Bombay High Court
Jayavant Vitthalrao Sawade vs The State Of Maharashtra Thr. The ... on 13 December, 2016
Bench: Prasanna B. Varale
1 WP6946.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6946 OF 2015
PETITIONER : Jayant Vitthalrao Sawade
Aged about 67 years, Occu. Agriculturist,
R/o Gharephal, Tq. Ner, Dist. Yavatmal.
- VERSUS -
RESPONDENTS : 1] The State of Maharashtra,
ig through the Minister for Revenue
Department, Mantralaya, Mumbai -32.
2] The Divisional Commissioner,
Amravati Division, Amravati.
3] The Collector, Yavatmal.
4] The Sub Divisional Officer,
Darwha, Tq. Darwha, Dist. Yavatmal.
5] Vijay Uttamrao Talware,
Aged about major, Occu. Agriculturist,
R/o Gahrephal, Tq. Ner, Dist. Yavatmal.
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Mr. Anand Deshpande, Advocate for the petitioner
Mr. S. B. Bissa, A.G.P. for respondent nos.1 to 4.
None for respondent no.5, though served.
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CORAM : PRASANNA B. VARALE, J.
DATE : DECEMBER 13, 2016.
ORAL JUDGMENT
Looking to the controversy involved in the petition, notice
of final disposal was issued on 23.12.2015 and though, respondent no.5
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is served long back, none appears for the respondent no.5. In view of
above, the petition is taken up for final disposal at the stage of
admission itself.
2] Rule. Rule made returnable forthwith.
3] By the present petition, the petitioner challenges the order
passed by the respondent no.1- Hon'ble Minister, Revenue Department,
State of Maharashtra, Mantralaya, Mumbai, dated 09.07.2016, thereby
allowing review application filed by the respondent no.5.
4] It was the submission of Mr. Deshpande, the learned
counsel for the petitioner that the main proceeding before the
respondent no.4 - Sub Divisional Officer, Darwaha was initiated by Smt.
Shevantabai Sawade on the ground that she owns and possesses
agricultural field at Mouza Gharephal, Tq. Ner and to the North side of
her field, there is a way. It was submitted that respondent no.5 - Vijay
Talware caused obstruction in the way and also was in the process of
closing that way by putting barbed wire compound. The respondent
no.4 - SDO, by giving an opportunity of hearing to the parties and also
by calling the spot inspection report, directed the respondent no.5 to get
the land measured and till the exercise of measurement of land is
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concluded, passed the interim orders. Subsequently, by order dated
02.02.2009, the respondent no.4-SDO arrived at a conclusion that the
respondent no.5 was responsible for causing obstruction.
Accordingly, in view of the provisions of MLR Code, the respondent
no.5 was subjected to penalty. The respondent no.4 - SDO then
directed the Tahsildar, Ner to undertake the exercise of measurement.
Being aggrieved by the said order, the respondent no.5 preferred an
appeal before the respondent no.3 - Additional Collector, Yavatmal.
The Additional Collector, by order dated 15.12.2009 found no fault
with the order passed by the respondent no.4-SDO and accordingly
dismissed the appeal. Being aggrieved by dismissal of the appeal, the
respondent no.5 preferred appeal before the respondent no.2 -
Divisional Commissioner, Amravati Division, Amravati. Even the
respondent no.2 - Divisional Commissioner could not find any favour
with the respondent no.5 and accordingly dismissed the appeal by order
dated 08.10.2010, thereby maintaining the order passed by the
respondent no.3, dated 15.12.2009. Thereafter, the respondent no.5
preferred appeal before the respondent no.1 - Hon'ble Minister,
Revenue Department. The respondent no.1 on hearing the parties and
perusal of the documents, dismissed the appeal by order dated
03.03.2014, thereby maintaining the order passed by respondent no.2,
dated 08.10.2010.
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5] Being aggrieved by dismissal of the appeal by respondent
no.1 - Hon'ble Minister, the respondent no.5 submitted review
application before the Hon'ble Minister. Perusal of the documents
placed on record show that though, the review application refers to
month and year, it fails to refer the date. From perusal of the copy of
the application, it seems that the application was registered on
27.03.2015. Its perusal further show that said application was posted
for hearing on 15.04.2015.
6] Perusal of the impugned order dated 09.07.2015 passed by
the respondent no.1 in review application shows that on 15.04.2015,
the review applicant i.e. respondent no.5 herein was present before the
respondent no.1 - Hon'ble Minister. The petitioner, who is the legal
heir of deceased Shevantabai, was not present before the respondent
no.1. The respondent no.4 - SDO was also present before the Hon'ble
Minister. The matter was closed for orders on hearing the review
applicant. Perusal of the order dated 09.07.2015 passed by the Hon'ble
Minister show that written submissions were filed on behalf of the
petitioner. The Hon'ble Minister on the ground that the main
application was submitted invoking the provisions of the Mamlatdar
Courts Act, but the proceedings were dealt with under the MLR Code.
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The Hon'ble Minister then arrived at a conclusion that as the respondent
no.4 - SDO exceeded in exercising his powers and passed the order, the
same is untenable. The review application was accordingly allowed.
7] The learned counsel for the petitioner vehemently
submitted that the Hon'ble Minister ought not to have entertained the
review application itself. The learned counsel invited my attention to
the provisions of MLR Code, more particularly, Section 258 of the Code.
The relevant provision reads thus -
"258. Review of orders.
i. .....
ii. ....
iii. ....
iv. No order affecting any question of right between
private persons shall be reviewed except on an
application of a party to the proceedings and no such
application for review of such order shall be
entertained unless it is made within ninety days from
the passing of the order." (emphasis supplied).
8] The submission of the learned counsel for the petitioner is
the first order passed by the respondent no.1 - Hon'ble Minister
dismissing the appeal was dated 03.03.2014 and the respondent no.5
nearly after one year, approached the Hon'ble Minister with review
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application. He further submitted that no ground is raised in the review
application explaining the delay of nearly one year caused in filing
review application. He further submitted that the order also suffers
from non-observance of principle of natural justice. The learned
counsel submitted that though, the endorsement on the review
application show that the review application was posted on 15.04.2015,
there is nothing on record to show that any notice was issued to the
petitioner. He submitted that the Hon'ble Minister only referring to the
written submissions of the petitioner allowed the review application. It
was also the submission of the learned counsel for the petitioner that
the observation of the Hon'ble Minister in respect of respondent no.4 -
SDO exceeding his powers, was not in consonance with the provisions
of the MLR Code. Though, the learned counsel for the petitioner raised
the grounds of non-observance of principle of natural justice and the
powers being vested with the SDO, the ground raised by the learned
counsel that the Hon'ble Minister ought not to have entertained the
review application itself as it was beyond the period of limitation, is of
worth consideration. As referred to above, in view of Section 258 (4) of
the MLR Code, the stipulation of period for submitting the review
application is of 90 days. The review application filed by the
respondent no.5 nowhere states the reason explaining the delay caused
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in filing application seeking review of order dated 03.03.2014. Perusal
of the material further show that respondent no.5 was represented
through the counsel and as such, it is not the case that the respondent
no.5 was not having any legal assistance while approaching the Hon'ble
Minister.
9] Considering this aspect of the matter, I find considerable
merit in the submission of the learned counsel for the petitioner. The
order passed by the respondent no.1 - Hon'ble Minister in review
application is clearly unsustainable. In the result, the writ petition is
allowed.
(i) The order passed by the respondent no.1 - Hon'ble
Minister, Revenue Department, State of Maharashtra, Mantralaya,
Mubai, dated 09.07.2015 in proceeding bearing No. AAIV-4713/
Pra.Kra.199/Ja-9 is quashed and set aside. The order dated 03.03.2014
passed by the respondent no.1 - Hon'ble Minister and the order dated
08.10.2010 passed by the respondent no.2 - Divisional Commissioner,
Amravati Division, Amravati, are maintained.
(ii) Rule is made absolute accordingly. The writ petition is
disposed of. No order as to costs.
JUDGE
Diwale
