JUDGMENT Gavai B.R., J.
1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties, Shri D.P. Thakare, the learned Assistant Government Pleader waives notice on behalf of the respondent Nos. 1 and 2 in Writ Petition Nos. 3266 of 2004 and 2294 of 2004. Shri Rajeev Deo, the learned Counsel waives notice on behalf of the respondent No. 3 in Writ Petition No. 3266 of 2004. Shri S.S. Doifode, the learned Assistant Government Pleader waives notice on behalf of the respondent Nos. 1 and 2 in Writ Petition No. 2295 of 2004. Shri S.D. Kalyani, learned Counsel waives notice on behalf of the respondent No. 3 in Writ Petition No. 2295 of 2004 and Shri Girish Chaubey, the learned Counsel waives notice on behalf of the respondent No. 3 in Writ Petition No. 2294 of 2004.
2. All these three petitions impugn the order passed by the learned Rent Controller dated 10th June, 2002 thereby rejecting the application of the petitioners for reconstruction of record.
3. The present petitioners had filed an application for determination of fair rent before the learned Rent Controller where the premises let out to the respondent No. 3 in each of the petition. The same proceedings were registered as Revenue Case Nos. 62, 63 and 64/A-71(l)/1989-90. However, when the matters were fixed for recording the evidence of the petitioners, the matters came to be dismissed in default on 30th September, 1994. The petitioners, therefore, filed applications for restoration of the cases. The said applications for restoration were also dismissed. Being aggrieved thereby, the petitioners preferred appeals in all the three matters before the learned Additional Collector and the learned Additional Collector vide order dated 24th April, 2002 remanded back the matters to the Rent Controller, Nagpur for deciding the same.
4. On remand, the petitioners entered their appearance by filing pursis. It appears that in the meantime, the record of the original proceedings before the Rent Controller was destroyed and thereafter the petitioners made applications in all the three matters before the respondent No. 2 for grant of permission to reconstruct the record of the original revenue cases. On 10th June, 2002, the petitioners also sought permission of the respondent No. 2 to place on record certain documents. By the said application, the petitioners sought to place on record the pleadings of the parties in the original revenue cases. However, vide order dated 10th June, 2002, the application came to be rejected.
5. Being aggrieved by the order passed by the learned Rent Controller thereby refusing the permission to reconstruct the record, the petitioners filed appeals before the learned Additional Collector. In the said appeals, an objection was raised to the ten-ability of the appeals by the respondents.
6. The petitioners, therefore, filed the present petitions. In the present petitions, a solemn statement was made that the petitioners shall withdraw the application filed before the learned Additional Collector inasmuch as the respondents-tenants had raised objection regarding the tenability of the appeals. It is not in dispute that the petitioners have now withdrawn the appeals before the learned Additional Collector.
7. Heard Shri Rohit Deo, the learned Counsel appearing on behalf of the petitioners, Shri D.P. Thakare and Shri S.S. Doifode, learned Assistant Government Pleaders appearing on behalf of the respondent Nos. 1 and 2, Shri Rajeev Deo, the learned Counsel appearing on behalf of the respondent No. 3 in Writ Petition No. 3266 of 2004, Shri Girish Chaubey, the learned Counsel appearing on behalf of the respondent No. 3 in Writ Petition No. 2294 of 2004 and Shri S.D. Kalyani, the learned Counsel appearing on behalf of the respondent No. 3 in Writ Petition No. 2295 of 2004.
8. Shri Rohit Deo, the learned Counsel for the petitioners submits that since the record has been destroyed by the learned Rent Controller, it is in the interest of justice that the petitioners be permitted to reconstruct the record. He submits that the learned Rent Controller has all the powers which are incidental and ancillary to the main powers for deciding the dispute between the landlord and tenant. He, therefore, submits that in the interest of justice the learned Rent Controller ought to have permitted the reconstruction of record.
9. Shri Rajeeev Deo, the learned Counsel for the respondent No. 3 in Writ Petition No. 3266 of 2004 has raised following points in support of his case.
(i) That since the petitioners had preferred an appeal before the Additional Collector and though the respondents have objected to the tenability of the appeal, the petitioners ought to have continued with the appeals. He, therefore, submits that the present petitions which were filed by withdrawing the said appeals are not tenable.
(ii) Since the record was called by the Appellate Authority in an appeal challenging the orders in original revenue case and since the petitioners were not diligent enough to procure the record, the record was rightly destroyed by the Rent Controller and the petitioners cannot be heard to make any grievance for the same.
(iii) That, the petitioners were neither diligent before the learned trial Court nor before the learned Appellate Court and as such not entitled to invoke the jurisdiction of this Court.
10. Shri Girish Chaubey, the learned Counsel appearing on behalf of the respondent No. 3 in Writ Petition No. 2294 of 2004 made following submissions.
(i) That, there is no provision under the Maharashtra Land Revenue Code or the Rent Control Order for reconstruction and as such the application was rightly rejected.
(ii) That the record was lawfully destroyed by the Rent Controller
(iii) That, the pleadings were not complete.
(iv) That, since the petitioners had not preferred an appeal against the original order of dismissal in default and had preferred an appeal only against the order of rejection of application for restoration, the appeal before the learned Additional Collector was itself not. tenable.
(v) That, in view of the decision of this Court in the case of (Padmaranjana Arunkumar Deshmukh v. Dilip Ramrao Tote and Anr.) reported in 2003(2) Bom.C.R. (N.B.)750 : 2002(4) Mh.L.J. 403, all orders of the Rent Controller wee appealable before the Additional Collector and, therefore, the petitioners ought not to have withdrawn the said appeals.
11. Shri S.D. Kalyani, the learned Counsel appearing on behalf of the respondent No. 3 in Writ Petition No. 2295 of 2004, in addition to the aforesaid legal grounds raised by the learned Counsel, has also submitted that the petitioners are not in a possession of even the application and, therefore, the order of reconstruction would be an exercise in futility.
12. In so far as the contention of the learned Counsel regarding the tenability of the present petitions is concerned, I find that the same is devoid of substance. As a matter of fact, the petitioners had initially preferred an appeal against the impugned order before the Additional Collector. However, the present respondents/tenants raised an objection before the Additional Collector that the appeals preferred by the petitioners were not at all tenable. In that view of the matter, the petitioners approached this Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India by making a statement that the petitioners are withdrawing the appeals before the Additional Collector. The respondents/ tenants cannot be permitted to blow hot and cold at the same time. It is a novel contention raised on behalf of the respondents/tenants that though they had raised an objection to the tenability of the appeals before the Additional Collector, in spite of their objection, the petitioners ought to have prosecuted the appeals filed by them. In any case, the rule of non-entertaining the petition on account of non exhaustion of alternate remedy is the rule of self restraint. In a given case, this Court would be justified even in entertaining the order which is appealable, without exhaustion of alternate remedy. In the present case, all the respondents/tenants were unanimously and vehemently opposing the appeals of the petitioners before the Additional Collector on the ground of tenability. In that view of the matter, the petitioners invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. I, therefore, find that the respondent/tenants now cannot be heard to say that the petitions are not tenable on the ground that the petitioners have not exhausted the alternate remedy.
13. In so far as the diligence of the petitioners is concerned, the respondents/tenants are blaming the petitioners for non procuring the record from the Rent Controller in pursuance to the orders passed by the Additional Collector. If the Additional Collector had passed an order for calling for the record from the Rent Controller then it is for the authority to ensure that the orders passed are implemented by lower authorities. I do not find as to why the petitioners can be blamed for non procuring of the record.
14. The next submission regarding the appeal before the Additional Collector in which order of remand was passed being not tenable since the petitioners had not challenged the original order for dismissal in default and had only challenged the order for rejecting the application for restoration is concerned, the same is also without any merit. After the revenue case was dismissed in default, the petitioners had applied for restoration of the said case and after the said application was rejected had preferred an appeal. Since the earlier order dated 30th September, 1994 had merged into the order dated 29th March, 1995, there was no necessity to challenge the order dated 30th September, 1994 in appeal.
15. In so far as the next contention regarding there being no provisions under the Maharashtra Land Revenue Code and Rent Control Order is concerned, the Division Bench of this Court (to which one of us i.e. B.R. Gavai, J., is a party) in the case of (Chandramohan Chandranarayan Maheshwari and Anr. v. Sarojbai Subhashchandra Agrawal and Ors.) reported in 2005(5) Bom.C.R. (N.B.) 186 : 2005(3) Mh.L.J. 627, has taken a view that the Rent Controller possesses all incidental and ancillary powers to protect the interest of substantive justice unless the exercise of said powers is specifically prohibited by the statute. The Division Bench while arriving at its findings, has taken into consideration the law laid down on the subject by the Apex Court in the case of (Grindlays Bank Limited v. Central Government Industrial Tribunal and Ors.) . This Court has found that the Apex Court has laid down the following principles.
But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
16. The learned Counsel for the respondents have failed to point out-any provision which prohibits the Rent Controller from reconstructing the record. In that view of the matter, I find that in view of the principles laid down by the Apex Court, it will have to be presumed that every procedure is to be understood and is permissible till it is shown to be specifically prohibited by the statute. I, therefore, find that the learned Rent Controller has grossly erred in rejecting the application of the petitioners for reconstruction of record.
17. The petitions are, therefore, allowed. The learned Rent Controller is directed to reconstruct the record. The petitioners make a solemn statement that they are in possession of the applications filed for fixation of fair rent. In case the respondents/tenants are not in a possession of the copies of the written statement filed by them, liberty is granted to them to file written statement so that the interest of respondents/tenants is also not prejudicially affected. The petitioners so also respondents/tenants are directed to assist the Rent Controller in reconstruction of record.
18. Rule is accordingly made absolute in aforesaid terms with no order as to costs. The parties are further permitted to place on record the documents in support of their cases.