Sudhakar S/O. Atmaram Tiple vs State Of Maharashtra, Thr. Its ...
2018 Latest Caselaw 1069 Bom

59-SA-J-233-16                                                                                   1/8


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

                          SECOND APPEAL NO.233 OF 2016


Sudhakar s/o Atmaram Tiple 
Aged about 60 years, 
Occupation-Labour, 
R/o Saakaar Nagar, Warora, 
Tah. Warora District : Chandrapur                                   ... Appellant. 

-vs- 

1.  State of Maharashtra,
     Through its Secretary, 
     Mantralaya, Mumbai - 32. 

2.  Naib Tahsildar,
     Warora Circle Warora, 
     Tah. Warora, District-Chandrapur 

3.  Maharashtra State Financial Corporation
     In the Compound of 
     Revenue Commissioner's Officer, Nagpur 
     and branch office at Tukum,  
     Chandrapur, Tah. & District Chandrapur                         ... Respondents.   


Dr Anjan De, Advocate for appellant. 
Ms M. Deshmukh, Assistant Government Pleader for respondent Nos.1 and 2.
Shri S. V. Sohoni, Advocate for respondent No.3.  

                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : January 29, 2018.

Oral Judgment :

In view of notice for final disposal issued earlier, the learned

counsel for the parties have been heard on the following substantial question

of law :

59-SA-J-233-16 2/8

" In the light of specific averments made in paragraph 3 of the plaint

that the order dated 27/04/1992 passed by the Collector was

nullity, whether the suit was maintainable before the Civil Court ? "

2. The appellant is the original plaintiff who has filed suit for

declaration that he was the owner of Survey No.193/2 admeasuring 3H 24R

and that the order dated 27/04/1992 passed by the Collector was null and

void. Further relief of perpetual injunction seeking to protect his possession

also came to be filed. According to him he had purchased aforesaid

property in an auction that was held on 26/11/1990. The plaintiff initially

deposited amount of Rs.14,500/- as earnest amount and thereafter on

27/02/1991 the balance amount of Rs.43,500/- came to be deposited. The

plaintiff was put in possession on 20/06/1991 and his name was mutated as

owner of the property. According to him a communication was issued by

Naib Tahsildar that as per order dated 27/04/1992 the allotment in his

favour had been cancelled and a fresh auction of the land in question had

been directed. The plaintiff pleaded that this order was without jurisdiction

and it was a nullity. On that basis the plaintiff sought the aforesaid relief.

3. In the written statement filed by defendant Nos.1 and 2 it was

denied that the Collector had no jurisdiction to set aside the auction. It was

further pleaded that in exercise of powers under Section 208 read with

59-SA-J-233-16 3/8

Section 257 of the Maharashtra Land Revenue Code, 1966 (for short, the

Code) such auction was within jurisdiction. Further, the jurisdiction of the

Civil Court was barred in view of provisions of Section 11 of the Maharashtra

Revenue Jurisdiction Act, 1876 (for short, the Act of 1876).

4. The defendant No.3 also filed its written statement and pleaded

that the order allotting land by virtue of auction in favour of the plaintiff was

illegal and that it was rightly set aside by the Collector. It was also pleaded

that the suit was not maintainable.

5. The trial Court after considering the evidence on led by the parties

recorded a finding that the plaintiff's possession over the suit land was

proved. However his ownership was not proved. It further held that the

order dated 27/04/1992 was not without jurisdiction. The suit was

accordingly dismissed. The first appellate Court recorded a finding that the

Civil Court had no jurisdiction to go into correctness of the order passed by

the Collector and therefore dismissed the appeal. Being aggrieved the

plaintiff has filed the present second appeal.

6. Dr Anjan De, learned counsel for the appellant submitted that it

was the specific case of the plaintiff that the order passed by the Collector

dated 27/04/1992 was a nullity and without jurisdiction. He referred to

59-SA-J-233-16 4/8

various provisions of the Code and especially Sections 207, 208, 210 and 217

to urge that as the sale in favour of the plaintiff had been confirmed and his

title had become complete, it was not open for the Collector to reopen the

same especially when the period prescribed for challenging the same had

elapsed. It was urged that provisions of Sections 247 and 257 of the Code

which provide remedy by way of appeal do not bar entertainment of a suit

when it was the specific case that the impugned order was null and void. In

that regard the learned counsel placed reliance on the judgment in Gopinath

Ganpatrao Pensalwar vs. State of Maharashtra and anr. 2007(1) Mh.L.J.

819, Dhulabhai vs. State of Madhya Pradesh AIR 1969 SC 78 and Dhruv

Green Field Limited vs. Humkan Singh 2002 (6) SCC 416. He also

submitted that the order of the Collector was passed without giving any due

notice to the plaintiff and hence was also in violation of the principles of

natural justice. He therefore submitted that the Courts ought to have

considered the challenge as raised in the suit on merits and it could not be

said that cognizance of the suit by the civil Court was barred.

7. Ms M. Deshmukh, learned Assistant Government Pleader for

respondent Nos.1 and 2 on the other hand submitted that in view of specific

remedy provided under Section 247 of the Code read with Section 11 of the

Act of 1876 both the Courts rightly held the suit to be not maintainable. She

also referred to the proviso to Section 208 of the Code and submitted that

59-SA-J-233-16 5/8

the Collector had exercised powers confirmed therein. In support of her

submissions she relied on the following decisions :

(i) Savita Bhagwantrao Patil & Anr. vs. Shyam Pukhraj Asopa and Anr.

2015(1) ALLMR 187.

(ii) Shree Hanuman Mandir & Ors. vs. Satishchandra Bhalchandra Gurjar & Ors. 2014(1) ALL MR 684.

(iii) Margret Almeida & Ors. vs. The Bombay Catholic Co-operative Housing Society Ltd. & Ors. 2013(1) ALL MR 914 (SC).

(iv) Sahebgouda (dead) by Lrs. and Ors. vs. Ogeppa and ors. (2003) 6 SCC 151.

(v) Sankalchan Jaychandbhai Patel and ors. vs. Vithalbhai Jaychandbhai Patel and ors. (1996) 6 SCC 433.

(vi) The State of Gujrat vs. Allauddin Babumiya Shaikh AIR 1990 SC 2220.

(vii) Dhulabhai vs. State of Madhya Pradesh & Ors. AIR 1969 SC 78.

8. Shri S. V. Sohoni, learned counsel for respondent No.3 supported

the submissions made on behalf of respondent Nos.1 and 2 and further urged

that the plaintiff had merely pleaded about the irregularities in the order of

the Collector dated 27/04/1992. If according to the plaintiff the Collector

had wrongly exercised jurisdiction, recourse could be taken to the statutory

remedy available under the Code. He submitted that without availing

alternate remedy the plaintiff has approached the civil Court. He placed

reliance on the decision in Dhruv Green Field Ltd. vs. Hukam Singh and

ors. (2002) 6 SCC 416 and submitted that it was not the case that the order

challenged was a nullity.

59-SA-J-233-16 6/8

9. I have heard the learned counsel for the parties at length and I

have given due consideration to their respective submissions. It is by now

well settled that if an order is challenged as being without jurisdiction and

therefore a nullity, a civil suit for challenging the same is maintainable

notwithstanding a statutory remedy being available. In Gopinath

Ganpatrao Pensalwar (supra) while considering provisions of Section 11 of

the Act of 1876 it was held that in such situation when the order of an

authority is challenged as being without jurisdiction, Section 11 would not

be a bar for entertaining the suit. Similarly as held in Dhulabhai (supra) if

it is urged the statutory authority has not acted in conformity with the

fundamental principles of judicial procedure, a civil suit will be maintainable

to challenge such action. For the purposes of considering the aspect of

jurisdiction it is only the plaint averments that are required to be taken into

consideration.

10. If the averments in the plaint are perused it can be seen that in

paragraph 3 thereof it was specifically pleaded that the order of the Collector

dated 27/04/1992 was a nullity for various reasons. About thirteen grounds

have been pleaded in that regard. One of the grounds is absence of any

show cause being issued to the plaintiff before passing the impugned order.

On consideration of these grounds it is prima facie clear that the plaintiff

seeks to challenge the order dated 27/04/1992 on the ground that it is null

59-SA-J-233-16 7/8

and void for various reasons. The jurisdiction of the Collector to re-open

the proceedings after the lapse of statutory period for challenging the order

of allotment is also sought to be cancelled. In the light of aforesaid law it

cannot be said that the suit as filed wherein a declaration was sought that the

impugned order was null and void was not maintainable. When a challenge

of such nature is raised it cannot be insisted that the statutory remedy should

be availed especially when pleas of absence of jurisdiction and breach of

principles of natural justice are raised.

11. The decisions relied upon by the learned counsel for the

respondents are on the aspect of availability of alternate remedy and hence

bar to the maintainability of a civil suit. There cannot be any quarrel with

said legal proposition. In the light of the law laid down in the decisions

relied upon by the learned counsel for the plaintiff and the nature of

challenged raised, this contention of the respondents cannot be accepted.

12. The appellate Court thus committed an error in holding that the

grounds raised by the plaintiff could also raised by invoking statutory

remedy. By taking that view the appellate Court did not take into

consideration the averments in the plaint wherein a plea of nullity has been

specifically raised. In that view of the matter, the substantial question of

law is answered by holding that in the light of specific averments in

59-SA-J-233-16 8/8

paragraph 3 of the plaint, the civil suit was maintainable. In the

circumstances, the appeal deserves to be decided afresh in accordance with

law.

13. Accordingly the following order is passed :

(I) Judgment of the first appellate Court in R.C.A. No.25/2010 dated

18/12/2015 is set aside.

(II) The proceedings are remanded to the appellate Court for deciding

the appeal afresh in accordance with law.

(III) It is clarified that this Court has not examined the merits of the

challenge. However, it is held that the civil suit is maintainable.

(IV) As the appeal is of the year 2010, the proceedings are expedited.

The parties shall appear before the first appellate Court on

01/03/2018.

(V) Second appeal is allowed in aforesaid terms with no order as to

costs.

JUDGE

Asmita