Hemraj S/O Kothiramji Hatewar And ... vs The Sub Divisional Officer, Mouda ...
2015 Latest Caselaw 146 Bom

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   NAGPUR BENCH, NAGPUR.




                                                           
                               WRIT PETITION NO. 6489 OF 2014




                                                          
     1. Hemraj S/o. Kothiramji Hatewar,
        Aged about 68 years, Occu.: Agriculturist,

     2. Kamlakar Kothiramji Hatewar,




                                            
        Aged about 50 years, Occu.: Agriculturist,
                             
          Both residents of Hanuman Nagar,
          Manewada Road, Nagpur. 

     3. Keshao Kothiramji Hatewar,
                            
        Aged about 62 years, Occu.: Agriculturist,
        R/o. Rahatekar Wadi, Tulshibag, 
        Mahal, Nagpur. 
      

     4. Kamlabai Ramchandra Hatewar,
        Aged  76 years, Occu.: Household,
   



     5. Gajanan S/o. Ramchandra Hatewar,
        Aged  49 years, Occu.: Agriculturist,

     6. Ajay S/o. Ramchandra Hatewar,





        Aged  47 years, Occu.: Agriculturist,

          Petitioner Nos. 4, 5  and 6 residents of 
          New Shukrawari, Nagpur, Tahsil and 
          District : Nagpur. 





                                                                         ....  PETITIONERS.

                                        //  VERSUS //

     1. The Sub Divisional Officer, Mouda,
        Tahsil Hingna, District : Nagpur. 

     2. Shri Ajitkumar S/o. Ramkraan Sarda,
        Aged about 43 years, Occu.: Agriculturist,
        R/o. 24, Central Avenue, Near Pal
        Palace, Nagpur - 440 002. 



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     3. Smt. Pushpadevi Rajendrakumar Agrawal,




                                                            
        Aged about 56 years, Occu.: Agriculturist &
        Business, R/o. Heritage Building, Civil Lines,
        Nagpur - 440 001. 




                                                           
     4. Shri Saurabh Ashokkumar Agrawal. 
        Aged about 56 years, Occu.: Agriculturist &
        Business, R/o. Heritage Building, Civil Lines,
        Nagpur - 440 001. 




                                             
     5. Nazirbhai Bashirbhai Shaikh Pinjari,
        Aged  42 years, Occu.: Business
                             
        At Nisar Dal Mill Kapsi (BK), Tq. Kapsi,
        Tahsil Kamptee, District : Nagpur. 

                                                                         .... RESPONDENTS
                                                                                       . 
                            
      ___________________________________________________________________
     Shri P.N. Kothari, Advocate for Petitioners. 
     Shri A.M.Deshpande, A.G.P. for Respondent No.1. 
      

     Shri M.R.Johrapurkar, Advocate for Respondent Nos.2 to 4.
     Ms R.S.Tanna h/f. Shri R.S.Sundaram, Advocate for Respondent No.5. 
   



      ___________________________________________________________________

                                  CORAM : Z.A.HAQ, J.

DATED : AUGUST 19, 2015.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

3. The petitioners have challenged the order passed by the learned

Sub Divisional Officer allowing the appeal filed by the respondent Nos. 2 to 4

under Section 247 of the Maharashtra Land Revenue Code, 1966 (hereinafter

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referred to as "MLR Code"). The substantive challenge raised on behalf of

the petitioner is that the appeal filed by the respondent Nos. 2 to 4 was not

maintainable.

4. Shri Kothari, learned advocate for the petitioners has submitted

that the order passed by the Tahsildar under Section 140(1) of the MLR Code

is required to be challenged by filing civil suit as laid down by Section 143(4)

of the MLR Code. It is submitted that the appeal or revision under the MLR

Code is provided subject to the provisions of sub sections (4) and (5) of

Section 143 of the MLR Code, meaning that the appeal or revision under the

MLR Code cannot be filed until the party challenging the order passed by the

Tahsildar under Section 143(1) of the MLR Code files civil suit. In support

of the submission, reliance is placed on the following judgments :

i) Judgment given in the case of Vidya Vijay Karandikar Vs. State of Maharashtra, reported in 2006(6) ALL MR 542.

ii) Judgment given in the case of Shantabai Vs. Bhagwan, reported in 2011(1) Mh.L.J. 481.

The provisions of Section 143(3), (4) and (5) of the MLR Code read as

follows :

"143. Right of way over boundaries. (1) ....

(2) ....

(3) The Tahsildar's decision under this Section shall, subject to the provisions of sub-sections (4) and (5), be subject to appeal and revision in accordance with the provisions of this Code.

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(4) Any person who is aggrieved by a decision of the

Tahsildar under this Section may, within a period of one year from the date of such decision, institute a civil suit to have it set aside or modified.

(5) Where a civil suit has been instituted under sub-

section (4) against the Tahsildar's decision, such decision shall not be subject to appeal or revision."

Reading of the above referred provisions show that an option is

given to the party challenging the order passed by the Tahsildar, either to file

appeal under the provisions of the MLR Code or to file civil suit. The

conjoint reading of the above referred provisions show that the person who

challenges the order passed by the Tahsildar by filing civil suit as per Section

143(4) of the MLR Code cannot avail the remedy of filing the appeal and

revision under the provisions of the MLR Code. It is clear that the person

aggrieved by the order passed by the Tahsildar under Section 143(1) of the

MLR Code can either file appeal under the MLR Code or may file civil suit.

5. The judgment given in the case of Vidya Vijay Karandikar

(supra) does not deal with the point which arises for consideration in the

present petition. In that case, the order passed by the Tahsildar under Section

143(1) of the MLR Code was neither challenged in appeal under the MLR

Code nor by filing the civil suit and it had become final. The legality of the

orders passed by subordinate authorities for enforcing that order passed by

the Tahsildar under Section 143(1) of the MLR Code was the subject matter

before this Court.

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6. In the judgment given in the case of Shantabai Vs. Bhagwan

(supra) this Court concluded that the appeal under the MLR Code would not

be available to the party as the party had filed civil suit and it was pending.

The above referred judgment does not assist the petitioners.

7. It has to be held that the appeal filed by the respondents No. 02 to 04

was maintainable.

8. Having come to the conclusion that the appeal filed by the

respondent Nos. 2 to 4 is maintainable, the petitioners or any party

aggrieved by that order have the remedy of revision under Section 257 of the

MLR Code. In view of the fact that the petitioners have alternate statutory

remedy available, I am not inclined to entertain this writ petition.

The petition is disposed of accordingly. In the circumstances,

the parties to bear their own costs. Rule stands discharged.

JUDGE

RRaut..