Bombay High Court
Shivnath Vishvnath Ekhande vs Dadarao Bhivraji Mantri And ... on 19 January, 2021
Bench: R. G. Avachat
WPs.3361 and ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3361 OF 2018
1. Trimbak Digambar Paratkar,
Age : 58 years,
Occ. Agri. and Service,
r/o. Nagewadi,
at present Saraf Nagar,
Opp. Kalwati Mata Mandir, Old Jalna
Tq. and Dist. Jalna
2. Ramesh Mahadeo Paratkar,
Age : 46 years, Occ. Agri. and Service,
r/o. Nagewadi, Tq. and Dist.Jalna,
At present Saraf Nagar,
Opp. Kalwati Mata Mandir, Old Jalna,
Tq. and Dist. Jalna ..Petitioners
Vs.
1. Dadarao Bhivraji Mantri
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
2. Baburao Bhivraji Mantri,
Age : Major, Occ. Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
3. The State of Maharashtra,
Through Collector,
Jalna
4. Additional Collector,
Jalna
5. Tahsildar,
Jalna ..Respondents
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2 WPs.3361 and ors
----
Mr.D.P.Palodkar, Advocate for petitioners
Mr.V.D.Sapkal, Senior Advocate h/f. Mr.S.R.Sapkal, Advocate for
respondent nos.1 and 2
Mr.A.B.Chate, AGP for respondent nos.1 to 3
----
AND
WRIT PETITION NO.3371 OF 2018
Shivnath Vishvnath Ekhande,
Age : 65 years,
r/o. Nagewadi
Tq. and Dist. Jalna ..Petitioner
Vs.
1. Dadarao Bhivraji Mantri
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
2. Baburao Bhivaji Mantri,
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
3. Ramesh Mahadeo Paratkar,
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
4. Trimbak Digambar Paratkar,
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
5. Dr.Anil s/o. Harikisan Zawar,
Age : 48 years,
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3 WPs.3361 and ors
Occ. Medical Practitioner,
r/o. Head Post Office Road,
Near Hotel Ambar,
Jalna
6. Dr. Seema Anil Zawar,
Age : 44 years,
Occ. Medical Practitioner,
r/o. Head Post Office Road,
Near Hotel Ambar,
Jalna
7. The State of Maharashtra,
Through Collector,
Jalna
8. Additional Collector,
Jalna
9. Tahsildar,
Jalna ..Respondents
----
Mr.D.P.Palodkar, Advocate for petitioner
Mr.V.D.Sapkal, Senior Advocate h/f. Mr.S.R.Sapkal, Advocate for
respondent nos.1 and 2
Mr.A.B.Chate, AGP for respondent nos.7 to 9
----
AND
WRIT PETITION NO.3362 OF 2018
1. Dr. Anil s/o. Harikisan Zawar,
Age : 48 years.
Occ. Medical Practitioner,
r/o. Head Post Office Road,
Near Hotel Ambar,
Jalna, Tq. and Dist. Jalna
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4 WPs.3361 and ors
2. Dr. Seema Anil Zawar,
Age : 44 years,
Occ. Medical Practitioner,
r/o. Head Post Office Road,
Near Hotel Ambar,
Jalna ..Petitioners
Vs.
1. Dadarao Bhivraji Mantri
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
2. Baburao Bhivaji Mantri,
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
3. Shivnath Vishvnath Ekhande,
Age : Major, Occ. Nil,
r/o. Nagewadi,
Tq. and Dist.Jalna
4. Ramesh Mahadeo Paratkar,
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
5. Trimbak Digambar Paratkar,
Age : Major, Occ.Nil,
r/o. Nagewadi,
Tq. and Dist. Jalna
6. The State of Maharashtra,
Through Collector,
Jalna
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5 WPs.3361 and ors
7. Additional Collector,
Jalna
8. Tahsildar,
Jalna ..Respondents
----
Mr.D.P.Palodkar, Advocate for petitioner
Mr.V.D.Sapkal, Senior Advocate h/f. Mr.S.R.Sapkal, Advocate for
respondent nos.1 and 2
Mr.A.B.Chate, AGP for respondent nos.6 to 8
----
CORAM : R.G. AVACHAT, J.
RESERVED ON : JANUARY 11, 2021
PRONOUNCED ON : JANUARY 19, 2021
FINAL ORDER :-
These Writ Petitions are decided by a common
judgment since common questions of facts and law arise
therein.
FACTS :-
2. The petitioners in these Writ Petitions had preferred
appeals to the Maharashtra Revenue Tribunal, Aurangabad,
against a common judgment and order passed by the Collector,
Jalna, on 15.06.2016 in file [email protected]'[email protected]/[email protected]&[email protected]
Those appeals were preferred specifically under Section 315 of
6 WPs.3361 and ors
the Maharashtra Land Revenue Code, 1966 ("the Code", for
short). The Addl. Collector, vide his common order dated
15.06.2016, had cancelled mutation entry Nos.231, 298 and
1891 and directed to record names of respondent nos.1 and 2
in the revenue record of the lands bearing Gat Nos.96, 97 and
99. The Addl. Collector held the petitioners to have purchased
Watan lands without prior permission of the Collector and the
sale transactions were, therefore, illegal.
3. The petitioners, therefore, preferred separate
appeals against the judgment of the Addl. Collector to the
Maharashtra Revenue Tribunal, Aurangabad (M.R.T.). Learned
Member of M.R.T., Aurangabad, vide judgment and order dated
17.02.2018, dismissed those appeals, holding to have no
jurisdiction to entertain and hear them. Said order is under
challenge in this Writ Petitions.
4. Mr.Palodkar, learned counsel for the petitioners,
would submit that the Addl. Collector assumed jurisdiction
under Section 59 of the Code and passed the order impugned
7 WPs.3361 and ors
in the appeals preferred by the petitioners before the M.R.T.
According to him, appeal against the order passed under
Section 59 lies before the M.R.T. Learned counsel took me
through Sections 59, Section 315 and Scheduled `J' of the
Code. According to him, by virtue of a Government Circular
dated 08.09.1977, jurisdiction of the Collector under Section 59
has been delegated to the Tahsildar. A copy of the said circular
has been relied on in this regard. According to him, although
the Addl. Collector did not pass order of eviction in so many
words, his order is nothing short of a summary eviction of the
petitioners from the writ lands. According to learned counsel, a
question, as to whether any person is unauthorised holder
within the meaning of provisions of Maharashtra Inferior Watan
Abolition Act, 1958, is required to be decided after a full-
fledged enquiry. The order passed by the Addl. Collector could,
in no way, be termed to be an order passed under Section 3.
Learned counsel has placed reliance on the following
authorities:-
8 WPs.3361 and ors
(i) State of Orissa and ors. Vs. Md. Illiyas,
(2006)1 SCC 275;
(ii) Vithal Kondhalkar Vs. State of
Maharashtra and ors., 1981 Bom.C.R.32; and
(iii) Champabai Piraji Sonawane Vs. State of
Maharashtra and ors., 2010(7)Mh.L.J. 16.
5. Mr.Sapkal, learned Senior counsel appearing for
respondent nos.1 and 2, would, on the other hand, submit that
the order passed under Section 3 of Maharashtra Inferior
Watan Abolition Act, 1958 is appealable to the State
Government. The Addl. Collector did not pass order directing
summary eviction of the petitioners and therefore, the appeals
preferred to the M.R.T., were not maintenable. The M.R.T. has
rightly observed to have no jurisdiction to hear those appeals.
Learned Senior counsel reiterated the reasons given by learned
Member of M.R.T.
6. It was originally a land bearing survey no.34
situated at village Nagewadi. Survey no.34 came to be
9 WPs.3361 and ors
converted into block nos.96 to 100. The petitioners herein are
the purchasers of the land forming part of these gat numbers.
According to respondent nos.1 and 2, the land in survey no.34
was a Mahar Watan Land. The petitioners purchased those
lands without prior sanction of the competent authority. Both
these respondents had, therefore, first moved the Sub-
Divisional Officer, asking for re-transfer of those lands in their
favour. The S.D.O. held to have no jurisdiction to entertain the
claim preferred by respondent nos.1 and 2. It appears that the
Addl. Collector, suo-motu, initiated enquiry into the matter. He
called for a report from the concerned Tahsildar. Respondent
nos.1 and 2 got themselves impleaded in the said proceedings.
The Tahsildar had reported that the original land survey no.34
was a Mahar Watan Land. The land in survey no.34 came to be
transferred without prior permission of the competent
authority. On hearing the parties to the proceedings, the Addl.
Collector passed a common order in following terms:-
"1- vk{ksi vtZnkj dz- 6 o 7 ;kapk vk{ksi vtZ eatqj
dj.;kr ;srks-
2- rglhynkj tkyuk ;kauk vls vkns'khr dj.;kr ;srs dh] ekS-
10 WPs.3361 and ors
ukxsokMh rk- ft- tkyuk ;sFkhy losZ ua-34 e/khy x-dz- 96] {ks = 3 gs-
34 vkj ps f=acd fMxacj ikjVdj o jes"k egknso ikjVdj ;akP;k
ukokojhy QsjQkj dz- 231 jnn~ dj.;kr ;srks- rlsp] x-dz- 97 ps
{ks= 2 gs- 97 vkj ps ekyd MkW- flek vfuy >aoj o MkW- vfuy
gjhdh"ku >aoj ;akP;k ukoakojhy Qsj dz- 1891 jnn~ dj.;kr ;srks-
x-dz- 99 ps {ks= 1 gs 31 vkj ps ekyd Jh f"koukFk fo"oukFk ,[kaMs
Qsj dz- 398 jnn~ dj.;kr ;srks- rlsp vk{ksinkj dz- 6 nknkjko
fHkojkoth ea=h o vk{ksi vtZnkj dz- 7 ckcqjko fHkojkoth ea=h ;akP;k
ukos lnjhy tehu dj.;kr ;srs-
3- izdj.k can d:u] loZ lac/khrakuk dGoqu lafpdk vfHkys[k
d{kkr oxZ dj.;kr ;srs- "
7. True, the Addl. Collector has observed in his
judgment that the Tahsildar, after having made enquiry under
Section 59 of the Code, submitted his report stating therein
that the land was a Mahar Watan land and the same has been
transferred in breach of conditions attached thereto. The
order passed by the Addl. Collector speaks for itself. We
cannot read anything more therein. It is also true that the
order of the Addl. Tahsildar is silent to state title of the Act or a
particular provision under which the order has been passed.
8. Section 59 of the Code reads thus :-
"59. Any person unauthorisedly occupying, or
wrongfully in possession of any land-
(a) to the use or occupation of which by
reason of any of the provisions of this Code he
is not entitled or has ceased to be entitled, or
11 WPs.3361 and ors
(b) which is not transferable without the
previous permission under sub-section (2) of
section 36 or by virtue of any condition lawfully
annexed to the tenure under the provisions of
section 31, 37 or 44, may be summarily
evicted by the Collector."
Section 315(a) of the Code reads thus :-
(a) an appeal shall lie to the Tribunal from
original orders or decisions made or passed by
the Collector
9. Provisions of Sections 59 and 315 and Schedule `J'
of the Code would suggest that an appeal against the order
passed under Section 59 lies to M.R.T. Section 59 confers
jurisdiction on the Collector to pass order of summary eviction.
By virtue of the Circular issued by Government of Maharashtra
in Revenue and Forest Department on 08.09.1977, the powers
of the Collector under Section 59 stood delegated to the
Tahsildar. The concerned Tahsildar has not passed the order
under Section 59 nor did the Collector, under assumption of
jurisdiction under Section 59, directed summary eviction of the
petitioners. As such, the order passed by the Addl. Collector
cannot be held to have been passed under Section 59. The
12 WPs.3361 and ors
order passed by the Addl. Collector is in the nature effecting
change in mutation entries. Such an order is appealable to a
forum prescribed in Schedule `E' of the Code.
10. Learned counsel for the petitioners has rightly relied
on the observations of the Apex Court in the case of State of
Orissa (supra), to submit that a decision is a precedent on its
own facts. Each case presents its own features. It is not
everything said by a Judge while giving judgment that
constitutes a precedent. The only thing in a Judge's decision
binding a party is the principle upon which the case is decided
and for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. According to the well-settled
theory of precedents, every decision contains three basic
postulates (i) findings of material facts, direct and inferential.
An inferential finding of facts is the inference which the Judge
draws from the direct, or perceptible facts; (ii) statements of
the principles of law applicable to the legal problems disclosed
by the facts; and (iii) judgment based on the combined effect
of the above. A decision is an authority for what it actually
13 WPs.3361 and ors
decides. What is of the essence in a decision is its ratio and not
every observation found therein nor what logically flows from
the various observations made in the judgment. The
enunciation of the reason or principle on which a question
before a Court has been decided is alone binding as a
precedent. A case is a precedent and binding for what it
explicitly decides and no more.
11. Learned Member of M.R.T. relied on the judgment of
this court in the case of Shamshoddin, Khasab, Abbas and
Ahmedsab s/o. Fateh Ladam, all died, through, LRs. Ajijsaheb
Chandsaheb Ladaf Vs. Govind s/o. Sambhaji Birader
(deceased) through LRs. Pandurang s/o. Govind Biradar and
ors., 2013(1)Mh.L.J.664.
True, the fact of the said case would indicate that
the issue involved therein was not pertaining to Section 59
read Section 315 of the Code. In view of the facts and
circumstances of the present case, reliance placed by learned
counsel for the petitioners on the judgments in the case of
14 WPs.3361 and ors
Vithal Kondhalkar (supra) and Champabai Piraji Sonawane
(supra) would be of no assistance to the petitioners. In the
case of Champabai Piraji Sonawane (supra), the
Superintendent of Land Records had assumed jurisdiction by
invoking Section 255(3) of the Code, while the facts in the case
of Vithal Kondhalkar (supra) indicate the Collector to have
passed orders of eviction against the petitioners therein under
Clause (b) of Section 59. So is not the case herein.
12. It is reiterated that the Additional Collector has
directed change to be effected in the revenue record of the
concerned lands. The Additional Collector did cancel mutation
entry nos.231, 398 and 1891 and directed to record names of
respondent nos.1 and 2 in the revenue record. Since the Addl.
Collector has not passed any order of summary eviction of the
petitioners, such order cannot be said to have been passed in
exercise of jurisdiction under Section 59 of the Code.
13. Said order is, therefore, not liable to be challenged
in appeal under Section 315 before the M.R.T. Learned
15 WPs.3361 and ors
Member, M.R.T. has rightly held to have no jurisdiction to
entertain and hear the appeals preferred by the petitioners
herein. The Writ Petitions, therefore, fail.
14. Writ Petitions are, thus, dismissed.
[R.G. AVACHAT, J.]
15. After pronouncement of judgment, Mr.Palodkar,
learned counsel for the petitioners, seek continuation of interim
relief for a period of four weeks. Since there has already been
an interim order, the same to continue for a period of four
weeks.
[R.G. AVACHAT, J.]
KBP
