Bombay High Court
Shri Baliram Kewaji Sonwane ... vs The Maharashtra Revenue ... on 26 September, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1689 OF 2015
1. Shri Baliram Kewaji Sonwane (Gawari),
aged about 72 years, Occ-Cultivator,
2. Smt. Gangabai wd/o Jairam Sonwane,
aged 60 years, Occ-Labourer and
Cultivator,
3. Shri Sanjay Jairam Sonwane,
aged 38 years, Occ-Labourer and
Cultivator.
Nos.1 to 3 are resident of Dhanora
Mogal, Tq. Chandur Railway, Distt.
Amravati.
4. Smt. Nanda Vitthal Waghade,
aged about 36 years, Occ-Household
and Cultivator, resident of Pimpalgaon,
Tq. and Distt. Yavatmal.
5. Smt. Sunita Dhanraj Waghade,
aged about 34 years, Occ-Household
and Cultivator, resident of Hivari,
Tq. Aarni, Distt. Yavatmal.
6. Shri Gajanan Jairam Sonwane,
aged about 32 years, Occ-Cultivator,
7. Smt. Chhabu wd/o Shioram Sonwane,
aged 58 years, Occ-Labourer and
Cultivator,
8. Shri Nandkishor Shioram Sonwane,
aged 30 years, Occ-Labourer and
Cultivator.
Nos.6 to 8 are resident of Dhanora
Mogal, Tq. Chandur Railway, Distt.
Amravati.
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9. Smt. Manjula Madhaorao Raut,
aged about 60 years, Occ-Labourer
and Cultivator, resident of Mozari,
Tq. Teosa, Distt. Amravati. ... PETITIONERS
VERSUS
1. The Maharashtra Revenue Tribunal,
Nagpur.
2. The Sub-Divisional Officer,
Chandur Railway, Distt. Amravati.
3. The Tahsildar,
Chandur Railway, Distt. Amravati.
4. Shri Ashok Rambhau Gulhane,
r/o Rajura, Tq. Chandur Railway,
Distt. Amravati.
5. Shri Prakash Rambhau Gulhane,
r/o Rajura, Tq. Chandur Railway,
District Amravati.
6. Smt. Kantabai Sudhakarrao Shingane,
resident of Yavatmal.
7. Dr. Laxmanrao Narayanrao Gulhane,
resident of Amravati.
8. Shri Vijay Bharatrao Gulhane,
r/o Rajura, Tq. Chandur Railway,
District Amravati.
9. Shri Anil Bharatrao Gulhane,
r/o Rajura, Tq. Chandur Railway,
District Amravati.
10. Smt. Shakuntalabai Bharat Gulhane,
r/o Rajura, Tq. Chandur Rly. Distt.
Amravati.
11. Smt. Bharati Sudhirrao Gulhane,
r/o Darwha.
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12. Smt. Gangubai wd/o Wamanrao Dehankar,
resident of Talegaon Dashasar,
Punarvasan Colony, District Amravati.
13. Smt. Leelabai wd/o Namdeorao Mundwaik,
resident of Dhanora Mogal, Tq. Chandur
Rly. District Amravati.
14. Shri Vasantrao Nivruttinath Gulhane,
resident of Bori (Telyachi), Tq. Chandur
Rly. District Amravati.
15. Smt. Bebitai Madhukarrao Gulhane,
resident of Gulhanewadi Varud,
District Amravati.
16. Smt. Venubai wd/o Trimbakrao Gulhane,
resident of Majari Masla, Tq. Amravati,
District Amravati.
17. Smt. Jayashri Madhukarrao Sawwalakhe,
resident of Arvi, District Wardha. ... RESPONDENTS
....
Shri Vishal Anand, Advocate for the petitioners.
Shri A.D. Sonak, Assistant Government Pleader for respondent Nos.1 to 3.
Shri Anand Deshpande, Advocate for respondent Nos.4 to 17.
....
CORAM : PRASANNA B.VARALE, J.
DATED : 26TH SEPTEMBER, 2016.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel appearing on behalf of the respective
parties. Shri A.D. Sonak, learned Assistant Government Pleader waives
notice on behalf of respondent Nos.1 to 3 and Shri Anand Deshpande, the
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learned Counsel waives notice on behalf of respondent Nos.4 to 17.
2. By way of present petition, the petitioners challenge the order
dated 24th November, 2014 in Tenancy Revision No. TEN/B/13/2013 and
the order dated 14th January, 2015 in Ten. Rev. No. REV/TNC/AMR-
39/2014 passed by the learned Member, Maharashtra Revenue Tribunal,
Nagpur.
3.
It would not be necessary to refer to the other facts in details.
Suffice to say that the petitioner No.1 and two others approached the
Tahsildar submitting an application for correction in the revenue record.
The order was passed by the Tahsildar on 25.03.2011. The same was
challenged by presenting an appeal before the Sub Divisional Officer. The
SDO could not find any favour with the appeal and the same was
dismissed maintaining the order of the lower authority dated 25.03.2011.
Being aggrieved by the said order, an appeal was preferred before the MRT
under Section 107 of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958. An application seeking condonation of delay
was submitted along with the appeal. The ground raised for seeking
condonation of delay was of having no knowledge of the order passed by
the authority for sufficient time and only the appellants on approaching
the office of the Sub Divisional Officer and on making enquiry came to
know that an adverse order is passed against the appellants. The
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petitioners/applicants were being represented through Counsel. The
application was posted on 21.11.2014. As neither the petitioners/
applicants nor their Counsel was present before the authority, the matter
was posted on 24.11.2014. The authority observing that till 11:30 a.m., on
24.11.2014, none appeared for the applicants, rejected the application.
The petitioners/applicants immediately sought for review or recall of the
order dated 24.11.2014. The learned Member, MRT, by observing that the
application does not attract the remedy of review, rejected the review
application.
4. Shri Vishal Anand, the learned Counsel for the petitioners
vehemently submits that on 21.11.2014, the Counsel was engaged before
this Court i.e. High Court and was unable to attend the proceedings before
the MRT. He further submits that as neither the party nor the Counsel was
aware that the application was posted on 24.11.204, the Counsel and the
party failed to appear before the learned Member, MRT and when the fact
of rejection of the application came to the notice of the petitioners and the
Counsel, immediately a review application was filed. Shri Anand, the
learned Counsel for the petitioners submits that the learned Member, MRT
though observed that on 21.11.2014, the applicants and the Counsel were
not present, without giving any further opportunity of hearing, hurriedly
passed the order on the application at 11:30 a.m. It is submitted by the
learned Counsel for the petitioners that though it was not necessary for the
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learned Member of the MRT to assess the merit of the matter while
considering the application seeking condonation of delay, the learned
Member firstly undertook the exercise of assessing the merit in absence of
the Counsel representing the party and secondly only on hearing the other
side, arrived at a conclusion that the delay is not properly explained and
resultantly rejected the application. Shri Anand, the learned Counsel then
invites my attention to the application seeking review and submits that it
was specifically submitted before the learned Member, MRT that on
24.11.2014 the Counsel was representing his matter before the High Court
and as such he was unable to attend the proceedings before the MRT and
without granting an opportunity of hearing, the application was rejected.
The learned Counsel for the petitioners, therefore, submits that even
review application was decided by the learned Member by adopting very
hyper technical approach. He also invites my attention to the reasons
assigned by the learned Member for rejecting the review application and
more particularly by inviting my attention to para 4, submits that when the
Tribunal observed that when Section 322 provides for remedy for review
and further refers to the grounds on which the Tribunal can entertain the
review including the ground of any other sufficient reason, utterly failed to
consider the ground of the inability of the Counsel was a sufficient reason
for seeking review. It is the submission of Shri Anand, the learned Counsel
for the petitioners that on the backdrop of this fact, the observation of the
learned Member that the application does not attract the remedy of review
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is clearly unsustainable.
5. Shri Anand Deshpande, the learned Counsel for the
respondents vehemently submits that the order passed by the learned
Member, MRT needs no interference as the learned Member assessed the
merits of the matter and was convinced that the appeal filed by the
petitioner was not meritorious.
6.
I am unable to accept the submission of Shri Deshpande, the
learned Counsel for the respondents for the simple reason that before the
merits of the appeal could have been assessed by the learned Member, the
learned Member was required to consider the merits of the application
seeking condonation of delay by giving an opportunity of hearing to the
parties. As stated above, the material placed on record clearly shows that
the application was posted initially on 21.11.2014. It is not in dispute that
on 21.11.2014, the Counsel for the petitioners was not present before the
Tribunal. There is nothing on record to show that the subsequent date of
hearing of the application i.e. 24.11.2014 was initimated to the petitioners/
applicants. The material placed on record clearly shows that on
21.11.2014, the Counsel representing the petitioners was unable to attend
the Tribunal as he was engaged in the matter before the High Court. The
review application also refers to the very ground of the inability of the
Counsel. There is also some merit in the submission of Shri Anand, the
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learned Counsel for the petitioners that the learned Member could have
granted an opportunity to the petitioners i.e. by giving an opportunity of
hearing to the Counsel representing the petitioners on 24.11.2014 to
observe the principle of natural justice in a real sense. The learned
Member of the Revenue Tribunal himself observed that till 11:30 a.m.,
none appeared for the applicants and as such he proceeded to pass the
order. If the application was posted for orders on 24.11.2014, on the
backdrop of the fact that the petitioners or their Counsel were not present
on 21.11.2014 then the learned Member could have waited for some
sufficient period so as to observe the principle of natural justice i.e. giving
an opportunity of hearing. There was no such a pressing contingency
requiring the learned Member to pass the order on the application at 11:30
a.m.
7. Considering the aforesaid facts, I am of the opinion that the
learned Counsel for the petitioners has made out a case on the ground of
no opportunity of hearing was granted to the petitioners by the learned
Member of the Tribunal while deciding the application seeking
condonation of delay. Thus, the orders impugned in the petition namely
orders dated 24.11.2014 and 14.01.2014 are quashed and set aside. The
matter is remanded back to the learned Member, MRT, Nagpur for
deciding the application seeking condonation of delay filed at the instance
of the petitioners afresh by giving an equal opportunity of hearing to the
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parties. The learned Counsel for the respective parties submit that to
avoid any further delay, the parties would appear before the learned
Member, MRT, Nagpur on 05th October, 2016. In case for some reason, the
learned Member is unable to hear the parties on 05th October, 2016, the
learned Member to post the application on such a date fixing the calender
that the parties get sufficient opportunity to appear before the authority.
The learned Member to decide the application as early as possible and
preferably within a period of six weeks from the date of the order.
In the result, the writ petition is allowed. Rule is made absolute
in aforesaid terms.
JUDGE
*rrg.
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C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and correct copy of original
signed Judgment."
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