Bombay High Court
Rukhmini Amrutlal Patel And ... vs The State Of Maharashtra And ... on 1 August, 2017
Bench: R.V. Ghuge
WP/496/2016/Group
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 496 OF 2016
Lalji S/o. Dhanji Patel,
Age. 58 yrs., Occ. Trade,
R/o. 'Parishram', Kargaon Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Tulsiram Karamsi Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 497 OF 2016
Meghji S/o. Mulji Patel,
Age. 61 yrs., Occ. Trade,
R/o. Ganesh Road, Umiya Sadan,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Shantilal Mulji Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 499 OF 2016
Kesarbai Ratansi Patel (Deceased)
Through L.R.'s
1. Ratansibhai Kesra Ramani (Patel)
Age. 95 yrs., Occ. Retd.,
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2. Pratbhai s/o. Ratansibhai Ramani (Deceased)
Through L.R.'s
A. Gomatiben W/o. Parbhabhai Ramani (Patel)
Age. 68 yrs., Occ. Household,
B. Hiralal S/o. Parbhatbhai Ramani (Patel)
Through L.R.s.
1. Jayshri W/o. Hiralal Ramani (Patel),
Age. 46 yrs., Occ. Household,
2. Vipul S/o. Hiralal Ramani (Patel),
Age. 26 yrs., Occ. Business,
3. Yesh S/o. Hiralal Ramani (Patel),
Age. 19 yrs., Occ. Education,
4. Aarti D/o. Hiralal Ramani (Patel),
Age. 21 yrs., Occ. Education,
C. Sou. Mangala W/o. Chandrakant Patel,
Age. 45 yrs., Occ. Household,
R/o. Gernal Vaidya Nagar, Nasardi,
Nasik, Tq. & Dist. Nasik.
3. Arjunbhai S/o. Ratansi Ramani (Patel),
Age. 65 yrs., Occ. Business,
4. Narayanbhai S/o. Ratansi Ramani (Patel),
Age. 62 yrs., Occ. Business,
5. Nanjibhai S/o. Ratansi Ramani (Patel),
Age. 54 yrs., Occ. Business,
6. Sou. Jayaben W/o. Ramjibhai Patel
Age. 60 yrs., Occ. Household,
R/o. Vishal Society, Bhatar, Surat,
Gujrath.
Except 2 C. & 6 All above R/o. Kargaon
Road, Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh S/o. Narayanbhai Patel. ...Petitioners.
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Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 500 OF 2016
Kesarbai Ratansi Patel (Deceased)
Through L.R.'s
1. Ratansibhai Kesra Ramani (Patel)
Age. 95 yrs., Occ. Retd.,
2. Pratbhai s/o. Ratansibhai Ramani (Deceased)
Through L.R.'s
A. Gomatiben W/o. Parbhabhai Ramani (Patel)
Age. 68 yrs., Occ. Household,
B. Hiralal S/o. Parbhatbhai Ramani (Patel)
Through L.R.s.
1. Jayshri W/o. Hiralal Ramani (Patel),
Age. 46 yrs., Occ. Household,
2. Vipul S/o. Hiralal Ramani (Patel),
Age. 26 yrs., Occ. Business,
3. Yesh S/o. Hiralal Ramani (Patel),
Age. 19 yrs., Occ. Education,
4. Aarti D/o. Hiralal Ramani (Patel),
Age. 21 yrs., Occ. Education,
C. Sou. Mangala W/o. Chandrakant Patel,
Age. 45 yrs., Occ. Household,
R/o. Gernal Vaidya Nagar, Nasardi,
Nasik, Tq. & Dist. Nasik.
3. Arjunbhai S/o. Ratansi Ramani (Patel),
Age. 65 yrs., Occ. Business,
4. Narayanbhai S/o. Ratansi Ramani (Patel),
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Age. 62 yrs., Occ. Business,
5. Nanjibhai S/o. Ratansi Ramani (Patel),
Age. 54 yrs., Occ. Business,
6. Sou. Jayaben W/o. Ramjibhai Patel
Age. 60 yrs., Occ. Household,
R/o. Vishal Society, Bhatar, Surat,
Gujrath.
Except 2 C. & 6 All above R/o. Kargaon Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh S/o. Narayanbhai Patel. ...Petitioners.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 501 OF 2016
Shri Ramani Sawmill Prop.
Arjunbhai Ratansi Patel,
Age. 61 yrs., Occ. Trade,
R/o. Shri Ramani Sawmill, Ganesh Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh Narayanbhai Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 502 OF 2016
Karamsi S/o. Dhanji Patel,
Age. 56 yrs., Occ. Trade,
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R/o. 'Parishram', Kargaon Road,
Chalisgaon, Dist. Jalgaon. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 503 OF 2016
1. Meghji S/o. Mulji Patel,
Age. 61 yrs., Occ. Trade,
2. Shantilal S/o. Mulji Patel,
Age. 50 yrs., Occ. Trade,
3. Kunal S/o. Amrutlal Patel,
Age. 27 yrs., Occ. Trade,
4. Rohit S/o. Amrutlal Patel,
Age. 24 yrs., Occ. Trade,
5. Rukhmini W/o. Amrutlal Patel,
Age. 51 yrs., Occ. Trade,
All R/o. Ganesh Road, Umiya Sadan,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Shantilal Mulji Patel for
Petitioner Nos. 1, 3 to 5. ...Petitioners.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 504 OF 2016
Damayanti W/o. Raoji Ramani,
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Age. 54 yrs., Occ. Household,
R/o. Ratnadeep, Phoole Colony,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh Narayanbhai Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 505 OF 2016
Shri Shankar Vijay Sawmill Prop.
Narayanbhai Ratansi Patel,
Age. 62 yrs., Occ. Trade,
R/o. Station Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh Narayanbhai Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 506 OF 2016
Shri Ramani Sawmill Prop.
Arjunbhai Ratansi Patel,
Age. 61 yrs., Occ. Trade,
R/o. Shri Ramani Sawmill, Ganesh Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh Narayanbhai Patel. ...Petitioner.
Versus
1. State of Maharashtra.
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2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 507 OF 2016
Shri Shankar Vijay Sawmill Prop.
Narayanbhai Ratansi Patel,
Age. 62 yrs., Occ. Trade,
R/o. Station Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh Narayanbhai Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 508 OF 2016
Bhimji S/o. Dhanji Patel,
Age. 54 yrs., Occ. Trade,
R/o. 'Parishram', Kargaon Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Tulsidas S/o. Karamsi Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 509 OF 2016
Ramilaben W/o. Harilal Ramani,
Age. 61 yrs., Occ. Household,
R/o. C/o. Bhagwan Sawmill, Khandak Nala,
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Kopargaon, Dist. Ahmednagar.
Through GPA holder
Dinesh Narayanbhai Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 510 OF 2016
Shri Vishnu Sawmill Prop.
Haresh Lalji Patel,
Age. 41 yrs., Occ. Trade,
R/o. 'Parishram', Kargaon Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Tulsidas S/o. Karamsi Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 511 OF 2016
Kesarbai Ratansi Patel (Deceased)
Through L.R.'s
1. Ratansibhai Kesra Ramani (Patel)
Age. 95 yrs., Occ. Retd.,
2. Pratbhai s/o. Ratansibhai Ramani (Deceased)
Through L.R.'s
A. Gomatiben W/o. Parbhabhai Ramani (Patel)
Age. 68 yrs., Occ. Household,
B. Hiralal S/o. Parbhatbhai Ramani (Patel)
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Through L.R.s.
1. Jayshri W/o. Hiralal Ramani (Patel),
Age. 46 yrs., Occ. Household,
2. Vipul S/o. Hiralal Ramani (Patel),
Age. 26 yrs., Occ. Business,
3. Yesh S/o. Hiralal Ramani (Patel),
Age. 19 yrs., Occ. Education,
4. Aarti D/o. Hiralal Ramani (Patel),
Age. 21 yrs., Occ. Education,
C. Sou. Mangala W/o. Chandrakant Patel,
Age. 45 yrs., Occ. Household,
R/o. Gernal Vaidya Nagar, Nasardi,
Nasik, Tq. & Dist. Nasik.
3. Arjunbhai S/o. Ratansi Ramani (Patel),
Age. 65 yrs., Occ. Business,
4. Narayanbhai S/o. Ratansi Ramani (Patel),
Age. 62 yrs., Occ. Business,
5. Nanjibhai S/o. Ratansi Ramani (Patel),
Age. 54 yrs., Occ. Business,
6. Sou. Jayaben W/o. Ramjibhai Patel
Age. 60 yrs., Occ. Household,
R/o. Vishal Society, Bhatar, Surat,
Gujrath.
Except 2 C. & 6 All above R/o.
Kargaon Road,Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh S/o. Narayanbhai Patel. ...Petitioners.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
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WITH
WRIT PETITION NO. 512 OF 2016
Shantilal S/o. Mulji Patel,
Age. 50 yrs., Occ. Trade,
R/o. Ganesh Road, Umiya Sadan,
Chalisgaon, Dist. Jalgaon. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 514 OF 2016
Shri Vishnu Sawmill Prop.
Haresh Lalji Patel,
Age. 41 yrs., Occ. Trade,
R/o. 'Parishram', Kargaon Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Tulsidas S/o. Karamsi Patel. ...Petitioner.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 515 OF 2016
Kesarbai Ratansi Patel (Deceased)
Through L.R.'s
1. Ratansibhai Kesra Ramani (Patel)
Age. 95 yrs., Occ. Retd.,
2. Prabhatbhai s/o. Ratansibhai Ramani (Deceased)
Through L.R.'s
A. Gomatiben W/o. Parbhabhai Ramani (Patel)
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Age. 68 yrs., Occ. Household,
B. Hiralal S/o. Parbhatbhai Ramani (Patel)
Through L.R.s.
1. Jayshri W/o. Hiralal Ramani (Patel),
Age. 46 yrs., Occ. Household,
2. Vipul S/o. Hiralal Ramani (Patel),
Age. 26 yrs., Occ. Business,
3. Yesh S/o. Hiralal Ramani (Patel),
Age. 19 yrs., Occ. Education,
4. Aarti D/o. Hiralal Ramani (Patel),
Age. 21 yrs., Occ. Education,
C. Sou. Mangala W/o. Chandrakant Patel,
Age. 45 yrs., Occ. Household,
R/o. Gernal Vaidya Nagar, Nasardi,
Nasik, Tq. & Dist. Nasik.
3. Arjunbhai S/o. Ratansi Ramani (Patel),
Age. 65 yrs., Occ. Business,
4. Narayanbhai S/o. Ratansi Ramani (Patel),
Age. 62 yrs., Occ. Business,
5. Nanjibhai S/o. Ratansi Ramani (Patel),
Age. 54 yrs., Occ. Business,
6. Sou. Jayaben W/o. Ramjibhai Patel
Age. 60 yrs., Occ. Household,
R/o. Vishal Society, Bhatar, Surat,
Gujrath.
Except 2 C. & 6 All above R/o. Kargaon Road,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Dinesh S/o. Narayanbhai Patel. ...Petitioners.
Versus
1. State of Maharashtra.
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2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 674 OF 2016
1. Rukhmini W/o. Amrutlal Patel,
Age. 51 yrs., Occ. Trade,
2. Kunal S/o. Amrutlal Patel,
Age. 27 yrs., Occ. Trade,
3. Rohit S/o. Amrutlal Patel,
Age. 24 yrs., Occ. Trade,
All R/o. Ganesh Road, Umiya Sadan,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Shantilal Mulji Patel. ...Petitioners.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
WITH
WRIT PETITION NO. 675 OF 2016
1. Meghji S/o. Mulji Patel,
Age. 61 yrs., Occ. Trade,
2. Shantilal S/o. Mulji Patel,
Age. 50 yrs., Occ. Trade,
3. Kunal S/o. Amrutlal Patel,
Age. 27 yrs., Occ. Trade,
4. Rohit S/o. Amrutlal Patel,
Age. 24 yrs., Occ. Trade,
5. Rukhmini W/o. Amrutlal Patel,
Age. 51 yrs., Occ. Trade,
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All R/o. Ganesh Road, Umiya Sadan,
Chalisgaon, Dist. Jalgaon.
Through GPA holder
Shantilal Mulji Patel for
Petitioner Nos. 1, 3 to 5. ...Petitioners.
Versus
1. State of Maharashtra.
2. The Additional Divisional Commissioner,
Nasik, At Nasik Road, Nasik. ...Respondents.
...
Advocate for Petitioners : Shri Gholap Ajit M.
AGP for Respondents: Shri Tambe S.K.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: August 01, 2017
...
ORAL JUDGMENT :-
1. Since all these petitions are identical and have been filed
by identically placed petitioners, all these petitions are heard
together.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petitions are taken up for final disposal.
4. The substantive prayer putforth by the petitioners, while
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challenging the impugned orders, is in paragraph No.15(B),
which reads as under:-
"(B) The impugned order communicated to the
petitioners vide communication dated 13.7.2015 issued by
the Public Information Officer and Nayab Tahsildar in
respect of the proceeding of Additional Commissioner,
Nasik Division, about unnumbered Appeal of the
petitioners filed before the Divisional Commissioner, Nasik
challenging the order in relation to plot No.3 of S.No.198-
A-2 of village Kargaon passed by the S.D.O. Chalisgaon,
may kindly be quashed and set aside by remitting the
matter back to the office of the Divisional Commissioner,
Nasik for disposal according to law."
5. It be noted that the plot numbers in the same S.No.198/A-
2 of village Kargaon are different in relation to each of these
petitioners. Since prayer clause 15(B) is identical, except the
Plot Numbers, the same has been reproduced above for the sake
of clarity and for reference.
6. The petitioners are aggrieved by the order dated
13.7.2015, identically passed against these petitioners by the
Public Information Officer-cum-Naib Tahsildar. By the impugned
order, the statutory appeals preferred by the petitioners under
WP/496/2016/Group
Section 247 of the Maharashtra Land Revenue Code, 1966
("MLR Code") have been rejected for the reason that the appeals
have not been filed before the appropriate forum as is prescribed
in Schedule "E" under the Act and that the impugned order of
the Sub Divisional Officer, Chalisgaon ("SDO") dated 7.4.1989
with regard to the pher phar entry No.4062, is not annexed to
the memo of the appeals.
7. The issue in all these matters is that land S. No.198/A-2 in
village Kargaon, Tq. Chalisgaon was originally an agricultural
land, which was in the possession and cultivation of the landlord
Shankar Gulab Wanjari. By a permission No. NA/SR/2/87 dated
1.4.1987 granted under Section 42 of the MLR Code, the user of
the land was permitted to utilize the land for non-agricultural
purposes. Based on such permission a lay out of 28 plots, along
with the roads, drainage and open space was sanctioned by the
concerned department. The revised lay out for 20 plots was
thereafter sanctioned and the mutation entry and the entries in
the 7/12 extract were accordingly brought into effect on
27.6.1987. By various sale deeds, dated 22.3.1988, these 20
plots were sold to these petitioners by the original landlord.
8. As each of these petitioners have purchased different
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plots, whose numbers are mentioned in the petition, the
mutation entries were accordingly effected in the revenue
records. The contention of the petitioners is that it was only on
17.4.2015, when they obtained copies of the 7/12 extract of the
plots, that they were surprised to note that the mutation entries
indicated that the non-agriculture permission has been cancelled
on 7.4.1989 by the SDO, Chalisgaon, exercising his powers upon
delegation of authority by the District Collector.
9. Being aggrieved by the above order dated 7.4.1989, which
purportedly came to the knowledge of the petitioners on
17.4.2015, they preferred their appeals under Section 247 before
the Divisional Commissioner, Nasik on 6.6.2015. By the
impugned order dated 13.7.2015, the Naib Tahsildar, from the
office of the Divisional Commissioner, Nasik informed the
petitioners that their appeals had not been entertained for the
reasons mentioned therein.
10. Shri Tambe, learned AGP has strenuously opposed these
petitions and has prayed for their dismissal with costs. He relies
upon the affidavit-in-reply, filed in the first petition on 25.2.2016
and contends that unless the appeals are filed before the
appropriate forum as per Schedule "E" and unless the impugned
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order is not annexed to the appeal, they cannot be entertained
and have rightly been disposed off. He specifically indicates
from paragraph No.4 of the affidavit that the said appeals also
suffer from delay of 26 years.
11. Schedule "E" under Section 247 of the MLR Code,
provides the list of Appellate authorities as under:-
SCHEDULE E
(See section 247)
REVENUE OFFICER APPELLATE AUTHORITY
1. All Officer in a Sub-Division, Sub-Divisional Officer or such
Subordinate to the Sub- Assistant or Deputy Collector
Divisional Officer. as may be specified by the
Collector in this behalf.
2. Sub-Divisional Officer, Collector or such Assistant or
Assistant or Deputy Collector. Deputy Collector who may be
invested with powers of the
Collector by the State
Government in this behalf.
3. Collector [including the Divisional Commissioner.
Collector of Bombay] or
Assistant/Deputy Collector
invested with the appellate
power of the Collector.
4. A person exercising powers Such officer as may be
conferred by section [15]. specified by the State
Government in this behalf.
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12. Rule 24 of the Maharashtra Land Revenue (Conversion of
Use of Land and Non-agricultural Assessment) Rules, 1969
("Rules of 1969") reads as under:-
" 24. Delegation of powers. - The powers conferred upon
the Collector under these Rules may also be exercised by a
Sub Divisional Officer."
13. It is the contention of the petitioner that the conversion of
agricultural land to non-agricultural purpose and for which such
a permission is to be acquired by the landlord, could alone be
granted by the Collector under Section 42 of the MLR Code.
Section 42 reads as under:-
" Section 42 - Permission for non-agricultural use.
No land used for agriculture shall be used for any
non-agricultural purpose; and no land assessed for one non-
agricultural purpose shall be used for any other non-
agricultural purpose or for the same non-agricultural
purpose but in relaxation of any of the conditions imposed
at the time of the grant or permission for non-agricultural
purpose, except with the permission of the Collector."
14. It is the case of the respondents that considering the
volume of the workload, the powers of the Collector have been
delegated to the SDO Chalisgaon and he has accordingly
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exercised jurisdiction on delegated authority. It, however,
appears that the respondents have taken a stand that the revision
should have been filed before the District Collector, Jalgaon and
not before the Divisional Commissioner, Nasik, keeping in view
the authorities prescribed under Schedule "E" below Section 247
of the MLR Code.
15. The issue, therefore, would be as to what would be the
effect of the delegation of powers and whether any subordinate
authority, upon being delegated the powers, would be exercising
it's inherent authority, vested in it by law or would it tantamount
to exercising the authority of the delegator only upon delegation.
There can be no dispute that the powers once delegated cannot
be further delegated in view of the law delegatus non potest
delegare (means "No delegated powers can be further
delegated").
16. There is no dispute that if the authority is exercised by the
SDO or Assistant or Deputy Collector, the Collector or such
Assistant or Deputy Collector, who may be invested with powers
of the Collector by the State Government would be the appellate
authority under Schedule "E". The Collector, upon exercising
such powers and upon passing an order, would entitle the
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aggrieved parties to approach the Divisional Commissioner,
which shall then be the appellate authority under Schedule "E".
17. The contention that such permission necessarily has to be
granted only by the Collector in the light of the wordings, "Except
with the permission of the Collector", is not disputed by the
respondents, except that the said authority of the Collector has
been delegated to the SDO and hence the SDO has passed the
impugned order dated 7.4.1989.
18. Section 44 prescribes the procedure for conversion of the
use of land from agriculture to non-agriculture. Section 44 reads
as under:-
" Section 44 - Procedure for conversion of use of land
from one purpose to another.
(1) If an occupant of un-alienated land or a superior
holder of alienated land or a tenant of such land-
(a) which is assessed or held for the purpose of
agriculture, wishes to use it for a non-agricultural
purpose, or
(b) if land is assessed or held for a particular non-
agricultural purpose, wishes to use it for another non-
agricultural purpose, or
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(c) desires to use it for the same non-agricultural
purpose for which it is assessed but in relaxation of any
of the conditions imposed at the time of grant of land or
permission for such non-agricultural purpose,
such occupant or superior holder or tenant shall, with the
consent of the tenant, or as the case may be, of the occupant
or superior holder, apply to the Collector for permission in
accordance with the form prescribed.
(2) The Collector, on receipt of an application, -
(a) shall acknowledge the application within seven
days;
(b) may, unless the Collector directs otherwise,
return the application if it is not made by the
occupant or superior holder or as the case may be,
the tenant or if the consent of the tenant, or as the
case may be, of the occupant or superior holder has
not been obtained, or if it is not in accordance with
the form prescribed;
(c) may, after due enquiry, either grant the
permission on such terms and conditions as he may
specify subject to any rules made in this behalf by the
State Government; or refuse the permission applied
for, if it is necessary to do so to secure the public
health, safety and convenience or if such use is
contrary to any scheme for the planned development
of a village, town or city in force under any law for
the time being in force and in the case of land which
is to be used as building sites in order to secure in
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addition that the dimensions, arrangement and
accessibility of the sites are adequate for the health
and convenience of the occupiers or are suitable to
the locality; where an application is rejected, the
Collector shall state the reasons in writing of such
rejection.
(3) If the Collector fails to inform the applicant of his
decision within ninety days from the date of
acknowledgment of the application, or from the date of
receipt of the application - if the application is not
acknowledged, or within fifteen days from the date of receipt
of application for a temporary change of user or where an
application has been duly returned for the purposes
mentioned in clause (b)of subsection (2), then within ninety
days [or as the case may be,within fifteen days] from the
date on which it is again presented duly complied with, the
permission applied for shall be deemed to have been
granted, but subject to any conditions prescribed in the rules
made by the State Government in respect of such user.
(4) The person to whom permission is granted or deemed
to have been granted under this Section shall inform the
Tahsildar in writing through the village officers the date on
which the change of user of land commenced, within thirty
days from such date.
(5) If the person fails to inform the Tahsildar within the
period specified in subsection (4), he shall be liable to pay in
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addition to the non-agricultural assessment such fine as the
Collector may, subject to rules made in this behalf, direct
but not exceeding five hundred rupees.
(6) When the land is permitted to be used for a non-
agricultural purpose, a sanad shall be granted to the holder
thereof in the form prescribed under the rules.
It shall be lawful for the Collector either of his own
motion or on the application of a person affected by the
error, to direct at any time the correction of any clerical or
arithmetical error in the sanad arising from any accidental
slip or omission."
19. From the bare perusal of Section 44, it is undisputed that
the impugned order dated 7.4.1989 has been passed by the
SDO, Chalisgaon only upon being delegated with the power of
the Collector as prescribed under Sections 42 and 44,
considering Rule 24 of the Rules of 1969 and on behalf of the
Collector, since he does not have inherent powers under Section
42 or 44.
20. The issue then would be, as regards the source of power
of the SDO in passing the order and whether it would
tantamount to the Collector being aloof, distinct and
unconnected with that order. The Honourable Supreme Court
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(Five Judges' Bench), in the matter of Roop Chand Vs. State of
Punjab [AIR 1963 SC 1503], had the occasion to deal with the
issue of delegation of powers. It would be appropriate to
reproduce the facts of the said case, which are set out in
paragraph Nos. 3 to 10 as under:-
"3. Shortly put, one of the objects of the Act appears to
be to pool together the entire lands held by different persons
in a village and redistribute the same among them on a
more utilitarian basis in accordance with a scheme framed
for the purpose. The final result that the Act achieves is that
instead of his original holding a person is given some other
holding. Section gives the State Government the power to
declare by notification its intention to frame a scheme for
the consolidation of holdings in any area and thereupon to
appoint a Consolidation Officer who is to prepare the
scheme. Section provided for the publication of the draft
scheme prepared by the Consolidation Officer and for
objections thereto being made by the persons likely to be
affected. It also provided that the Consolidation Officer will
submit the scheme with the objections and his suggestions
with regard to them to the Settlement Officer and for
republication of the scheme with such amendments as may
have been made. Section empowers the State Government to
appoint Settlement Officers (Consolidation), in this
judgment referred to as Settlement Officers. It further
provides that if no objections are received to the draft
scheme when first published or to the amended scheme when
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republished, the Settlement Officer shall confirm the scheme
and if any objections are received, he may after considering
the objections, confirm the scheme with or without
modification. It lastly provides that upon confirmation the
scheme shall be published again. Sub-section (1) of s.21
provides that the Consolidation Officer shall carry out a re-
partition in accordance with the scheme as confirmed under
s. 20. Sub-section (2) provides that any person aggrieved by
the repartition may file an objection before the
Consolidation Officer. Sub-section (3) gives to the person
aggrieved by the order of the Consolidation Officer made
under sub-section (2), a right to file an apple before the
Settlement Officer. Sub-section (4) provides that "any
person aggrieved by the order of the Settlement Officer
(Consolidation) under sub-section (3) may within sixty days
of that order appeal to the State Government." Section
requires the Consolidation Officer to prepare a new record
do rights giving effect to the repartition as finally sanctioned
under s. 21.
4. A scheme under the Act had been framed for village
Palrikalan where the petitioner held some lands. The
petitioner had no objection to the scheme as such but he had
taken objection to the repartition made under it by the
Consolidation Officer on the ground that the repartition was
not in accordance with the scheme. The petitioner contended
that under the scheme he was entitled to retain plots Nos.
635 and 636 which originally belonged to him and to get
some more land adjacent to them in exchange for other
lands held by him in the village which under the repartition
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made by the Consolidation Officer he was being deprived of
those plots and was being given lands elsewhere. With the
merits of this and the rival contention we are to concerned
in this petition. The petitioner's contention was rejected by
the Consolidation Officer and he filed an appeal under s.
21(3) before the Settlement Officer but that appeal also
failed. The petitioner thereafter went up in appeal under
s.21(4) against the order of the Settlement Officer.
5. Now, s. 21(4) provided for an appeal to the State
Government but the petitioner's appeal was heard by Shri
Brar, Assistant Director, Consolidation of Holdings, Ambala
to whom the Government's powers and functions concerning
the apple had been delegated under s. 41(1)which is in
theses terms :
S. 41(1) : "The State Government may for the
administration of this Act, appoint such persons as it
thinks fit, and may by notification delegate any of its
powers or functions under this Act to any of its
officers either by name or designation."
6. Shri Brar allowed the petitioner's appeal. As a result
of his decision the petitioner became entitled to retain plots
Nos. 635 and 636 which he originally owned and Hari
Singh, respondent No. 2, to this petition who had on the
repartition been given by the Consolidation Officer those
plots along with some more adjacent lands, was to be
deprived to them. Hari Singh being dissatisfied with the
order of Shri Brar moved the Government under s. 42 of the
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Act and the impugned order was thereupon made. That
order set aside the order of Shri Brar and restored that of
the Consolidation Officer. As a result of this order, therefore,
the petitioner was to be deprived of plots Nos. 635 and 636.
7. It is now necessary to set out s. on the interpretation
of which this petition depends. That section was amended by
Act 27 of 1960 with retrospective effect and it is the
amended section that has to be considered by us. The
amended section is in these terms :
S. 42. "The State Government may at any time for
the purpose of satisfying itself as to the legality or
propriety of any order passed, scheme prepared or
confirmed or repartition made by any officer under
this Act call for and examine the records of any case
pending before or disposed of by such officer and
may pass such order in reference thereto as it thinks
fit."
8. The petitioner's contention is that an order which can
be interfered with under s. 42 is an order passed under the
Act by any officer in his own right and not an order made
by the Government itself or by an officer exercising powers
of the Government upon delegation under s. 41(1).
9. The question really is as to the meaning of the words
"any order passed ...... by any officer under this Act" in s.
42. Do these words include an order passed by an officer in
exercise of powers delegated to him by the Government
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under s.41(1)? We do not think, they do.
10. Now, there cannot be much doubt that s. 42 makes a
distinction between the Government and an officer, because
under it the Government is given power to interfere with an
order passed by an officer and, therefore, it does not
authorise the Government to interfere with an order made
by itself. As we understood the learned Advocate-General of
Punjab, who appeared for the respondent State of Punjab,
he conceded that position. He said that the Government
could no doubt have itself heard an appeal preferred under
s.21(4) instead of getting it heard by an officer to whom it
delegated its power, and if it did so, then it could not under
s.42 interfere with the order which it itself passed in the
appeal. We think that this is the correct position, and we
wish to make it clear that we are not basing ourselves on the
concession made by the learned Advocate-General. We feel
no doubt that an order passed by an officer of the
Government cannot be an order passed by the Government
itself."
21. While considering the effect of the order passed by an
Officer, by virtue of delegated authority, the Honourable Apex
Court in Roop Chand (supra), concluded that such delegated
powers being exercised by an officer, would not amount to he
being invested with the said power, so as to create an
independent authority in the said officer. Such delegated power
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would amount to the said authority utilizing the delegated
powers for and on behalf of the officer, in whom, the statute had
vested the powers to be exercised independently.
22. The Honourable Apex Court, then further concluded that
an order passed by such officer under the delegated authority
would amount to an order being passed by the said delegator.
Then the order passed by an officer to whom the power had been
delegated will have to be an order passed by that officer as
defined under the Act. The observations of the Honourable Apex
Court in paragraph Nos.11 to 13 read as under:-
"11. The question then arises, when the Government
delegates its power, for example, to entertain and decide an
appeal under s. 21(4) to an officer and the officer pursuant
to such delegation hears the appeal and makes an order, is
the order an order of the officer or of the Government? We
think it must be the order of the Government. The order is
made under a statutory power. It is the statute which
creates that power. The power can, therefore, be exercise
only in terms of the statute and not otherwise. In this case
the power is created by s. 21(4). That section gives the
power to the Government. It would follow that an order
made in exercise of that power will be the order of the
Government for no one else has the right under the statue to
exercise the power. No doubt the Act enables the
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Government to delegate its power but such a power when
delegated remains the power of the Government, for the
Government can only delegate the power given to it by the
statue and cannot create an independent power in the
officer. When the delegate exercises the power, he does so for
the Government. It is of interest to observe here that Wills,
J., said in Huth v. Clarke that "the word delegate means
little more than an agent". An agent of course exercise no
powers of his own but only the powers of his principal.
Therefore, an order passed by an officer on delegation to
him under s.41(1) of the power of the Government under s.
21(4), is for the purposes of the Act an order of the
Government. If it were not so and it were to be held that the
order had been made by the officer himself and was not an
order of the Government - and of course it had to be one or
the other - then we would have an order made by a person
on whom the Act did not confer any power to make it. That
would be an impossible situation. There can be no order
except as authorised by the act. What is true of s.21(4)
would be true of all other provisions in the Act conferring
powers on the Government which can be delegated to an
officer under s. 41(1). If we are wrong in the view that we
have taken, then in the case of an order made by an officer
as delegate of the Government's power under s.21(4) we
would have an appeal entertained to and decided by one
who had no power himself under the Act to do either.
Plainly, none of these things could be done.
12. Again, if an order passed by an officer to whom a
power had been delegated by the Government under s.
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41(1) was an order passed by the officer then an order
made by an officer to whom power under s. 42 had been
delegated would be an order by an officer within the
meaning of s. 42. That order would then be liable to be
interfered with by the Government under s. 42 and if such
interference is again not by the Government itself but by
another officer as its delegate, then in that way the process
of interference might be repeated for ever. Obviously an
interpretation leading to such a result cannot be correct. It
is of some interest to point out here that in the present case
the order under s. 42, that is, the impugned order had not
been made by the Government itself but by the Director,
Consolidation of Holdings, to whom the Government's power
under that section had been delegated.
13. It was however said by the learned Advocate-General
that this absurd result would not follow because power
under s.42 can be exercised only once in respect of the same
order. We will assume that power can be exercised in respect
of the same order only once. But even so it seems to us that
if the order by a delegate officer is an order within s. 42,
then the power under that section can be exercised
repeatedly. This will appear clearly if we take an
illustration. Suppose delegate officer A makes an order
under s. 21(4). This order can be interfered with by the
Government under s. 42. Now suppose the Government
delegates its power under s. 42 to officer B and officer B
then makes an order under s. 21(4) as delegate of
Government. That would be an order made by a delegate
officer and capable of being interfered with under s. 42. This
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exercise of power would be in respect of an order of officer B
and therefore not in respect of the same order in respect of
which power under s. 42 had been once exercised, namely,
the order by officer A. Now assume this time delegate officer
C exercises Government's power under s. 42. Again the order
made by him would be interfered with under s. 42. Repeated
exercise of power would be in respect of successive orders
and never in respect of the same order. In this way finality
in the matter can never be reached. We must reject an
interpretation which prevents finality being reached. On the
interpretation that we have suggested the matter would be
finally decided; the power under s.42 cannot be exercised
more than once in respect of the same matter."
(Emphasis supplied).
23. The Honourable Apex Court then concluded that the law
laid down in Lakha Singh Toba Singh Vs. Director, Consolidation
of Holdings, Punjab [AIR 1969 Pun. 157], was not the correct
position of law, since it concludes that the order passed by the
officer, who exercised delegated power under the Act, would
amount to the passing of the order in his own right and not as a
delegate of the Government. In paragraph Nos.15 and 16 of
Roop Chand (supra), it was concluded that the order passed by
an officer as a delegate of the Government would not amount to
passing an order in his own authority.
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24. The Honourable Apex Court in the matter of Sidhartha
Sarawagi Vs. Board of Trustees for the Port of Kolkata and others
[(2014) 16 SCC 248], while dealing with the issue of delegation
of authority, has observed in paragraph Nos.2 to 7 as under:-
"2. Delegation is the act of making or commissioning a
delegate. It generally means parting of powers by the person
who grants the delegation and conferring of an authority to
do things which otherwise that person would have to do
himself. Delegation is defined in Black's Law Dictionary as
"the act of entrusting another with authority by
empowering another to act as an agent or
representative".
In P. Ramanatha Aiyar's, The Law Lexicon, "delegation is
the act of making or commissioning a delegate. Delegation
generally means parting of powers by the person who grants
the delegation, but it also means conferring of an authority
to do things which otherwise that person would have to do
himself".
3. Mathew, J. in Gwalior Rayon Silk Manufacturing
(Wvg.) Co. Ltd. v. The Assistant Commissioner of Sales Tax
and Others[1], has succinctly discussed the concept of
delegation. Paragraph 37 reads as follows:
"37. ... Delegation is not the complete handing over
or transference of a power from one person or body
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of persons to another. Delegation may be defined as
the entrusting, by a person or body of persons, of the
exercise of a power residing in that person or body of
persons, to another person or body of persons, with
complete power of revocation or amendment
remaining in the grantor or delegator. It is
important to grasp the implications of this, for, much
confusion of thought has unfortunately resulted from
assuming that delegation involves or may involve,
the complete abdication or abrogation of a power.
This is precluded by the definition. Delegation often
involves the granting of discretionary authority to
another, but such authority is purely derivative. The
ultimate power always remains in the delegator and
is never renounced."
4. There is a subtle distinction between delegation of
legislative powers and delegation of non-legislative/
administrative powers. As far as delegation of power to
legislate is concerned, the law is well-settled: the said power
cannot be sub-delegated. The Legislature cannot delegate
essential legislative functions which consist in the
determination or choosing of the legislative policy and
formally enacting that policy into a binding rule of conduct.
Subordinate legislation which is generally in the realm of
Rules and Regulations dealing with the procedure on
implementation of plenary legislation is generally a task
entrusted to a specified authority. Since the Legislature need
not spend its time for working out the details on
implementation of the law, it has thought it fit to entrust
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the said task to an agency. That agency cannot entrust such
task to its subordinates; it would be a breach of the
confidence reposed on the delegate.
5. Regarding delegation of non-legislative/
administrative powers on a person or a body to do certain
things, whether the delegate himself is to perform such
functions or whether after taking decision as per the terms
of the delegation, the said agency can authorize the
implementation of the same on somebody else, is the
question to be considered. Once the power is conferred, after
exercising the said power, how to implement the decision
taken in the process, is a matter of procedure. The
Legislature may, after laying down the legislative policy,
confer discretion on an administrative agency as to the
execution of the policy and leave it to the agency to work out
the details within the framework of that policy[3]. So long
as the essential functions of decision making is performed by
the delegate, the burden of performing the ancillary and
clerical task need not be shouldered by the primary delegate.
It is not necessary that the primary delegate himself should
perform the ministerial acts as well. In furtherance of the
implementation of the decision already taken by the
primary delegate as per the delegation, ministerial or
clerical tasks may be performed by authorized officers. The
complexity of modern day administration and the expansion
of functions of the State to the economic and social spheres
have made it necessary that the Legislature gives wide
powers to various authorities when the situation requires it.
Today's governmental functions are a lot more complex and
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the need for delegation of powers has become more
compelling. It cannot be expected that the head of the
administrative body performs each and every task himself.
6. The issue was considered by this Court in Jamal
Uddin Ahmad v. Abu Saleh Najmuddin and Another[4] in
the context of the procedure for filing of the election
petitions under Section 81 of the Representation of Peoples
Act, 1951. It was held that the ministerial or administrative
functions of the authority on whom the powers are conferred
by the statute can be exercised by the authorized officers.......
7. Practical necessities or exigencies of administration
require that the decision making authority who has been
conferred with statutory power, be able to delegate tasks
when the situation so requires. Thus, the maxim delegatus
non potest delegare, gives way in the performance of
administrative or ministerial tasks by subordinate
authorities in furtherance of the exercise of the delegated
power by an authority."
25. In the matter of Chairman, Indore Vikas Pradhikaran Vs.
Pure Industrial Coke and Chemicals Ltd. [(2007) 8 SCC 705], the
Honourable Apex Court has considered the effect of delegation of
powers and has dealt with the issue as regards the liability of the
delegator for the actions of delegate. It was concluded that
when a delegate exercises powers relying upon or on the basis of
the power conferred upon it by the delegator, such an act
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performed by the delegate would be deemed to be that of the
principal i.e. delegator. The observations of the Honourable
Apex Court in paragraph No.90 are as under:-
"90. There cannot be any doubt whatsoever that even a
delegatee exercises its power relying on or on the basis of its
power conferred upon it by the delegator, its act would be
deemed to be that of the principal as has been held by this
Court in State of Orissa and Ors. v. Commissioner of Land
Records and Settlement, Cuttack and Ors. : AIR 1998 SC
3067, this Court held:
"25. We have to note that the Commissioner when
he exercises power of the Board delegated to him
under Section of the Settlement Act, 1958, the order
passed by him is to be treated as an order of the
Board of Revenue and not as that of the
Commissioner in his capacity as Commissioner. This
position is clear from two rulings of this Court to
which we shall presently refer. The first of the said
rulings is the one decided by the Constitution Bench
of this Court in Roop Chand v. State of Punjab. In
that case, it was held by the majority that where the
State Government had, under Section of the East
Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948, delegated its appellate
powers vested in it under Section to an "officer", an
order passed by such an officer was an order passed
by the State Government itself and "not an order
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passed by any officer under this Act" within Section
and was not revisable by the State Government. It
was pointed out that for the purpose of exercise of
powers of revision by the State under Section of that
Act, the order sought to be revised must be an order
passed by an officer in his own right and not as a
delegate of the State. The State Government was,
therefore, not entitled under Section to call for the
records of the case which was disposed of by an
officer acting as its delegate."
26. The Gujarat High Court in the matter of Samatbhai
Punabhai Jhalandra Vs. Mamlatdar and three others [2007 III
LLJ 295 - Gujrat], considered a similar situation and concluded
in paragraph Nos. 5 to 8 and 10 and 11 as under:-
"5. It appears that against the order of the Mamlatdar,
the petitioner preferred the appeal before the Collector under
Section 203 of the Code, but he was communicated vide
letter dated 31.5.2005 that the appeal was not
maintainable before the Collector and the papers of the
appeal were returned. The petitioner thereafter approached
before the Dy. Collector, Rajula and he received the
communication dated 24.6.2005 from the office of the Dy.
Collector that the appeal was not maintainable before the
Dy. Collector. It appears that the petitioner thereafter
preferred revision before the Gujarat Revenue Tribunal, but
the petitioner was communicated vide letter dated
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3.10.2005 that such revision was not maintainable before
the Tribunal and, therefore, the revision was returned back
to the petitioner. The petitioner also preferred appeal before
the Additional Director, Geological Science and Minerals,
Department of Government, but vide communication dated
9.1.2006, the petitioner was informed that the appeal was
not maintainable before him and the appeal was returned
back to the petitioner. It is under these circumstances the
petitioner has approached this Court by preferring the
present petition for challenging the order passed by the
Mamlatdar under Section 39A of the Code.
6. The learned Advocates appearing for both the sides
were heard on the contentions of the availability of
alternative remedy as per the provisions of the Code read
with the Bombay Revenue Tribunal Act, 1957.
7. There is no dispute on the point that the powers were
exercised by the Mamlatdar under Section 39A of the Code.
It is true that as per the language of Section 39A of the Code
the powers are with the Collector and the decision as to the
value of such natural products is made as conclusive.
However, as recorded hereinabove, vide order dated
25.1.1957 of the State Government the powers are
delegated to the Mamlatdar and, therefore, the Mamlatdar
has exercised the power as delegatee of the Collector under
Section 39A of the Code. Hence, the order passed by the
Mamlatdar, impugned in this petition is under Section 39A
of the Code being delegatee of the Collector.
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8. As per the provisions of the Bombay Revenue Tribunal
Act, 1957, the jurisdiction of the Revenue Tribunal is
provided under Section 9 , which reads as under:
Section 9. Jurisdiction of Tribunal-. (1) Subject to
the provisions of this Section, the Tribunal shall have
jurisdiction to entertain and decide appeals from and
revise decisions and orders of officers, not below the
rank of a Collector or Deputy Commissioner, in
respect of cases arising under the provisions of the
enactments specified in the First Schedule.
(2) Save as expressly provided in any enactment
for the time being in force the State Government may
by notification in the Official Gazette, direct that the
Tribunal shall also have jurisdiction to entertain and
decide appeals from, and revise decisions and orders
of, such persons, officers and authorities in such
other cases as the State Government may determine;
and for that purpose the State Government may, by
notification in the Official Gazette, add to, amend or
omit, any of the entries in the First Schedule, and
thereupon the Tribunal shall have jurisdiction in
such matter and the jurisdiction in such matter and
the jurisdiction of any other person, officer or
authority therein shall cease.
(3) The State Government may, at any
time, in like manner, cancel such notification
or omit any entry from the First Schedule, and
resume to itself such jurisdiction:
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Provided that nothing herein shall prevent the
State Government after such resumption of
jurisdiction from conferring any such
jurisdiction on any other person officer or
authority.
(4) Notwithstanding anything contained in any
other law for the time being in force when the
Tribunal has jurisdiction to entertain and decide
appeals from and revise decisions and orders of, any
person, officer or authority in any matter aforesaid,
no other person, officer or authority shall have
jurisdiction to entertain and decide appeals from and
revise decisions or orders of such person, officer or
authority in that matter.
9. ...........................................................
10. Therefore, the appellate powers against the order or
the decision of the authority under Section 39A of the Code
are with the Gujarat Revenue Tribunal and under these
circumstances, it appears that Gujarat Revenue Tribunal
vide communication dated 3.10.2005, copy whereof is
produced at Annexure 'I' has wrongly returned the revision
to the petitioner, observing through the Registrar of the
Tribunal that there is no jurisdiction with the Tribunal
against the impugned order.
11. In view of the aforesaid provisions of the Bombay
Revenue Tribunal Act, 1957 read with the Schedule, the
jurisdiction vests to the Tribunal for hearing the appeal
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and/or revision. In the result the Tribunal has committed
error of jurisdiction in declining to entertain the appeal
against the order of the Mamlatdar under Section 39A of
the Code as delegatee of the Collector. "
27. Considering the settled position of law, it is apparent that
the order dated 7.4.1989 has been passed by the SDO not by
exercising his inherent powers or the powers flowing from his
position, but for and on behalf of the Collector as an agent and
delegate of the Collector. Ordinarily, an order passed by the
SDO, exercising his independent powers could be appealed
against before the Collector as per Schedule 'E'. However, since
the SDO has exercised the powers of the Collector and for and on
behalf of the Collector, the order dated 7.4.1989 would amount
to being an order passed by the office of the Collector. In this fact
situation, the appellate authority for these petitioners would be
the Divisional Commissioner.
28. Considering the above, I find that the Appeals filed by
these petitioners before the Divisional Commissioner would be
maintainable. Whether there is any delay and whether such
delay can be condoned, is a matter which would be
independently considered and adjudicated upon by the
Divisional Commissioner, provided these petitioners have filed or
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may file applications for condonation of delay.
29. The learned AGP rightly points out that the Appeals filed
by the petitioners ought to be accompanied with the copy of the
order under challenge, which is undisputedly dated 7.4.1989
passed by the SDO, Chalisgaon, under delegated authority of the
District Collector. The petitioners contend that despite their best
efforts, they have not been supplied with the copy of the said
order. They express a serious apprehension that probably the
said order is not in existence at all. It is an altogether different
aspect that the said order has been passed without hearing the
petitioners.
30. In the light of the above, I deem it appropriate to direct
respondent No.1 - District Collector, Jalgaon to ensure that a
copy of the order dated 7.4.1989 is supplied to the petitioners
within three weeks. Shri Gholap, learned Advocate for the
petitioners submits that the petitioner named below, alone could
be served with the order dated 7.4.1989 by the Collector and all
the petitioners would act on the said copy in so far as the appeals
are concerned, which are identical and can be taken up together
for adjudication by the Divisional Commissioner.
WP/496/2016/Group
Name :- Shri Shantilal Mulji Patel,
Address :- Shri Umiya Vijay Saw Mill,
Ganesh Road, Chalisgaon 424101
31. In the light of the above and considering the law laid
down in Roop Chand (supra), Sidhartha Sarawagi (supra) and
State of Orissa (supra), and as no other judgment of the
Honourable Apex Court taking a different view in the matter of
delegated powers being exercised having been cited, these
petitions are partly allowed. The impugned orders dated
13.7.2015 informing the petitioners that their appeals have not
been entertained, are quashed and set aside. The appeals filed
by each of these petitioners shall be registered with the office of
respondent No.2.
32. As a matter of compliance, these petitioners shall tender a
photostat copy of the order dated 7.4.1989, pher phar No.4062,
which is impugned in the Appeals, in the said proceedings, in
each of the Appeals, after receiving such a copy. In the event,
the District Collector informs the petitioners that the reasoned
order dated 7.4.1989 by the SDO, Chalisgaon is not available,
respondent No.2 would then consider the said Appeals of the
petitioners on their own merits, by relying upon the Photostat
WP/496/2016/Group
copy of the pher phar nond wahi (Pher phar patrak) which is at
page No.38 in the first petition herein and based on the said
entry, respondent No.2 would adjudicate upon the Appeals. As
noted above, the petitioners would be at liberty to tender their
individual applications for delay condonation, if not already
filed.
33. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
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