Bombay High Court
Sandip Bhagvatrao Bhakare vs Santosh Mohanlal Dave And Others on 30 September, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2713/2021
PETITIONER : Shri Sandip Bhagvatrao Bhakare
Aged about 40, Occu. Service,
R/o Dilalpur, Taluka Chandur Bazar,
Distsrict Amravati.
...VERSUS...
RESPONDENTS : 1. Shri Santosh Mohanlal Dave,
2. Shri Vijay Mohanlal Dave,
Both R/o Marwadipura Chandur Bazar,
District Amravati.
3. Shri Satish Govindrao Sapdhare.
4. Shri Gondrao Devmanji Sapdhare
Both R/o Youngsters Chauk,
Chandur Bazar, District Amravati.
5. Nayab Tahsildar Chandur Bazar,
Tahsildar Office, Chandur Bazar,
District Amravati.
6. Deputy Collector and Sub-Divisional
Officer Achalpur, District Amravati.
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Mr. A.M. Kukday, Advocate for the petitioner
Mr. Deol Pathak, Advocate for respondent nos.1 and 2
Mr. R.D. Hajare, Advocate for respondent no.3
Mr. S.M. Ukey, Addl. G.P. for respondent nos.5 and 6
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2
CORAM : AVINASH G. GHAROTE, J.
DATE : 30/09/2021
ORAL JUDGMENT
1. Heard Mr. Kukday, learned Counsel for the petitioner,
Mr. Deol Pathak, learned Counsel for respondent nos. 1 and 2,
Mr. Hazare, learned Counsel for respondent no.3 and Mr. Ukey,
learned Additional Government Pleader for respondent nos. 5 and 6.
Rule. Rule made returnable forthwith. Heard finally with the consent
of the learned Counsel for the rival parties.
2. The writ petition raises a challenge to the order passed
by the learned Mamlatdar, in proceedings initiated before him under
the provisions of Section 5 of the Mamlatdar's Courts Act, 1906 ("the
M.C. Act, 1906", for short, hereinafter), whereby by an order dated
10/6/2021, temporary interim injunction was granted by him on the
application filed by the respondent no.1, against the petitioner,
directing the petitioner, to make open the way. A Revision under
Section 23 of the M.C. Act, 1906, came to be filed by the present
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petitioner, which came to be dismissed by the order dated
12/7/2021, maintaining the interim order dated 10/6/2021.
3. Mr. Amit Kukday, learned Counsel for the petitioner,
raises an interesting question, by contending, that under the
provisions of the M.C. Act, 1906, the Mamlatdar does not have any
power to grant any interim relief of any nature whatsoever. The
powers conferred upon the learned Mamlatdar, only empower him
to decide the issue finally upon inspection of the disputed property
and recording such evidence as may be presented before him by the
respective parties. He places reliance upon the absence of a
provision in the Mamlatdar's Courts Act to buttress his contention by
submitting that it was never the intention of the legislature, to
empower the Mamlatdar with powers to pass interim orders and
therefore in absence of such powers, both the impugned orders, are
clearly without jurisdiction. Mr. Kukday, learned Counsel for the
petitioner places his reliance upon the judgment of this court, in
Sanjay s/o Dinkar Kulkarni V/s Shankarappa s/o Ganappa
Pasarakar, passed in Civil Revision Application No.244/1975, dated
7/8/1975, wherein a learned Single Judge of this Court has dealt
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with this issue, and come to the conclusion that the powers under
Order XXXIX Rule 2 of C.P.C. or for that matter the powers to pass
any temporary or interim injunction are not available to the learned
Mamlatdar in proceedings initiated before him under Section 5 of
the M.C. Act, 1906, in view of which, he submits, that the impugned
orders ought to go.
4. Mr. Deol Pathak, learned Counsel for the respondent
nos.1 and 2 by placing reliance upon the language of Section 5 (a) &
(b) of the M.C. Act, 1906, and specifically the expression "to give
immediate possession", contends that the same would indicate the
empowerment of learned Mamlatdar to grant an interim relief, in
absence of which, the expression "to give immediate possession",
would become redundant. He further places reliance upon the
language of Section 5 (2) of the M.C. Act, 1906, to contend that the
power to issue injunction is specifically conferred upon the learned
Mamlatdar, which would include and encompass, a power to issue
an interim injunction, as in absence of which, according to him, the
provisions of Section 5(2) of the M.C. Act, 1906 would be rendered
otiose. Mr. Pathak, learned Counsel for the respondent nos.1 and 2
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further submits that the Court of the Mamlatdar, under the
provisions of M.C. Act, 1906, has been specifically created as a Civil
Court and it has all the attributes of a Civil Court. He submits that
the proceedings before the learned Mamlatdar, are styled as a 'suit'
and commence with a plaint, the requirements of which, are laid
down in Section 7 of the M.C. Act, 1906. The provisions of
Section 12 of the M.C. Act, 1906 further enjoin upon the learned
Mamlatdar, to reject the plaint in case it is found that there is no
compliance with the requirements of Clause - (a) to (f), as contained
in Section 12, which according to him, is akin to the provisions of
Order VII Rule 11 (a) to (f) of the C.P.C., which confer power upon
the Court to reject the plaint. He further submits that the learned
Mamlatdar under the provisions of Section 15 is empowered to
summon and enforce the attendance of witnesses, to produce
documents; to proceed ex parte; and decide the proceedings; to set
aside such ex parte order; and also to dismiss the suit under
Section 16(1) on non-appearance of the party initiating the
proceedings. He further submits, that the parties before the learned
Mamlatdar are called as plaintiffs and defendants. He further
submits that learned Mamlatdar also has been entrusted the powers
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of issuing warrant for the arrest of any witnesses [Section 15(2)] on
his failure to attend upon being summoned. The Mamlatdar also has
powers to administer oath and record the evidence; power to add
parties; bring legal heirs on record; try the issues, as indicated in
Section 19; power to inspect; power to punish for disobedience of an
injunction granted; power to deliver possession; power to issue
injunctions; power to award costs etc.
5. He submits that the provisions of the M.C. Act, 1906,
grant all the powers, and attributes of a Court, to the Mamlatdar, as
the C.P.C. confers upon a Court and therefore, the power to issue
injunction, would be an inherent power included in the powers of a
Court of competent jurisdiction empowered to decide the lis before
him. He submits that the Court of a Mamlatdar, would in fact be a
Civil Court in that view of the matter, possessing inherent powers to
grant injunction of an interim nature also. He submits that no fault
can be found with the impugned orders. Learned Counsel, places
reliance upon Ashok Devman Gangurde Vs. Dagu Chiman Gangurde
and others, 2021 (2) Mh.L.J. 460 , to submit that Section 11 of the
C.P.C. is applicable to proceedings under the M.C. Act, 1906. Further
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reliance is placed upon Lala Dagadu Kale Vs. Additional
Commissioner, Nashik and others, 2010 (3) Mh.L.J. 813 which holds
that the power under Section 5(2) of the M.C. Act, 1906 is a power
to grant injunction either perpetual or mandatory and also
temporary. Further reliance is placed on Manohar Lal Chopra Vs. Rai
Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 to submit that the
power to issue temporary injunction, has to be read into the inherent
powers of the Court, even in cases, which were not so prescribed.
Reliance is also placed on the Form in Schedule-C of the M.C. Act,
1906 which is a Form of injunction to be issued under Section 21(2)
of the M.C. Act, 1906 to submit that the language thereof would
indicate that it was meant for the purpose of an interim relief which
would indicate the presence of the power to grant temporary
injunction.
6. He further lays stress upon the meaning of the word
"immediate", which means at once; without delay, as held in P. Orr
and Sons (P) Ltd. Vs. Associated Publishers (Madras) Limited,
(1991) 1 SCC 301. He also relies upon the definition of 'immediate'
as stated in Black's Law dictionary to mean instant, without delay.
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7. He further relies upon the provisions of Section 67(2),
69(1), 68, 69, 70 and 72 of the Maharashtra Tenancy and
Agricultural Lands Act, 1948 ("the M.T.A.L. Act of 1948", for short
hereinafter), in support of his contention that the Mamlatdar has all
the powers of a Civil Court and therefore, those powers would
include the right to grant temporary injunction also.
8. Reliance is also placed on Sadashiv Mahadeo Kumbhar
Vs. Balkrishna Bhikaji Walimbe and another, 2001 SCC OnLine
Bombay 1048 (para 6), which holds that the provisions of the M.C.
Act, 1906 are parallel to the Code of Civil Procedure and therefore,
it will have to be held that Mamlatdar's Courts are empowered to
exercise the right of review of its order and also if necessary to do so
in the interest of justice; Narayan Nagappa Hegde Vs. Shankar
Narasimha Bhatt, AIR 1966 Mysore 5, which holds that the
jurisdiction of the Mamlatdar is identical with that of the Civil Court
and therefore, is subordinate to the High Court.
9. Mr. Hajare, learned Counsel for the respondent No.3
submits that the Code of Civil Procedure, 1908 is a later statute than
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the M.C. Act, 1906. According to him, there is no provision in the
M.C. Act, 1906 which adopts the Code of Civil Procedure to
proceedings conducted under the M.C. Act, 1906 and therefore, the
question of the powers under Order XXXIX, Rules 1 and 2 of C.P.C.
being available to the learned Mamlatdar in proceedings under
Section 5 of the M.C. Act, 1906 does not arise at all.
10. Mr. Ukey, learned Additional Government Pleader, for
the respondent nos.5 and 6, submits, that the powers under Order
XXXIX, Rules 1 and 2 of C.P.C. are not available to the proceedings
under M.C. Act, 1906, as the applicability of the same, is not
envisaged by the M.C. Act, 1906, which is a complete Code in itself.
He further relies upon State of Kerala Vs. Mathai Verghese and
others, AIR 1987 SC 33, to contend that the expressions used in the
Statue are to be strictly construed and no meaning which is not
apparent from a plain reading thereof can be attributed or imported
into the Statute. He, therefore, submits that a power to grant
injunction, cannot be read into the provisions of the M.C. Act, 1906,
since the same is not included.
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11. The M.C. Act, 1906 was enacted to consolidate and
amend the law relating to the powers and procedures of
Mamlatdar's Courts and was brought into force with effect from
29/10/1906. The provisions of the Act indicate that the Mamlatdar
has to preside over the Court which is called as Mamlatdar's Court
which is enjoined with the power as contemplated under Section 5
(1) (a) and (b), as well as Section 5(2) of the M.C. Act, 1906. The
proceedings before the Mamlatdar are termed as a suit. Section 6
confers powers upon the Collector to transfer any suit from one
Mamlatdar's Court to another; Section 7 requires that all suits are to
be commenced by a plaint which is to be presented to the
Mamlatdar in open Court by the plaintiff, the contents whereof are
listed in Section 7(a) to (f). Section 8 permits informal petitions to
be treated as plaints and Section 9 enjoins the Mamlatdar, in case
the claim does not contain the particulars specified in Section 7 or is
unnecessarily prolix to examine the plaintiff upon oath in order to
ascertain from him such of the particulars specified in Section 7 as
are not clearly or correctly stated in the plaint and to reduce the
examination in writing in the form of an endorsement or Annexure
to the plaint, which is to be deemed to be a part of the plaint.
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Section 10 requires the plaint to be subscribed and verified by the
plaintiff, whereas Section 11 requires the endorsement by the
Mamlatdar as to such verification. Section 12 requires the
Mamlatdar to reject the plaint in case the requirements thereof are
not complied, whereas Section 13 empowers him to return the plaint
upon the grounds stated therein. Upon the plaint being admitted,
notices are to be issued to the other side for fixing the trial of the
case. The provisions of Section 15 empowers the Mamlatdar to
ensure and enforce attendance of the witnesses. Section 16
empowers him to dismiss the plaint in default and so also to proceed
ex parte and set aside the order of default. Similarly power to add
parties (Section 18); power to bring legal heirs on record are also
conferred upon him. Section 19 delineates what issues are to be
decided by the Mamlatdar. Section 19(2) empowers him to inspect
the property in dispute or cause it to be so inspected. Sections 21
and 22 relate to the powers of the Mamlatdar to execute his own
orders. Section 23(3) provides that where a Revisional Authority is
seized of a revision filed under Section 23(2), it shall be deemed to
be a Court. Thus, the provisions of the M.C. Act, 1906 indicate that
for the purpose of proceedings under the M.C. Act, 1906 the
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Mamlatdar is a Court and the M.C. Act, 1906 is a complete Code in
itself, as powers have been conferred upon the learned Mamlatdar to
fully and effectively decide any dispute of the nature as specified in
Section 5, which may arise before him and also to enforce such
decision.
12. The conspectus of the entire provisions as contained in
the M.C. Act, 1906 indicates absence of a provision to grant
temporary relief, as is contained in Section 94 or Order XXXIX,
Rules 1 and 2 of C.P.C. The question therefore arises, that when the
provisions of Section 5(1) of the M.C. Act, 1906 enjoin upon the
learned Mamlatdar to grant an immediate relief, whether the same
would have the meaning of having conferred a power upon the
learned Mamlatdar to grant temporary injunction as is contemplated
by Order XXXIX, Rules 1 and 2 of C.P.C.
13. What is also material to note is that the Code of Civil
Procedure, 1908, though a later Statute, has not been made
applicable in all its forms to proceedings under the M.C. Act, 1906.
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14. Before the advent of the Code of Civil Procedure, 1908,
the field was governed by the Code of Civil Procedure, 1882, which
was an extensive Code dealing with the procedure, regarding the
conduct of the suits before the Courts. Chapter 35, Sections 492 to
497 of the same dealt with grant of temporary injunctions. It is,
therefore, apparent that when the M.C. Act, 1906 was enacted the
Code of Civil Procedure, 1882 was equally in force, containing the
above provisions for grant of temporary injunction. It was open for
the legislature while enacting the M.C. Act, 1906, to have made the
provisions of Chapter 35 of C.P.C., 1882, applicable to proceedings
under the M.C. Act, 1906. That however has not been done. Even
after the enactment of the Code of Civil Procedure, 1908, the
legislature by amendment to Section 3(b)(ii), while elucidating the
meaning of the words 'plaintiff and defendant' has amended the
above provision to indicate that the recognized agent of a plaintiff or
defendant as defined in Section 37 of the C.P.C., 1908, would be
included in the words 'plaintiff and defendant', however, the Code of
Civil Procedure, 1908, has nowhere, been made applicable to
proceedings under the M.C. Act, 1906. It is, thus, apparent that the
legislature was not oblivious to the provisions of the M.C. Act, 1906
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and the absence of the power to grant temporary injunction therein,
in spite of which, it conspicuously appears to have taken a decision
not to confer such a power to grant temporary injunction upon the
learned Mamlatdar, while enacting the M.C. Act, 1906, or by way of
any amendment subsequent thereto.
15. It is a settled position of law, that the provisions of a
Statute have to be construed and read to have the meaning, power
and authority, which is specifically conferred by the provisions of the
said Statute and not otherwise. Nothing can be imported into the
Statute which has not been provided therein, by adopting any device
or means.
16. One cannot be oblivious to the position that the Courts
function and operate, due to the powers as vested in them, by the
Statutes creating them and conferring jurisdiction upon Court.
17. Taking the above position into consideration, it is
necessary to consider the argument advanced by Mr. Pathak, learned
Counsel for the respondent nos.1 and 2 based upon the provisions of
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Section 67 to 69 (1), 70 and 72 of the M.T.A.L. Act of 1948.
Section 67 of the M.T.A.L. Act of 1948 empowers the State
Government to appoint an officer not below the rank of a Mamlatdar
to be the Tribunal and to exercise the powers and perform the duties
and functions of the Tribunal under the said Act in the areas for
which it is so appointed. The powers which are to be exercised by
the Mamlatdar are listed in Section 70. It is material to note that the
powers which are exercisable under Section 70 by the Mamlatdar
under the provision of the M.T.A.L. Act of 1948 are separate and
distinct from those exercisable by him under Section 5 of the M.C.
Act, 1906. Merely because the Mamlatdar has also been conferred
certain powers and authority to be exercised under the provisions of
the M.T.A.L. Act of 1948 the same would not mean that the
Mamlatdar would be capable of exercising powers under the M.C.
Act, 1906, which is a different Statute altogether. It would be also
material to note that even Section 70 of the M.T.A.L. Act of 1948,
does not confer upon the Mamlatdar the power to grant temporary
injunction. The conferring of powers of the Civil Court, upon the
Tribunal, as constituted under Section 67 (1) of the M.T.A.L. Act of
1948, is of no significance whatsoever, for the purpose of the
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question under consideration in the present matter. Even Section 72
of the M.T.A.L. Act of 1948, indicates that the powers as contained in
the Code of Civil Procedure are not conferred upon the Mamlatdar
while exercising powers under Section 70 of the M.T.A.L. Act of
1948. In fact Section 72 of the M.T.A.L. Act of 1948 specifically
states that the Mamlatdar under Section 71 of the M.T.A.L. Act of
1948 shall exercise the same powers as the Mamlatdar's Courts
under the M.C. Act, 1906, which does not make any mention of the
applicability of the Code of Civil Procedure, 1908 to the proceedings
under the M.C. Act, 1906. Thus, reliance upon the provisions of the
M.T.A.L. Act of 1948 by the learned Counsel for the respondent
nos.1 and 2, in my considered opinion, is clearly misplaced.
18. That takes us to the use of the word "immediate" as
occurring in Section 5(1)(b) of the M.C. Act, 1906. The word
"immediate" would mean and indicate an action to be taken
forthwith or with all haste [ see P. Orr and Sons (P) Ltd. (supra) ].
However, considering the background of the provisions of the M.C.
Act, 1906 in which it is used, it will have to be held to be
circumscribed by the said provisions, which require a determination
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of the rights of the parties vis-a-vis the claim as made in respect of
the matters provided in Section 5(1)(a)(b) and 5(2) of the M.C. Act,
1906, which cannot be determined unless an enquiry as
contemplated by provisions of the M.C. Act, 1906 has taken place.
This is further fortified by the limited time period as indicated in
Sections 5 (3), 14(2) of the M.C. Act, 1906.
19. Merely because the Mamlatdar Court is a "Court" that
would not mean, that it derives jurisdiction automatically to
entertain and decide an application for temporary injunction. Even if
it is a Court, the powers of the Court, stem from the provisions
under which it is created and not otherwise. When the legislature
has consciously refrained from conferring any power of grant of
temporary injunction upon the learned Mamlatdar, in respect of
matters before it, it cannot be said that merely because it is a Court,
it would have those powers more so, when the M.C. Act, 1906 does
confer any inherent powers upon the Mamlatdar, as are conferred
upon the Court under Section 151 of C.P.C. In this context, the
provisions as contained in Gujarat Tenancy and Agricultural Lands
Act, 1948 can be considered. The original Section 70 of the Gujarat
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Tenancy and Agricultural Lands Act, did not confer any power upon
the Mamlatdar to issue temporary injunction. However, by way of an
amendment of the year 1973, (Act 5 of 1973) Clause (nb) was
inserted in Section 70, whereby power to issue temporary injunction
was conferred upon the Mamlatdar. It is, thus, apparent that the
power to issue an injunction being a power created by Statute, could
not be inferred to have been conferred upon the Mamlatdar merely
because the Mamlatdar has been termed as a Court or the
proceedings before the Mamlatdar are termed as a suit and the
parties referred to as plaintiff and defendant. Even though the
Mamlatdar has been conferred with the power akin to what the Civil
Court possesses under the Code of Civil Procedure in the matter of
decision of suit, the conferment of power to grant temporary
injunction even upon the Civil Court under the Code of Civil
Procedure is by way of a specific provision as contained in
Section 94 and Order XXXIX, Rules 1 and 2 of C.P.C. This is more the
reason to hold that the Mamlatdar, is not conferred any power to
grant temporary injunction while deciding proceedings under the
M.C. Act, 1906. Reliance is rightly placed by Mr. Ukey learned
Additional Government Pleader for the respondent nos.5 & 6, on
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State of Kerala v. Mathai Verghese, (1986) 4 SCC 74 6 which holds
that when the legislature does not speak so, the court interpreting
the relevant provision of law cannot substitute any expression in
place of the one existing as the Court can merely interpret the
section; it cannot rewrite, recast or redesign the section. In
interpreting the provision the exercise undertaken by the court is to
make explicit the intention of the legislature which enacted the
legislation. It is not for the court to reframe the legislation for the
very good reason that the powers to "legislate" have not been
conferred on the Court.
20. In Sanjay s/o Dinkar Kulkarni Vs. Shankarappa s/o
Ganappa Pasarakar [Civil Revision Application No.244 of 1975,
decided on 7/8/1995] a learned Single Judge of this Court
(Shimpi, J.) while considering the powers of the Mamlatdar under
Section 5 (2) of the Mamlatdar's Courts Act by relying upon an
earlier unreported judgment in Sahabrao Ruprao Choudhary Vs.
Smt. Indubai w/o Devidas Choudhary and another, 1974 Mh.L.J.
Note 71 (Kamat, J.) and Jamadar Suleman Bachumiya Vs. Mahavir
Mathadin and another, (1963) 4 GLR 131, has held, that the
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Tahsildar under Section 5 (2) of the Mamlatdar's Courts Act, 1906,
has no power to grant interim or temporary injunction in
proceedings pending before him and such an order would be
without jurisdiction.
21. In Sahabrao Ruprao Choudhary (supra), this Court held
as under :-
"It was held by the Gujrat High Court that the
Rules of the Code of Civil Procedure do not apply to
cases for which the special procedure makes no provision
and consequently, a Mamlatdar cannot grant an interim
injunction in a suit under Section 5 of the Mamlatdars
Courts Act.
In the whole of this Act, there is no indication of
any intention of the legislature that the Rules of the Code
of Civil Procedure should apply to the cases filed under
the Mamlatdars' Courts Act, Section 5 (2) of the
Mamlatdars' Courts Act does make a specific provision
for a permanent injunction, but there is no provision in
the Act for an interim or temporary injunction. Agreeing,
therefore, with the decision of the Gujrat High Court, I
hold that the Mamlatdar acted in excess of his
jurisdiction when he issued a temporary or interim
injunction in the suit filed by the petitioner under
Section 5 of the Mamlatdars' Courts Act."
(emphasis supplied)
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22. In Jamadar Suleman Bachumiya (supra) while
considering the scope of Section 5 of the M.C. Act, 1906, as then
applicable to the State of Gujrat it has been held that the Mamlatdar
had no jurisdiction to issue an injunction in a suit filed under
Section 5 (2) of the Mamlatdar's Courts Act. Though not discussed,
the judgments delivered, under the old Mamlatdar's Courts Act, i.e.
Bombay Act -III of 1876 were taken note of while recording the
arguments of the learned Counsel for the opponent namely
Ganpatram Jebhai Vs. Ranchhod Haribhai ILR 17 Bom. 645; Kasam
Saheb Valad Sha Amed Saheb and another Vs. Marutibin Rambhaji,
ILR 13 Bom. 552 . which hold that the Code of Civil Procedure as
extant then, was not applicable to proceedings before the
Mamlatdar.
23. Lala Dagadu Kale Vs. Additional Commissioner, Nashik
and others, 2010 (3) Mh.L.J. 813, relied upon by Mr. Pathak, learned
Counsel for the respondent nos.1 and 2 is the only case, in which a
passing reference has been made by the learned Single Judge of this
Court that the Mamlatdar while acting under sec.5 of the
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Mamlatdar's Act, 1906, will also have the power to grant temporary
injunction.
23.1. It is, however, material to note that in Lala Dagadu
Kale (supra), the Court was considering whether the Tahsildar
acting under the provisions of the MLR Code, 1966 had jurisdiction
to review his own order without seeking permission from his
superior officers, as contemplated under Section 258 of the MLR
Code, 1966. The order sought to be reviewed, was one which was
passed by the Mamlatdar under Section 5 of the M.C. Act, 1906. It
is trite that the provisions of the M.C. Act, 1906 and those of the
MLR Code, 1966 are separate and distinct and operate in different
fields altogether and therefore, the question whether a review of an
order passed under Section 5 of the M.C. Act, 1906, would be
permissible, without the requirement of Section 258 of the MLR
Code, 1966 being followed, in my considered opinion, would be a
situation, which is clearly inconceivable in law. It is thus apparent,
that the Court in Lala Dagadu Kale (supra), was not called upon to
consider whether the Mamlatdar acting under the provisions of the
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M.C. Act, 1906, was empowered to entertain an application for
grant of interim relief or temporary injunction.
23.2. A ratio decidendi is the reasoning and decision of the
Court upon the question referred to the Court for decision [see
Natural Resources Allocation in re (2012) 10 SCC, Shaikh Abdul
Razak Yaseen Patel and others Vs. Sayyad Murad Syed Irfan Ali
(deceased) through his L.Rs. Smt. Sharifabi w/o Murad Sayed and
others, 2020 (2) Mh.L.J. 591 ]. In State of Haryana Vs. Ranbir @
Rana (2006) 5 SCC 167, while considering the difference between a
precedent and obiter, it was held that there was a marked
distinction in as much as an obiter is more or less presumably
unnecessary to the decision of the matter, whereas a ratio decidendi,
is what the judgment actually is called upon to decide and decides.
In State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 it has been
held that 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
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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 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. In Director of
Settlements A.P. and others Vs. M.R. Apparao and another, AIR
2002 SC 1598 , it has been held that a judgment of the Court has to
be read in the context of questions which arose for consideration in
the case in which the judgment was delivered. An "obiter dictum" as
distinguished from a ratio decidendi is an observation by the Court
on a legal question suggested in a case before it but not arising in
such manner as to require a decision. Such an obiter may not have a
binding precedent as the observation was unnecessary for the
decision pronounced, but even though an obiter may not have a
binding effect as a precedent, but it cannot be denied that it is of
considerable weight.
23.3. It would thus be apparent that the observations in
para 6 of the judgment in Lala Dagadu Kale (supra), therefore, can
safely be said to be a mere obiter and not laying down any law or
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binding precedent in that regard, as the learned Single Judge was
not called upon to decide the question at all, which was altogether
different as indicated above.
24. Once this is so held, in my considered opinion, the
power to grant an interim relief in the nature of a temporary
injunction being absent, it would be jurisdictionally impermissible,
for the learned Mamlatdar or for that matter the revisional authority
under Section 23 of the M.C. Act, 1906 to either entertain an
application for interim temporary injunction or grant it. In this view
of the matter, the order of the Mamlatdar dated 10/6/2021,
granting temporary injunction and so also that of the S.D.O. dated
12/7/2021, would clearly be unsustainable in law.
24.1. In Ashok Devman Gangurde Vs. Dagu Chiman
Gangurde, 2021 (2) Mh.L.J. 460, it has been held, that the principles
of Section 11 of the C.P.C. are applicable to proceedings under
Section 5 before the Mamlatdar, which in my opinion even if the
Code of Civil Procedure is not applicable, have to be so construed on
the general principles of law relating to finality of litigation and is of
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no assistance to Mr. Pathak, learned Counsel for the respondent
nos.1 and 2.
24.2. In Mohommad Khan s/o Rahim Khan Vs. Shankar s/o
Maroti Dhage and another, 2017 (3) Mh.L.J. 135, it has been held,
that the orders passed under Section 5 or under Section 23 of the
M.C. Act, 1906 since no finality is attached to them, the jurisdiction
of the Civil Court to decide suit challenging such orders was not
barred, which has no applicability to the facts of the present matter.
In Vasudev Pandharinath Raikar and others Vs. Manoj Mohan Dalvi
and others, 2018 (4) Mh.L.J. 927, it was held that since the
respondent no.1 was not a party to proceedings before the
Mamlatdar's Court the question of applying the principles of res
judicata, as per explanation - VIII to Section 11 of the C.P.C. did not
arise, which again is not germane to the matter in issue in hand.
24.3. Anjali w/o Vitthal Ingole Vs. Sub-Divisional Officer,
Washim and another, 2015 (2) Mh.L.J. 651, merely lays down the
parameters of interference in revisional jurisdiction under Section 23
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(2) of the M.C. Act, 1906 and therefore is of no assistance, as the
question involved here is totally different.
24.4. Sadashiv Mahadeo Kumbhar (supra) was a case under
the Bombay Tenancy and Agricultural Lands Act, 1948, wherein the
Mamlatdar acting under Section 70 of the B.T.A.L. Act, 1948 was
held to have the power of review of its own order, as the proceedings
were held to be parallel to Code of Civil Procedure and in Narayan
Nagappa Hegde (supra), it was held, that the Mamlatdar's Court was
a Court subordinate within the meaning of Section 115 of C.P.C. and
therefore the High Court had revisional jurisdiction over it and in
both the matters, the issue of the Mamlatdar, under the M.C. Act,
1906, having power to grant interim injunction, did not fall for
consideration therein.
24.5. Reliance on Manohar Lal Chopra (supra) by Mr. Pathak,
learned Counsel for the respondent nos.1 and 2 is clearly misplaced
as therein the Court was considering the issue of grant of injunction
by invoking the inherent powers of the Court as contained in
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Section 151 of the C.P.C. and therefore was a case in which the
Statute specifically conferred a power upon the Court.
25. Further reliance upon Form in Schedule-C of the M.C.
Act, 1906, is clearly misplaced, as Form-C merely indicates the
proforma in which an injunction granted under Section 5 of the M.C.
Act, 1906, is to issue. The Form in Schedule-C is referable to
Section 21 (2) of the M.C. Act, 1906, which speaks about the
decision having already been taken for granting injunction as
contemplated under Section 21 (1) of the M.C. Act, 1906, which is
for removal of an impediment or for awarding possession or
restoring a use, all of which, relate to the final decision of the
Mamlatdar and not otherwise. Even otherwise, a Form given in any
Schedule to a Statute, would merely indicate the format in which,
the decision is to be entered or the notice is to be given, and can
never be construed as something conferring jurisdiction upon a
Court or authority.
26. In view of the above discussion, I am of the considered
opinion, that the provisions of the M.C. Act, 1906, do not confer any
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power upon the Mamlatdar, to issue any interim orders or grant any
interim relief by way of temporary injunction, or otherwise, and no
such power can be inferred upon or in the Mamlatdar, by having
recourse to any other Statute, parallel or otherwise, nor do the
provisions of the M.C. Act, 1906, confer any inherent
jurisdiction/power upon the Mamlatdar, to do something, which is
not otherwise provided in the M.C. Act, 1906.
27. The impugned orders, therefore cannot be sustained in
law, as the jurisdiction is lacking and are hereby quashed and set
aside. The writ petition is accordingly allowed and the application
for grant of temporary injunction, as filed by the respondent no.1, is
dismissed as being without jurisdiction. Rule is made absolute in the
aforesaid terms. There shall be no order as to costs.
Mr. Pathak, learned Counsel for the respondent nos.1
and 2, at this juncture, makes a request that since there is an
obstruction to the access complained of by the respondent nos.1
and 2, which obstruction has been caused by the petitioner, due to
which they have been unable to use their land, the proceedings
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before the Mamlatdar, could be directed to be decided within a time
bound schedule, to which neither Mr. Kukday, nor Mr. Hajare nor the
learned Additional Government Pleader have any objection,
considering which, the learned Mamlatdar is directed to decide the
proceedings before him within a period of two months from the date
the copy of this order is placed before him. Parties agreed to appear
before the Mamlatdar on 11/10/2021.
(AVINASH G. GHAROTE, J.)
rvjalit
