Bombay High Court
Vinaykumar Kachrulal Abad vs Honourable Minister, Revenue And ... on 19 July, 2001
Equivalent citations: 2002(1)MHLJ854
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Rule. Rule made returnable forthwith by consent. Heard the learned Advocates for the parties. Perused the records.
2. The following questions arise for determination in this petition :
(1) Who is the competent authority under Section 257 of the Maharashtra Land Revenue Code, 1966 (hereinafter called as "the Code") to hear and decide the revision application when the same is filed before the State Government?
(2) Whether the application of the principles of natural justice, particularly, in relation to hearing of the parties by the revisional authority is excluded while disposing the revision application under Section 257 of the Code?
(3) What is the scope of powers of the appellate authority under the code while considering the application for relief in appeal arising from an order permitting Non-Agricultural use of land? Whether it includes power to impose restrictions against alienation of the land which is the subject matter of the grant of permission for Non-Agriculture use?
3. The petition arises from the order dated 13th April, 2001 of the respondent No. 1 and communicated by a letter dated 19th April, 2001 as well as from the orders dated 24th April, 2001 and 13th March, 2001 passed by the respondent No. 17. The order dated 13th April, 2001 of the respondent No. 1 relates to the vacating of the order dated 23rd March, 2001 which was passed by the Minister of State (Revenue). The said order dated 13-4-2001 also relates to direction to the concerned officers to ensure that no alienation of sale of the property in question takes place during the pendency of the appeal before the Respondent No. 17. The letter dated 13th April, 2001 relates to the communication of the said order. The order dated 24th April, 2001 relates to the adjournment of hearing of appeal before the respondent No. 17 and grant of status quo in the matter. The order dated 13th March, 2001 relates to condonation of delay in filing of appeal by the respondent Nos. 2 to 15.
4. The facts in brief, relevant for the decision, are that some times in the year, 1996 the petitioner claiming to be owner and possessor of part of the property bearing survey No. 555, situated at Jalna obtained order for conversion of land to Non Agriculture use. In fact, the order to that effect was passed by the Collector, Jalna on 1-7-1996. The said order of conversion of land for Non Agriculture use was sought to be challenged by predecessors of the respondents No. 3 to 15 by filing an application before the Collector, Jalna but the same was dismissed by the Collector on 10th April, 2000. Thereafter, on 11th April, 2000, the respondent Nos. 2 to 15 filed an application for cancellation of the permission granted to the petitioner for conversion of the land for Non Agriculture purposes to the extent of the part of the land claiming the same to be belonging to the said respondents. The Collector allowed the said application by order dated 14th September, 2000. The same was sought to be challenged by the petitioner by filing writ petition No. 4975/2000, which was allowed by this Court and the order dated 14th September, 2000 was quashed and set aside while permitting the respondents No. 2 to 15 to withdraw the proceedings before the Collector, making it clear that the withdrawal would not affect the legal rights of the respondent No. 2 herein in the proceedings pending in the Civil Court, in Civil Suit No. 168/98 as well as before the revenue authorities and the withdrawal was permitted without prejudice to the rights and contention of the respective parties. The respondents No. 2 to 15 thereafter, on 17th January, 2001 filed appeal before the Additional Commissioner - respondent No. 17 herein challenging the permission granted for the Non Agriculture use of the land by the petitioner, along with the application for condonation of delay in filing the appeal. The application for condonation of delay was objected to by the petitioner. However, the respondent No. 17 by his order dated 13-3-2001 condoned the delay of four and half years in filing the appeal. Being aggrieved, the petitioner filed the revision application under Section 257 of the Code. The same came to be heard by the Minister of State (Revenue and Forest Department) on 23rd March, 2001 and on the very day, the order admitting the revision application and granting order of status-quo for fifteen days came to be passed. The matter was fixed for hearing on 11th April, 2001. Meanwhile, on 29-3-2001, the Desk Officer in the Revenue and Forest Department, placed the matter before the Cabinet Minister (Revenue) with a note inviting the order of the Cabinet Minister on the point as to the procedure to be followed in the matter, particularly, in relation to the hearing of the matter, i.e. whether it should be heard by the Cabinet Minister or by the Minister of State and in relation to continuation or discontinuation of order of status-quo. The Cabinet Minister thereupon, on 13th April, 2001, vacated the order of status-quo passed by the Minister of State and further observed that till the decision of the Additional Commissioner, the concerned authorities should take precaution against the alienation or sale of the property in question. The said order was also communicated to the petitioner by letter dated 19th April, 2001 by the Desk Officer or Revenue and Forest Department. Consequent thereto, the matter before the appellate authority was taken up by the Deputy Commissioner, Aurangabad for hearing on 24th April, 2001 but, was adjourned at the request of the petitioner; however, simultaneously, the order to maintain status-quo was granted. The further hearing was fixed in the matter on 25th June, 2001. Meanwhile, the present petition came to be filed on 24th April, 2001. Since the order of 24th April, 2001 before the lower Appellate Authority was passed subsequent to the filing of the petition, the same was sought to be brought to the notice of this Court by filing Civil Application No. 3750 of 2001.
5. The first ground of challenge in the matter relates to the jurisdiction of the Cabinet Minister to hear and decide the revision application under Section 257 of the Code. According to the petitioner, the jurisdiction to hear and decide the revision application under Section 257 of the Code vests in the Minister of State and not in the Cabinet Minister and, therefore, the order the dated 13th April, 2001 passed by the Cabinet Minister is ab initio bad in law and therefore, the said order and the communication dated 19th April, 2001 by the Desk Officer are to be quashed and set aside. Attention is drawn in that regard to the various provisions of the Maharashtra Government Rules of Business, and Instructions issued thereunder. Reliance is also placed in the decision of the Division Bench of this Court in the matter of Ganeshrao Kishanrao Deshmukh v. Devisingh Venkatasingh and Ors. . On the other hand, it is sought to be contended on behalf of the respondent No. 1 as well as the other respondents that the Rules of Business duly empower the Cabinet Minister who is the Minister in-charge, of the department concerned, to hear and decide the revision application filed under the said Code and, therefore, no fault can be found with the impugned order or communication thereof.
6. Section 257 of the Code empowers the State Government and certain other revenue officers to call for and examine the records and proceedings before the subordinate officers and to pass appropriate order in such matters. In exercise of powers conferred by Clauses (2) and (3) of Article 166 of the Constitution of India, the Government of Maharashtra has framed the Maharashtra Government Rules of Business by order dated 26th June, 1975. Rule 15 thereof provides that those rules may to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister. Accordingly, the necessary instructions were issued by order dated 7th May, 1964. In terms of those instructions under Clause 1(v), "Minister-in-charge" means the Minister appointed by the Governor to be in charge of the department of Government to which a case belongs. Clause 4 therein provides that except as otherwise provided in those instructions, cases shall ordinarily be disposed of by, or under the authority, of the Minister-in-charge, who may by means of standing orders give such direction as he thinks fit for the disposal of cases in the Department. Further, the standing orders issued on 10th January, 2000 in accordance with the Rule 15 of the Business Rules, read with Clause 4 of the Instructions dated 7th May, 1964, provide for distribution of work between the Cabinet Minister and Minister of State. Accordingly, the matters listed in Schedule I are required to be dealt with exclusively by the Cabinet Minister. The matters enlisted in Schedule III are to be exclusively dealt with by the Minister of State and the matters enlisted in Schedule II are to be disposed of by the Cabinet Minister through the Minister of State. Item No. 12 of the Schedule III is a residuary Clause, which provides for all the matters excluding the appeals and revisions which are specifically reserved by the Cabinet Minister for disposal by himself and all other matters which are specifically allotted to the Secretary, Joint Secretary or an Officer on Special Duty for their disposal and in relation to the matters concerning revenue and forest department.
7. On perusal of the Rules of Business framed on 26th June, 1975, the instructions issued thereunder on 7th May, 1964 and the Standing Order dated 10th January, 2000, it is apparent that the revision applications filed under Section 257 of the Code, unless they are specifically reserved for being heard by the Cabinet Minister, or they are being allotted to be heard by the Secretary, Joint Secretary or Officer on Special Duty in accordance with Clause 12 of the Schedule III of the Standing Order dated 10th January, 2000, are required to be heard and decided by the Minister of State. In this connection, it was sought to be contended by the learned A.G.P. that by letter dated 13th July, 2001, it was clarified that the petitioner in the case in hand, was required to forward the revision application before the Cabinet Minister and having not done so, nothing prevented the Cabinet Minister from calling the file for his consideration and passing the impugned order. As already stated above, the Rules of Business read with Instructions and the Standing Order referred to above, nowhere provide that the revision applications filed under the Code are invariably to be heard by the Cabinet Minister. The respondents have not been able to point out any rule having been framed making it obligatory for the revision applicants to present the revision application before the Cabinet Minister alone, when such revision applications are addressed to the State Government. On the contrary, Clause 12 of Schedule III of the Standing order specifically requires an order by the Cabinet Minister to hear the revision application either by himself or an allotment of the matter for hearing by the Secretary, Joint Secretary or an Officer on Special Duty. No such specific order of the Cabinet Minister is required for the purpose of hearing of the matter by the Minister of State as the Clause 12 of Schedule III itself empowers the Minister of State to hear all such matters except those are excluded by the specific order by the Cabinet Minister. There is no dispute that the matter in question was not allotted for being heard either by the Secretary or the Joint Secretary or Officer on Special Duty. The records nowhere discloses any order by the Cabinet Minister reserving the matter in question to be heard by himself. Besides, the letter dated 13th July, 2001 by the Desk Officer addressed to the Government Advocate, copy of which is placed on record, nowhere refers to any order by the cabinet Minister for reserving the matter for hearing by himself. Such an order is necessarily to be by the Cabinet Minister and mere explanation in that regard by the Desk Officer can be of no assistance.
8. Once, it is clear that the jurisdiction, to hear the revision application under the Code, vests in the Minister of State, and there being no specific order passed by the Cabinet Minister reserving the revision application filed by the petitioner for being heard and decided by him, the impugned order dated 13th April, 2001 apparently, discloses an arbitrary exercise of powers by the Respondent No. 1. In this regard, the learned Advocate for the petitioner is justified in placing reliance in the decision in the matter of Ganeshrao Kishanrao Deshmukh (supra). The Division Bench therein, has clearly held that it is well established principle of law that a function of making a quasi-judicial decision has to be exercised by the authority upon whom the judicial functions are conferred and not by any other person or authority. Reference was made to its earlier decision in Tuljansa Janardhansa Pawar v. Commissioner of Income Tax, Bombay, South , wherein Justice Chagla. C. J. and Tendolkar, J., pointed out that:
"When an authority upon whom judicial functions are conferred has to decide or hear a case or an appeal, he can only do so provided he has heard all parties which are likely to be affected by the order which he is going to make. It is a fundamental principal of natural justice that no Judge or no person upon whom judicial powers are conferred can come to a judicial or a quasi-judicial decision without hearing all parties who are to be affected by his decision, and we must always assume that the Legislature who has knowledge of judicial principles and rules of natural justice impliedly, if not expressly, incorporate these rules whenever they confer judicial functions upon a person or an authority. If these rules of natural justice are to be excluded, then we must find in the statute an express provision to that effect."
A feeble attempt was made to distinguish the said decision of the Division Bench by contending that the same was in the matter of appeal and not revision application. It hardly makes any difference whether it is appeal or revision. When the authority is conferred upon with judicial function of making judicial or quasi-judicial decision, it is that authority, and that authority alone, who has to perform the said function and not any other authority. Once it was clear that the Minister of State had exercised its jurisdiction to hear the matter and had passed some order therein, it was not permissible for the Cabinet Minister to vacate the said order, unless the prerequisite of allotment of the said revision application to himself was done by appropriate order in that regard. Such an order of allotment of the matter to the Cabinet Minister was pre-requisite to enable the Cabinet Minister to pass any order relating to the subject matter of the revision application in question. Undisputedly, there is no such order of allotment of the revision application in question to the office of Cabinet Minister and admittedly, the Minister of State in exercise of his jurisdiction had already passed an interim order in the said revision application and he was already seized of the matter.
9. In the circumstances, therefore, the impugned order dated 13th April, 2001 passed by the respondent No. 1 cannot be sustained. It is not necessary to consider the points in relation to the absence of jurisdiction to the Secretary, Joint Secretary and Officer on Special Duty in view of the decision of the Full Bench of this Court in the matter of Sheikh Mohamed Fatemohamed and etc. v. Raisuddin Azimuddin Katil and Ors. . Besides, the said point does not arise for consideration in the case in hand.
10. It was sought to be contended on behalf of the respondents that the power contemplated in Clause 12 of Schedule III of the Standing Order dated 10th January, 2000 is residuary power and in order to enable the Cabinet Minister to reserve any matter to be heard by himself, every matter is necessarily required to be placed before him for such order and only after any such order is passed or refused to be passed, it cannot be said that the Minister of State would enjoy the jurisdiction to hear the matter and pass order. It is difficult to accept the proposition canvassed by the learned Advocate. As already observed above, the Minister of State would not enjoy the power to hear the matter only in case where the revision application is reserved by the Cabinet Minister for himself to decide. The Rule nowhere prescribes that every matter is invariably, to be placed before the Cabinet Minister and that only after his order or failure to make such order, the proceedings would go before the Minister of State. On the contrary, the said Schedule III speaks basically of all the matters which are reserved for the Minister of State. Besides, considering the facts in the matter in hand, the record discloses that the revision application was placed before the Minister of State for hearing. There is controversy as to who and how the matter could have been placed before the Minister of State, whether it was by the petitioner himself or by the officers of the Minister. Be as it may, the fact remains that the Minister of State had exercised jurisdiction in the matter. Thereafter, the Desk Officer had placed a note before the Cabinet Minister to decide as to whether the matter to be taken by Cabinet Minister or to be continued with Minister of State. Nothing prevented the Cabinet Minister from passing an appropriate order thereon. Undisputedly, no order in that regard was passed by the Cabinet Minister and without passing such order, the order passed by the Minister of State was sought to be vacated. Considering the scope of Clause 12 of Schedule III of the Standing Order such an exercise is not permissible. Being so, the point canvassed by the learned Advocate for the respondents No. 2 to 15 cannot justify the impugned order in any manner nor it can legalise the same as being within the jurisdiction of the Cabinet Minister.
11. The second ground of challenge relates to the disposal of revision application under Section 257 of the Code without hearing the petitioner. In this regard, it was sought to be contended that records apparently disclose that the petitioner was not at all heard while passing the impugned order dated 13th April, 2001 and, there was no fair opportunity given to the petitioner to put forth his contentions before the authority. In that regard, it was sought to be contended on behalf of the respondents that the provision contained in Section 257 of the Code do not require personal hearing while disposing the revision application. The learned Advocate for the respondents No. 2 to 15 has, however, fairly conceded that, even though the hearing is held to be not necessary, the order has necessarily to be a reasoned order. It was the contention of the learned A.G.P. that it is only in case of modification, annulment or reversion of the order of the lower authority that the hearing to the parties would be necessary and not otherwise. The arguments were canvassed by referring to Sub-section (3) of Section 257 of the Code. As already seen above, the Section 257(1) of the Code provides that 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, for 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. Sub-section (3) thereof provides that if in any case, it shall appear to the State Government, or the concerned officer that any decision or order or proceedings so called 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. Apparently, Sub-section (3), in no uncertain terms provides, that in case of variation or reversion of any order affecting any question of right between private persons shall not be made without the concerned parties are heard in the matter. Perhaps, the learned A.G.P. would be justified in contending that when the revisional authority wants to restrain itself from interfering in an order passed by the lower authority, the provisions contained in Sub-section (3) of Section 257 of the Code do not expressly contemplate for prior hearing of the parties. But, the Legislature in its wisdom, has used the phraseology in the provision to the effect that "any variation or reversion of any order affecting any question of right between private parties", should be only after hearing the parties. In other words, any order that may be passed by the revisional authority, if it may relate in any manner to the question of right between private persons, certainly such persons should be heard before passing any such order. Besides, it cannot be forgotten that the provisions contained in Section 257 of the code relate to judicial and quasi-judicial matters. It is well established principle that when the authority is entrusted to act judiciously, there is an obligation to follow the principles of natural justice even though not expressly provided for in the statute. A decision in exercise of judicial and quasi-judicial powers cannot be arrived at by flouting the principles of natural justice. In that regard, the ruling in the matter of Lala Shri Bhagwan and Anr. v. Ram Chand and Anr. , can be advantageously referred to. Bearing in mind the well established principles of law that in case of performance of any judicial function, in the absence of express exclusion of the application of principles of natural justice, the authority is required to follow those principles and considering the phraseology of proviso to Sub-section (3) of Section 257 of the Code, there is hardly any room to contend that the application of the said principles is excluded therefrom while deciding the matter thereunder. The Apex Court in the matter of The Government of Mysore v. J. V. Bhat has held that when there is nothing in the statute prohibiting an opportunity of being heard, hearing must be given while exercising statutory powers. Here is the case where legislature requires the revisional authority not to vary or reverse any order affecting the right of the parties without the persons are heard. Being so, there is no scope for contending about the exclusion of application of principles of natural justice relating to the hearing the parties while deciding the matter under the said provision. The records in the case in hand apparently, disclose that the petitioner was not heard by the Cabinet Minister while passing the impugned order dated 13th April, 2001 and, therefore, the same is bad in law on that count also.
12. Thirdly, it is contended that the communication dated 19th April, 2001, in any case, is beyond the scope of the order dated 13th April, 2001. The letter dated 19th April, 2001 relates to communication of the decision dated 13th April, 2001 but discloses intimation of rejection of the revision application by the order of the Cabinet Minister (Revenue). Perusal of the order dated 13-4-2001, as rightly submitted by the learned Advocate for the petitioner, nowhere discloses rejection of the revision application filed by the petitioner. It only discloses the order vacating the earlier order granted by the Minister of State (Revenue) and further requires the concerned officer to take precaution against the alienation and sale of property in question during the pendency of the matter before the Additional Commissioner. Being so, apparently, the letter dated 19-4-2001 by the Desk Officer was not in accordance with the order dated 13th April, 2001 of the respondent No. 1. The learned Government Advocate has fairly produced all the records for the perusal of this Court and the said records do not disclose any order of rejection of the revision application as such. The communication dated 19-4-2001 by the Desk Officer to the petitioner, therefore, is totally incorrect. It being a quasi-judicial matter, the officers of the Government intimating the decision of the authority should have taken extra precaution while communicating the decision. It was highly improper on the part of A. F. Desouza, Desk Officer, Revenue and Forest Department to intimate the petitioner something which is contrary to the records. The officer henceforth is required to be more cautious and should take all precautions while communicating the decisions of the authorities.
13. Fourthly, it is the contention of the petitioner that the respondent No. 1 is being guilty of arrogation of the powers of the lower authority as well as malice in law for directing the respondent No. 17 to pass order restraining the alienation of the property in question during the pendency of the proceedings before the said authority. While making good the contention, the learned Senior Advocate for the petitioner has placed reliance upon the decision of the learned Single Judge in Shriram Sahakari Sakhar Karkhana Ltd. another v. Director of Sugar and Additional Registrar, Co-operative Societies, Maharashtra State, Nagpur and Ors. reported in 1997 (3) ALL MR 106 and of the Apex Court in Chandrika Jha v. State of Bihar and Ors. . On the other hand, while drawing attention to Exh. R-3 being letter dated 23rd May, 2000 by the Tahsildar, Jalna to the Collector of Jalna, it was sought to be contended by the learned Advocate for the respondents No. 2 to 15 that the conduct of the petitioner himself disentitles him to get any equitable relief in the matter and much less, to accuse the Minister of being guilty of malice in law. Referring to the said letter, it was sought to be contended, that the petitioner has been guilty of encroachment on the land belonging to the said respondents in high handed manner and by flouting all the rules and regulations and considering the same, the authority has condoned the delay as well as has granted order to maintain status-quo.
14. There is no dispute that the matter before the Appellate Authority arises from the order of grant of permission of conversion of land for non agriculture purposes to the petitioner. The scope of the inquiry in the appeal before the Appellate Authority in relation to such grant of permission has necessarily to be in relation to the validity, legality and propriety of the order relating to conversion of the land. While conducting such inquiry, undoubtedly, the authority has to get itself satisfied about the fact of the ownership of the land of the applicant. However, that will not entitle such authority to decide the issue of title or dispute regarding title to the property between the parties. Obviously, such an issue will have to be decided by taking recourse to a normal remedy in accordance with the provisions of law applicable in a given case. At the same time, it cannot be disputed that the Appellate Authority in an appeal arising from the grant of non agriculture permission, will have jurisdiction to grant interim relief within the scope of inquiry permissible under the Code in relation to the issue of conversion of use of the land from one purpose to another. The provisions of the law contained in the Code and the Rules made thereunder, relating to the procedure for conversion of use of land from one purpose to another, do not refer to the issue of alienation of the property by the applicant, either during the pendency of such proceedings or thereafter. But certainly, the provisions deal with the use of the land in the form it exists on the date of the application as well as in the form permitted to be converted, either during the pendency of such proceedings for conversion as well as thereafter. Therefore, as rightly submitted by the learned Advocate for the petitioner, the issue regarding alienation of the property does not appear to be within the scope of the inquiry in relation to the matter pertaining to conversion of land from one use to another. At the same time, as rightly contended by the learned Advocate for the respondents No. 2 to 15, the inquiry would include the matters pertaining to actual use of the land either during the pendency of such proceedings or even thereafter.
15. As already pointed out earlier, the impugned order dated 13th April, 2001 requires the concerned authorities to take steps against the alienation and sale of the property in question, during the pendency of the proceedings before the Additional Commissioner, The learned Single Judge of this Court in Shriram Sahakari Sakhar Karkhana's case while dealing with the scope of the powers of the authorities in terms of Rules of Business and the Instructions issued thereunder, has referred to the decision of the Apex Court in the matter of S.R. Venkatraman v. Union of India and Anr. , has observed thus :--
"Viscount Haldane described it as follows in Shearer v. Shields, (1914) AC 808 at p. 813 :-- A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind : he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.
Thus, malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of responsible or probable cause."
Apparently, if the authority, purportedly exercising its powers under Section 257 of the Code, passes an order, in relation to the matter pertaining to conversion of land from one use to another, it would be within the scope of the inquiry under Section 44 and connected and relevant provisions in relation to conversion of use of land and within the scope of the powers under the said Code. An issue regarding the sale or alienation of the property does not arise for consideration under the Code while dealing with the matter in relation to conversion of use of land. Besides, such matters are to be dealt with by the Civil Courts and not by the revenue authorities. Hence, the learned Advocate for the petitioner is justified in submitting that the authority, who is supposed to know its jurisdiction under the Code, being restricted to the matters enumerated under the Code, could not have assumed jurisdiction which it does not possess, and could not have passed an order pertaining to totally extraneous matter. This aspect is also to be considered along with the fact that the impugned order has been passed in most arbitrary exercise of its jurisdiction as observed above. The Cabinet Minister having, in the case in hand, passed an order beyond the scope of the inquiry, and about totally extraneous matter certainly can be said to be guilty of malice in law.
16. Undisputedly, the revision application filed by the petitioner was in relation to the order regarding condonation of delay in filing the appeal before the Appellate Authority. The same was not referring to the merits of the case put forth by the respondents No. 2 to 15 before the Appellate Authority. Undisputedly, the application for interim relief in the appeal was pending before the lower Appellate Authority and was yet to be decided by the said authority. The scope of revision application being restricted to the issue regarding condonation of delay and the matter pertaining to the interim relief, during the pendency of the appeal, was writ large before the lower Appellate Authority itself, it was highly improper for the revisional authority to assume or to arrogate jurisdiction of the Appellate Authority in relation to the interim relief in the matter. In that connection, the learned Advocate for the petitioner is justified in placing reliance upon the decision in the matter of Chandrika Jha (supra). Therein, the Apex Court had, in clear terms, disapproved the attempt on the part of the State Government to arrogate itself the statutory functions of the Registrar under byelaw No. 29 of Vaishali District Central Co-operative Bank read with Section 65A of the Bihar and Orissa Co-operative Societies Act, 1935. This should not be misconstrued to mean that the lower authority would have such powers to grant relief in relation to the sale or alienation of the property. These powers would depend entirely on the scope of the inquiry in relation to the matter in issue, as already observed above.
17. It is then contended that the order dated 24th April, 2001 has been passed entirely at the instance of and on the directions from the respondent No. 1 and without application of mind by the concerned authority. The reference is made to letter dated 19-4-2001 by the Desk Officer addressed to the Additional Commissioner, Aurangabad. By the said letter, the Desk Officer appears to have conveyed the decision of the Minister in the revision application filed by the petitioner against the delay condonation order in appeal filed by the respondent No. 2 and, therein, it had been informed that the officer has been ordered to communicate to the Additional Commissioner that till the appeal before the said authority is decided, precaution to avoid the sale or alienation of the property in question should be taken.
18. The order dated 24th April, 2001 discloses that the hearing of the matter was adjourned at the request of the petitioner, and after considering the letter dated 19th April, 2001, and all other materials, the order to maintain status-quo was granted. It is to be noted that the matter was taken up for hearing by the Deputy Commissioner on 24th April, 2001 who was in-charge, of the office of the Additional Commissioner that day. There is no doubt that the order dated 24th April, 2001 refers to the letter dated 19th April, 2001. The records before the Appellate Authority made available for the perusal of this Court disclose that the letter dated is 19th April, 2001 referred to in the said order is one which was addressed by the Desk Officer to the Additional Commissioner intimating the decision of disposal of the revision application and the direction of the Cabinet Minister to take precaution against the sale or alienation of the property. The order also refers to the fact that the authority has considered all other aspects in the matter. However, the fact remains that the authority, before passing the impugned order, has certainly taken into consideration the letter dated 19-4-2001. Indeed, once it was clear that it is for the lower Appellate Authority to apply its mind independently to the materials on record and to pass an appropriate order regarding interim relief. It could not have taken into consideration any such direction, while granting interim relief. However, as already seen above, the scope of the inquiry before the Appellate Authority does not include the question relating to the sale or alienation of the property while considering the matter relating to the conversion of use of the land. Being so, the impugned order granting status-quo it cannot be said to have any relation to the issue of sale or alienation of the suit property and it cannot be interpreted to mean any ban or restrain on sale or alienation of the property by virtue of the said order. At the same time, it does not mean that the said order does not relate to other aspects of the matter which are within the scope of the inquiry in relation to conversion of land such as continuation of use of land for non agriculture purpose including the construction activities therein.
19. As rightly submitted by the learned Advocate for the respondent No. 2 to 15, the authority, while considering the application for interim relief will have to take into consideration all the materials placed on record by both the parties and those will include letter dated 23-5-2000 by the Tahslidar, Jalna addressed to the Collector of Jalna. Undoubtedly, as observed above, all this exercise, should be in relation to and within the scope of the inquiry pertaining to the conversion of the land for non-agriculture purposes and the actual use thereof during the pendency of hearing of the appeal.
20. The impugned order dated 24th April, 2001 also apparently discloses that the hearing, of the matter was adjourned at the instance of the petitioner. The lower authority has already applied its mind for condonation of delay in the matter and necessity of considering the matter on merits. Taking into consideration both these facts and more particularly, that the matter was sought to be adjourned at the instance of the petitioner himself, even though the impugned order relates to the letter dated 19-4-2001 and, therefore, it cannot be considered as far as in relation to sale and alienation of the property in question, certainly, the order having been passed on the face of it, disclosing the authority having considered other aspects of the matter, as far as it relates to the status-quo about the use of land by the party, does not warrant any interference at this stage. This does not mean that this Court has pronounced its opinion regarding the merits of the case. It will be entirely for the concerned authority to decide the same while hearing the matter either on merits or in relation to temporary relief. Certainly, the question of hearing the matter on the merits will arise after disposal of the revision application filed by the petitioner. But, as regards the decision during the pendency of the appeal, the jurisdiction of the Appellate Authority need not be interfered with at this stage by this Court in the writ jurisdiction.
21. Lastly, the challenge is to the order dated 13th March, 2001 in relation to the condonation of delay in filing appeal. It has already been held above that the revision application in that regard is still pending, as the impugned order dated 13th April, 2001 has not disposed of the revision application. Since the revisional authority is seized of the matter, it will be premature for this Court to decide about the legality or validity or propriety of the order dated 13th April, 2001 relating to condonation of delay.
22. It was sought to be contended that since the order dated 24th April, 2001 was passed by following the direction issued by letter dated 19-4-2001, there is fair apprehension in the mind of the petitioner that he may not get fair and impartial justice in the matter before the same authority. Undisputedly, the order dated 24th April, 2001 was passed by the Deputy Commissioner. Suffice to observe in this regard that the matter will have to be considered by the Additional Commissioner, Aurangabad himself and not by any other authority. It is also made clear that the Additional Commissioner, Aurangabad shall not take any cognizance of the communication dated 19th April, 2001 of Mr. A.F. Desouza, Desk officer. Revenue and Forest Department and totally ignoring the same, should consider the application on merits and based on other materials on record.
23. In the result, therefore, the petition partly succeeds. The impugned order dated 13th April, 2001 passed by the respondent No. 1 is hereby quashed and set aside. The communication dated 19th April, 2001 by the Desk Officer regarding the alleged order of dismissal of the revision application, consequently, is also set aside. As regards the order dated 24th April, 2001 as far as it relates to the sale or alienation of the property in question, is hereby quashed and set aside. However, as far as it relates to the use of land including construction in the property, the same is not interfered with. As regards the order dated 13th March, 2001, no interference is called for at this stage as the matter is writ large before the revisional authority. The revision application filed under Section 257 of the Code has necessarily to be decided by the Minister of State in the matter. The parties to appear before the concerned Minister of State on 9th August, 2001 to take appropriate date for hearing in the matter.
24. Rule is made absolute in the above terms with no order as to costs.