Bombay High Court
Smt. Sundari Somnath Salian vs The State Of Maharashtra And Ors on 10 March, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 3165 OF 2017
Smt. Sundari Somnath Salian ..Petitioner
Versus
The State of Maharashtra & Ors. ..Respondents
__________
Mr. Sunil G. Karandikar for petitioner.
Mr. Avinash H. Fatangare i/b. Archana S. Shelar for Respondent
No.5.
Mr. C. D. Mali, A.G.P. for the State/Respondent Nos.1 to 4.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 10 MARCH 2023
PC :
1. The petitioner herein has challenged the order dated
22/04/2014 passed by the Secretary and Special Executive Officer
(Appeals) in the Revision Application S-30/2710/P.K.139/G-4
P.K.524(01)/2012/AVPU, as well as, the order dated 31/10/2014
rejecting the review of that particular order.
2. The petitioner had requested for a road for accessing her
plot at City Survey No.7754. The Tahsildar, Ambernath vide order
Digitally
signed by
VINOD
dated 25/03/2008 directed that the plot admeasuring 16 Sq.mtr.
VINOD BHASKAR
BHASKAR GOKHALE
from the plot No.81 owned by the respondent No.5 Society be
GOKHALE Date:
2023.03.13
15:03:15
+0530
Gokhale
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allotted to the petitioner for a road accessing to her plot after
depositing certain amount. That order was challenged by the
respondent No.5 Society before the Collector, Thane. The said
authority vide order dated 19/09/2008 rejected the objection
raised by the society and upheld the order passed by the Tahsildar.
However, vide Clause 3 of the said order dated 19/09/2008 it is
clarified that the said portion could be used by the petitioner only
for accessing her plot as a road to her plot. She was directed not to
erect any compound around that particular portion. This particular
clause of the Collector's order was challenged by the petitioner
before the Additional Commissioner (Konkan Division) Mumbai.
That appeal was dismissed vide order dated 14/10/2009 and the
order passed by the Collector was confirmed. In this particular
appeal before the Additional Commissioner, the petitioner had
challenged only the restriction on putting up a compound around
that portion. There was, of course, no challenge by the petitioner
for grant of that particular portion for her use.
3. The petitioner thereafter filed the Revision U/s.257 of
the Maharashtra Land Revenue Code 1966 (for short 'M.L.R.Code')
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before the Government of Maharashtra. That Revision application
was rejected vide order dated 22/04/2014. While rejecting that
revision application, the Secretary and Special Executive Officer
(Appeals) for Government of Maharashtra also set aside the orders
dated 25/03/2008 passed by the Tahsildar, Ambernath, the order
dated 19/09/2008 passed by the Collector, Thane and the order
dated 14/10/2009 passed by the Additional Commissioner
(Konkan Division) Mumbai. The petitioner then preferred a review
application of that order before the same authority. That review
was also dismissed.
4. The petitioner in these circumstances has approached
this court challenging the order passed by the Government of
Maharashtra U/s.257 of the M.L.R. Code.
5. Learned counsel for the petitioner submitted that the
State Government exceeded the scope of revision application
preferred by the petitioner. The Government could only have taken
into consideration the objection raised by the petitioner and the
contentions raised by the petitioner. It was not open for the
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Government to have considered the legality or validity of the order
passed by the Tahsildar, Ambernath, the Collector, Thane and the
Additional Commissioner (Konkan Division) Mumbai. Therefore,
prejudice is caused to the petitioner because she was not given
notice that all these three orders would be set aside by the
impugned order. He further submitted that the Revisional
Authority had taken into consideration Section 143 of the M.L.R.
Code, but the petitioner was not heard and in consonance of the
principles of natural justice, she at least deserved hearing before
any adverse order was passed in her own revision application.
6. Learned counsel for the Respondent No.5 submitted that
the said respondent had filed their written submissions before the
revisional authority, therefore, the petitioner was very much aware
of the stand taken by the society. Therefore, the petitioner was not
taken by surprise when the order was passed by the revisional
authority. Learned counsel for the Respondent No.5 relied on the
Judgment passed by a Single Judge of this Court in the case of
Pandurang Chandrabhan Bauche and another Vs. Jalindhar
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Sarandhar Tupe & Ors.1 to contend that the powers U/s.143 of the
M.L.R. Code could be used only in respect of an agricultural land
and not for the lands which are situated within the city limits.
7. I have considered these submissions and I have perused
the impugned orders passed by the revisional authority. The
revisional authority has referred to Section 143 of the M.L.R. Code
and has observed that the Tahsildar does not have power to pass
any order in respect of a road leading to a plot which was not an
agricultural land. To that extent, I do not find any infirmity in that
order. However, the fact remains that the petitioner was not given
any opportunity to make her submissions. Therefore, only to that
extent and in the interest of justice, the petitioner deserves some
hearing before any adverse order was passed by the revisional
authority in the petitioner's own revision application. In such a
case, the petitioner could have come up with other factual aspects
of the matter and some solution could have been found between
the parties. Some workable consequential relief could have been
considered. The Judgment relied on by learned counsel for the
1 2009 (3) Mh.L.J. 467
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Respondent No.5 also supports the reasoning given by the
revisional authority. Therefore, legally, I do not see that the
revisional authority had committed any error. The only difficulty is
that the petitioner was not heard when an adverse order was
passed in her own revision application. She was not put to notice
that such order was contemplated. Therefore, only because of that,
I am inclined to remand back this revision proceeding before the
revisional authority. Except for the power of the Tahsildar U/s.143
of the M.L.R. Code referred to herein above, the other contentions
of the petitioner, as well as, of the respondent No.5 are left open. It
is also necessary to take care of the consequences of cancellation of
the order passed by the Tahsildar which can be decided by the
revisional authority and for that purpose it is also necessary to
remand back the revision application to the revisional authority.
8. Hence, the following order:
ORDER
i) The Writ Petition is allowed.
ii) The Revision Application filed by the petitioner is
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remanded back to the Revisional Authority.
iii) It is made clear that, all other contentions of both
the parties, except with reference to Section 143
of the M.L.R. Code, are left open.
iv) The Revision Application shall be decided within
a period of three months from today.
v) The Writ petition is disposed of.
(SARANG V. KOTWAL, J.)
