Bombay High Court

Shri. Ashok Namdev Kamble vs State Of Maharashtra And Ors on 13 September, 2017

Bench: M.S. Sonak

skc                                                                       524-WP-6348-17.doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 6348 OF 2017


        Shri Ashok Namdev Kamble                       ..       Petitioner
              vs.
        State of Maharashtra & Ors.                    ..       Respondents


        Mr. R. C. Barge for Petitioner.
        Mr. S. D. Rayrikar - AGP for Respondent Nos. 1 to 3.

                                           CORAM : M. S. SONAK, J.

DATE: 13 SEPTEMBER 2017

ORAL JUDGMENT:

1] Not on board. In view of urgency, taken on production board.

        2]      Heard Mr. Barge for the petitioner.



        3]      Time for replacing Exhibit 'B' is extended upto 15th September

        2017.



        4]      The challenge        in this petition is to the order dated 24 th

January 2017 made by the Hon'ble Minister (Revenue) recalling of

order dated 3rd July 2014, in terms of which, the remark 'Devasthan

Inam Warag III' in the revenue records, in relation to the suit

property was ordered to be deleted.



        5]      The petitioner, had applied to the Hon'ble Minister for deletion







 skc                                                                    524-WP-6348-17.doc

of the aforesaid remark. This deletion was ordered by the Hon'ble

Minister (Revenue) by order dated 3rd July 2014. To this application,

the Western Maharashtra Devasthan Committee, was not even

impleaded as a respondent. Though, the Collector is shown to be

impleaded as a party respondent, there is nothing on record that the

Collector, was afforded any opportunity of hearing before the order

dated 3rd July 2014 was made. At the highest, some sort of report

was called for and on the said basis, the deletion was ordered.

6] The Collector, in his capacity as the President of the Western

Maharashtra Devasthan Committee applied for review / recall of

the order dated 3rd July 2014, primarily on the ground that the

Committee was a necessary party and in the absence of the

Committee, no such order of deletion of the remark, of which, would

have a very serious effect upon the rights of the Devasthan could

have been made. It is on this application that the impugned order

dated 24th January 2017 has been made by the Hon'ble Minister

(Revenue) recalling the earlier order dated 3rd July 2014.

7] Mr. Barge, learned counsel for the petitioner submits that the

Minister (Revenue), lacks powers of review and therefore, the

impugned order is in excess of jurisdiction. In the alternate, he

submits that if the impugned order is held to be relatable to the

exercise of powers under Section 258 of the Maharashtra Land

skc 524-WP-6348-17.doc

Revenue Code (MLRC) then, the review petition was required to be

instituted within a period of 90 days from the date of passing of the

order. In this case, since the review petition was instituted beyond

the period of 90 days, and the same was not accompanied by any

application for condonation of delay, the Hon'ble Minister

(Revenue), lacked jurisdiction to entertain the same. On these two

grounds, Mr. Barge submits that the impugned order is required to

be set aside.

8] In this case, we are concerned with the property belonging to

Devasthan. Devasthan, which is in the nature of a public trust. In

regard to such properties, the Hon'ble Supreme Court, in the case

of Chenchu Rami Reddy & Anr. vs. Government of Andhra

Pradesh & Ors.1 has made the following observations :

"More often than not detriment to what belongs to 'many', collectively, does not cause pangs to 'any',for no one is personally hurt directly. That is why public officials and public minded citizens entrusted with the care of 'public property' have to show exemplary vigilance. What is true of 'public property is equally true of property belonging to religious or charitable institutions or endowments. (see para 1)

"We cannot conclude without observing that property of such institutions or endowments must be jealously protected. It must be protected, for, a large segment of the community has beneficial interest in it (that is the raison 'd'etre of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the

1 (1986) 3 SCC 391

skc 524-WP-6348-17.doc

closest-and-best-attention approach to guard against all pitfalls. (see para 10)."

9] In this case, the petitioner, without impleading the Temple

Committee, almost succeeded in effecting changes in the revenue

records, which changes, would have seriously prejudiced the

interest of the Devasthan. Fortunately, the District Collector, who

is in his capacity as the ex officio President of the Devasthan

Committee instituted an application for recall of the order dated 3 rd

July 2014, inter alia on the ground that the order was made without

impleading necessary party i.e. the Western Maharashtra

Devasthan Committee. In the impugned order, the Hon'ble Minister

(Revenue) has accepted the position that the earlier order was

made without impleadment of the necessary party and on the said

basis, recalled the earlier order dated 3rd July 2014.

10] There is no substance in the contention of Mr. Barge that in

the circumstances, the Hon'ble Minister (Revenue) lacked powers

of review. This is strictly speaking not a case of review but a case

of recall of the earlier order after record of due satisfaction that the

earlier order was made in breach of principles of natural justice. In

any case, the exercise undertaken by the Hon'ble Minister

(Revenue) is in the nature of a procedural review. The Hon'ble

Minister (Revenue), should be considered to be endowed with such

powers as are necessary to discharge his functions effectively for

skc 524-WP-6348-17.doc

the purposes of doing justice between the parties and this would

include the power to recall the order made without compliance with

the principles of natural justice.

11] In the case of Grindlays Bank Ltd. vs. Central Government

Industrial Tribunal & Ors.2, the Hon'ble Supreme Court has held

that the expression 'review' is used in two distinct senses, namely,

(i) a procedural review which is either inherent or implied in a court

or Tribunal to set aside a palpably erroneous order passed under a

misapprehension by it, and (ii) a review on merits when the error

sought to be corrected is one of law and is apparent on the face of

the record. The principle that the power of review is never inherent

but is required to be specifically conferred by statute applies to the

later category of cases. Obviously when a review is sought due to

procedural defect, the inadvertent error committed by the Tribunal,

the same must be corrected ex debito justitiae to prevent the

abuse of its process and such power inheres in every court or

Tribunal.

12] Thus, construed, it is quite apparent that the Hon'ble Minister

(Revenue), who has basically exercised the power of recall and

further has acted ex debito justitiae cannot be said to have

exceeded jurisdiction vested in him.

2 1980 (Supp) SCC 420






 skc                                                                            524-WP-6348-17.doc




        13]     That apart, Section 258 of the            MLRC specifically confers

powers of substantive review. In this case, since, the impugned

order, does not appear to relate to the exercise of powers of

substantive review, there is no reason to advert to the provisions in

Section 258 of the MLRC. The period of limitation prescribed therein

will basically apply to case of substantive review. In any case, there

is no necessity to decide on the said issue in the peculiar facts and

circumstances of the present case.

14] The jurisdiction under Articles 226 and 227 of the Constitution

of India is to promote substantial justice. Interference in exercise of

its jurisdiction is discretionary and not mandatory upon the

petitioner, making out some legal point in support of the petition.

[See: Rajasthan State Industrial Development and Investment

Corporation vs. Subhash Sindhi Cooperative Housing Society,

Jaipur & Ors. (2013)5 SCC 427)] In the peculiar facts and

circumstances of this case, there is no reason to interfere with the

impugned order on the ground that what was filed by the

respondent was a petition for review under Section 258 of the

MLRC and further, the same was not accompanied by any

application for condonation of delay. The facts in this case are quite

eloquent and there was ample cause shown for the delay, if any, in

instituting the petition for review. As noted earlier, this is a case of

skc 524-WP-6348-17.doc

procedural review and therefore, not relatable strictly speaking to

the exercise of powers under Section 258 of the MLRC.

15] In Roshan Deen vs. Preeti Lal3, dealing with an order

passed by the High Court setting aside an order of the

Commissioner for Workmen's Compensation, the Supreme Court

stated: "Time and again this Court has reminded that the power

conferred on the High Court under Articles 226 and 227 of the

Constitution is to advance justice and not to thwart it. The very

purpose of such constitutional powers being conferred on the High

Courts is that no man should be subjected to injustice by violating

the law. The look out of the High Court is, therefore, not merely to

pick out any error of law through an academic angle but to see

whether injustice has resulted on account of any erroneous

interpretation of law. If justice became the by-product of an

erroneous view of law the High Court is not expected to erase such

justice in the name of correcting the error of law.

16] In the case of M. P. Mittal vs. State of Haryana & Ors.4, in

the context of doctrine of substantial justice, the Supreme Court

observed thus :

"The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High

3 (2002) 1 SCC 100 4 (1984) 4 SCC 371

skc 524-WP-6348-17.doc

Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief. On that ground alone, the appeal must fail".

17] Thus, it is settled position in law that the power conferred

upon the High Court under Articles 226 and 227 of the Constitution

of India is to advance justice and not thwart it. The High Court in

exercise of such jurisdiction must not be on the look out to merely

pick out any error of law through an academic angle, but to see

whether injustice has resulted on account of any erroneous

interpretation of law. If justice became by-product of an erroneous

view of law, the High Court is not expected to erase such justice in

the name of correcting the error of law. Article 226 of the

Constitution of India provides for an extra ordinary remedy which

essentially discretionary though founded on legal enquiry. In the

exercise of such jurisdiction, it is permissible for the Court to either

give or withhold relief in furtherance of public interest. Accordingly,

the granting or withdrawing of relief may properly be dependent

upon considerations of public interest.



        18]     However, the impugned order does not indicate as to what is








 skc                                                                    524-WP-6348-17.doc

to happen about the petitioner's original application seeking deletion

of the remark. Since, the earlier order dated 3 rd July 2014 has been

recalled on account of failure to implead and notice the Western

Maharashtra Devasthan Samiti, it is only appropriate that the

petitioner's application seeking deletion is now directed to be

considered afresh by the Hon'ble Minister (Revenue) after ensuring

that the Western Maharashtra Devasthan Samiti is duly impleaded

as a respondent.

19] Accordingly, if the petitioner, within a period of four weeks

from today, effects the necessary amendments to his original

application seeking deletion of the remark, the Hon'ble Minister

(Revenue) is requested to take up for consideration the application