Bombay High Court
Syed Afzal Hussain Hussaini S/O Syed ... vs Hon'Ble Minister, Revenue And Forest ... on 7 December, 1999
Equivalent citations: 2000(1)BOMCR838, 2000(1)MHLJ685, 2000 A I H C 2204, (2000) 1 MAH LJ 685 (2000) 1 BOM CR 838, (2000) 1 BOM CR 838
Author: B.H. Marlapalle
Bench: B.H. Marlapalle
ORDER B.H. Marlapalle, J.
1. The subject matter of this petition concerns the land located in Survey Nos. 11 to 16, 19 to 20, 21/1, 21/2, portion of Survey No. 4 and a portion of Survey Nos. 7, 8, 9 and 10, situated in Mohalla Daudpura locality within the city municipal limits of Aurangabad.
2. One Shri Ranchhoddas Anandidas Gujarathi claimed to be the owner of this property and he was facing attachment order in Execution Proceedings No. 13/3 of 1956 in the District Court at Aurangabad wherein the decree holder one Shri S. Shriniwasrao and Yeshwantrao had prayed for execution of decree passed in their favour against the land holder namely Ranchhoddas Gujarathi. In the said proceedings, an application under Order XXI, Rule 83 of the Code of Civil Procedure was presented and permission was obtained to sell the attached property i.e. the agricultural land in the above mentioned survey numbers. Such a permission was granted on 6th August, 1958 by the Court and consequently the land holder agreed to sell the said property to Shri Hashimbhai Jetha through Shri Afzal Hussaini s/o Syed Abed Hussain Saheb, Shri Shaikh Lal Patel, Advocate, Shri Abdul Hamid Saheb, Proprietor of Silk Mills, Aurangabad for starting a charitable institution by name Aurangabad Art and Craft Centre (Darul Funun) on the total land admeasuring about 159 Acres and the sale deed between the parties came to be executed on 18th May, 1955 for a consideration of Rs. 42,000/- out of which an amount of Rs. 2,000/- was paid to the land holder and the remaining amount of Rs. 40,000/- was deposited in the Court treasury. Subsequently, the sale deed was registered on 15th July, 1960.
3. Certificate under section 102-A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (the Hyderabad Tenancy Act, for short) came to be issued in favour of the purchasers on 2nd November, 1962 and the land was given Municipal No. 2412/1. An inquiry was conducted and the Inquiry Officer passed an order on 20th April, 1971 regarding the subject lands and the Petitioner Trust - Vendee filed an application before the District Inspector of Land Records (D.I.L.R. for short) complaining that the area was not shown properly. Final map came to be drawn on 16th September, 1973. This decision of the D.I.L.R., drawing the final map on 16th September, 1973 came to be challenged in an appeal before the Superintendent, Land Records who, after hearing both the parties had decided the matter on 21st October, 1974 and the decision of the D.I.L.R. was set aside. The order passed by the Superintendent came to be challenged in Appeal No. SR-92/75 before the Deputy Director, Land Records. The Appeal came to be allowed by order dated 28th December, 1975 in favour of the present petitioners. It appears from the said order that after the sale deed was executed by Ranchhoddas on 18th May, 1959 part of the property covered in the sale deed was sold by him to one Shri Chainmal S/o Pannalal Kothari and Cushion & Co. through its Manager Shri Chainmal Pannalal Kothari by sale deeds which were executed in the years 1970, 1971 and 1974. The Deputy Director held that the same owner could not have disposed of the same property to different persons once in 1959 and thereafter in 1970, 1971 and 1974. The appeal filed by the petitioner was confined to the property in Survey Nos. 4, 19 and 20 which was adjacent to Survey No. 3, a portion of which had been purchased by Shri Kothari. Thus, the final map drawn on 16th September, 1973 had become final.
4. The aggrieved party approached the State Government by way of a revision and by order dated 19th May, 1978 the Minister of State for Revenue dismissed the revision and confirmed the order passed by the Deputy Director of Land Records, Aurangabad in Appeal No. SR-92/75. The Minister's order came to be challenged before this Court by filing Special Civil Application and a Division Bench of this Court rejected the said Special Civil Application on 21st July, 1978. An organization called Bagh Sher Jung Sangharsh Samiti, Aurangabad representing some housing societies submitted a written representation to the Minister for Revenue on 16th November, 1983 contending therein that the land in Survey Nos. 10 to 13, 19, 20 and 4 was purchased by them from one Bhanudas Zelba Matre, by way of a registered sale deed dated 20th December, 1976 and they were not heard by the Officers from the Land Records Department as well as by the Minister when the revision filed by Shri Kothari was dismissed. This representation appears to have been treated as a Review Application as contemplated within the meaning of section 258 of the Maharashtra Land Revenue Code, 1966 and after issuing notices to the parties concerned and after hearing them, the Minister has passed an order on 29th December, 1983 allowing the review application and directing the remeasurement of the subject land by conducting a fresh inquiry under section 20(2) of the Maharashtra Land Revenue Code. This order passed by the Minister on 29th December, 1983 has been challenged in the instant petition. While admitting the petition, this Court had granted stay on the impugned order on 27th April, 1984 and, therefore, the earlier order dated 19th May , 1978 remained in operation.
5. Shri Kazi, learned Advocate holding for Shri Khader, learned Counsel for the petitioner trust submitted before this Court that the order impugned has been passed by the Minister without any authority in law and even if it is presumed that a review application is tenable under section 258 of the Maharashtra Land Revenue Code, it cannot be presumed that such a review can be entertained even after a period of five years or so. It was further submitted that when the earlier order dated 19th May, 1978 was passed on appreciation of evidence, as was produced before the Minister and the said order was confirmed by this Court in Special Civil Application on 21st July, 1978 the State Government had no authority in law to entertain a representation as review application and allow the same. On merits, it has been contended that the order directing remeasurement is based on erroneous reasoning and the title to the property admeasuring 159 Acres, which came to the petitioner by way of sale deed dated 18th May, 1959, could not be reopened and doubted when this issue was already examined at length in the earlier order passed on 19th May, 1978.
6. Shri Kulkarni, the learned Counsel appearing for respondent No. 4, on the other hand, contended that the Minister has inherent powers of review under section 258 of the Maharashtra Land Revenue Code and the review has been entertained and allowed for just and proper reasons. It has also been submitted that, at the time of filing the petition, a large portion of the suit land was already covered by construction (residential houses) and by now with the passage of time the number of residential tenements/ flats has increased by multifolds. The learned Counsel urged before this Court to confirm the impugned order and allow the authorities to remeasure the subject property especially when no harm is likely to be caused to any one by such remeasurement. In short, it was his contention that the impugned order does not cause prejudice to the interest of either parties and, therefore, it does not call for any interference by this Court.
7. When the Minister has passed the impugned order invoking statutory powers and presumably powers under section 258 of the Maharashtra Land Revenue Code, this Court is required to examine whether the order is with jurisdiction or without jurisdiction and whether a review could be maintainable. Admittedly, the earlier order passed by the Minister in a Revision Application on 19th May, 1978 was challenged before this Court in a Special Civil Application, which came to be rejected on 21st July, 1978 and thus the order passed by the State became final as there was no further challenge by way of a Special Leave Petition before the Supreme Court. The question, therefore, is whether a review application was tenable against an order which had become final in view of the order passed by this Court on 21st July, 1978. Section 258 of the Maharashtra Land Revenue Code empowers the State Government, every Revenue or Survey Officer, either on its or his own motion, or on the application of any party interested, to review any order passed by itself or himself or any of its or his predecessors in office and pass such orders in reference thereto as it or he thinks fit. Sub-clause (iii) of sub-section (1) of section 258 states that no order from which an appeal has been made or which is the subject of any revision proceedings shall, so long as such appeal or proceedings are pending, be reviewed. Clause (iv) of the said subsection provides that no order affecting any question of right between private persons shall be reviewed except on an application of a party to the proceedings and no such application for review of such order shall be entertained unless it is made within 90 days from the passing of the order.
8. In the instant case, the order under review was passed on 19th May, 1978 and the representation, which was treated to be a review application, was submitted on or about 16th November, 1983. In addition, it was not a representation/review by a party who was a party to the earlier proceedings and, therefore, on both of these grounds, the review application did not satisfy the requirements of Clause (iv) of sub-section (1) of section 258 of the Maharashtra Land Revenue Code. There is one more facet which cannot be lost sight of. The order under review was confirmed by this Court by rejecting the Special Civil Application on 21st July, 1978 and undoubtedly the review application before the State was not maintainable on this ground also. If the review applicants had a grievance against the order passed by the State Government on 19th July, 1978 the remedy available to them was to approach to this Court either by way of a fresh writ petition or by way of a review. In this regard we may usefully refer to a judgment of the Supreme Court in the case of K. Ajit Babu and others v. Union of India and others, . In the case of The State of Maharashtra v. Shri Prabhakar Bhikaji Ingle, and in the case of Sree Narayana Dhamasanghom Trust v. Swami Prakasananda and others, the Supreme Court also has held that once an S.L.P challenging the order passed by the High Court was dismissed in limine, without assigning reasons, a review of the High Court's order cannot be entertained by the High Court and such a review application is not tenable. The same law must be applicable in the instant case inasmuch as when the order under review was confirmed by this Court the State Government could not entertain a review application on such an order passed by it earlier. It is, therefore, clear that the impugned order has been passed by the State Government without any authority of law and, therefore, it is a nullity in the eyes of law. When this Court had recorded a finding that the Minister was not empowered to entertain a review application it would not be necessary to dwell upon the merits of such an order.
9. In the premises, the writ petition is allowed and the order impugned is hereby quashed and set aside. Rule made absolute accordingly with no orders as to costs.
10. Petition allowed.