Avinisha Realtors Private Ltd., ... vs The Court Of Wards And Collector, ...
2023 Latest Caselaw 186 Bom

WP-250-2021                                   1        Judgment

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

                  WRIT PETITION NO. 250 OF 2021

Avinisha Realtors Private Ltd.,
a Company Incorporated and registered under
the Indian Companies Act, 1956,
having its Regd. Office at Plot No. 128,
Opposite Sonegaon Police Station,
Somalwada, Wardha Road, Nagpur.
                                                    PETITIONER
                                 .....VERSUS.....
1.   The Court of Wards & Collector,
     Nagpur.

2.   Nitin s/o Kisan Patil,
     aged about 33 years,
     R/o Sharda Chowk, Old Subhedar Layout,
     Nagpur.

3.   Raje Raghuji Ajitsingh Bhonsle,
     aged major.

4.   Raje Madhavji Ajitsingh Bhonsle,
     aged major.

5.   Rajkumari Anjali Raje Kadad,
     aged major.

6.   Rajkumari Uttaraja Jitendrasingh Ghatge,
     aged major.

7.   Rajkumari Ambika Raje Shumbhsingh Desai,
     aged major.

8.   Rutababa Shrikantrao Pawar,
     aged major.

9.   Prachi Shrikantrao Pawar,
     aged major.

     Respondent Nos. 3 to 9 are R/o
     Senior Bhosala Palace, Mahal, Nagpur.
                                                  RESPONDENTS
 WP-250-2021                                  2                       Judgment

 Shri S.V. Manohar, Senior Advocate with Shri Rohit Joshi and Shri Atharva S.
                     Manohar, Advocates for the petitioner.
 Shri A.S. Fulzele, Additional Government Pleader for respondent No.1/ State.
   Shri S.K. Mishra, Senior Advocate with Shri Sachin Agrawal, Advocate for
                             respondent Nos. 2 to 6.
 Shri S.P. Dharmadhikari, Senior Advocate with Shri K.N. Shukul, Advocate for
                             respondent Nos. 7 to 9.



CORAM : A. S. CHANDURKAR AND M.W. CHANDWANI, JJ.

ARGUMENTS WERE HEARD ON : NOVEMBER 9, 2022 ORDER IS PRONOUNCED ON : JANUARY 6, 2023 JUDGMENT :(PER : A.S. CHANDURKAR, J.)

The challenge raised in this Writ Petition is to the notice

dated 2/7/2020 issued by the in-charge Officer, Court of Wards, Nagpur.

By the said notice, the predecessors of the petitioner - Company have

been called upon to attend the hearing of the proceedings that was to be

conducted by the Collector/ Commissioner of the Court of Wards. In the

said notice, it was stated that there was an objection raised to the revenue

record maintained with regard to Khasra No. 128/1, Mouza - Somalwada

and in that context, the stand of the said vendors was sought.

2. The petitioner is a Company registered and incorporated

under the Companies Act, 1956 (for short "the Act of 1956"). According

to the Company, on 22/12/2008, it purchased various lands including

land bearing Khasra No. 128/1, Mouza - Somalwada admeasuring 1

hectare 45 ares. Since then it is in possession and occupation of the WP-250-2021 3 Judgment

Company. On 13/7/2018, respondent No.2 herein in his capacity as

power of attorney holder for respondent Nos. 3 to 9 moved an application

before the Tahsildar stating therein that the mutation entries in 7/12

extract had been incorrectly recorded. It was stated that respondent Nos.

3 to 9 were the owners of the said land and despite that names of about

21 other persons had been mentioned. The power of attorney holder

submitted that by invoking the provisions of Section 258 of the

Maharashtra Land Revenue Code, 1966 (for short "the Code of 1966"),

permission be obtained from the Sub-Divisional Officer and necessary

corrections be made in the revenue record. Pursuant thereto, the

Tahsildar on 21/1/2019 issued a communication to the Manager, Court

of Wards, Nagpur and brought to his notice the application moved by the

power of attorney holder and requested necessary guidance in the matter.

The application dated 13/7/2018 was forwarded to the Manager, Court

of Wards, Nagpur. It is thereafter that on 2/7/2020 the aforesaid notice

came to be issued by the Presiding Officer, Court of Wards, Nagpur to the

predecessors of the Company. On being informed of the same, the

petitioner initially filed an application for dismissal of the said

proceedings on 7/8/2020 stating therein that the power of attorney

holder had no locus whatsoever to move the application dated

13/7/2018. It is thereafter that the Company has filed the present Writ

Petition on 12/8/2020.

WP-250-2021 4 Judgment

3. Shri S.V. Manohar, learned Senior Advocate for the

Company submitted that the Court of Wards had no jurisdiction

whatsoever to entertain the application dated 13/7/2018 that had been

moved by the power of attorney holder. When the said application was

moved before the Tahsildar, he had forwarded the same to the Manager,

Court of Wards, Nagpur on 21/1/2019. Correction in revenue records

was a matter to be considered by the Tahsildar under the provisions of

the Code of 1966 and the said dispute did not fall within the purview of

the Court of Wards. Inviting attention to various provisions of the Central

Provinces Court of Wards Act, 1899 (for short "the Act of 1899"), it was

submitted that there was no power of adjudication conferred on the Court

of Wards especially the manner of dispute as sought to be raised by the

power of attorney holder. He invited attention to the Notification dated

12/2/1925 by which the Court of Wards was empowered to assume

superintendence of various properties of the Bhonsle family. It was urged

that the property in question being Khasra No. 128/1 was not mentioned

in the Schedule of Properties under the said Notification. For that reason,

it could not be said that the subject property fell within the purview of the

Court of Wards. Under Section 21 of the Act of 1899, the Court of Wards

could exercise powers only with regard to the properties in which there

was interest created and not otherwise. If respondent Nos. 3 to 9 were

claiming title to the property in question, the remedy for the same was WP-250-2021 5 Judgment

before the Civil Court and not before the Court of Wards. In absence of

any jurisdiction whatsoever with the Court of Wards to inquire into the

status of property that was not under its superintendence and there being

no power of adjudication with the Court of Wards, it was submitted that

the notice dated 2/7/2020 being without jurisdiction was liable to be

quashed. It was submitted that it was a fit case for issuance of a writ of

prohibition restraining the Court of Wards from adjudicating upon the

notice dated 2/7/2020. Since such jurisdiction was being usurped, this

Court could under Article 226 of the Constitution of India issue writ of

prohibition. In that regard, the learned Senior Counsel placed reliance on

the decisions in Bengal Immunity Co. Ltd. Vs. State of Bihar and others

[AIR 1955 SC 661] and Shantilal Ambalal Mehta and others Vs. N.A.

Rangaswami, Collector Of Customs, Bombay and others [1977 Mh.L.J.

587 (FB)]. To urge that extraordinary jurisdiction under Article 226 of

the Constitution of India could be exercised in the present case, reliance

was placed on the decision in Whirlpool Corporation Vs. Registrar of

Trade Marks, Mumbai And Others [(1998) 8 SCC 1]. As regards the order

passed in Writ Petition No. 1537/2022 [Zahirul Kabir Siddiqui s/o

Maquesudul Kabir Siddiqui and others Vs. Custodian, Court of Wards,

Collector, Nagpur and others decided on 16/3/2022] it was submitted

that the questions raised in the present proceedings were never raised

therein nor was there any adjudication on merits. It was thus submitted WP-250-2021 6 Judgment

that the reliefs sought in the Writ Petition ought to be granted.

4. Shri A.S. Fulzele, learned Additional Government Pleader

for respondent No.1 opposed the aforesaid submissions. According to

him, since the Court of Wards had merely issued a notice to the

predecessors of the Company, they were free to respond to the same and

the challenge as raised to the said notice at this stage was premature. The

notice dated 2/7/2020 was issued in exercise of powers under Section 6

of the Act of 1899 with a view to verify the status of the property in

question. Since it was brought to the notice of the Court of Wards that

certain mutation entries had been incorrectly recorded, the matter was

being examined. He also drew attention to the additional affidavit filed

on behalf of respondent No.1 dated 4/5/2022 in which it was stated that

the Court of Wards would not examine the fate of the mutation entries or

the application dated 13/7/2018. Hence, there was no reason to interfere

in writ jurisdiction.

5. Shri S.K. Mishra, learned Senior Advocate for respondent

Nos. 2 to 6 also opposed the prayers made in the Writ Petition. He

submitted that the Collector in his capacity as guardian of the property

that was under superintendence of the Court of Wards was entitled to

examine the status of such property. It was submitted that though the WP-250-2021 7 Judgment

Notification dated 14/10/1983 had been issued, the same was not

published in the official gazette as required by Section 36 of the Act of

1899. Unless there was a Notification published in the official gazette, the

property in question would continue to be under superintendence of the

Court of Wards. The sale deed on the basis of which the Company was

claiming title was itself under cloud and it was in that backdrop that such

inquiry was being made under the Court of Wards. Since merely a notice

had been issued on 2/7/2020 for gathering the relevant facts, there was

no reason to interfere at this stage. The grievances raised herein could be

raised before the Collector in response to the impugned notice. Placing

reliance on the decision in Commissioner of Central Excise, Haldia Vs.

Krishna Wax Private Limited [(2020) 12 SCC 572] it was submitted that

the Writ Petition raising challenge to the show cause notice was not liable

to be entertained. It was thus submitted that the Writ Petition was liable

to be dismissed.

Shri S.P. Dharmadhikari, learned Senior Advocate for

respondent Nos. 7 to 9 also opposed the Writ Petition. He submitted that

the application dated 13/7/2018 was moved before the Tahsildar

invoking the provisions of the Code of 1966. In that regard, the Tahsildar

had under Section 258 of the Code of 1966 sought invocation of the

powers of review of the superior authority who was the Sub-Divisional WP-250-2021 8 Judgment

Officer. The apprehension of the Company that the Collector may decide

the application under Section 258 of the Code of 1966 was unfounded.

Moreover, with the clarification tendered by the Collector that there

would be no adjudication of any right whatsoever, there was no reason to

entertain challenge to the impugned notice. Under the Notification dated

12/2/1925, various properties were placed under the superintendence of

the Court of Wards. Thus, whether a property was under the purview of

Court of Wards or not was a question of fact that could be considered by

the appropriate authority. Moreover, the sale deed dated 22/12/2008

was also questioned and hence the Court of Wards was seeking to

consider the matter in exercise of its power of superintendence under

Section 6 of the Act of 1899. For these reasons there was no case made

out to interfere in writ jurisdiction. It was submitted that the Writ Petition

was liable to be dismissed.

6. We have heard the learned Counsel for the parties at length

and we have perused various documents placed on record. It is seen that

initially on 12/2/1925, a Notification came to be issued by the Governor

in Council in exercise of powers conferred by Section 6 of the Act of

1899. After referring to the provisions of Section 9 of the Act of 1899, it

was stated that the Court of Wards of the Nagpur Division would assume

superintendence of all the properties belonging to Raja Bahadur Raghoji WP-250-2021 9 Judgment

Rao Bhonsle wherever situated. On issuance of such Notification, the

Court of Wards became entitled to assume superintendence of the said

properties under Section 6 of the Act of 1899. There is another

Government Resolution dated 14/10/1983 issued by the Revenue and

Forest Department of the State Government. It states thereunder that the

State Government was pleased to accord sanction under Section 34 of the

Act of 1899 to the withdrawal of superintendence by the Court of Wards,

Nagpur of the property of Sr. Bhonsle, Nagpur. This was in view of

compromise decree in Special Civil Suit No. 121/1974. It further states

that withdrawal of superintendence of the property is required to be

notified in the Maharashtra Government Gazette under Section 36 of the

Act of 1899. There is no gazette notification published by the State

Government under Section 36 of the Act of 1899 to indicate that

withdrawal of superintendence by the Court of Wards under Section 34 of

the Act of 1899 has been taken to its logical end. Thus, on record, we

only have copy of the Notification dated 14/10/1983 issued under

Section 34 of the Act of 1899.

The Company claims its title on the strength of the sale deed

dated 22/12/2008. Respondent Nos. 3 to 9 have raised dispute by stating

that the mutation entries taken against the said property being Khasra No.

128/1 are incorrect and that they are entitled to have their names WP-250-2021 10 Judgment

mutated in the revenue records. For that purpose, they have invoked

jurisdiction of the Tahsildar under the Code of 1966 and in furtherance

thereof, the Tahsildar has sought to invoke the provisions of Section 258

of the Code of 1966. In the backdrop of the application dated 13/7/2018,

the communication dated 21/1/2019 has been issued to the Manager,

Court of Wards bringing to his notice the application dated 13/7/2018 as

moved. The reason for this appears to be the statements made in

paragraphs 5 to 8 of the application dated 13/7/2018. It is in this context

that the notice dated 2/7/2020 has been issued by the Presiding Officer,

Court of Wards, Nagpur/ Collector. The said notice requires the

predecessors of the Company to appear in the proceedings and submit

explanation in that regard. According to the Company, there is no such

jurisdiction with the Court of Wards to either entertain or proceed with

any sort of adjudication under the Act of 1899.

7. We find that it would not be very necessary to probe deeper

into the nature of proceedings before the Court of Wards or the purpose

for issuance of the notice dated 2/7/2020. This is for the reason that the

Collector in her affidavit dated 4/5/2020 has in clear terms stated that

the notice has been issued in exercise of administrative powers conferred

on the Court of Wards and the fate of the mutation entries in dispute or

the application dated 13/7/2018 would not be decided. In paragraph 2 of WP-250-2021 11 Judgment

the said affidavit, it has been stated as under :

"2. It is submitted that, from the averments made in the petition and the relief prayed in the prayer clause, it would be clear that, the petitioner is challenging the notice issued by the respondent no.1. Respondent no.1 assumes the Superintendent under the C.P. Courts of Wards Act, 1899, who has a power of Superintendent over the property of Government Wards. In view of the same, the notice is an administrative act on behalf of the respondent no.1. The Court of Wards would not at all be deciding the fate of the mutation entries or the application dated 13.7.2022, filed by the respondent no. 2 to 6."

From the aforesaid, it becomes clear that respondent No.1

merely seeks to invoke the powers of superintendence as conferred by

Section 6(1) of the Act of 1899. The apprehension expressed on behalf of

the Company that respondent No.1 is likely to enter into the merits of the

mutation entries standing in its name or adjudication of the application

dated 13/7/2018 is therefore taken care of by the statements made in

paragraph 2 of the said affidavit.

8. For issuance of a writ of prohibition so as to prohibit an

authority from proceeding with adjudication of any matter before it for

lack of jurisdiction, the absence of jurisdictional authority should be

amply clear on the factual front. If on an undisputed factual matrix it is

demonstrated that the authority concerned has sought to usurp WP-250-2021 12 Judgment

jurisdiction not conferred upon it and is seeking to proceed further in the

matter, issuance of writ of prohibition would be justified. However, if the

factual scenario is not clear, it would not be feasible to prevent such

authority from determining whether it is entitled to exercise jurisdiction

or not. In such case, the party aggrieved by initiation of such proceedings

can always demonstrate before the said authority that for lack of

necessary jurisdictional facts, it cannot proceed further in the matter.

As stated above, we have on record initial Notification dated

12/2/1925 issued under Section 6 of the Act of 1899 and thereafter the

Government Resolution dated 14/10/1983 issued under Section 9 of the

Act of 1899 in context of Section 34 of the Act of 1899. Gazette

publication under Section 36 of the Act of 1899 is not on record. We

therefore have an assertion by the Company that it is the owner of Khasra

No. 128/1 having acquired title pursuant to the sale deed dated

22/12/2008. On the other hand, it is the stand of respondent Nos. 2 to 9

as can be seen from paragraph 3 of the affidavit dated 15/1/2021 that

the sale deed as a nullity and does not confer any right on the Company

since the property despite being under control of the Court of Wards has

been sold to the Company. We therefore find that unless this factual

aspect is resolved, the Court would not be in a position to prohibit the

Court of Wards to consider the notice dated 2/7/2020 in accordance with WP-250-2021 13 Judgment

law. Notwithstanding the observations in paragraph 14 of the judgment

of the Full Bench in Shantilal Ambalal Mehta (supra) as well as in

paragraph 144 of the judgment of the Constitution Bench in Bengal

Immunity Co. Ltd. (supra), we find that since the factual premise as to

whether Khasra No. 128/1, Mouza - Somalwada falls within the purview

of the Court of Wards for being subjected to its superintendence requires

adjudication, we are not inclined to issue a writ of prohibition as prayed

for. Instead, after noting the statement made on oath by the Collector

dated 4/5/2022 that what was being exercised was merely a power of

superintendence, the said notice can be permitted to be taken to its

logical end.

9. Accordingly, while we refuse to issue a writ of prohibition so

as to restrain respondent No.1 from considering the matter in the light of

notice dated 2/7/2020, we accept the statement made on oath by the

Collector that the said notice is merely an administrative act in view of

power of superintendence conferred by Section 6 of the Act of 1899.

Respondent No.1 would not be either deciding the fate of the mutation

entries standing in the name of the Company nor would the application

dated 13/7/2022 (Sic 13/7/2018) be decided by respondent No.1. The

Company having moved an application for dismissal of the proceedings

dated 7/8/2020, it is free to pursue that application in accordance with WP-250-2021 14 Judgment

law. Respondent No.1 while considering notice dated 2/7/2020 shall take

into consideration the objection as raised by the Company and after

considering the same in accordance with law shall act in furtherance of its

decision.

10. By keeping the legal points raised in the Writ Petition open,

it is disposed of in the light of the observations and directions issued

hereinabove. The parties shall bear their own costs.

                                       (M.W. CHANDWANI, J.)              (A.S. CHANDURKAR, J.)
                         Sumit




Digitally signed bySUMIT CHETAN
AGRAWAL
Signing Date:06.01.2023 18:26