Bombay High Court
Gopinath Ramchandra Karpe And Others vs The Sub Divisional Officer Shirdi And ... on 27 February, 2019
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
27WP3275.18
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3275 OF 2018
GOPINATH RAMCHANDRA KARPE AND OTHERS
VERSUS
THE SUB DIVISIONAL OFFICER, AHMEDNAGAR AND OTHERS
Advocate for Petitioners : Mr. N.L. Choudhari.
AGP for Respondent Nos. 1 & 2 : Mr. S.R. Yadav.
Advocate for Respondent Nos. 3 to 7 : Mr. S.P. Kakade (Matkar).
CORAM : RAVINDRA V. GHUGE, J.
Dated : 27.02.2019 PER COURT :
1. Despite the orders passed by this Court on 07.01.2019 and 16.01.2019 which were in the light of the statement made by the learned AGP, I have still permitted the petitioner to canvass all his points since Shri Choudhari, learned advocate for the petitioners insisted that he should be heard on all the points.
2. Shri Choudhari, has put forth his basic challenge, contending that as the Sub-Divisional Officer has entertained a revision under Section 23 (2) of the Mamlatdars' Courts Act, 1906, assailing the order of the Tashildar under Section 5 (2) of the said Act, the order of the SDO should be stayed in view of the issue being referred to a larger bench at Nagpur. Coupled with this submission, his contention is that any SDO under MLR Code cannot be a delegatee of the Collector and therefore, cannot decide a Revision under 1906 Act. ::: Uploaded on - 02/03/2019 ::: Downloaded on - 22/03/2019 05:59:04 :::
27WP3275.18 2 He, therefore, submits that no SDO should entertain a Revision under Section 23 (2), until the larger bench decides the matter.
3. He relies upon the order passed by this Court (Coram : A.S. Chandurkar, J.) in Writ Petition Nos. 387/2017 and 8235/2017 on 12.04.2018 at Nagpur. He then contends that considering that the matter is referred to the larger bench on 12.04.2018, no proceedings should continue before the SDO under the 1906 Act, as long as the larger bench is constituted and the issue is decided. To support his prayer, he relies upon the judgment of the Hon'ble Supreme Court in the matter of Official Liquidator Vs. Dayanand and others [AIR 2008 SC 1177], and especially paragraph No. 16 of the said judgment.
4. The learned AGP submits that this Court has extensively dealt with this issue in a judgment delivered on 13.10.2017, in the matter of Kashiram Asaram Ghadge and others and Ramdas Bhanudas Pund and another in Writ Petition Nos. 7839/2017, and connected matters. He submits that it was specifically brought to the notice of this Court that since the State is not in a position to have officers performing limited functions under a single Act/statute, the State decided to have certain revenue officers to perform different functions under different statutes. He relies upon Sub-Section 2-A under Section 23 of the 1906 Act which reads as under : ::: Uploaded on - 02/03/2019 ::: Downloaded on - 22/03/2019 05:59:04 :::
27WP3275.18 3 "2-A The Collector may delegate the powers conferred on him by this section to any Assistant Collector, Deputy Collector or Assistant Commissioner subordinate to him."
5. He then submits that considering the scope and power of the Collector under the 1906 Act to delegate his revisional powers under Section 23 (2A) to any Assistant Collector, Deputy Collector or Assistant Commissioner sub-ordinate to him in the revenue hierarchy, the first order of delegating such power was passed on 30.07.1987, when the Collector delegated his revisional powers to the Deputy SDO/Assistant Collector in a particular area. He points out from his affidavit-in-reply and the document at page No. 54 to contend that a Deputy Collector is mentioned as an SDO under the MLR Code. All revenue authorities under the 1906 Act are Deputy Collectors and therefore, such delegation of authority has been the practice for more than 32 years. He, further, points out that Sub-Section 2 A of Section 23 of the 1906 Act or even the first order of delegation dated 30.07.1987, has not been set aside by any Court till this date, as per his instructions.
6. In the instant case, I find that the Tasildar had earlier decided the dispute between the parties on 16.11.2015, in favour of the original applicant Shantabai and Bhausaheb. These petitioners themselves moved a Revision Application under Section 23 (2) ::: Uploaded on - 02/03/2019 ::: Downloaded on - 22/03/2019 05:59:04 ::: 27WP3275.18 4 specifically before the SDO. By an order passed by the concerned SDO dated 20.08.2016, the petitioners' Revision was allowed. These petitioners that time did not complain that the SDO had no powers. The matter was remanded to the Tahsildar for re-hearing and for carrying out a fresh panchanama and a spot inspection. After carrying out a fresh panchnama as well as a re-hearing, the Tahsildar delivered his order on 24.05.2017, concluding that these petitioners have blocked an existing path by putting up obstacles and the said obstacles shall be removed, so as to clear the existing way. The obstacles were wooden logs and hollow cement pipes.
7. These petitioners themselves approached the SDO for the second time, by contending that the Revision filed by them should be entertained under Section 23 (2). By that time, the learned Single Judge of this Court at Nagpur, had already taken a view on 28.04.2016 that an SDO under the MLR Code would not be the SDO under the 1906 Act and therefore, an SDO cannot entertain the said proceedings in Revision. Yet, these petitioners continued with the said remedy and it is only after the said revisional authority delivered a judgment rejecting the revision on 12.01.2018, that this petitioners are before this Court contending that the authority whom they had themselves approached twice, did not have the jurisdiction. ::: Uploaded on - 02/03/2019 ::: Downloaded on - 22/03/2019 05:59:04 :::
27WP3275.18 5
8. I have no hesitation in respectfully agreeing with the view taken by the Hon'ble Apex Court in the matter of Official Liquidator (supra) that when a particular point in law is referred to a larger bench, this Court should not entertain litigation until the said issue is decided. However, the State has taken a stand that, before the various benches of this Court and also at Nagpur, the State had not made a statement that it is a habit for the SDO to write his designation as SDO in every matter irrespective of whether he is functioning under the MLR Code or under 1906 Act. It was also not canvassed that an SDO is only a designation under the MLR Code and the officer performing such duties is the Deputy Collector. It was also not canvassed that such a Deputy Collector, while performing his functions under the MLR Code, cannot assume the designation as SDO, that he performs the delegated functions on behalf of the Collector's revisional power under the MLR Code, and that he is either the Deputy Collector or an Assistant Collector. The word SDO has been used for common understanding and that the SDO would be the Deputy Collector and such Deputy Collector, if delegated with the powers by the Collector, would be the revisional authority under the Mamlatdars' Courts Act.
9. In so far as the contention of the petitioner is concerned that until the reference to a larger bench and a decision, no SDO should ::: Uploaded on - 02/03/2019 ::: Downloaded on - 22/03/2019 05:59:04 ::: 27WP3275.18 6 be permitted to perform the duties of the revisional authority under the 1906 Act, I find that the said submission at this stage should not be entertained for the reason that the entire functioning of the revisional authority under Section 23 of the 1906 Act would be brought to a stand still. So also, this is not necessary to be done since the learned AGP submits that if the habit of these officers of mentioning their designation as SDO is ignored, they are actually performing duties as a delegatee of a Collector exercising his revisional powers under Section 23.
10. Learned counsel for the petitioners, notwithstanding the conduct of his clients of twice approaching the SDO fully believing that he is the revisional authority, prays that the impugned judgment of the revisional Court be stayed only on the ground that the signatory to the order has described himself as SDO. Though this prayer would be unsustainable in the light of the stand taken by the State Government, I am staying the said order in anticipation that the larger bench would be deciding such an issue in the near future and law would be in place.
11. As such, Rule. Respective counsel appearing on behalf of the respondent, waive service of Rule. The impugned order passed by the SDO dated 12.01.2018, shall stand stayed.
::: Uploaded on - 02/03/2019 ::: Downloaded on - 22/03/2019 05:59:04 :::
27WP3275.18 7
12. The learned advocate for the petitioner submits that the order of the Tashildar would be implemented and this matter would be infructuous. He further states the implementation of the Tahsildar's order be made subject to the result of this petition.
13. As such, after the obstacles/blocks in the way are removed pursuant to the order of the Tahsildar, same shall be a temporary arrangement and would be subject to the final result in this case.
( RAVINDRA V. GHUGE, J. ) S.P.C. ::: Uploaded on - 02/03/2019 ::: Downloaded on - 22/03/2019 05:59:04 :::