Bombay High Court
Jayraj Devidas vs State Of Maharashtra on 21 February, 2012
Author: G.S.Godbole
Bench: G.S.Godbole
-1- 17-wp-11179-2011
srj
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11179 OF 2011
Jayraj Devidas
& Others .. Petitioners.
V/s.
State of Maharashtra
& Others .. Respondents.
Mr. S. G. Karandikar, for the Petitioners.
Mr. A. V. Anturkar with Mr. M. C. Bhat i/b. Mr. Satnam Singh Rasgotra, for
Respondent Nos.2 to 5.
Ms. P. S. Cardozo, AGP for Respondent No.1.
CORAM: G.S.GODBOLE,J.
DATE : 21st FEBRUARY, 2012.
P.C:-
1 RULE. By consent, rule made returnable forthwith and heard
finally. The respective Advocates for the Respondents waives service of Rule.
2 On 22nd December, 2011, the following order was passed in this Writ Petition:-
"1 Not on Board. Taken on Board.
2 Heard Mr. Karandikar, Advocate for the Petitioners and Mr. Sandesh Patil, Advocate for the contesting Respondents.
3 My attention is drawn to the fact that on the merits of the controversy, the learned President of MRT, Mumbai passed an order holding that the order of remand passed by the SDO was ::: Downloaded on - 09/06/2013 18:12:11 :::
-2- 17-wp-11179-2011 unsustainable. However, only on the ground that second Revision Application is not maintainable, the Revision Application has been dismissed by the MRT.
Prima faice the learned President of MRT was not justified in holding that the Judgment of the Full Bench in the case of Shireen Sami Gadiali & Anr. Vs. Spenta Co-operative Housing Society Ltd., 2011 (3) Mh.L.J. 486, was applicable. In my opinion, prima faice, the said Judgment will have no application in respect of the Revision Application being heard by the MRT under section 76 of the BT & AL Act, 1948 as a Revision under section 76 lies before the MRT; whereas a Revision under section 76(A) lies before the Collector which are two independent authorities.
4 Hence, issue notice for final disposal at the stage of admission, returnable on 01.02.2012. Learned AGP waives service on behalf of the Respondent No.1 and Mr. S. Patil, Advocate waives service on behalf of the Respondent Nos. 2 to
5. 5 Till 8th February, 2012 the order of remand dated 21.05.2011 passed by the SDO, Thane in Tenancy Revision Appeal No. 15/2011 and all further proceedings after remand before the Tahsildar & ALT, Thane will remain stayed."
3 Accordingly, the Petition is heard finally only on the question of maintainability of the Revision Application filed by the Petitioners. The merits of the controversy involved in the Petition are not gone into.
4 Very briefly facts are required to be stated and the same are as under:-
(a) Initially an order was passed on 25th November, 1994 in proceedings under Section 70(b) r/w Section 32-G of the BT & AL Act, 1948 by the Tahasildar. Aggrieved by that order, the Petitioners filed ::: Downloaded on - 09/06/2013 18:12:11 :::
-3- 17-wp-11179-2011 Tenancy Appeal No.36-A of 1996 before the SDO, Thane who allowed the Appeal on 22nd May, 2003 and the Judgment and Order dated 22nd November, 1994 passed by the Additional Tahasildar and ALT, Thane, was quashed and set aside.
(b) Thereafter, Respondent Nos.2 to 5 filed fresh application bearing Nos. Tenancy/32-G/Mire/41/2006 before the Tahasildar and ALT, Thane under Section 32-G of the said Act of 1948.
(c) By order dated 31st December, 2009, the Tahasildar and ALT, Thane dismissed the application both on merits as also by holding that the earlier order of SDO in Appeal has attained finality.
(d) The aforesaid order of Tahasildar and ALT, Thane was taken up in Suo Moto Revision by the SDO, Thane Division, Thane and by order dated 21st May, 2011, the said Suo Moto Revision filed under Section 76-A of the said Act of 1948 was allowed.
(e) Aggrieved by this order, Petitioners filed Tenancy Revision Application No.243/B/2011 before the Maharashtra Revenue Tribunal,Mumbai. The Respondent Nos.2 to 5 objected to the maintainability of the said Revision Application filed by the Petitioners relying upon the Judgment of the Full Bench of this Court in the matter of Shireen Sami Gadiali and another v/s. Spenta Co-op. Hsg. Soc. Ltd.
and othersa a 2011(3) Mh.L.J.-486 ::: Downloaded on - 09/06/2013 18:12:11 :::
-4- 17-wp-11179-2011
(f) By the impugned Judgment and Order dated 14th December, 2011, the learned President, Maharashtra Revenue Tribunal, Mumbai has dismissed the Revision Application only on the ground that the Revision Application is not maintainable.
SUBMISSIONS OF RESPECTIVE ADVOCATES 5 Mr. Karandikar, the learned Advocate for the Petitioners submitted that the Judgment of the Full Bench of this Court in the case of Shireen S. Gadiali (supra) has absolutely no application. He submitted that the said Judgment is based on the peculiar wordings of Section 154 of the M.C.S. Act, 1960 and since the scheme of the 1948 Act is entirely different, the ratio of the Full Bench Judgment will have no application.
He pointed out that Section 76 of the 1948 Act was on the Statute Book right from the beginning and the legislature thereafter introduced Section 76-A by an amendment to meet with a entirely different situation. He pointed out that despite the addition of Section 76-A which conferred power of Revision on the Collector, legislature never thought it fit to give finality to the order of the Collector under Section 76-A and retained the jurisdiction of M.R.T. to entertain a Revision against order of the Collector passed either in an Appeal under Section 74 or in a Suo Motu Revision under Section 76-A. He, therefore, prayed for setting aside the impugned Judgment and Order.
::: Downloaded on - 09/06/2013 18:12:11 ::: -5- 17-wp-11179-2011
6 In this Court, Mr. Anturkar, conceded at the out set that the
Full Bench Judgment of this Court in the matter of Shireen S. Gadiali (supra) will have no application to the facts of the present case. He also conceded that the ratio laid down by the Full Bench Judgment is entirely different and is in the context of the provisions of Section 154 of the M.C.S. Act, 1960 and will have no application to the maintainability of a Revision under Section 76 of the BT & AL Act, 1948.
7 Mr. Anturkar, however, advanced the following submissions and submits that though the Full Bench Judgment was not applicable, the ultimate conclusion of M.R.T. that Revision was not maintainable was correct and, hence, this Court should not interfere. The submission of Mr. Anturkar can be summarized as under:-
(a) Though in the order dated 31st December, 2009 passed by the Tahasildar & ALT, Thane, the nomenclature used is proceedings under Section 32-G; in fact, the said proceedings were under Section 70 (b) of the Act. According to Mr. Anturkar, application was for declaration that the Applicants therein should be declared as tenants and, hence, the proceedings were essentially under Section 70(b) and not under Section 32-G. He, therefore, submits that when the Tahasildar passed the order, he was not acting as ALT but was acting as Mamlatdar, exercising power under Section 70 (b). According to him, therefore, no Appeal lies under ::: Downloaded on - 09/06/2013 18:12:11 :::
-6- 17-wp-11179-2011 Section 74 of the Act against the said order dated 31st December, 2009 passed by the Tahasildar.
(b) The next submission of Mr. Anturkar was to the effect that as an Appeal did not lie; even a Revision did not lie under Section 76(A).
According to him, though the order of SDO, Thane dated 21st May, 2011, was titled as order under Section 76(A), it was initially passed under the provisions of MLR Code, 1966 in revisional jurisdiction under Section 257 of the said Code.
(c) He, therefore, submits that since the order of the SDO was referable to the Section 257 of the Code, no further proceedings will lie against said order before the MRT and that the Revision Application was, therefore, not maintainable.
8 In rejoinder, Mr. Karandikar drew my attention to Section 4 of the BT & AL Act, 1948 and also pointed out that though Section 4 does not contemplate passing of any order but Section 70(1)(a) specifically provides for an appeal against order under Section 4. He, therefore, submits that even though an application is made under Section 70(b), the order which is passed is referable to Section 4 of the Act, and hence the same is appealable. He submitted that the Revision under Section 76(A) was clearly barred by limitation. He relied upon the Judgment of this Court in LPA No.55 of 2003 in the case of Gurudassing Nawoosing ::: Downloaded on - 09/06/2013 18:12:11 :::
-7- 17-wp-11179-2011 Panjwani v/s. The State of Maharashtra.
9 In so far as the submission of Mr. Anturkar recorded in Sub-
Clauses (a) to (c) of paragraph 7 above are concerned, Mr. Karandikar submitted that all these submissions are without merits and that all of them stand duly answered by the Judgment of the Division Bench while deciding a reference in the case of Ebrahim Yusuf Lambe v/s. Abdul Razak Abdul Rahiman Mulla and anotherb.
CONSIDERATION OF SUBMISSIONS 10 I have considered the rival submissions. The Full Bench Judgment in the case of Shireen (supra) has only decided the question as to whether Section 154 of the M.C.S. Act, 1960 provided for second revision against an order passed in Revision. The ratio of the Full Bench Judgment on this point is to be found in paragraph 10 which reads thus:-
"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, 1966 Mh.L.J.(SC)643=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 b 1977 Mh. L. J.160 ::: Downloaded on - 09/06/2013 18:12:11 :::
-8- 17-wp-11179-2011 why that provision has been made in Section 154. In paragraph 5 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 of Section 154 of the Act. The question is, therefore, answered accordingly. "
11 In the back drop of the provisions of BT & AL Act, 1948, the question whether a Revision Application under Section 76 is maintainable for challenging an order passed in Suo Moto Revision under Section 76(A) will have to be considered. Section 76 and 76-A of the BT & AL Act,1948 read thus:-
"76: Revision.- (1) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1939, an application for revision may be made to the [ Maharashtra Revenue Tribunal] constituted under the said Act against any order of the Collector on the following grounds only-::: Downloaded on - 09/06/2013 18:12:11 :::
-9- 17-wp-11179-2011
(a) the order of the Collector was contrary to law;
(b) the Collector failed to determine some material issue
of law; or
(c) there was a substantial defect in following the
procedure provided by this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the [Maharashtra Revenue Tribunal]shall follow the procedure which may be prescribed by rules made under this Act after consultation with the [Maharashtra Revenue Tribunal.] 76A: Revisional powers of Collector.- Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government, at any time,-
(a) for the record of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and
(b) pass such order thereon as he deems fit:::: Downloaded on - 09/06/2013 18:12:11 :::
- 10 - 17-wp-11179-2011
12 It is necessary to note that while Section 76 was on the
statute book right from the beginning, Section 76-A was introduced by an amendment to the 1948 Act in the year 1957. The very purpose of adding Section 76-A was to ensure that in a case where an order passed by the Mamlatdar or Tribunal is wrong, injustice should not be caused to the concerned parties even if an Appeal is not filed and the Collector was empowered to take up the matter in Suo Motu Revision.
13 After the said Section was added, the Bench of the Bombay Revenue Tribunal had an occasion to consider the Sections 76 and 76-A and the observations made by the Bombay Revenue Tribunal which have been quoted in the impugned Judgment meet my approval and the same are quoted herein below:-
"... These are special powers conferred upon the Collector for the purpose of safeguarding the interest of the tenants who, being illiterate and economically backward, are unaware of their own rights and are easily persuaded to forego them in favour of their landlords. It is because of this, that the Legislature has thought fit to add this section by way of conferring special supervisory jurisdiction over the illegal or irregular orders of the Mamlatdar or the Tribunal so that the purpose of the Act, which, while regulating the relation of landlord and tenant, aims at improving the economic and social condition of the peasants and ensuring full and efficient use of land for agriculture, may not be defeated. These powers are to be exercised only where the parties have a right to appeal and yet have not availed of it and the order passed is such as cannot and should not stand on the grounds of legality or propriety or the irregularity of the procedure followed by the Mamlatdar or the Tribunal, i.e. the Agricultural Lands Tribunal. This section therefore serves as a substitute for appeal to the Collector against the order of the ::: Downloaded on - 09/06/2013 18:12:11 :::
- 11 - 17-wp-11179-2011 Mamlatdar or the Tribunal, when such a right is not availed of by the parties and some just and legal relief is called for in the interest of justice."
It is thus clear that Section 76 and 76-A are operating in entirely different fields.
14 In this Court, Mr. Anturkar has conceded that the Full Bench Judgment has no application to the facts of the case and has been wrongly relied upon by the learned President of the Maharashtra Revenue Tribunal. However, I am not deciding this Writ Petition on the basis of the said concession and I am independently considering the question whether the Full Bench has application to the facts of the case and also the question as to whether the Revision Application under Section 76 is maintainable before the M.R.T. against the order passed under Section 76- A. 15 In my opinion, the Full Bench was considering the Revision Application provided in one and the same Section where the power of Revision is traceable to Section 154 of the M.C.S. Act, 1960. In my opinion, because of the wording Section 154, the said conclusion has been drawn by the Full Bench. However, that ratio cannot be applied to the proceedings under Section BT & AL Act, 1948. Section 76 provided for a revision before the Maharashtra Revision Tribunal whereas Section 76-A provided for revision by the Collector. If the legislature had desired that ::: Downloaded on - 09/06/2013 18:12:11 :::
- 12 - 17-wp-11179-2011 an order under Section 76-A should not be subject to a Revision under Section 76, that could have been specifically provided for in the Act itself, which has not been done. Mr. Karandikar was justified in drawing my attention to the provisions of Section 73(3) and Section 88-C(5) of the BT & AL Act, 1948 which provide that a finality has been attached to the orders passed under the said Sections. When the legislature amended the Act and added Section 76-A, the legislature was conscious that it was conferring revisional power on the Collector and it must be held to have been conscious of the fact that a Revision under Section 76 was provided against all orders passed by the Collector under the said Act.
16 In the present case, unfortunately, this scheme of the Act and legislative intent appears to have been completely over looked by the learned President of the M.R.T. which has resulted in passing of the impugned Judgment, which is clearly unsustainable. In my opinion, there is nothing in the Section 76 or Section 76-A which takes away the jurisdiction of M.R.T. to entertain the Revision Application under Section 76 for challenging the order passed by the Collector under Section 76-A of the Act.
17 As an out come of the aforesaid discussion, the impugned Judgment and Order passed by learned President of the M.R.T. is unsustainable and the same will have to be quashed and set aside.
::: Downloaded on - 09/06/2013 18:12:12 ::: - 13 - 17-wp-11179-2011
18 It is, however, necessary to deal with the submission of Mr.
Anturkar that the original order passed by the Tahasildar and ALT, Thane on 31st December, 2009 was essentially an order under Section 70(b) and not an order under Section 32-G. This submission of Mr. Anturkar cannot be accepted for more than one reasons. In the first place, the application, specifically applies for fixing of purchase price which is referable only to Section 32-G. Secondly, the Respondent Nos.2 to 5 have all along contended that their application was under Section 32-G cannot now contend that it was an application under Section 70(b). Even otherwise, considering the nature of application and the prayers, it is clear that the application was under Section 32-G. Hence, Appeal was maintainable against the said order. It is, therefore, not possible to accept the submission of Mr. Anturkar that the proceedings before the S.D.O. were not proceedings under Section 76-A of the BT & AL Act, 1948 but were allegedly proceedings under the provisions of Section 257 of M.R.L. Code, 1966.
19 The first two submissions of Mr. Anturkar that the order under Section 70(b) of the Act is not appealable and that the Revision before the S.D.O. Thane must be referable to the M.L.R. Code, 1966 and not referable to the BT & AL Act, 1948 are without any substance. In my opinion, both these submissions are duly answered by the Judgment of ::: Downloaded on - 09/06/2013 18:12:12 :::
- 14 - 17-wp-11179-2011 the Division Bench on a reference in the case of Ebrahim Yusuf Lambe (supra). In the said Judgment, it is observed thus in paragraphs 5 and 6 which read thus:-
"Para-5:- It is now well settled that right of appeal is entirely a creature of the Statute. Assumption of such right by reference to Section 247 of the Land Revenue Code appears to us to be open to doubt. Section 74(7) enumerates the various sections, orders passed under which are made expressly appealable. Section 74(2) makes chap. XIII of the Land Revenue Code applicable to appeals under "this Act". The words "to the appeals to the Collector under this Act" signify that provision for the appeal has to be traced in the Tenancy Act itself and provisions of chap. XIII are to be applicable not for tracing the right of appeal but for some procedural purpose. The words obviously seem to have reference to the appeals indicated in Section 74(7) of the Act which are all contemplated to be to the Collector.
Para-6:-. Secondly, such application of the Code is subject to "save as otherwise provided" in this Act. An appeal under Section 247 of the Code against orders under other enactments also is made subject to any contrary provision. Section 74(7) itself is such a contrary provision. By specifying appealable orders, Section 74(7) impliedly prohibits other orders being appealable.
Thirdly, Deputy Collector would be the immediate superior revenue officer to the Tahsildar and appeal against the order of the latter would lie to the former under Section 247 of the Code. But Section 74(2) refers to the "appeal to the Collector", which again is indication of contrary intention. That, Collector's such powers are exercisable by Deputy Collector is wholly irrelevant for this construction. With respect, it is difficult to draw an inference of the right of appeal by reference to Section 247 of the Land Revenue Code.
20 This completely answers the submission of Mr. Anturkar that ::: Downloaded on - 09/06/2013 18:12:12 :::
- 15 - 17-wp-11179-2011 the Revision was under the provisions of the M.L.R. Code, 1966. The other submission about the maintainability of the Appeal against the order under Section 70(b) is also to be rejected in view of what is observed by the Division Bench in paragraphs 8 and 9 of the said Judgment which reads thus:-
"Para-8:- The discussion in the above case is illustrative of how the provisions of the Act are not that explicit and how it would not be safe to rule out the right of appeal in the instant case merely because order under Section 70(b) is not made specifically appealable under Section 74(1) of the Act. It is pertinent to note that under Section 74(1) (v) orders under Section 85A are made appealable. Tahsildar is required to decide under that section all questions referred to him by the civil Court, for want of jurisdiction and because the same are triable exclusively by him under the provisions of the Tenancy Act. Such orders include orders on claims to tenancy of every kind defined under Section 2(18) including contractual tenancies. His such order, as discussed earlier, is expressly made appealable under Section 74(1)(v) of the Act. It is difficult to conceive of any good reason why Legislature could have thought of excluding identical orders passed by reference to Section 70(b), from the purview of Section 74(1), when the same are expressly brought under it when passed by the Tahsildar on reference under Section 85A.
Para-9:- All this lends considerable support to the contention of Mr. Parulekar. Clause (a) in Section 74(1) calls for broader construction. Every order under Section 4 is made appealable under this clause. Section 4 indicates who can claim to be a deemed tenant of the land. It is an error to assume that section contains mere definition. It confers right on every one to claim deemed tenancy if he satisfies the requirement of Section 4. But the wide wording of this section does not admit of excluding other kinds of tenants from its perview. Thus contractual tenant, protected tenant, or permanent tenant also cultivates land personally, and also lawfully which belongs to others, and does not ::: Downloaded on - 09/06/2013 18:12:12 :::
- 16 - 17-wp-11179-2011 happen to be a person covered by Clauses (a) to (c). The fact that, section contemplates to cover also persons who cannot lay claim to the said three kinds of tenancies, is not enough to exclude them from the perview of this section for the limited purpose of ascertaining its true content in the context of the scheme of Section 74(1)(a) of the Act. The Legislature presumably did not think it necessary to provide for appeals specifically against order under Section 70(b) separately for this reason, and advisedly remained content by providing appeal against order under Section 4 only.
We are thus of the opinion that Section 4 in the context of Section 74(1)(a) is wide enough to cover every order in regard to claim to tenancy passed under Section 70(b) of the Act and the order under consideration of the Aval Karkun was appealable to the Collector under Section 74(1)(a) of the Act."21
I, therefore, pass the following order:-
(i) The impugned Judgment and Order dated 14th December, 2011 passed by the learned President, M.R.T. Mumbai in Tenancy Revision Application No.243/B/2011 to the extent is held that the Revision Application before the M.R.T. was not maintainable, is quashed and set aside.
(ii) Tenancy Revision Application No.243/B/2011 is restored to file of the M.R.T. Mumbai and the learned President, M.R.T. is directed to decide the same on the merits of the controversy involved in the said Revision Application in the light of the observations made in this Judgment.
::: Downloaded on - 09/06/2013 18:12:12 :::- 17 - 17-wp-11179-2011
(iii) Rule made absolute in the aforesaid terms with no order as to costs.
(G.S.GODBOLE,J.) ::: Downloaded on - 09/06/2013 18:12:12 :::