Jagannath Namdev Ambekar, Eknath ... vs The State Of Maharashtra, Through ...
2007 Latest Caselaw 638 Bom

JUDGMENT

P.V. Kakade, J.

Page 1428

1. Heard the learned Counsel for the petitioners as well as the learned Assistant Government Pleader for the respondents.

2. Rule. Rule made returnable forthwith.

3. The simple question involved in this matter is whether the Principal Secretary of the State would have the prerogative to overrule/change the decision taken by the State Minister for Revenue in quasi judicial matters under the Government of Maharashtra Rules of business.

4. Brief facts involved in this petition are that, the ancestor of the petitioners was tenant in the property of Survey No. 44, admeasuring 1 Hector 63 Ares, located at Maliwada, District Ahmednagar, on the tiller's day as per the provisions of the Bombay Tenancy and Agricultural Lands Act, and after the enquiry as per Section 32(G) of the Bombay Tenancy and Agricultural Lands Act, the said Tukaram Ambekar was declared as statutory purchaser as per the order dated 1.8.1964. After payment of the purchase price as determined by the Government authorities, by order dated 1.8.1965, said Tukaram Ambekar became owner of the land. Eventually, he expired and his sons Sitaram and Namdev were issued certificate of purchase vide Section 32M of the Bombay Tenancy and Agricultural Lands Act. Accordingly, an entry was made in the revenue record and mutation entry No. 768 was made. After death of Sitaram, who was survived by his only son Vithal i.e. petitioner No. 3, Namdev also expired and left behind his sons who are petitioner Nos. 1 and 2. As per Section 32(4) of the Bombay Tenancy and Agricultural Lands Act, there is a provision for the tenant to purchase the land in respect of which land revenue is exempted. Since land was purchased by the ancestor of the petitioners in the year 1974, they were issued certificate under Section 32M of the Bombay Tenancy and Agricultural Lands Act and were declared as statutory purchasers and State Government started collecting the land revenue in respect of the suit property. In spite of this aspect, the earlier exemption from land revenue granted in respect of the said property was cancelled and regular land revenue was being collected. The 7/12 extract of the said land showed the property to be "Devasthan Inam Land" in Clause III.

5. Therefore, the petitioners sought removal of the said entry showing that it was Devasthan Inam Land in Clause III from 7/12 extract and, therefore, filed petition dated 11.7.2000 to the State of Maharashtra. That application was designated as Prakaran No. 40/2004. Since no decision was taken by the State Government in the matter, the petitioners filed application, which was numbered as Prakaran No. 132/2006. An enquiry in respect of the said Prakaran No. 132/2006 as well as Prakaran No. 40/2004 was conducted by respondent No. 2. The State Minister for Revenue, on 18.5.2006, wherein thorough enquiry was made and order was passed dated 7.6.2006, allowing the said applications. It was submitted on behalf of the petitioners that the order of respondent No. 2 dated 7.6.2006 was in consonance with the Maharashtra Government Rules of Business, whereby respondent No. 2 directed respondent No. 3's Revenue Secretary to issue an order on the basis Page 1429 of judgment and order dated 7.6.2006 passed by respondent No. 2.

However, respondent No. 3, instead of issuing an order on the basis of order passed by respondent No. 2, referred the judgment and order to the Department of Law & Judiciary for considering as to whether the judgment and order passed by respondent No. 2 was in accordance with law. However, the reference was sent back by the concerned Legal Department on the ground that it was a quasi judicial matter and, therefore, it was for respondent No. 2 to issue such order as it was a quasi judicial authority within the meaning of jurisdiction contemplated under the said Government Rules of Business. However, in spite of this aspect, respondent No. 3 still persisted that respondent No. 2 State Minister had no authority to pass such order. It was the stand taken by respondent No. 3 that as per Section 8(iii), exemption from Land Revenue Act, 1983 of the said property, being the property exempted from land revenue, the ownership in respect of the same cannot be transferred. It was also the view of the respondent No. 3 Secretary that there was no cause of action for filing the petition by the petitioners, therefore, it was recommended that the respondent No. 2 should reject the application and should not forward the same to the respondent No. 3 for authentication. The respondent No. 2, in its turn, again applied his mind to the concerned controversy and came to the conclusion that the filing of case to the respondent No. 3 was not correct and the decision dated 7.6.2006 was legal and correct and, therefore, further directed respondent No. 3 Secretary to authenticate the judgment and order passed by him. However, instead of complying with the direction, respondent No. 3 took a stand that it would be referred to the Cabinet Minister, Department of Revenue as well as the Chief Minister of the state.

6. On this background, the petition has been filed raising the issue that when the Secretary of a particular Department is subordinate to the Minister incharge in respect of the concerned Department, whether he can counter the decision of the Minister incharge especially when the Minister incharge is specifically empowered to decide all the cases in respect of Devasthan Inam by virtue of Rules of Business framed under Article 166 and instructions issued thereunder. It was further submitted on behalf of the petitioner that the Maharashtra Government Rules of Business clearly show that the act of respondent No. 3 was contrary to the directives issued by the State on concurring with the Governor of the State and, therefore, the intervention of this Court is sought for to implement the said rules of governance so as to seek directions to the respondent No. 3 to implement directions issued by respondent No. 3, who is Minister of State.

7. At this juncture, it may be noted that no affidavit-in-reply came to be filed on behalf of the State in spite of repeated concessions given to them in this regard. It was submitted on behalf of the State that the matter was referred to the Cabinet Minister, who in turn is also the Chief Minister and, therefore, no statement could be made in this regard. However, it must be noted that the legal position on this point is quite clear. 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 26.6.1975. Rule 15 thereof provides that those rules Page 1430 may to such an extent as necessary, be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister. Accordingly, necessary instructions were issued by the order dated 7.5.1964. In terms of those instructions under Clause 1(v) "Minister-in-charge" means Minister appointed by the Governor to be incharge of the Department of Government to which the 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. Therefore, 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 pre-requisite of allotment of the said revision application to himself was done by appropriate order in that regard.

In this case, it is apparent that by virtue of Clause 14 of Schedule III, which deals with the subjects which are to be independently handled and disposed of by the State Government (respondent No. 2), include Devasthan Inam Lands, to which the present matter concerns.

Therefore, by no stretch of imagination, the respondent No. 3 -Secretary of the Revenue Department would be authorised to either overrule or change or refuse to implement the order passed by respondent No. 2 in respect of the land which comes under Clause 14 i.e. Devasthan Inam Land. It may be noted that in this petition, we are not concerned with the issue whether the order passed by the respondent No. 2 is legal or not, but our scope in this petition is restricted to see whether act of respondent No. 3 is within the scope of his jurisdiction contemplated by Government of Maharashtra Rules of business.

8. In view of this position, I am satisfied that the respondent No. 3 has acted contrary to the rules of business of the State Government and, therefore, I have no hesitation to allow the petition.

9. Hence, the Rule is made absolute. The petition is allowed in terms of its prayer Clauses A and B. In the circumstances, there shall not be any order as to costs.