Bombay High Court

Narayan S/O. Bhagwan Bholankar ... vs Dattatraya S/O. Digambat Tayade ... on 28 April, 2016

Bench: Prasanna B. Varale

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




                                                             
                           WRIT PETITION NO. 4609 OF 2015

    PETITIONERS              : 1]  Narayan S/o Bhagwan Bholankar,




                                                            
                                   Aged adult - 75 years

                                    2] Ananta S/o Narayan Bholankar, 
                                       Aged adult - 32 years,




                                                
                                    3] Syed Hussain Syed Subhan,
                               ig      Aged adult - 55 years,

                                    4] Shrikrishna  S/o Gangadhar Kale,
                                       Aged adult - 52 years
                             
                                    5] Gajanan Ratale, Aged adult - 45 years.

                                       All Agriculturists and R/o Bori Adgaon,
                                       Tah. Khamgaon, Dist. Buldana.
      


                                              - VERSUS -
   



    RESPONDENTS              : 1] Dattatraya S/o Digambar Tayade,
                                  Aged adult, Occu. Agriculturist,
                                  R/o Bori Adgaon, Tah. Khamgaon,





                                  Dist. Buldana.

                                    2] Lalsing Gulabsing Chavan,
                                       Aged adult - 48 years,
                                       R/o Bori Adgaon, Taq. Khamgaon,
                                       Dist. Buldana.





                                    3] Tahsildar, Khamgaon, Taq. Khamgaon,
                                       Dist. Buldana.

                                    4] The Collector, Buldana, Dist. Buldana.

                      -------------------------------------------------------------
           Mr. A. V. Bhide, Advocate for the petitioners.
           Mr. S. D. Zoting, Advocate for the respondent no.1
           Mr. C. N. Adgokar, Asst.Govt. Pleader for respondent nos.3 and 4.
                      ------------------------------------------------------------



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                     CORAM :    PRASANNA B. VARALE, J.

                     DATE     :  APRIL 28, 2016.




                                                        
    ORAL JUDGMENT

Rule. Rule made returnable forthwith. By consent of the

learned counsel for the parties, the matter is taken up for final disposal.

2. By this petition, the petitioners challenge the orders passed

by the Sub Divisional Officer, Khamgaon in Revision No.MCA-5/Bori

Adgaon/04/12-13.

3. The petitioners have placed on record two orders passed by

the Sub Divisional Officer in revision proceeding bearing No. MCA-

5/Bori Adgaon/04/12-13. One is at Annexure-VII and one is at

Annexure-VIII. The order at Annexure-VII refers to the date of order as

.../4/2015 and the order is not signed by the authority i.e. Sub

Divisional Officer, but probably he has marked only the initials. The

order at Annexure-VIII refers to the date of order as 30.06.2015 and the

order finds signature of the authority with date, though there is some

scoring. One is unable to know why for these two orders are passed by

the authority namely Sub Divisional Officer, Khamgaon in the

proceeding i.e. Revision No. 04/12-13.

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4. Be that as it may. The brief facts giving rise to the present

petition can be summarized as follows :

The respondent no.1 herein had presented an application

before the respondent no.3 - Tahsildar, Khamgaon inviting the

provisions under Section 5 of the Mamlatdar's Courts Act, 1906

(hereinafter referred to as "the Act of 1906" for the sake of brevity). It

was the submission of the respondent no.1 in the said application that

the non-applicants therein i.e. present petitioners and the respondent

no.2 caused obstruction in the way by erecting 'bandh' and because of

said obstruction, the respondent no.1/applicant was unable to enter in

his own field and carry out the agricultural activities. The non-

applicants i.e. the petitioners and respondent no.2, had submitted their

say. The evidence in the form of affidavit was also presented. The

respondent no.3 - Tahsildar accordingly passed the order dated

03.07.2013, thereby allowing the application and directing the non-

applicants/petitioners and respondent no.2 to remove the obstruction

and make the way available to the respondent no.1/applicant. Being

aggrieved by the said order, the petitioners and respondent no.2 herein

filed revision addressing it to the Assistant Collector/Deputy

Collector/Sub Divisional Officer, Khamgaon. The revision was

numbered as proceeding No. 04/12-13. As stated above, the Sub-

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Divisional Officer entertained the revision and passed the order thereby

rejecting the revision and upholding the order passed by the respondent

no.3 - Tahsildar, which is impugned in the present petition.

5. Though, Mr. Bhide, the learned counsel for the petitioners

in his detailed submissions raised various grounds and also invited my

attention to the submission that the Act of 1906 is a self-contained

Court. It is submitted that in view of Section 5 of the Act, a proceeding

which has to be initiated before the Mamlatdar, is treated as if a civil

suit. He further submitted that certain provisions are pari materia with

the provisions of the Code of Civil Procedure. He further submitted that

in view of Section 12 of the Act of 1906, the power vests with the

Mamlatdar to reject the plaint, equivalent to a provision in the Code of

Civil Procedure for rejecting the plaint. The learned counsel then

submitted that though, the petitioners, being aggrieved by the order

passed by the respondent no.3 - Tahsildar submitted revision before the

authorities referring as Assistant Collector / Deputy Collector / S.D.O.,

Khamgaon, the S.D.O. ought not to have entertained the revision. It

was the submission of the learned counsel for the petitioners that

though, the petitioners being illiterate persons, on an advise given to

them, addressed the proceedings to S.D.O., Khamgaon, in view of the

peculiar and particular provision of the Act of 1906, the S.D.O. ought to

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have refrained himself from entertaining the revision. The learned

counsel for the petitioners submitted that Section 23 of the Act of 1906

deals with the remedy made available by way of revision. He submitted

that Sub-Section 2 of Section 23 provides power to the Collector to

decide the revision. The learned counsel then invited my attention to

the provisions of Section 23(2A) and submitted that though, the

Collector can delegate the powers conferred to him, the powers can be

delegated to the only officers namely Assistant Collector, Deputy

Collector or Assistant Commissioner. The learned counsel then

submitted that Section 3 of the Act of 1906 refers to the 'Collector' and

Section 3(aa) state that 'Collector' includes Deputy Commissioner.

Thus, it is the submission of the learned counsel for the petitioners that

even on co-joint reading of the provisions of Section 23(2A) and Section

3 of the Act of 1906, it is more than clear that the revision could not

have been entertained by the S.D.O. Thus, the learned counsel

submitted that as the S.D.O. is having no power to decide the revision,

the impugned order passed by the S.D.O. in the revision is

unsustainable. The learned counsel for the petitioners placed reliance

on the judgments of this Court reported in 2015(1) Mh.L.J. 282 in the

case of Bija Maroti Hatwar .vs. Kisan Chirkut Padole and another ;

and 2007(1) Mh.L.J. 850 in the case of Jayant Vasantrao Dhole .vs.

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Additional Commissioner, Amravati and others.

6. Mr. Zoting, the learned counsel for the respondent no.1

made an attempt to support the order passed by the S.D.O., impugned

in the petition. The learned counsel submitted that though, this Court

took a view in reported case of Bija Hatwar .vs. Kisan Padole (supra), in

that matter, this Court observed that nothing was placed on record to

show that there was any delegation of power in favour of the S.D.O. It

is the submission of the learned counsel for the respondent no.1 that in

the year 1961, the Collector, Buldana had passed the order, dated

28.02.1961 delegating the powers conferred on him under Section

23(2A) to all the S.D.Os. in the Buldana district. He further submits

that there is an order passed by the Revenue Department, wherein the

Collector, Buldana has delegated the powers to the SDOs.

7. On hearing both the learned counsel appearing for the

parties and on going through the relevant provisions, more particularly

Section 23, what emerges firstly, is there is no appeal remedy made

available against the order passed by the Tahsildar and secondly, the

remedy made available is of a revision before the Collector. As rightly

pointed by the learned counsel for the petitioners, under Section

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23(2A), the Collector can delegate the powers only to the officers

namely Assistant Collector, Deputy Collector or Assistant Commissioner.

The learned counsel for the petitioners was also justified in submitting

that co-joint reading of the provisions of Section 23(2A) and Section

3(aa) of the Act of 1906 leave no scope for the submission that the

Collector can delegate the powers to the S.D.O. Reliance was placed by

the learned counsel for the petitioners on the judgment of this Court in

Bija Hatwar .vs. Kisan Padole. It will be useful to refer to the provisions

of this Court on the backdrop of the provisions of the Act of 1906 and

the Maharashtra Land Revenue Code. This Court observed at

paragraphs 6, 7, 8 and 9 of the said judgment that -

6. Sections 23(2) and 23(2A) of the Mamlatdars' Courts Act, 1906 read as follows:

"23(2) Collector's power to revise Mamlatdar's proceedings :

But the Collector may call for and examine the record of any suit under this Act, and if he considers that any proceeding, finding or order in such suit is illegal or improper, may, after due notice to the parties, pass such

order thereon, not inconsistent with this Act, as he thinks fit.

23(2A) Delegation to Collector's powers : The Collector may delegate the powers conferred on him by this section to any Assistant Collector, Deputy Collector, or Assistant Commissioner subordinate to him."

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7. In view of the provisions of Section 23(2A) of the Mamlatdars' Courts Act, 1906 the Collector may delegate the powers conferred

on him to any Assistant Collector, Deputy Collector or Assistant Commissioner subordinate to him. Therefore, the delegation cannot be in favour of the Sub-Divisional Officer. Moreover, nothing has

been placed on the record to show that in fact there had been delegation of powers in favour of the Sub-Divisional Officer.

8. The submission made by the learned AGP relying on the

provisions of Section 13(4) of the Maharashtra Land Revenue Code cannot be accepted. Section 13(4) of the Maharashtra Land

Revenue Code reads as follows:

"13(4) The Sub-Divisional Officer shall subject to the provisions of Chapter XIII perform all the duties and

functions and exercise all the powers conferred upon a Collector by this Code or any law for the time being in force,

in relation to the subdivision in his charge......"

9. A bare reading of Section 13 of the Maharashtra Land Revenue

Code shows that the Sub-Divisional Officer may subject to the provisions of Chapter XIII of the Maharashtra Land Revenue Code perform all the duties, functions and exercise all the powers conferred upon the Collector by the Maharashtra Land Revenue

Code or any law for the time being in force in respect of the sub- divisions in his charge. It cannot be said that while exercising jurisdiction under Section 23(2) of the Mamlatdars' Courts Act, 1906 the Sub-Divisional Officer is exercising powers conferred on the Collector by the Maharashtra Land Revenue Code. The provisions of Section 13(4) of the Maharashtra Land Revenue Code further enables the Sub-Divisional Officer to perform all the duties and functions and exercise all the powers conferred upon the

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Collector by any other law for the time being in force. Reading of Section 23(2A) of the Mamlatdars' Courts Act, 1906 makes it clear

that this provision does not authorize the Sub-Divisional Officer to exercise the powers conferred upon the Collector.

8. The learned counsel for the petitioners was also justified in

placing reliance on the judgment of this Court in Jayant Dhole .vs.

Additional Commissioner. Though, the learned counsel for the

respondent no.1 made an attempt to submit that the Collector, Buldana

by order dated 28.02.1961 had delegated the powers to the S.D.Os. of

Buldana district, in view of the specific provisions of Section 23(2A) of

the Act of 1906, I am unable to accept the submission of the learned

counsel for the respondent no.1.

9. Considering all these aspects, in my opinion, the order

impugned in the petition passed by the Sub-Divisional Officer,

Khamgaon, is unsustainable. The interest of justice and the interest of

both the parties can be served by setting aside the impugned order