154, a party has a right to move an application under Section 154 invoking revisional jurisdiction of the State Government and the Registrar. In our opinion, however, merely because a party has a right to make an application invoking the revisional jurisdiction of the Registrar and the State Government under Section 154, whether it can be treated as alternate remedy entitling the High Court to decline to exercise its writ jurisdiction is a question which is not capable of being answered generally. That question has to be considered and answered in the facts and circumstances of each case. Firstly, because availability of alternate remedy is not a statutory bar to the exercise either of writ jurisdiction under Article 226 of the Constitution or supervisory jurisdiction under Article 227 of the Constitution.
That is a rule of self discipline and therefore it is for the High Court to consider in each case whether in a particular case availability of revisional jurisdiction is an alternate remedy to ::: Downloaded on - 09/06/2013 17:12:24 ::: 35 the jurisdiction of this court under Articles 226 or 227 or not.
In a given case, because the revisional jurisdiction can now be exercised as a matter of right, it may be treated as alternate remedy. In another case it may not be so treated.
For example, in a case the High Court may find that the question which is raised in the petition is covered by a finding precedent in favour of the Petitioner, therefore may not ask the Petitioner to exhaust the alternate remedy. The High Court will adopt the same course when it finds that the impugned order is passed in violation of the principles of natural justice or fundamental rights or is without authority of law or is obviously wrong or illegal. In another case, the High Court may find that the question raised in the petition is capable of being decided in revisional jurisdiction also and therefore the High Court may decline to entertain thepetition.
Thus, in our opinion, it can be definitely said that after its amendments in the year 1974, a remedy of revision under Section 154 is available to an aggrieved party as a matter of right. However no general rule where it will always operate as an alternate remedy to the remedy of filing a petition under ::: Downloaded on - 09/06/2013 17:12:24 ::: 36 Articles 226 and 227 of the Constitution of India can be laid down. That question will have to be considered and decided in each case on the facts and law peculiar to that case.
Question No.2 is, therefore, answered accordingly.
15. As both questions referred to us have been answered, the office shall place the matters before appropriate courts.
(D.K.DESHMUKH, J.) (ANOOP V. MOHTA, J.) (RANJIT MORE, J.) ::: Downloaded on - 09/06/2013 17:12:24 :::