Full Judgment Text
1 wp7839o17group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7839 OF 2017
KASHIRAM ASARAM GHADGE AND OTHERS
VERSUS
RAMDAS BHANUDAS PUND AND ANOTHER
...
Shri Jayabhar Dattatraya R., Advocate for the Petitioners.
Shri S.V.Natu, Advocate for Respondent No.1.
Shri S.K.Tambe, AGP for Respondent No.2/ State.
...
WITH
WRIT PETITION NO.698 OF 2017
BABAN HANUMANTA SOMWANSHI.
VERSUS
WALMIK RAMBHAU TAMBE AND OTHERS.
...
Shri R.A.Tambe, Advocate for the Petitioner.
Shri N.V.Gaware, Advocate for Respondent Nos.1 to 8.
Shri S.K.Tambe, AGP, for Respondent No.9/State.
...
WITH
WRIT PETITION NO. 585 OF 2017
PARIGHABAI @ PRAYAGBAI RADHAKRUSHNA LAHARE AND OTHERS
VERSUS
PANDITRAO MURLIDHAR LAHARE AND OTHERS
...
Shri C.K.Shinde, Advocate for the Petitioners.
Shri Sanket Kulkarni, Advocate for Respondent Nos.1 to 7, 9 to 17 and 19
to 23.
Shri S.K.Tambe, AGP for Respondents 25 and 26.
...
WITH
WRIT PETITION NO. 4726 OF 2017
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
2 wp7839o17group
DILIP KRISHNA PATIL AND OTHERS
VERSUS
SUB DIVISIONAL OFFICER, JALGAON AND OTHERS
...
Shri P.R.Patil, Advocate for the Petitioners.
Shri S.N.Kendre, AGP for Respondents 1 and 2.
Shri L.V.Sangit, Advocate for Respondents 3 and 4.
...
WITH
WRIT PETITION NO. 11622 OF 2017
JAISINGH GOVINDS RAJPUT
VERSUS
SUB DIVISION OFFICER DHULE AND OTHERS
...
Shri Anjanwatikar Vinay B., Advocate for the Petitioner.
AGP for Respondents/ State : Shri S.K.Tambe.
...
CORAM: RAVINDRA V. GHUGE, J.
Reserved on : 21st September, 2017.
Pronounced on : 13th October, 2017.
ORDER :
1 In all these Writ Petitions, various orders passed by the Sub
Divisional Officer, Nagar Division, Ahmednagar have been challenged on
the ground that the Sub Divisional Officer (SDO) would not have the
authority and jurisdiction to deal with an RTS Revision under Section 23
(2) of the Mamlatdar's Courts Act, 1906 (for short "the MC Act").
2 The common grievance of all these Petitioners is that after the
Tahasildar passes an order under Section 5(2) of the MC Act, an RTS
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
3 wp7839o17group
Revision would be maintainable only before the Additional Collector or
Deputy Collector under Section 23(2) of the MC Act.
3 I have heard the learned Advocates for all the litigating sides
in this group of petitions on the issue of whether, the SDO could have
dealt with the RTS Revision Cases. Considering the order that I intend to
pass, I am not required to advert to their submissions on the factual aspect
of the "Rasta" or "Wahivaat".
4 It would be appropriate to reproduce the various provisions of
the MC Act and the Maharashtra Land Revenue Code, 1966 (for short
"The MLR Code") as under:
(a) Sections 5 and 23 of the MC Act read as under:
" 5. Power of Mamlatdar's Courts.
(1) Every Mamlatdar shall preside over a Court, which
shall be called a Mamlatdar’s Court, and which shall,
subject to the provisions of sections 6 and 26, have
power, within such territorial limits as may from time
to time be fixed by the State Government,—
(a) to remove or cause to be removed any
impediment, erected otherwise than under due
authority of law, to the natural flow in a defined
channel or otherwise of any surface water naturally
rising in or falling on any land used for agriculture,
grazing, trees or crops, on to any adjacent land,
where such impediment causes or is likely to cause
damage to the land used for such purpose or to any
such grazing, trees or crops thereon;
(b) to give immediate possession of any lands or
premises used for agriculture or grazing, or trees, or
crops or fisheries, or to restore the use of water from
any well, tank, canal or watercourse, whether
natural or artificial used for agricultural purposes to
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
4 wp7839o17group
any person who has been dispossessed or deprived
thereof otherwise than by due course of law, or who
has become entitled to the possession or restoration
thereof by reason of the determination of any tenancy
or other right of any other person, not being a person
who has been a former owner or partowner, within a
period of twelve years before the institution of the suit
of the property or use claimed, or who is the legal
representative of such former owner or partowner:
Provided that, if in any case the Mamlatdar
considers it inequitable or unduly harsh to remove or
cause to be removed any such impediment or, to give
possession of any such property or to restore any such
use to a person who has become entitled thereto
merely by reason of the determination of any such
tenancy or other right, or if it appears to him that
such case can be more suitably dealt with by a Civil
Court, he may in his discretion refuse to exercise the
power aforesaid, but shall record in writing his
reasons for such refusal.
(2) The said Court shall also, subject to the same
provisions, have power within the said limits, where
any impediment referred to in subsection (1) is
erected, or an attempt has been made to erect it, or,
when any person is otherwise than by due course of
law disturbed or obstructed, or when an attempt has
been made so to disturb or obstruct any person, in the
possession of any lands or premises used for
agriculture or grazing or trees or crops or fisheries or
in the use of water from any well, tank, canal or
watercourse, whether natural or artificial used for
agricultural purposes or in the use of roads or
customary ways thereto, to issue an injunction to the
person erecting or who has attempted to erect such
impediment, or causing, or who has attempted to
cause, such disturbance or obstruction, requiring him
to refrain from erecting or attempting to erect any
such impediment or, from causing or attempting to
cause any further such disturbance or obstruction.
(3) No suit shall be entertained by a Mamlatdar’s Court
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
5 wp7839o17group
unless it is brought within six months from the date
on which the cause of action arose.
(4) The cause of action shall be deemed to have arisen on
the date on which the impediment to the natural flow
of surface water or the dispossession, deprivation or
determination, of tenancy or other right occurred, or
which the impediment, disturbance or obstruction, or
the attempted impediment or disturbance or
obstruction, first commenced.
Explanation.— The exercise by a joint owner of any right
which he has over the joint property is not a
dispossession, or disturbance of possession of the other
joint owner or owners within the meaning of this
section."
"23. Bar of Appeal.
(1) There shall be no appeal from any order passed by a
Mamlatdar under this Act.
(2) But the Collector may call for and examine the record
of any suit under this Act, and if he considers that
any proceeding, finding or order in such suit is illegal
or improper, may, after due notice to the parties, pass
such order thereon, not inconsistent with this Act, as
he thinks fit.
(2A) The Collector may delegate the powers conferred on
him by this section to any Assistant Collector, Deputy
Collector or Assistant Commissioner subordinate to
him];
(3) Where the Collector, Assistant Collector, Deputy
Collector or Assistant Commissioner takes any
proceedings under this Act he shall be deemed to be a
Court under this Act."
(b) Sections 2(34), 7(3), 13(3), 13(4) and 247 of the MLR Code
read as under:
"2(34). "Sub Divisional Officer" means an Assistant or Deputy
Collector who is placed in charge of one or more sub
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
6 wp7839o17group
divisions of a district;"
"7(3) Subject to the general orders of the State Government,
the Collector may place any Assistant or Deputy
Collector in charge of one or more subdivisions of a
district, or may himself retain charge thereof. Such
Assistant or Deputy Collector may also be called a Sub
Divisional Officer."
"13(3) The Additional Commissioner and the Assistant
Commissioner, and the Additional Collector and the
Additional Tahsildar shall each exercise within his
jurisdiction or part thereof such powers and discharge
such duties and functions of the Commissioner, the
Collector or, as the case may be, the Tahsildar under
the provisions of this Code or under any law for the
time being in force, as the State Government may, by
notification in the Official Gazette, direct in this
behalf."
"13(4) The SubDivisional Officer shall subject to the
provisions of Chapter XIII perform all the duties and
functions and exercise all the powers conferred upon a
Collector by this Code or any law for the time being in
force, in relation to the subdivision in his charge :
Provided that, the Collector may whenever he
may deem fit direct any such SubDivisional Officer
not to perform certain duties or exercise certain
powers and may reserve the same to himself or assign
them to any Assistant or Deputy Collector subordinate
to the Collector :
Provided further that, to such Assistant or
Deputy Collector who is not placed in charge of a sub
division, the Collector shall, under the general orders
of the State Government, assign as such particular
duties and powers as he may form time to time deem
fit."
"247. Appeal and appellate authorities.
(1) In the absence of any express provisions of the Code,
or of any law for the time being in force to the
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
7 wp7839o17group
contrary, an appeal shall lie from any decision or
order passed by a Revenue or Survey Officer specified
in column I of the Schedule E under this Code or any
other law for the time being in force to the officer
specified in column 2 of that Schedule whether or not
such decision or order may itself have been passed on
appeal from the decision of order of the officer
specified in column I of the said Schedule :
Provided that, in no case the number of appeals
shall exceed two.
(2) When on account of promotion of change of
designation an appeal against any decision or order
lies under this section to the same officer who has
passed the decision or order appealed against, the
appeal shall lie to such other officer competent to
decide the appeal to whom it may be transferred
under the provisions of this Code."
5 Identical submissions of the Petitioners can be summarized as
under:
(a) The MC Act provides for the Mamlatdar to issue orders
directing removal of any impediment as is provided under
Section 5(1) of the MC Act.
(b) Under Section 5(2), the Mamlatdar has the authority to issue
an injunction against any person who has created an
impediment or obstruction and which is a matter of grievance
under Section 5.
(c) Under Section 23, an appeal is barred against the order
passed by the Mamlatdar under the MC Act.
(d) Under Section 23(2), it is only the Collector who would have
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
8 wp7839o17group
revisional powers over the Mamlatdar's proceedings and can
call for and examine the record of any suit or findings or
orders passed in such a matter in order to assess whether, the
order is illegal or improper and not inconsistent with the MC
Act.
(e) Under Section 23(2A), the Collector may delegate the powers
conferred on him to any Assistant Collector, Deputy Collector
or Assistant Commissioner subordinate to him.
(f) Under Section 23(3), when the Collector delegates the power
under this section, the Assistant Collector or Deputy Collector
or Assistant Commissioner, after taking over any proceedings
under this Act, shall be deemed to be the Court under the MC
Act.
(g) An SDO is not defined under the MC Act and as such, even if,
in a given case, an SDO is an Additional Collector or a Deputy
Collector, he cannot decide the revision proceedings under
Section 23(2) since he is an SDO, notwithstanding the fact
that he may actually be discharging duties or performing
functions as an Additional Collector or Deputy Collector.
(h) Any authority entertaining a revision under Section 23(2)
shall necessarily and exclusively be an Additional Collector or
a Deputy Collector after delegation of power and the moment
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
9 wp7839o17group
he is an SDO under the MLR Code, he would cease to be the
Deputy Collector or Additional Collector under the MC Act.
6 Reliance is placed upon the following judgments of this
Court:
(a) Jayant Vasantrao Dhole vs. Additional Commissioner and
others, 2007(1) ALL MR 265 : 2007 (1) Mh.L.J. 850 .
(b) Bija Maroti Hatwar vs. Kisan Chirkut Padole and another,
2015 (1) Mh.L.J. 282 .
(c) Narayan Bhagwan Bholankar and others vs. Dattatraya
Digambar Tayade and others, Writ Petition No.4609/2015
(Nagpur Bench) decided on 28.04.2016 .
7 Shri Natu, learned Advocate appearing on behalf of some of
the Respondents along with other learned Advocates in these Petitions,
submits as under:
(a) The description of an Additional Collector or Deputy Collector
as an SDO is restricted only to the MLR Code.
(b) The MC Act does not specifically bar an Additional Collector
or a Deputy Collector, who may be an SDO, from entertaining
a revision under Section 23(2) of the MC Act.
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
10 wp7839o17group
(c) The MC Act does not, in any manner whatsoever, prohibit an
Additional Collector or Deputy Collector from entertaining
such revision only because he is commonly known as an SDO
under the MLR Code.
(d) Section 2(34) of the MLR Code defines a Sub Divisional
Officer to mean an Assistant Collector or a Deputy Collector
who is placed in charge of more than one Sub Division of a
district.
(e) Section 7(3) of the MLR Code permits the State Government
to issue general orders empowering the Collector to place any
Assistant or Deputy Collector in charge of one or more Sub
Divisions of a district. Such Assistant Collector or Deputy
Collector would be termed as an SDO.
(f) Under Section 13(4) of the MLR Code, the SDO is
empowered, subject to the provisions of Chapter XIII of the
MLR Code, to perform all the duties and functions and
exercise all the powers conferred upon the Collector by the
MLR Code or by any law, for the time being in force, in
relation to the Sub Division which is under his charge.
(g) The second proviso below Section 13(4) indicates that such
Assistant or Deputy Collector, who is not placed in charge of a
Sub Division, may be assigned such particular duties and
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
11 wp7839o17group
powers as the Collector may exercise after such powers are
assigned to him under the general orders of the State
Government.
(h) Under Section 247 of the MLR Code, an appeal would lie
from any decision or order passed by the Revenue or Survey
Officer specified in column I of Schedule E under the MLR
Code.
(i) Under Section 247 Schedule E of the MLR Code, on an order
passed by all officers in the Sub Division subordinate to the
SDO, an appeal would lie before the SDO or Assistant or
Deputy Collector as may be specified by the Collector in this
behalf.
8 Shri Natu relies upon the following judgments:
(a) Keshav Dhondi Sinde vs. Jairam Gangaram Pawar, 1911 BCI
(0) 120 .
(b) Vishnu Dadu Lokhande vs. Umabai, 1955 The Bombay Law
Reporter Vol. LVII Page 816 .
(c) Chhanuben vs. Manubhai Prabhudas Acharya, AIR 1976
Gujrat 62 .
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
12 wp7839o17group
9 The learned AGP on behalf of the State has relied upon the
paragraphwise remarks and instructions supplied to him by the
Additional Collector, Ahmednagar under the instructions of the Collector,
Ahmednagar, vide communication dated 20.09.2017. Based on the same,
he has contended as under:
(a) Presently, in the State of Maharashtra, an SDO defined under
Section 2(34) of the MLR Code is always an Assistant or
Deputy Collector and not below the said rank.
(b) In Ahmednagar district, to be specific, every SDO is a Deputy
Collector.
(c) Under Section 7(3) of the MLR Code, the Collector can place
any Assistant Collector or Deputy Collector in charge of one
or more Sub Divisions of a district.
(d) In the State of Maharashtra, the Sub Divisional Officer is
always the Deputy Collector or an Assistant Collector.
(e) By an office order dated 31.07.1987, the SDO, on account of
being the Assistant or Deputy Collector, has been specifically
delegated the power under Section 23 under the MC Act.
(f) For the last 30 years, only for the sake of assumption, not a
single SDO who may not be an Assistant or Deputy Collector,
has ever entertained an RTS Revision under Section 23(2) of
the MC Act.
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
13 wp7839o17group
10 Shri Tambe, learned Advocate, has strenuously supported the
stand that an SDO cannot entertain an RTS Revision under Section 23(2)
of the MC Act though the Assistant or Deputy Collector may be working as
an SDO under the MLR Code. He, however, hastens to add that if an
Assistant or Deputy Collector is in charge of the Sub Division under the
MLR Code and is entertaining an RTS revision under Section 23(2) of the
MC Act, there may not be a grievance that the said authority entertaining
the RTS Revision is not an Assistant Collector or Deputy Collector.
11 In the backdrop of the above submissions, it would be
apposite to refer to the views taken by the learned Single Judges of this
Court and relied upon by the Petitioners in the matters of Jayant
Vasantrao Dhole (supra) (Coram : B.P.Dharmadhikari, J.), Bija Maroti
Hatwar (supra) (Coram : Z.A.Haq, J.) and Narayan Bhagwan Bholankar
(supra) (Coram : P.B.Varale, J.).
12 In Jayant Vasantrao Dhole (supra) , it was held in paragraph
16 as under:
"16. ....... Thus, when Section 2(34) and Section 7(3) are
read together, it is apparent that the Collector can
place any Assistant or Deputy Collector as incharge
of one or more subdivisions of a district and when
such Assistant or Deputy Collector is so placed, he
becomes a SubDivisional Officer. Section 7(3) also
permits the Collector to retain charge of such sub
division. However, exercise of powers by the Collector
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
14 wp7839o17group
under Section 7(3) are subject to general orders of
State Government. The position becomes more clear
when Section 13 is read. Its Subsection (4) with its
both proviso read as under:
(4) The SubDivisional Officer shall subject to
the provisions of Chapter XIII perform all the duties
and functions and exercise all the powers conferred
upon a Collector by this Code or any law for the time
being in force, in relation to the subdivision in his
charge :
Provided that, the Collector may whenever he
may deem fit direct any such SubDivisional Officer
not to perform certain duties or exercise certain
powers and may reserve the same to himself or assign
them to any Assistant or Deputy Collector subordinate
to the Collector;
Provided further that, to such Assistant or
Deputy Collector who is not placed incharge of a sub
division, the Collector shall, under the general orders
of the State Government, assign such particular duties
and powers as he may from time to time deem fit.
The perusal of Subsection (4), therefore,
clearly reveals that the SubDivisional Officer
performs and exercise all powers conferred upon the
Collector by Maharashtra Land Revenue Code. If the
Collector wants such SubDivisional Officer not to
perform certain duties or not to exercise such powers,
the Collector can reserve to himself those powers or
assign them to any other Assistant or Deputy
Collector subordinate to himself. It is, therefore, clear
that as per first proviso to Subsection (4), if the
Collector wants SubDivisional Officer not to exercise
particular duties or powers, the Collector has been
authorised to reserve these powers either to himself or
to any other Assistant or Deputy Collector
subordinate to him. It is further apparent from the
use of words "SubDivisional Officer" and words
"Assistant or Deputy Collector" in this subsection that
Assistant or Deputy Collector subordinate to the
Collector are the officers to whom certain duties or
powers are assigned to be performed on his behalf but
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
15 wp7839o17group
they are not SubDivisional Officers. Second proviso
to Subsection (4) of Section 13 of the Code thereafter
speaks of Assistant or Deputy Collector who are not
placed incharge of any subdivision and it enables
Collector by General orders of the State Government
to assign any particular duties or powers as he may
deem fit from time to time to such Assistant or Deputy
Collector. It is, therefore, again apparent that said
Assistant or Deputy Collector to whom a Collector can
assign duty under second proviso is not Sub
Divisional Officer. It is, therefore, clear that in view of
substantive part of Subsection (4), SubDivisional
Officer has been authorised by the Code to act as
Collector and it is not on account of delegation of
powers by the Collector to SubDivisional Officer.
There has to be therefore a direction or order in
writing issued by Collector beforehand withdrawing
certain powers and duties to himself under first
proviso or to confer those powers or duties upon some
other Assistant or Deputy Collector subordinate to
him as per latter proviso. In this background, when
Section 13(1) with its proviso is looked into, it is
apparent that it contemplates SubDivisional Officer
also. ........
The proviso part of Section 13(1) of the Code
nowhere includes SubDivisional Officer because by
Subsection (4) of Section 13 of the Code, there is a
special confirmation of power upon the Sub
Divisional Officer. The proviso to Section 13(1) again
speaks of only Assistant or Deputy Collector and
states that the Collector can also exercise throughout
his district all powers and discharge all the duties and
functions conferred or imposed on an Assistant or
Deputy Collector under this Code or under any law
for the time being in force. It is, therefore, clear that
the officers contemplated by first proviso are Assistant
or Deputy Collector and not SubDivisional Officer. If
the SubDivisional Officer is read into this proviso, it
would be creating inconsistent situation and the
provisions of Subsection (4) will then be directly in
conflict with said proviso to Section 13(1). Such an
interpretation therefore cannot be made and the
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
16 wp7839o17group
arguments of learned Counsel for respondents No. 5
and 6 that the Collector could have accordingly
exercised the powers of SubDivisional Officer in the
matter cannot be entertained."
13 It appears from the above observations that there was no
submission made before the learned Single Judge that in the State of
Maharashtra, it is only an Assistant or Deputy Collector who is designated
as an SDO and every SDO necessarily has to be an Assistant or a Deputy
Collector. So also, the issue as to whether, an SDO under the MLR Code,
who otherwise for all purposes is an Assistant or Deputy Collector, could
exercise powers under Section 23(2) of the MC Act as an Assistant or as a
Deputy Collector and not as an SDO, was never raised before the learned
Single Judge in Jayant case (supra) .
14 In Bija Maroti Hatwar (supra) , the issue before the learned
Single Judge was that an SDO has no jurisdiction to entertain a revision
under Section 23 of the MC Act and hence, every order passed on
entertaining a revision by the SDO under Section 23, even under the
delegated powers of the Collector, would be rendered untenable. While
considering this submission, it is specifically observed in paragraphs 7, 8
and 9 as under:
"7. In view of the provisions of Section 23(2A)
of the Mamlatdars' Courts Act, 1906 the Collector
may delegate the powers conferred on him to any
Assistant Collector, Deputy Collector or Assistant
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
17 wp7839o17group
Commissioner subordinate to him. Therefore, the
delegation cannot be in favour of the SubDivisional
Officer. Moreover, nothing has been placed on the
record to show that in fact there had been delegation
of powers in favour of the SubDivisional Officer.
8. The submission made by the learned AGP relying on
the provisions of Section 13(4) of the Maharashtra
Land Revenue Code cannot be accepted. Section 13(4)
of the Maharashtra Land Revenue Code reads as
follows:
“13(4) The SubDivisional Officer shall subject
to the provisions of Chapter XIII perform all the duties
and functions and exercise all the powers conferred
upon a Collector by this Code or any law for the time
being in force, in relation to the subdivision in his
charge......”
9. A bare reading of Section 13(4) of the Maharashtra
Land Revenue Code shows that the Sub
Divisional Officer may subject to the
provisions of Chapter XIII of the Maharashtra
Land Revenue Code perform all the duties,
functions and exercise all the powers
conferred upon the Collector by the
Maharashtra Land Revenue Code or any law
for the time being in force in respect of the
subdivisions in his charge. It cannot be said that
while exercising jurisdiction under Section 23(2)
of the Mamlatdars' Courts Act, 1906 the Sub
Divisional Officer is exercising powers conferred
on the Collector by the Maharashtra Land
Revenue Code. The provisions of Section 13(4)
of the Maharashtra Land Revenue Code further
enables the SubDivisional Officer to perform all the
duties and functions and exercise all the powers
conferred upon the Collector by any other law for the
time being in force. Reading of Section 23(2A) of the
Mamlatdars' Courts Act, 1906 makes it clear that this
provision does not authorize the SubDivisional
Officer to exercise the powers conferred upon the
Collector."
(Emphasis is supplied by me).
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
18 wp7839o17group
15 It was thus, observed by the learned Judge that the delegation
of power by the Collector under Section 23(2) of the MC Act cannot be
made in favour of an SDO for the reason that " nothing has been placed on
the record to show that in fact there had been delegation of powers in favour
of the SDO." In paragraph 9, it has been observed that " It cannot be said
that while exercising jurisdiction under Section 23(2) of the Mamlatdar's
Courts Act, 1906, the Sub Divisional Officer is exercising powers conferred on
the Collector by the Maharashtra Land Revenue Code ."
16 It, therefore, becomes obvious that neither was it canvassed
before the learned Single Judge in Bija Hatwar (supra) that, an SDO is
infact and necessarily an Assistant or Deputy Collector and he would,
therefore, be the Assistant or Deputy Collector under Section 23(2) and
23(2A), nor was the Office Order issued by the State dated 31.07.1987
(on the basis of which, the powers of the Collector under Section 23 were
specifically delegated to the Sub Divisional Officer, Assistant or Deputy
Collector), placed before the learned Single Judge. The State had not
canvassed that an SDO is necessarily an Assistant or Deputy Collector who
is in charge of the Sub Division comprising of more than one Taluka for
the purposes of the MLR Code and the said SDO was functioning as an
Assistant or Deputy Collector for the talukas covered by the Sub Division
under Section 23 of the MC Act.
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
19 wp7839o17group
17 In Narayan Bhagwan Bholankar case (supra) , the learned
Single Judge relied upon Jayant Dhole (supra) and Bija Maroti Hatwar
(supra) and concluded in paragraph 8 as under:
" 8. The learned counsel for the petitioners was also
justified in placing reliance on the judgment of
this Court in Jayant Dhole vs. Additional
Commissioner. Though, the learned counsel for
the respondent no.1 made an attempt to submit that
the Collector, Buldana by order dated 28.02.1961
had delegated the powers to the S.D.Os. of Buldana
district, in view of the specific provisions of Section
23(2A) of the Act of 1906, I am unable to accept the
submission of the learned counsel for the respondent
no.1."
18 The learned Division Bench, in Keshav Dhondi Sinde (supra),
(Coram : Beaman F.C.O. and Hayward, JJ), was dealing with the case
wherein, the order of the Assistant Collector, Solapur revising the decree
of the Mamlatdar's Court was challenged. The learned Division Bench
formulated the principal point for decision in paragraph 2 as under:
"2. The principal point to which our attention has been
invited is whether, an Assistant Collector, merely in
virtue of being placed in revenue charge of certain
portions of a District, is thereby empowered to
exercise all the powers conferred upon the Collector of
the District by Section 23 of the Mamlatdars Courts
Act (Bombay Act II of 1906)."
19 After considering the submissions of the parties, it was
observed in paragraphs 3, 4, 5, 6 and 7 as under :
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
20 wp7839o17group
" 3. On a first view, it would appear that an Assistant
Collector could not be so authorized; but in opening
his case Mr. Branson very candidly, and very rightly, I
think, drew our attention, to Section 10 of the Land
Revenue Code; and after having given that section our
very best and most careful attention, with special
reference to the arguments which Mr. Branson has
used against its applicability here, we feel unable to
escape from the force of the direct language used. If
language is ever to mean anything, when it is
perfectly plain and unambiguous, the language of this
section, we think, must be taken in its natural sense.
That section enacts that after certain conditions
precedent have been fulfilled, an Assistant Collector
thus placed in charge of portions of a District is
empowered to exercise all the powers conferred upon
the Collector by this Act or any other law at the time
being in force within the local limits of that portion of
the District, of which he has been placed in charge. It
has been very strenuously contended that the words
"or any other law at the time being in force" having
regard to the general structure of the section and to
its place in the Land Revenue Code, ought to be
restricted to laws or Acts ejusdem generis: but we
think that that would be stretching interpretation too
far; and had we had any doubt of what Government
intended when this Land Revenue Code was passed, (a
Resolution, which of course is no binding authority
upon us, but serves to throw useful light upon this
question, cited in a footnote to Section 10 in Sathe's
Edition of the Land Revenue Code), goes far to dispel
that doubt.
4. We were referred in the course of the argument to an
unreported decision of Jenkins C. J. and Batchelor J.
upon what appears to have been a very similar point.
There the Rule was made absolute, but no reasons
were given. I have consulted my Brother Batchelor
and he assures me that so far as his memory goes
Section 10 was never referred to in that argument or
brought to the notice of that Bench.
5. The recent case of Somchand Bhikhabhai v.
Chhaganlal Khubchand, (1911) 13 Bom. L. R. 207,
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
21 wp7839o17group
decided by Scott C. J. and Batchelor J. under Section
11 of the Land Revenue Code, plainly turned upon a
different point and is governed by quite different
principles.
6. Here, we think, we must give its natural effect, to the
language of Section 10 and hold that an Assistant
Collector put in charge of any portion of a District is
within that portion of the District clothed with all
authority and powers of a Collector conferred by the
Land Revenue Code or by any other law at the time
being in force. The Mamlatdars Courts Act is such a
law and it confers upon the Collector powers of
revision, which within his territorial limits, the
Assistant Collector was, we think, empowered to
exercise. It cannot, therefore, be said that the order
complained of was in law a nullity for this reason.
7. It was then contended that even if the Assistant
Collector had power to revise the proceedings of the
Mamlatdar's Court, he exceeded his jurisdiction by
admitting fresh documentary evidence; and in that
connection we have been referred to another decision
of Scott C.J. and Rao J. in Kashiram v. Rajaram,
(1911) 13 Bom. L. R. 879, in which those learned
Judges have certainly held that the Collector who,
while revising the Mamlatdar's decree admits
evidence, thereby exceeds his jurisdiction, and that is
a sufficient ground to warrant the interference of the
High Court in the exercise of its superintending power.
Doubtless this is a similar case; but the exercise of this
extraordinary power, vested in the High Court, is
always a matter of discretion; and having regard to
the facts which have been stated here, particularly
that litigation is actually in progress and may soon be
expected to settle the matters in dispute between the
parties we do not feel called upon now to interfere
with the revisional order passed by the Assistant
Collector. We do not think it necessary to do so to
avert any material and otherwise irreparable
injustice."
(Emphasis is supplied by me)
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
22 wp7839o17group
20 It was thus, concluded that the Assistant Collector put in
charge of any portion of a district, is, within that portion of the district,
upon delegation, clothed with all authority and powers of the Collector
conferred by the MLR Code or by any other law at the time being in force.
The Mamlatdar's Courts Act, 1906 is such a law and it confers upon the
Collector such powers of revision, which within the said territorial limits,
the Assistant or Deputy Collector was empowered to exercise on
delegation.
21 In Vishnu Dadu Lokhande (supra) , the learned Division Bench
of this Court dealt with an appeal against an order passed by the
Mamlatdar under Section 24(2) of the Bombay Tenancy and Agricultural
Lands Act as to whether, the District Deputy Collector was competent to
hear the appeal.
22 The observations of the learned Division Bench in Vishnu
Lokhande (supra) with regard to the facts of the case are as under:
"......... In the opinion of the learned Judge, an appeal
against the order of the Mamltadar could only be
entertained by the Collector of the District and it
could not be heard by a District Deputy Collector. He
observed:
"Under the provisions of the Tenancy Act, it is
the Collector who is referred to as the Authority to
whom an appeal from the decision of the Mamlatdar
is to be filed. No notification delegating the powers of
the Collector in that respect to the District Deputy
Collector is pointed out. Hence in the absence of such
notification, the District Deputy Collector cannot
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
23 wp7839o17group
prima facie be regarded to be entitled to entertain the
appeal; and I find that there is a good deal of force in
the argument that the order passed by the District
Deputy Collector is ultra vires. Under the
circumstances, the possession obtained by the plaintiff
under the orders of the Mamlatdar cannot be
regarded to be in any way wrongful."
The defendant has filed this second appeal
against the decree passed by the learned District
Judge. Mr. G.A. Desai, who appears on behalf of the
defendant, has contended that the civil Court had no
jurisdiction to entertain and decide the suit for a
declaration that an order passed by the District
Deputy Collector in an appeal properly filed under the
Bombay Tenancy Act, 1939, awarding possession to
the defendant was not liable to be enforced. Mr. Desai
also contended that the appeal against the order of
the Mamlatdar lay to the Deputy Collector and the
Deputy Collector was competent to decide the appeal
and the District Court was in error in holding that
the order passed by the Deputy Collector was without
jurisdiction.
Now, the proceedings were taken by Umabai in
the Court of the Mamlatdar when the Bombay
Tenancy Act, 1939, was in force, and notwithstanding
the repeal of that Act by the Bombay Tenancy and
Agricultural Lands Act, 1948, the proceedings
commenced under the Bombay Tenancy Act, 1939,
had to be heard and disposed of as if that Act had not
been repealed. Under Section 24 of the Bombay
Tenancy Act, 1939, a landlord was entitled to make
an application to the Mamlatdar for obtaining
possession of any land held by a tenant. On receipt of
an application by a landlord for possession of any
land held by a tenant, the Mamlatdar was required to
hold an enquiry in the prescribed manner and to
decide the case according to the rights of the parties.
Against the decision of the Mamlatdar, Subsection
(3) of a, 24 provided an appeal to the Collector, and
Subsection (4) provided that, subject to the
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
24 wp7839o17group
provisions of Section 28, every order passed by the
Mamlatdar under Subsection (2), unless modified or
revised by the Collector on appeal under Subsection
(3), and every order passed by the Collector under
Subsection (3), shall be final. The effect of that
provision was to make the decision of the Mamlatdar,
if not modified or reversed on appeal, and the
decision of the Collector in appeal, final. In the
present case, an application was filed by Umabai for
possession of the land from her tenant and that
application was governed by Section 24 of the
Bombay Tenancy Act, 1939. The Mamlatdar decided
the application in favour of Umabii. If the order had
not been validly appealed from the order by Sub
section (4) of Section 24 would have become final.
But an appeal was filed by the defendant against that
order and in appeal the Deputy Collector reversed the
order of the Mamlatdar and directed that Umabai do
restore possession of the property which she had
obtained under the order of the Mamlatdar. If the
order of the Deputy Collector is passed in exercise of
jurisdiction vested in him, that order must also be
regarded as final and it is not open to the civil Court
to decide the question whether that order was
irregularly passed. The validity of that order can only
be challenged on the sole ground of competence of the
Mamlatdar or the Collector. Now, the learned District
Judge, as I have stated earlier, held that an appeal
from a decision under Section 24, Subsection (2), of
the Bombay Tenancy Act, 1939, can be entertained
only by the Collector and not by the Deputy Collector.
If that decision is correct, evidently the Deputy
Collector had no jurisdiction to entertain and hear an
appeal against the decision of the Mamlatdar and to
reverse his decision."
(Emphasis is supplied by me)
23 The sole question was, therefore, as to whether, the District
Deputy Collector could have heard an appeal against an order passed by
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
25 wp7839o17group
the Mamlatdar. The expression "Collector" as was not defined under the
Bombay Tenancy Act, 1939, this Court turned to Section 8 under the
Bombay Land Revenue Code and concluded that the State Government
was authorized to appoint in each district an officer who would be the
Collector to exercise the powers and discharge duties imposed on the
Collector or Assistant Collector or Deputy Collector throughout the
district.
24 The learned Division Bench has further observed as under:
"........ By Section 8, the State Government is
authorised to appoint in each District an officer who
shall be the Collector and who may exercise,
throughout his district, all the powers, and discharge
all the duties conferred and imposed on a Collector or
an Assistant or Deputy Collector by the Act, or by any
other law for the time being in force, and in all
matters not specially provided for by law shall act
according to the instructions of the State Government.
Section 9 of the Code enables the State Government to
appoint in each district so many Assistant Collectors
and Deputy Collectors as it may deem expedient and
by the second paragraph of that section, all Assistant
and Deputy Collectors in a district are made
subordinate to the Collector for the district. The
combined effect of Sections 8 and 9 of the Bombay
Land Revenue Code is that the State Government is
authorised to appoint a Collector in every district and
also to appoint as many Assistant or Deputy
Collectors as it may deem expedient and that the
Collector is entitled to exercise all the powers and to
discharge all the?duties which are imposed upon him
by the Code and he is also entitled to exercise all the
powers of the Assistant and the Deputy Collector
conferred by the Code. It is further provided that the
Collector is entitled to exercise all the powers and
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
26 wp7839o17group
discharge all the duties which are imposed upon him
by any other law for the time being in force upon an
Assistant or a Deputy Collector. Section 10 of the
Bombay Land Revenue Code provides that:
"Subject to the general orders of the State
Government, a Collector may place any of his
assistants or deputies in charge of the revenue
administration of one or more of the talukas in his
district, or may himself retain charge thereof.
Any Assistant or Deputy Collector thus placed
in charge shall, subject to the provisions of Chapter
XIII, perform all the duties and exercise all the powers
conferred upon a Collector by this Act or any other
law at the time being in force, so far as regards the
taluka or talukas in his charge."
There are two other paragraphs in Section 10
which are not material in the present appeal and need
not be set out. Whereas Section 8 enables the
Collector to perform the functions and discharge the
duties of an Assistant or a Deputy Collector under the
Bombay Land Revenue Code or any other law for the
time being in force, Section 10 authorises an Assistant
or a Deputy Collector, who has been put in charge of
there venue administration of one or more talukas of
the district, to perform all the duties and to exercise
all the powers conferred upon a Collector by the
Bombay Land Revenue Code or by any other law for
the time being in force so far as regards the taluka or
talukas in his charge. The effect of Section 10 is that,
once an Assistant or a Deputy Collector is by an order
of the Collector put in charge of revenue
administration of one or more talukas in his district,
by the operation of the second paragraph of Section
10, he is subject to territorial limitations statutorily
invested with all the powers which are conferred upon
the Collector by the Code or by any other law for the
time being in force and is entitled to exercise the
powers of a Collector under the Code or by any other
law for the time being in force. The Bombay Tenancy
Act, 1939, is undoubtedly 'any other law' in force
within the meaning of Section 10. It is undisputed in
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
27 wp7839o17group
this case that the Deputy Collector, who decided the
appeal filed by the defendant, was placed in charge of
the Karad taluka and having been so placed in
charge, he had, under the second paragraph of
Section 10, jurisdiction to exercise the powers of the
Collector to hear appeals under Section 24 of the
Bombay Tenancy Act so far as regards the taluka in
his charge."
(Emphasis is supplied by me).
25 Section 10 of the Bombay Land Revenue Code is almost
identical to Section 7(3) of the MLR Code.
26 The learned Division Bench then referred to the Mamlatdar's
Courts Act and observed as under:
"....... Mr.Jahagirdar then referred us to in Sonu v.
Arjun. That was a case under the Mamlatdars' Courts
Act and the question which arose for decision was
whether the expression 'Collector' as used in Section
23 of the Mamlatdars' Courts Act, 1906, included a
Deputy Collector. A division bench consisting of Scott
C.J. and Batchelor J. held that the Deputy Collector
had no authority to pass any order under the Act
purporting to exercise revisional jurisdiction under
Section 23. In coming to that conclusion, the learned
Judges held that a Collector, as denned in the General
Clauses Act, was the chief officer in charge of the
revenues administration of the district, and when, by
the Mamlatdars' Courts Act of 1906, powers were
conferred upon the Collector, an officer who had been
put in charge of a part of the district could not
exercise those powers. Reliance was sought to be
placed in that case by the defendant upon the
provisions of Section 10 of the Bombay Land Revenue
Code, but it was opined that the expression 'any law
for the time being in force' used in para. 2 of Section
10 must mean any law ejusdem generis with the
Bombay Land Revenue Code and would not embrace
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
28 wp7839o17group
any special law relating to Mamlatdars' Courts such
as is found in the Act of 1906. Their Lordships also
observed that if a Deputy Collector could hear a
revision application under Section 23 of the
Mamlatdars' Courts Act, there would arise an
uncontemplated result that against the decision of the
Deputy Collector, a further appeal would lie to the
Collector and from the order of the Collector to the
Commissioner under the Code, there being no express
provision to the contrary under the Mamlatdars'
Courts Act, 1906. With respect, it must be stated that
in making that observation the learned Judges appear
to have been in some error. The Bombay Land
Revenue Code does not contemplate an appeal against
the decision of a revenue officer exercising revisional
jurisdiction and the assumption that the order of a
Deputy Collector passed under Section 23 of the
Mamlatdars' Courts Act could be appealed against to
the Collector or the Commissioner does not seem to be
warranted. Therefore, what the learned Judges
characterized as the absurdity of the conclusion, and
which was relied upon as an argument for supporting
the view that a revision application did not lie to the
Deputy Collector under Section 23, cannot be
appreciated.
In this connection attention may also be
directed to an earlier decision of this Court in Keshav
v. Jairam (1911) 13 Bom. L.R. 1031 which dealt
with the question whether an Assistant Collector can
hear an application in revision under Section 23 of
the Mamlatdars' Courts Act. That was also a decision
of a division bench in which it was held that an
Assistant Collector, who is put in revenue charge of
any portion of a district, is empowered by Section 10
of the Bombay Land Revenue Code of 1879, to
exercise all the powers conferred upon the Collector of
the district by Section 23 of the Bombay Mamlatdars'
Courts Act, 1906. In Keshav's case their Lordships
referred to Section 10 of the Bombay Land Revenue
Code and observed that it would be stretching the
interpretation of the expression "or any other law at
the time being in force" too far to hold that laws or
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
29 wp7839o17group
Acts ejusdem generis with the Bombay Land Revenue
Code alone were intended to be covered thereby and
not other Acts such as the Mamlatdars' Courts Act of
1906. There was, when Sonu v. Arjun was decided by
the division bench consisting of Scott C.J. and
Batchelor J., an earlier decision of a division bench of
this Court precisely on the same point which arose in
the latter case. It is true that, in the view of the bench
in Sonu's case, certain arguments were not presented
to the bench which decided Keshav v. Jairam. There
being two conflicting decisions on the same point, it
would be open to us to follow either of the two
decisions which, in our view, is more consistent with
the true interpretation of the Bombay Mamlatdars'
Courts Act and the Bombay Land Revenue Code if a
question which was decided by the two benches arose
for decision at this date. But it must be mentioned
that the question on which there was difference of
opinion between the two benches has become
academic because the Legislature has, by Act XXIV of
1942, amended the Mamlatdars' Courts Act and has
added Subsection (2A) to Section 23 which enables
the Collector to delegate the powers conferred upon
him by Section 23 to any Assistant or Deputy
Collector subordinate to him. But in Keshav v. Jairam
one division bench took the view that there was no
justification for holding that the expression 'any other
law at the time being in force' in Section 10 must be
law ejusdem generis with the Bombay Land Revenue
Code and another bench in Sonu v. Arjun held that
the scheme of the Code indicated that the law at the
time being in force must be law ejusdem generis with
the law in the Bombay Land Revenue Code, In the
view that we have expressed, we would be willing to
accept the view expressed in Keshav v. Jairam. But,
for the decision of the present case, it is unnecessary
for us to decide the point. The Bombay Tenancy Act
deals with matters some of which are also dealt with
in the Bombay Land Revenue Code and even if for the
application of Section 10, para. 2, of the Code, the
test of a statute being ejusdem generis is to be applied,
it cannot be stated that the Bombay Tenancy Act,
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
30 wp7839o17group
1939, is not ejusdem generis with the Bombay Land
Revenue Code.
It must, therefore, be held that the Deputy
Collector was competent to hear the appeal against
the order of the Mamlatdar. Once it is held that the
Deputy Collector was competent to hear and decide
the appeal, the validity of the order passed by that
officer cannot be challenged in a separate suit. On
that view of the case, the appeal filed by the
defendant will be allowed and the plaintiff's suit
dismissed with costs throughout."
(Emphasis is supplied by me).
27 Considering the above, I am of the view that the SDO under
the MLR Code can not be presumed to be an SDO under the MC Act since
the MC Act does not prescribe or define any role for the SDO. The
Assistant Collector or Deputy Collector upon delegation of authority,
would be entitled to hear the RTS Revision under Section 23 since the
Collector delegates his powers to the Deputy Collector or Assistant
Collector under Section 23(2A) under the MC Act. He does not delegate
his authority to the SDO under the MLR Code for the purposes of hearing
the revision petitions under Section 23 of the MC Act. Once an Assistant
or Deputy Collector becomes a Divisional Officer in charge of the sub
divisions, thereby terming him to be an SDO, would not mean that he
would no longer remain an Assistant or Deputy Collector. He would
perform the role designed for him under the MLR Code as an SDO and
while dealing with the matters under the MC Act, he would be discharging
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
31 wp7839o17group
his duties as an Assistant or Deputy Collector after receiving delegated
powers from the Collector under Section 23(2A) of the MC Act.
28 Considering the above, I am of the view that the authority
dealing with the RTS Revision under Section 23(2) of the MC Act is in fact
the Assistant or Deputy Collector though he is routinely referred to as an
SDO as the said nomenclature is used commonly by one and all in this
State.
29 It needs mention that I have come to the above stated
conclusions based on the judgments delivered by the learned Division
Bench of this Court in Keshav Dhondi Sinde (supra) and Vishnu Dadu
Lokhande (supra) . These two judgments were never cited before the
learned Single Judge of this Court in the matters of Bija Maroti Hatwar
and Narayan Bhagwan Bholankar (supra) . Similarly, there were no
submissions before the learned Single Judge in these two cases that every
SDO in the State of Maharashtra is an Assistant or Deputy Collector, for
the purpose of the MLR Code and would continue to be the Assistant or
Deputy Collector for the purpose of all other Acts, including the MC Act.
30 As such, place the Writ Petitions for hearing on 04.12.2017.
31 Interim relief granted earlier in any of these petitions, would
continue till the next date of hearing in these matters.
kps
( RAVINDRA V. GHUGE, J. )
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7839 OF 2017
KASHIRAM ASARAM GHADGE AND OTHERS
VERSUS
RAMDAS BHANUDAS PUND AND ANOTHER
...
Shri Jayabhar Dattatraya R., Advocate for the Petitioners.
Shri S.V.Natu, Advocate for Respondent No.1.
Shri S.K.Tambe, AGP for Respondent No.2/ State.
...
WITH
WRIT PETITION NO.698 OF 2017
BABAN HANUMANTA SOMWANSHI.
VERSUS
WALMIK RAMBHAU TAMBE AND OTHERS.
...
Shri R.A.Tambe, Advocate for the Petitioner.
Shri N.V.Gaware, Advocate for Respondent Nos.1 to 8.
Shri S.K.Tambe, AGP, for Respondent No.9/State.
...
WITH
WRIT PETITION NO. 585 OF 2017
PARIGHABAI @ PRAYAGBAI RADHAKRUSHNA LAHARE AND OTHERS
VERSUS
PANDITRAO MURLIDHAR LAHARE AND OTHERS
...
Shri C.K.Shinde, Advocate for the Petitioners.
Shri Sanket Kulkarni, Advocate for Respondent Nos.1 to 7, 9 to 17 and 19
to 23.
Shri S.K.Tambe, AGP for Respondents 25 and 26.
...
WITH
WRIT PETITION NO. 4726 OF 2017
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
2 wp7839o17group
DILIP KRISHNA PATIL AND OTHERS
VERSUS
SUB DIVISIONAL OFFICER, JALGAON AND OTHERS
...
Shri P.R.Patil, Advocate for the Petitioners.
Shri S.N.Kendre, AGP for Respondents 1 and 2.
Shri L.V.Sangit, Advocate for Respondents 3 and 4.
...
WITH
WRIT PETITION NO. 11622 OF 2017
JAISINGH GOVINDS RAJPUT
VERSUS
SUB DIVISION OFFICER DHULE AND OTHERS
...
Shri Anjanwatikar Vinay B., Advocate for the Petitioner.
AGP for Respondents/ State : Shri S.K.Tambe.
...
CORAM: RAVINDRA V. GHUGE, J.
Reserved on : 21st September, 2017.
Pronounced on : 13th October, 2017.
ORDER :
1 In all these Writ Petitions, various orders passed by the Sub
Divisional Officer, Nagar Division, Ahmednagar have been challenged on
the ground that the Sub Divisional Officer (SDO) would not have the
authority and jurisdiction to deal with an RTS Revision under Section 23
(2) of the Mamlatdar's Courts Act, 1906 (for short "the MC Act").
2 The common grievance of all these Petitioners is that after the
Tahasildar passes an order under Section 5(2) of the MC Act, an RTS
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
3 wp7839o17group
Revision would be maintainable only before the Additional Collector or
Deputy Collector under Section 23(2) of the MC Act.
3 I have heard the learned Advocates for all the litigating sides
in this group of petitions on the issue of whether, the SDO could have
dealt with the RTS Revision Cases. Considering the order that I intend to
pass, I am not required to advert to their submissions on the factual aspect
of the "Rasta" or "Wahivaat".
4 It would be appropriate to reproduce the various provisions of
the MC Act and the Maharashtra Land Revenue Code, 1966 (for short
"The MLR Code") as under:
(a) Sections 5 and 23 of the MC Act read as under:
" 5. Power of Mamlatdar's Courts.
(1) Every Mamlatdar shall preside over a Court, which
shall be called a Mamlatdar’s Court, and which shall,
subject to the provisions of sections 6 and 26, have
power, within such territorial limits as may from time
to time be fixed by the State Government,—
(a) to remove or cause to be removed any
impediment, erected otherwise than under due
authority of law, to the natural flow in a defined
channel or otherwise of any surface water naturally
rising in or falling on any land used for agriculture,
grazing, trees or crops, on to any adjacent land,
where such impediment causes or is likely to cause
damage to the land used for such purpose or to any
such grazing, trees or crops thereon;
(b) to give immediate possession of any lands or
premises used for agriculture or grazing, or trees, or
crops or fisheries, or to restore the use of water from
any well, tank, canal or watercourse, whether
natural or artificial used for agricultural purposes to
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
4 wp7839o17group
any person who has been dispossessed or deprived
thereof otherwise than by due course of law, or who
has become entitled to the possession or restoration
thereof by reason of the determination of any tenancy
or other right of any other person, not being a person
who has been a former owner or partowner, within a
period of twelve years before the institution of the suit
of the property or use claimed, or who is the legal
representative of such former owner or partowner:
Provided that, if in any case the Mamlatdar
considers it inequitable or unduly harsh to remove or
cause to be removed any such impediment or, to give
possession of any such property or to restore any such
use to a person who has become entitled thereto
merely by reason of the determination of any such
tenancy or other right, or if it appears to him that
such case can be more suitably dealt with by a Civil
Court, he may in his discretion refuse to exercise the
power aforesaid, but shall record in writing his
reasons for such refusal.
(2) The said Court shall also, subject to the same
provisions, have power within the said limits, where
any impediment referred to in subsection (1) is
erected, or an attempt has been made to erect it, or,
when any person is otherwise than by due course of
law disturbed or obstructed, or when an attempt has
been made so to disturb or obstruct any person, in the
possession of any lands or premises used for
agriculture or grazing or trees or crops or fisheries or
in the use of water from any well, tank, canal or
watercourse, whether natural or artificial used for
agricultural purposes or in the use of roads or
customary ways thereto, to issue an injunction to the
person erecting or who has attempted to erect such
impediment, or causing, or who has attempted to
cause, such disturbance or obstruction, requiring him
to refrain from erecting or attempting to erect any
such impediment or, from causing or attempting to
cause any further such disturbance or obstruction.
(3) No suit shall be entertained by a Mamlatdar’s Court
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
5 wp7839o17group
unless it is brought within six months from the date
on which the cause of action arose.
(4) The cause of action shall be deemed to have arisen on
the date on which the impediment to the natural flow
of surface water or the dispossession, deprivation or
determination, of tenancy or other right occurred, or
which the impediment, disturbance or obstruction, or
the attempted impediment or disturbance or
obstruction, first commenced.
Explanation.— The exercise by a joint owner of any right
which he has over the joint property is not a
dispossession, or disturbance of possession of the other
joint owner or owners within the meaning of this
section."
"23. Bar of Appeal.
(1) There shall be no appeal from any order passed by a
Mamlatdar under this Act.
(2) But the Collector may call for and examine the record
of any suit under this Act, and if he considers that
any proceeding, finding or order in such suit is illegal
or improper, may, after due notice to the parties, pass
such order thereon, not inconsistent with this Act, as
he thinks fit.
(2A) The Collector may delegate the powers conferred on
him by this section to any Assistant Collector, Deputy
Collector or Assistant Commissioner subordinate to
him];
(3) Where the Collector, Assistant Collector, Deputy
Collector or Assistant Commissioner takes any
proceedings under this Act he shall be deemed to be a
Court under this Act."
(b) Sections 2(34), 7(3), 13(3), 13(4) and 247 of the MLR Code
read as under:
"2(34). "Sub Divisional Officer" means an Assistant or Deputy
Collector who is placed in charge of one or more sub
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
6 wp7839o17group
divisions of a district;"
"7(3) Subject to the general orders of the State Government,
the Collector may place any Assistant or Deputy
Collector in charge of one or more subdivisions of a
district, or may himself retain charge thereof. Such
Assistant or Deputy Collector may also be called a Sub
Divisional Officer."
"13(3) The Additional Commissioner and the Assistant
Commissioner, and the Additional Collector and the
Additional Tahsildar shall each exercise within his
jurisdiction or part thereof such powers and discharge
such duties and functions of the Commissioner, the
Collector or, as the case may be, the Tahsildar under
the provisions of this Code or under any law for the
time being in force, as the State Government may, by
notification in the Official Gazette, direct in this
behalf."
"13(4) The SubDivisional Officer shall subject to the
provisions of Chapter XIII perform all the duties and
functions and exercise all the powers conferred upon a
Collector by this Code or any law for the time being in
force, in relation to the subdivision in his charge :
Provided that, the Collector may whenever he
may deem fit direct any such SubDivisional Officer
not to perform certain duties or exercise certain
powers and may reserve the same to himself or assign
them to any Assistant or Deputy Collector subordinate
to the Collector :
Provided further that, to such Assistant or
Deputy Collector who is not placed in charge of a sub
division, the Collector shall, under the general orders
of the State Government, assign as such particular
duties and powers as he may form time to time deem
fit."
"247. Appeal and appellate authorities.
(1) In the absence of any express provisions of the Code,
or of any law for the time being in force to the
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
7 wp7839o17group
contrary, an appeal shall lie from any decision or
order passed by a Revenue or Survey Officer specified
in column I of the Schedule E under this Code or any
other law for the time being in force to the officer
specified in column 2 of that Schedule whether or not
such decision or order may itself have been passed on
appeal from the decision of order of the officer
specified in column I of the said Schedule :
Provided that, in no case the number of appeals
shall exceed two.
(2) When on account of promotion of change of
designation an appeal against any decision or order
lies under this section to the same officer who has
passed the decision or order appealed against, the
appeal shall lie to such other officer competent to
decide the appeal to whom it may be transferred
under the provisions of this Code."
5 Identical submissions of the Petitioners can be summarized as
under:
(a) The MC Act provides for the Mamlatdar to issue orders
directing removal of any impediment as is provided under
Section 5(1) of the MC Act.
(b) Under Section 5(2), the Mamlatdar has the authority to issue
an injunction against any person who has created an
impediment or obstruction and which is a matter of grievance
under Section 5.
(c) Under Section 23, an appeal is barred against the order
passed by the Mamlatdar under the MC Act.
(d) Under Section 23(2), it is only the Collector who would have
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
8 wp7839o17group
revisional powers over the Mamlatdar's proceedings and can
call for and examine the record of any suit or findings or
orders passed in such a matter in order to assess whether, the
order is illegal or improper and not inconsistent with the MC
Act.
(e) Under Section 23(2A), the Collector may delegate the powers
conferred on him to any Assistant Collector, Deputy Collector
or Assistant Commissioner subordinate to him.
(f) Under Section 23(3), when the Collector delegates the power
under this section, the Assistant Collector or Deputy Collector
or Assistant Commissioner, after taking over any proceedings
under this Act, shall be deemed to be the Court under the MC
Act.
(g) An SDO is not defined under the MC Act and as such, even if,
in a given case, an SDO is an Additional Collector or a Deputy
Collector, he cannot decide the revision proceedings under
Section 23(2) since he is an SDO, notwithstanding the fact
that he may actually be discharging duties or performing
functions as an Additional Collector or Deputy Collector.
(h) Any authority entertaining a revision under Section 23(2)
shall necessarily and exclusively be an Additional Collector or
a Deputy Collector after delegation of power and the moment
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
9 wp7839o17group
he is an SDO under the MLR Code, he would cease to be the
Deputy Collector or Additional Collector under the MC Act.
6 Reliance is placed upon the following judgments of this
Court:
(a) Jayant Vasantrao Dhole vs. Additional Commissioner and
others, 2007(1) ALL MR 265 : 2007 (1) Mh.L.J. 850 .
(b) Bija Maroti Hatwar vs. Kisan Chirkut Padole and another,
2015 (1) Mh.L.J. 282 .
(c) Narayan Bhagwan Bholankar and others vs. Dattatraya
Digambar Tayade and others, Writ Petition No.4609/2015
(Nagpur Bench) decided on 28.04.2016 .
7 Shri Natu, learned Advocate appearing on behalf of some of
the Respondents along with other learned Advocates in these Petitions,
submits as under:
(a) The description of an Additional Collector or Deputy Collector
as an SDO is restricted only to the MLR Code.
(b) The MC Act does not specifically bar an Additional Collector
or a Deputy Collector, who may be an SDO, from entertaining
a revision under Section 23(2) of the MC Act.
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
10 wp7839o17group
(c) The MC Act does not, in any manner whatsoever, prohibit an
Additional Collector or Deputy Collector from entertaining
such revision only because he is commonly known as an SDO
under the MLR Code.
(d) Section 2(34) of the MLR Code defines a Sub Divisional
Officer to mean an Assistant Collector or a Deputy Collector
who is placed in charge of more than one Sub Division of a
district.
(e) Section 7(3) of the MLR Code permits the State Government
to issue general orders empowering the Collector to place any
Assistant or Deputy Collector in charge of one or more Sub
Divisions of a district. Such Assistant Collector or Deputy
Collector would be termed as an SDO.
(f) Under Section 13(4) of the MLR Code, the SDO is
empowered, subject to the provisions of Chapter XIII of the
MLR Code, to perform all the duties and functions and
exercise all the powers conferred upon the Collector by the
MLR Code or by any law, for the time being in force, in
relation to the Sub Division which is under his charge.
(g) The second proviso below Section 13(4) indicates that such
Assistant or Deputy Collector, who is not placed in charge of a
Sub Division, may be assigned such particular duties and
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
11 wp7839o17group
powers as the Collector may exercise after such powers are
assigned to him under the general orders of the State
Government.
(h) Under Section 247 of the MLR Code, an appeal would lie
from any decision or order passed by the Revenue or Survey
Officer specified in column I of Schedule E under the MLR
Code.
(i) Under Section 247 Schedule E of the MLR Code, on an order
passed by all officers in the Sub Division subordinate to the
SDO, an appeal would lie before the SDO or Assistant or
Deputy Collector as may be specified by the Collector in this
behalf.
8 Shri Natu relies upon the following judgments:
(a) Keshav Dhondi Sinde vs. Jairam Gangaram Pawar, 1911 BCI
(0) 120 .
(b) Vishnu Dadu Lokhande vs. Umabai, 1955 The Bombay Law
Reporter Vol. LVII Page 816 .
(c) Chhanuben vs. Manubhai Prabhudas Acharya, AIR 1976
Gujrat 62 .
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
12 wp7839o17group
9 The learned AGP on behalf of the State has relied upon the
paragraphwise remarks and instructions supplied to him by the
Additional Collector, Ahmednagar under the instructions of the Collector,
Ahmednagar, vide communication dated 20.09.2017. Based on the same,
he has contended as under:
(a) Presently, in the State of Maharashtra, an SDO defined under
Section 2(34) of the MLR Code is always an Assistant or
Deputy Collector and not below the said rank.
(b) In Ahmednagar district, to be specific, every SDO is a Deputy
Collector.
(c) Under Section 7(3) of the MLR Code, the Collector can place
any Assistant Collector or Deputy Collector in charge of one
or more Sub Divisions of a district.
(d) In the State of Maharashtra, the Sub Divisional Officer is
always the Deputy Collector or an Assistant Collector.
(e) By an office order dated 31.07.1987, the SDO, on account of
being the Assistant or Deputy Collector, has been specifically
delegated the power under Section 23 under the MC Act.
(f) For the last 30 years, only for the sake of assumption, not a
single SDO who may not be an Assistant or Deputy Collector,
has ever entertained an RTS Revision under Section 23(2) of
the MC Act.
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:54 :::
13 wp7839o17group
10 Shri Tambe, learned Advocate, has strenuously supported the
stand that an SDO cannot entertain an RTS Revision under Section 23(2)
of the MC Act though the Assistant or Deputy Collector may be working as
an SDO under the MLR Code. He, however, hastens to add that if an
Assistant or Deputy Collector is in charge of the Sub Division under the
MLR Code and is entertaining an RTS revision under Section 23(2) of the
MC Act, there may not be a grievance that the said authority entertaining
the RTS Revision is not an Assistant Collector or Deputy Collector.
11 In the backdrop of the above submissions, it would be
apposite to refer to the views taken by the learned Single Judges of this
Court and relied upon by the Petitioners in the matters of Jayant
Vasantrao Dhole (supra) (Coram : B.P.Dharmadhikari, J.), Bija Maroti
Hatwar (supra) (Coram : Z.A.Haq, J.) and Narayan Bhagwan Bholankar
(supra) (Coram : P.B.Varale, J.).
12 In Jayant Vasantrao Dhole (supra) , it was held in paragraph
16 as under:
"16. ....... Thus, when Section 2(34) and Section 7(3) are
read together, it is apparent that the Collector can
place any Assistant or Deputy Collector as incharge
of one or more subdivisions of a district and when
such Assistant or Deputy Collector is so placed, he
becomes a SubDivisional Officer. Section 7(3) also
permits the Collector to retain charge of such sub
division. However, exercise of powers by the Collector
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
14 wp7839o17group
under Section 7(3) are subject to general orders of
State Government. The position becomes more clear
when Section 13 is read. Its Subsection (4) with its
both proviso read as under:
(4) The SubDivisional Officer shall subject to
the provisions of Chapter XIII perform all the duties
and functions and exercise all the powers conferred
upon a Collector by this Code or any law for the time
being in force, in relation to the subdivision in his
charge :
Provided that, the Collector may whenever he
may deem fit direct any such SubDivisional Officer
not to perform certain duties or exercise certain
powers and may reserve the same to himself or assign
them to any Assistant or Deputy Collector subordinate
to the Collector;
Provided further that, to such Assistant or
Deputy Collector who is not placed incharge of a sub
division, the Collector shall, under the general orders
of the State Government, assign such particular duties
and powers as he may from time to time deem fit.
The perusal of Subsection (4), therefore,
clearly reveals that the SubDivisional Officer
performs and exercise all powers conferred upon the
Collector by Maharashtra Land Revenue Code. If the
Collector wants such SubDivisional Officer not to
perform certain duties or not to exercise such powers,
the Collector can reserve to himself those powers or
assign them to any other Assistant or Deputy
Collector subordinate to himself. It is, therefore, clear
that as per first proviso to Subsection (4), if the
Collector wants SubDivisional Officer not to exercise
particular duties or powers, the Collector has been
authorised to reserve these powers either to himself or
to any other Assistant or Deputy Collector
subordinate to him. It is further apparent from the
use of words "SubDivisional Officer" and words
"Assistant or Deputy Collector" in this subsection that
Assistant or Deputy Collector subordinate to the
Collector are the officers to whom certain duties or
powers are assigned to be performed on his behalf but
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
15 wp7839o17group
they are not SubDivisional Officers. Second proviso
to Subsection (4) of Section 13 of the Code thereafter
speaks of Assistant or Deputy Collector who are not
placed incharge of any subdivision and it enables
Collector by General orders of the State Government
to assign any particular duties or powers as he may
deem fit from time to time to such Assistant or Deputy
Collector. It is, therefore, again apparent that said
Assistant or Deputy Collector to whom a Collector can
assign duty under second proviso is not Sub
Divisional Officer. It is, therefore, clear that in view of
substantive part of Subsection (4), SubDivisional
Officer has been authorised by the Code to act as
Collector and it is not on account of delegation of
powers by the Collector to SubDivisional Officer.
There has to be therefore a direction or order in
writing issued by Collector beforehand withdrawing
certain powers and duties to himself under first
proviso or to confer those powers or duties upon some
other Assistant or Deputy Collector subordinate to
him as per latter proviso. In this background, when
Section 13(1) with its proviso is looked into, it is
apparent that it contemplates SubDivisional Officer
also. ........
The proviso part of Section 13(1) of the Code
nowhere includes SubDivisional Officer because by
Subsection (4) of Section 13 of the Code, there is a
special confirmation of power upon the Sub
Divisional Officer. The proviso to Section 13(1) again
speaks of only Assistant or Deputy Collector and
states that the Collector can also exercise throughout
his district all powers and discharge all the duties and
functions conferred or imposed on an Assistant or
Deputy Collector under this Code or under any law
for the time being in force. It is, therefore, clear that
the officers contemplated by first proviso are Assistant
or Deputy Collector and not SubDivisional Officer. If
the SubDivisional Officer is read into this proviso, it
would be creating inconsistent situation and the
provisions of Subsection (4) will then be directly in
conflict with said proviso to Section 13(1). Such an
interpretation therefore cannot be made and the
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
16 wp7839o17group
arguments of learned Counsel for respondents No. 5
and 6 that the Collector could have accordingly
exercised the powers of SubDivisional Officer in the
matter cannot be entertained."
13 It appears from the above observations that there was no
submission made before the learned Single Judge that in the State of
Maharashtra, it is only an Assistant or Deputy Collector who is designated
as an SDO and every SDO necessarily has to be an Assistant or a Deputy
Collector. So also, the issue as to whether, an SDO under the MLR Code,
who otherwise for all purposes is an Assistant or Deputy Collector, could
exercise powers under Section 23(2) of the MC Act as an Assistant or as a
Deputy Collector and not as an SDO, was never raised before the learned
Single Judge in Jayant case (supra) .
14 In Bija Maroti Hatwar (supra) , the issue before the learned
Single Judge was that an SDO has no jurisdiction to entertain a revision
under Section 23 of the MC Act and hence, every order passed on
entertaining a revision by the SDO under Section 23, even under the
delegated powers of the Collector, would be rendered untenable. While
considering this submission, it is specifically observed in paragraphs 7, 8
and 9 as under:
"7. In view of the provisions of Section 23(2A)
of the Mamlatdars' Courts Act, 1906 the Collector
may delegate the powers conferred on him to any
Assistant Collector, Deputy Collector or Assistant
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
17 wp7839o17group
Commissioner subordinate to him. Therefore, the
delegation cannot be in favour of the SubDivisional
Officer. Moreover, nothing has been placed on the
record to show that in fact there had been delegation
of powers in favour of the SubDivisional Officer.
8. The submission made by the learned AGP relying on
the provisions of Section 13(4) of the Maharashtra
Land Revenue Code cannot be accepted. Section 13(4)
of the Maharashtra Land Revenue Code reads as
follows:
“13(4) The SubDivisional Officer shall subject
to the provisions of Chapter XIII perform all the duties
and functions and exercise all the powers conferred
upon a Collector by this Code or any law for the time
being in force, in relation to the subdivision in his
charge......”
9. A bare reading of Section 13(4) of the Maharashtra
Land Revenue Code shows that the Sub
Divisional Officer may subject to the
provisions of Chapter XIII of the Maharashtra
Land Revenue Code perform all the duties,
functions and exercise all the powers
conferred upon the Collector by the
Maharashtra Land Revenue Code or any law
for the time being in force in respect of the
subdivisions in his charge. It cannot be said that
while exercising jurisdiction under Section 23(2)
of the Mamlatdars' Courts Act, 1906 the Sub
Divisional Officer is exercising powers conferred
on the Collector by the Maharashtra Land
Revenue Code. The provisions of Section 13(4)
of the Maharashtra Land Revenue Code further
enables the SubDivisional Officer to perform all the
duties and functions and exercise all the powers
conferred upon the Collector by any other law for the
time being in force. Reading of Section 23(2A) of the
Mamlatdars' Courts Act, 1906 makes it clear that this
provision does not authorize the SubDivisional
Officer to exercise the powers conferred upon the
Collector."
(Emphasis is supplied by me).
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
18 wp7839o17group
15 It was thus, observed by the learned Judge that the delegation
of power by the Collector under Section 23(2) of the MC Act cannot be
made in favour of an SDO for the reason that " nothing has been placed on
the record to show that in fact there had been delegation of powers in favour
of the SDO." In paragraph 9, it has been observed that " It cannot be said
that while exercising jurisdiction under Section 23(2) of the Mamlatdar's
Courts Act, 1906, the Sub Divisional Officer is exercising powers conferred on
the Collector by the Maharashtra Land Revenue Code ."
16 It, therefore, becomes obvious that neither was it canvassed
before the learned Single Judge in Bija Hatwar (supra) that, an SDO is
infact and necessarily an Assistant or Deputy Collector and he would,
therefore, be the Assistant or Deputy Collector under Section 23(2) and
23(2A), nor was the Office Order issued by the State dated 31.07.1987
(on the basis of which, the powers of the Collector under Section 23 were
specifically delegated to the Sub Divisional Officer, Assistant or Deputy
Collector), placed before the learned Single Judge. The State had not
canvassed that an SDO is necessarily an Assistant or Deputy Collector who
is in charge of the Sub Division comprising of more than one Taluka for
the purposes of the MLR Code and the said SDO was functioning as an
Assistant or Deputy Collector for the talukas covered by the Sub Division
under Section 23 of the MC Act.
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
19 wp7839o17group
17 In Narayan Bhagwan Bholankar case (supra) , the learned
Single Judge relied upon Jayant Dhole (supra) and Bija Maroti Hatwar
(supra) and concluded in paragraph 8 as under:
" 8. The learned counsel for the petitioners was also
justified in placing reliance on the judgment of
this Court in Jayant Dhole vs. Additional
Commissioner. Though, the learned counsel for
the respondent no.1 made an attempt to submit that
the Collector, Buldana by order dated 28.02.1961
had delegated the powers to the S.D.Os. of Buldana
district, in view of the specific provisions of Section
23(2A) of the Act of 1906, I am unable to accept the
submission of the learned counsel for the respondent
no.1."
18 The learned Division Bench, in Keshav Dhondi Sinde (supra),
(Coram : Beaman F.C.O. and Hayward, JJ), was dealing with the case
wherein, the order of the Assistant Collector, Solapur revising the decree
of the Mamlatdar's Court was challenged. The learned Division Bench
formulated the principal point for decision in paragraph 2 as under:
"2. The principal point to which our attention has been
invited is whether, an Assistant Collector, merely in
virtue of being placed in revenue charge of certain
portions of a District, is thereby empowered to
exercise all the powers conferred upon the Collector of
the District by Section 23 of the Mamlatdars Courts
Act (Bombay Act II of 1906)."
19 After considering the submissions of the parties, it was
observed in paragraphs 3, 4, 5, 6 and 7 as under :
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
20 wp7839o17group
" 3. On a first view, it would appear that an Assistant
Collector could not be so authorized; but in opening
his case Mr. Branson very candidly, and very rightly, I
think, drew our attention, to Section 10 of the Land
Revenue Code; and after having given that section our
very best and most careful attention, with special
reference to the arguments which Mr. Branson has
used against its applicability here, we feel unable to
escape from the force of the direct language used. If
language is ever to mean anything, when it is
perfectly plain and unambiguous, the language of this
section, we think, must be taken in its natural sense.
That section enacts that after certain conditions
precedent have been fulfilled, an Assistant Collector
thus placed in charge of portions of a District is
empowered to exercise all the powers conferred upon
the Collector by this Act or any other law at the time
being in force within the local limits of that portion of
the District, of which he has been placed in charge. It
has been very strenuously contended that the words
"or any other law at the time being in force" having
regard to the general structure of the section and to
its place in the Land Revenue Code, ought to be
restricted to laws or Acts ejusdem generis: but we
think that that would be stretching interpretation too
far; and had we had any doubt of what Government
intended when this Land Revenue Code was passed, (a
Resolution, which of course is no binding authority
upon us, but serves to throw useful light upon this
question, cited in a footnote to Section 10 in Sathe's
Edition of the Land Revenue Code), goes far to dispel
that doubt.
4. We were referred in the course of the argument to an
unreported decision of Jenkins C. J. and Batchelor J.
upon what appears to have been a very similar point.
There the Rule was made absolute, but no reasons
were given. I have consulted my Brother Batchelor
and he assures me that so far as his memory goes
Section 10 was never referred to in that argument or
brought to the notice of that Bench.
5. The recent case of Somchand Bhikhabhai v.
Chhaganlal Khubchand, (1911) 13 Bom. L. R. 207,
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
21 wp7839o17group
decided by Scott C. J. and Batchelor J. under Section
11 of the Land Revenue Code, plainly turned upon a
different point and is governed by quite different
principles.
6. Here, we think, we must give its natural effect, to the
language of Section 10 and hold that an Assistant
Collector put in charge of any portion of a District is
within that portion of the District clothed with all
authority and powers of a Collector conferred by the
Land Revenue Code or by any other law at the time
being in force. The Mamlatdars Courts Act is such a
law and it confers upon the Collector powers of
revision, which within his territorial limits, the
Assistant Collector was, we think, empowered to
exercise. It cannot, therefore, be said that the order
complained of was in law a nullity for this reason.
7. It was then contended that even if the Assistant
Collector had power to revise the proceedings of the
Mamlatdar's Court, he exceeded his jurisdiction by
admitting fresh documentary evidence; and in that
connection we have been referred to another decision
of Scott C.J. and Rao J. in Kashiram v. Rajaram,
(1911) 13 Bom. L. R. 879, in which those learned
Judges have certainly held that the Collector who,
while revising the Mamlatdar's decree admits
evidence, thereby exceeds his jurisdiction, and that is
a sufficient ground to warrant the interference of the
High Court in the exercise of its superintending power.
Doubtless this is a similar case; but the exercise of this
extraordinary power, vested in the High Court, is
always a matter of discretion; and having regard to
the facts which have been stated here, particularly
that litigation is actually in progress and may soon be
expected to settle the matters in dispute between the
parties we do not feel called upon now to interfere
with the revisional order passed by the Assistant
Collector. We do not think it necessary to do so to
avert any material and otherwise irreparable
injustice."
(Emphasis is supplied by me)
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
22 wp7839o17group
20 It was thus, concluded that the Assistant Collector put in
charge of any portion of a district, is, within that portion of the district,
upon delegation, clothed with all authority and powers of the Collector
conferred by the MLR Code or by any other law at the time being in force.
The Mamlatdar's Courts Act, 1906 is such a law and it confers upon the
Collector such powers of revision, which within the said territorial limits,
the Assistant or Deputy Collector was empowered to exercise on
delegation.
21 In Vishnu Dadu Lokhande (supra) , the learned Division Bench
of this Court dealt with an appeal against an order passed by the
Mamlatdar under Section 24(2) of the Bombay Tenancy and Agricultural
Lands Act as to whether, the District Deputy Collector was competent to
hear the appeal.
22 The observations of the learned Division Bench in Vishnu
Lokhande (supra) with regard to the facts of the case are as under:
"......... In the opinion of the learned Judge, an appeal
against the order of the Mamltadar could only be
entertained by the Collector of the District and it
could not be heard by a District Deputy Collector. He
observed:
"Under the provisions of the Tenancy Act, it is
the Collector who is referred to as the Authority to
whom an appeal from the decision of the Mamlatdar
is to be filed. No notification delegating the powers of
the Collector in that respect to the District Deputy
Collector is pointed out. Hence in the absence of such
notification, the District Deputy Collector cannot
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
23 wp7839o17group
prima facie be regarded to be entitled to entertain the
appeal; and I find that there is a good deal of force in
the argument that the order passed by the District
Deputy Collector is ultra vires. Under the
circumstances, the possession obtained by the plaintiff
under the orders of the Mamlatdar cannot be
regarded to be in any way wrongful."
The defendant has filed this second appeal
against the decree passed by the learned District
Judge. Mr. G.A. Desai, who appears on behalf of the
defendant, has contended that the civil Court had no
jurisdiction to entertain and decide the suit for a
declaration that an order passed by the District
Deputy Collector in an appeal properly filed under the
Bombay Tenancy Act, 1939, awarding possession to
the defendant was not liable to be enforced. Mr. Desai
also contended that the appeal against the order of
the Mamlatdar lay to the Deputy Collector and the
Deputy Collector was competent to decide the appeal
and the District Court was in error in holding that
the order passed by the Deputy Collector was without
jurisdiction.
Now, the proceedings were taken by Umabai in
the Court of the Mamlatdar when the Bombay
Tenancy Act, 1939, was in force, and notwithstanding
the repeal of that Act by the Bombay Tenancy and
Agricultural Lands Act, 1948, the proceedings
commenced under the Bombay Tenancy Act, 1939,
had to be heard and disposed of as if that Act had not
been repealed. Under Section 24 of the Bombay
Tenancy Act, 1939, a landlord was entitled to make
an application to the Mamlatdar for obtaining
possession of any land held by a tenant. On receipt of
an application by a landlord for possession of any
land held by a tenant, the Mamlatdar was required to
hold an enquiry in the prescribed manner and to
decide the case according to the rights of the parties.
Against the decision of the Mamlatdar, Subsection
(3) of a, 24 provided an appeal to the Collector, and
Subsection (4) provided that, subject to the
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
24 wp7839o17group
provisions of Section 28, every order passed by the
Mamlatdar under Subsection (2), unless modified or
revised by the Collector on appeal under Subsection
(3), and every order passed by the Collector under
Subsection (3), shall be final. The effect of that
provision was to make the decision of the Mamlatdar,
if not modified or reversed on appeal, and the
decision of the Collector in appeal, final. In the
present case, an application was filed by Umabai for
possession of the land from her tenant and that
application was governed by Section 24 of the
Bombay Tenancy Act, 1939. The Mamlatdar decided
the application in favour of Umabii. If the order had
not been validly appealed from the order by Sub
section (4) of Section 24 would have become final.
But an appeal was filed by the defendant against that
order and in appeal the Deputy Collector reversed the
order of the Mamlatdar and directed that Umabai do
restore possession of the property which she had
obtained under the order of the Mamlatdar. If the
order of the Deputy Collector is passed in exercise of
jurisdiction vested in him, that order must also be
regarded as final and it is not open to the civil Court
to decide the question whether that order was
irregularly passed. The validity of that order can only
be challenged on the sole ground of competence of the
Mamlatdar or the Collector. Now, the learned District
Judge, as I have stated earlier, held that an appeal
from a decision under Section 24, Subsection (2), of
the Bombay Tenancy Act, 1939, can be entertained
only by the Collector and not by the Deputy Collector.
If that decision is correct, evidently the Deputy
Collector had no jurisdiction to entertain and hear an
appeal against the decision of the Mamlatdar and to
reverse his decision."
(Emphasis is supplied by me)
23 The sole question was, therefore, as to whether, the District
Deputy Collector could have heard an appeal against an order passed by
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
25 wp7839o17group
the Mamlatdar. The expression "Collector" as was not defined under the
Bombay Tenancy Act, 1939, this Court turned to Section 8 under the
Bombay Land Revenue Code and concluded that the State Government
was authorized to appoint in each district an officer who would be the
Collector to exercise the powers and discharge duties imposed on the
Collector or Assistant Collector or Deputy Collector throughout the
district.
24 The learned Division Bench has further observed as under:
"........ By Section 8, the State Government is
authorised to appoint in each District an officer who
shall be the Collector and who may exercise,
throughout his district, all the powers, and discharge
all the duties conferred and imposed on a Collector or
an Assistant or Deputy Collector by the Act, or by any
other law for the time being in force, and in all
matters not specially provided for by law shall act
according to the instructions of the State Government.
Section 9 of the Code enables the State Government to
appoint in each district so many Assistant Collectors
and Deputy Collectors as it may deem expedient and
by the second paragraph of that section, all Assistant
and Deputy Collectors in a district are made
subordinate to the Collector for the district. The
combined effect of Sections 8 and 9 of the Bombay
Land Revenue Code is that the State Government is
authorised to appoint a Collector in every district and
also to appoint as many Assistant or Deputy
Collectors as it may deem expedient and that the
Collector is entitled to exercise all the powers and to
discharge all the?duties which are imposed upon him
by the Code and he is also entitled to exercise all the
powers of the Assistant and the Deputy Collector
conferred by the Code. It is further provided that the
Collector is entitled to exercise all the powers and
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
26 wp7839o17group
discharge all the duties which are imposed upon him
by any other law for the time being in force upon an
Assistant or a Deputy Collector. Section 10 of the
Bombay Land Revenue Code provides that:
"Subject to the general orders of the State
Government, a Collector may place any of his
assistants or deputies in charge of the revenue
administration of one or more of the talukas in his
district, or may himself retain charge thereof.
Any Assistant or Deputy Collector thus placed
in charge shall, subject to the provisions of Chapter
XIII, perform all the duties and exercise all the powers
conferred upon a Collector by this Act or any other
law at the time being in force, so far as regards the
taluka or talukas in his charge."
There are two other paragraphs in Section 10
which are not material in the present appeal and need
not be set out. Whereas Section 8 enables the
Collector to perform the functions and discharge the
duties of an Assistant or a Deputy Collector under the
Bombay Land Revenue Code or any other law for the
time being in force, Section 10 authorises an Assistant
or a Deputy Collector, who has been put in charge of
there venue administration of one or more talukas of
the district, to perform all the duties and to exercise
all the powers conferred upon a Collector by the
Bombay Land Revenue Code or by any other law for
the time being in force so far as regards the taluka or
talukas in his charge. The effect of Section 10 is that,
once an Assistant or a Deputy Collector is by an order
of the Collector put in charge of revenue
administration of one or more talukas in his district,
by the operation of the second paragraph of Section
10, he is subject to territorial limitations statutorily
invested with all the powers which are conferred upon
the Collector by the Code or by any other law for the
time being in force and is entitled to exercise the
powers of a Collector under the Code or by any other
law for the time being in force. The Bombay Tenancy
Act, 1939, is undoubtedly 'any other law' in force
within the meaning of Section 10. It is undisputed in
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
27 wp7839o17group
this case that the Deputy Collector, who decided the
appeal filed by the defendant, was placed in charge of
the Karad taluka and having been so placed in
charge, he had, under the second paragraph of
Section 10, jurisdiction to exercise the powers of the
Collector to hear appeals under Section 24 of the
Bombay Tenancy Act so far as regards the taluka in
his charge."
(Emphasis is supplied by me).
25 Section 10 of the Bombay Land Revenue Code is almost
identical to Section 7(3) of the MLR Code.
26 The learned Division Bench then referred to the Mamlatdar's
Courts Act and observed as under:
"....... Mr.Jahagirdar then referred us to in Sonu v.
Arjun. That was a case under the Mamlatdars' Courts
Act and the question which arose for decision was
whether the expression 'Collector' as used in Section
23 of the Mamlatdars' Courts Act, 1906, included a
Deputy Collector. A division bench consisting of Scott
C.J. and Batchelor J. held that the Deputy Collector
had no authority to pass any order under the Act
purporting to exercise revisional jurisdiction under
Section 23. In coming to that conclusion, the learned
Judges held that a Collector, as denned in the General
Clauses Act, was the chief officer in charge of the
revenues administration of the district, and when, by
the Mamlatdars' Courts Act of 1906, powers were
conferred upon the Collector, an officer who had been
put in charge of a part of the district could not
exercise those powers. Reliance was sought to be
placed in that case by the defendant upon the
provisions of Section 10 of the Bombay Land Revenue
Code, but it was opined that the expression 'any law
for the time being in force' used in para. 2 of Section
10 must mean any law ejusdem generis with the
Bombay Land Revenue Code and would not embrace
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
28 wp7839o17group
any special law relating to Mamlatdars' Courts such
as is found in the Act of 1906. Their Lordships also
observed that if a Deputy Collector could hear a
revision application under Section 23 of the
Mamlatdars' Courts Act, there would arise an
uncontemplated result that against the decision of the
Deputy Collector, a further appeal would lie to the
Collector and from the order of the Collector to the
Commissioner under the Code, there being no express
provision to the contrary under the Mamlatdars'
Courts Act, 1906. With respect, it must be stated that
in making that observation the learned Judges appear
to have been in some error. The Bombay Land
Revenue Code does not contemplate an appeal against
the decision of a revenue officer exercising revisional
jurisdiction and the assumption that the order of a
Deputy Collector passed under Section 23 of the
Mamlatdars' Courts Act could be appealed against to
the Collector or the Commissioner does not seem to be
warranted. Therefore, what the learned Judges
characterized as the absurdity of the conclusion, and
which was relied upon as an argument for supporting
the view that a revision application did not lie to the
Deputy Collector under Section 23, cannot be
appreciated.
In this connection attention may also be
directed to an earlier decision of this Court in Keshav
v. Jairam (1911) 13 Bom. L.R. 1031 which dealt
with the question whether an Assistant Collector can
hear an application in revision under Section 23 of
the Mamlatdars' Courts Act. That was also a decision
of a division bench in which it was held that an
Assistant Collector, who is put in revenue charge of
any portion of a district, is empowered by Section 10
of the Bombay Land Revenue Code of 1879, to
exercise all the powers conferred upon the Collector of
the district by Section 23 of the Bombay Mamlatdars'
Courts Act, 1906. In Keshav's case their Lordships
referred to Section 10 of the Bombay Land Revenue
Code and observed that it would be stretching the
interpretation of the expression "or any other law at
the time being in force" too far to hold that laws or
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
29 wp7839o17group
Acts ejusdem generis with the Bombay Land Revenue
Code alone were intended to be covered thereby and
not other Acts such as the Mamlatdars' Courts Act of
1906. There was, when Sonu v. Arjun was decided by
the division bench consisting of Scott C.J. and
Batchelor J., an earlier decision of a division bench of
this Court precisely on the same point which arose in
the latter case. It is true that, in the view of the bench
in Sonu's case, certain arguments were not presented
to the bench which decided Keshav v. Jairam. There
being two conflicting decisions on the same point, it
would be open to us to follow either of the two
decisions which, in our view, is more consistent with
the true interpretation of the Bombay Mamlatdars'
Courts Act and the Bombay Land Revenue Code if a
question which was decided by the two benches arose
for decision at this date. But it must be mentioned
that the question on which there was difference of
opinion between the two benches has become
academic because the Legislature has, by Act XXIV of
1942, amended the Mamlatdars' Courts Act and has
added Subsection (2A) to Section 23 which enables
the Collector to delegate the powers conferred upon
him by Section 23 to any Assistant or Deputy
Collector subordinate to him. But in Keshav v. Jairam
one division bench took the view that there was no
justification for holding that the expression 'any other
law at the time being in force' in Section 10 must be
law ejusdem generis with the Bombay Land Revenue
Code and another bench in Sonu v. Arjun held that
the scheme of the Code indicated that the law at the
time being in force must be law ejusdem generis with
the law in the Bombay Land Revenue Code, In the
view that we have expressed, we would be willing to
accept the view expressed in Keshav v. Jairam. But,
for the decision of the present case, it is unnecessary
for us to decide the point. The Bombay Tenancy Act
deals with matters some of which are also dealt with
in the Bombay Land Revenue Code and even if for the
application of Section 10, para. 2, of the Code, the
test of a statute being ejusdem generis is to be applied,
it cannot be stated that the Bombay Tenancy Act,
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
30 wp7839o17group
1939, is not ejusdem generis with the Bombay Land
Revenue Code.
It must, therefore, be held that the Deputy
Collector was competent to hear the appeal against
the order of the Mamlatdar. Once it is held that the
Deputy Collector was competent to hear and decide
the appeal, the validity of the order passed by that
officer cannot be challenged in a separate suit. On
that view of the case, the appeal filed by the
defendant will be allowed and the plaintiff's suit
dismissed with costs throughout."
(Emphasis is supplied by me).
27 Considering the above, I am of the view that the SDO under
the MLR Code can not be presumed to be an SDO under the MC Act since
the MC Act does not prescribe or define any role for the SDO. The
Assistant Collector or Deputy Collector upon delegation of authority,
would be entitled to hear the RTS Revision under Section 23 since the
Collector delegates his powers to the Deputy Collector or Assistant
Collector under Section 23(2A) under the MC Act. He does not delegate
his authority to the SDO under the MLR Code for the purposes of hearing
the revision petitions under Section 23 of the MC Act. Once an Assistant
or Deputy Collector becomes a Divisional Officer in charge of the sub
divisions, thereby terming him to be an SDO, would not mean that he
would no longer remain an Assistant or Deputy Collector. He would
perform the role designed for him under the MLR Code as an SDO and
while dealing with the matters under the MC Act, he would be discharging
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::
31 wp7839o17group
his duties as an Assistant or Deputy Collector after receiving delegated
powers from the Collector under Section 23(2A) of the MC Act.
28 Considering the above, I am of the view that the authority
dealing with the RTS Revision under Section 23(2) of the MC Act is in fact
the Assistant or Deputy Collector though he is routinely referred to as an
SDO as the said nomenclature is used commonly by one and all in this
State.
29 It needs mention that I have come to the above stated
conclusions based on the judgments delivered by the learned Division
Bench of this Court in Keshav Dhondi Sinde (supra) and Vishnu Dadu
Lokhande (supra) . These two judgments were never cited before the
learned Single Judge of this Court in the matters of Bija Maroti Hatwar
and Narayan Bhagwan Bholankar (supra) . Similarly, there were no
submissions before the learned Single Judge in these two cases that every
SDO in the State of Maharashtra is an Assistant or Deputy Collector, for
the purpose of the MLR Code and would continue to be the Assistant or
Deputy Collector for the purpose of all other Acts, including the MC Act.
30 As such, place the Writ Petitions for hearing on 04.12.2017.
31 Interim relief granted earlier in any of these petitions, would
continue till the next date of hearing in these matters.
kps
( RAVINDRA V. GHUGE, J. )
::: Uploaded on - 05/12/2017 ::: Downloaded on - 02/06/2024 02:30:55 :::