Ajit Majur Kamgar Sahakari ... vs State Of Maharashtra And Ors.
2006 Latest Caselaw 264 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Shri Dhore, learned Counsel for the petitioner, and Shri Mujumdar, learned Assistant Government Pleader for the respondents,

2. The petition is directed against the order dated 19-4-1993 passed by the Tahsildar, order dated 30-10-1993 passed by the Sub-Divisional Officer, order dated 30-5-1994 passed by the Additional Collector and order dated 8-4-1996 passed by the Additional Commissioner.

3. Shri Dhore, learned Counsel for the petitioner, submitted that the proceedings were initiated against the petitioner on the basis of report of Talathi, Sultanpur dated 25-1-1993. The Tahsildar concluded those proceedings by passing order dated 19-4-1993 wherein it was held that petitioner has illegally transported hundred brass of minor minerals and as per provisions of Section 48(7) of the Maharashtra Land Revenue Code, fine of rupees forty-five thousand was imposed on the petitioner. It was contended that being aggrieved by the said order, appeal was filed by the petitioner before the Sub-Divisional Officer, who vide order dated 30-10-1993 reduced the said fine to rupees seventeen thousand. Though the fine was reduced by the Sub-Divisional Officer, petitioner was not satisfied with the order and, therefore, filed second appeal before the Additional Collector against the order of the Sub-Divisional Officer. Though respondent State did not prefer appeal against the order of Sub-Divisional Officer, the Additional Collector set aside the order of Sub-Divisional Officer dated 30-10-1993 and confirmed the order dated 19-4-1993 passed by the Tahsildar and restored the original fine of rupees forty-five thousand. It was further contended that petitioner being aggrieved by the said order, filed a revision before the Additional Commissioner, who has dismissed the same vide order dated 8-4-1996.

4. It was further submitted by the learned Counsel for the petitioner that in the instant petition, the petitioner has pressed into action the only ground that the order dated 30-5-1994 passed by the Additional Collector and order dated 8-4-1996 passed by the Additional Commissioner cannot be sustained in law in view of law laid down by the Apex Court in Banarasi and Ors. v. Ram Phal AIR 2003 SC 1989 since order passed by the Additional Collector in the appeal preferred by the petitioner has not only caused prejudice, but same is to the disadvantage of the petitioner.

5. Shri Mujumdar, learned Assistant Government Pleader for the respondents, supported the impugned orders and contended that Additional Collector merely confirmed the order passed by the Tahsildar, which is permissible in law and said order is confirmed by the Additional Commissioner.

6. In the backdrop of the above referred facts, it is evident that the Sub-Divisional Officer has reduced the quantum of fine/penalty from rupees forty-five thousand to rupees seventeen thousand. The State Government has not preferred any appeal/revision against the said order. The petitioner filed an appeal against the order of Sub-Divisional Officer before the Additional Collector. In such situation, the Additional Collector was empowered either to allow the appeal of the petitioner and set aside the impugned order passed by the Sub-Divisional Officer or dismiss the appeal. In absence of appeal filed by the State, the Additional Collector could not have passed the impugned order in appeal filed by the petitioner to the prejudice and disadvantage of the petitioner except in the situation as referred to hereinabove.

7. The observations of the Apex Court in para (13) of its judgment in the case of Banarasi and others (cited supra) are relevant, which read thus :

We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants, the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection.

The law laid down by the Apex Court is squarely applicable in the present case and, therefore, order dated 30-5-1994 passed by the Additional Collector as well as order dated 8-4-1996 passed by the Additional Commissioner are quashed and set aside and order dated 30-104993 passed by the Sub-Divisional Officer is confirmed.

8. The rule is made absolute in the above terms. No order as to costs.