HUKUMCHAND SHANKARLAL GANDHI v. State of Maharashtra
2007-01-09
R.M.SAVANT
body2007
DigiLaw.ai
ORAL JUDGMENT :- By this petition, filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the notices dated 21-2-1990 and 17-5-1990 issued by the Additional Commissioner, Nasik Division, Nasik. By the said notices the petitioner is informed that the order dated 6-2-1989 passed by the then Additional Commissioner would be taken up for review on the grounds mentioned in the said notices. 2. Brief facts, which are necessary to be recited are that : the petitioner claims to have purchased the land to the extent of 199.5 sq. metres under four sale-deeds from one Fakira Ahru Ghisadi and Kisan Ashru Ghisadi. The said property was given Gram panchayat house number 1096 and 1097. It appears that the petitioner had sought permission to carry out construction on the said property, which was granted by the Gram Panchayat by passing a resolution in that behalf. Thereafter, it appears that City Survey scheme was implemented in the said village, as a consequence of which, a survey was carried out by the Enquiry Officer, appointed by the State Government, in which enquiry, it was revealed that the petitioner has encroached upon an area of 161.99 sq. metres in Survey No.4, which was a Government land. In view of large scale encroachments on Government lands in Gram Panchayat areas, the Government had taken a policy decision, which was contained in Government Order No. MH/KA/I5/Land (2)-CR 458 dated 25-2-1987 for regularizing the encroachments. 3. Pursuant to the said policy decision, the Collector, Ahmednagar, conducted an inquiry under sections 51 and 52 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred, for the sake of brevity, as said Code) and fixed Rs. 72,895.50 ps. as price to be paid by the petitioner for regularization. The petitioner challenged the said order of the Collector, Ahmednagar, by filing a Revision being Revision Application No. 481/1988 before the Divisional Commissioner, Nasik Division, Nasik. The Revisional Authority stayed the order of the Collector dated 8-12-1987. Before the Revisional Authority, the petitioner had contended that regularization should be granted to the petitioner on the same basis as was granted to other encroachers in the vicinity and specifically referred to the case of one Kamlabai Jaju. The then Additional Commissioner, taking into consideration the relevant aspects, substituted the price fixed by the Collector, by fixing the price of Rs. 6,480/-, to be paid by the petitioner for regularization.
The then Additional Commissioner, taking into consideration the relevant aspects, substituted the price fixed by the Collector, by fixing the price of Rs. 6,480/-, to be paid by the petitioner for regularization. The Revision application was accordingly disposed of by order dated 6-2-1989. The petitioner, pursuant to the order passed by the Additional Commissioner in the said Revision, deposited the said amount of Rs. 6,480/- with the Government treasury. The matter thereafter rested there. 4. Suddenly, on 21-2-1990, the petitioner received a notice for hearing of the said revision on 30-3-1990. The petitioner, pursuant to the said notice, filed reply dated 24-4-1990 and brought to the notice of the Additional Commissioner, who had issued the notice dated 21-2-1990, that the Revision Application has already been decided. On the said reply of the petitioner, it appears that an endorsement was made by the office of the Additional Commissioner, which is quoted hereunder: "In this case, though the case was decided, higher authorities have directed to take the case for review and hence notice dated 21-2-1990 was issued accordingly which does not seem to have been received by the appellant. Case in put on 25-5-1990. Sd/24-4-1990" 5. Thereafter the petitioner received a further notice dated 17-5-1990, asking the petitioner to remain present for hearing on 25-5-1990. The stand of the respondents in the said notice had changed inasmuch as the respondents relying upon section 258 of the said Code had communicated to the petitioner that the said order passed by the Additional Commissioner dated 2-11-1989 would now be taken up for review on the ground that the regularization granted to the petitioner by the Additional Commissioner would affect the region development and that the price, at which regularization was granted, was also inadequate. We are, therefore, faced with the endorsement which is made on the say filed by the petitioner in which it has been stated that the matter has been taken up on account of pressure from the higher authorities. Whereas in the notice dated 17-5-1990, two different grounds have been mentioned for reopening of the issue. 6. I have heard learned Counsel Shri A. K. Gugale for the petitioner and Shri K. G. Patil, learned A.G.P. for the respondents. Shri Gugale, learned Counsel for the petitioner, made two fold submissions.
Whereas in the notice dated 17-5-1990, two different grounds have been mentioned for reopening of the issue. 6. I have heard learned Counsel Shri A. K. Gugale for the petitioner and Shri K. G. Patil, learned A.G.P. for the respondents. Shri Gugale, learned Counsel for the petitioner, made two fold submissions. It was firstly contended by Shri Gugale that having once disposed of the Revision application by order dated 2-11-1989, the said order has attained finality and was binding on the parties and having acted upon the said order, it is not now open for the respondents to reopen the said proceedings and review the said order. It was secondly contended by the learned Counsel that the notices dated 21-2-1990 and 17-5-1990 are without jurisdiction, as no case has been made out by the respondents for invoking section 258 of the said Code. It was further contended by Shri Gugale, learned Counsel for the petitioner, that the said proceedings have been recommenced merely with a view to please some higher authorities as borne out by the said endorsement. 7. On behalf of respondents, it was contended by Shri Patil, learned AGP that on account of the fact that the price, at which the regularization was granted to the petitioner, was inadequate, the State sought to review the order passed by the then Additional Commissioner. According to learned AGP, the case comes within the ambit of section 258 of the said Code and, therefore, the issuance of the said notices could not be faulted with. 8. I have given my anxious consideration to the rival contentions advanced by the respective parties. Since the order sought to be reviewed under section 258 of the said Code, it would be relevant to reproduce relevant provision of subsection (2) of section 258 of the said Code, which reads as under: "(2) No order shall be reviewed except on the following grounds, namely :- (i) discovery of new and important matter; (ii) some mistake or error apparent on the face of the record; (iii) any other sufficient reason." 9. A bare reading of sub-section (2) of section 258 of the said Code makes it abundantly clear that the powers of review are akin to the powers of review under Civil Procedure Code and they can be invoked only if the circumstances mentioned therein are satisfied.
A bare reading of sub-section (2) of section 258 of the said Code makes it abundantly clear that the powers of review are akin to the powers of review under Civil Procedure Code and they can be invoked only if the circumstances mentioned therein are satisfied. In the instant case, the reason mentioned in the endorsement made on the Say filed by the petitioner is that the proceedings have been initiated on account of pressure/order from the higher authorities. Whereas in the impugned notices, it has been mentioned that it would affect the ribbon development, and that the price at which regularization was granted in favour of the petitioner was inadequate. In my view, therefore, there is considerable merit in the submissions advanced by Shri Gugale, learned Counsel for the petitioner that no grounds have been made out by the respondents for invoking section 258 of the said Code. If the course adopted by the respondents is allowed to continue, it would result in chaotic situation, where the proceedings which have achieved finality, would be reopened on some flimsy pretext or the other, this would also be against the public policy which is reflected in various statutes, wherein finality is given to the orders passed by the quasi-judicial authorities. In the instant case, I am of the view that the respondents could not have invoked section 258 of the said Code. Therefore, the notices dated 21-2-1990 and 17-5-1990 are unsustainable. The said notices and the proceedings initiated pursuant thereto are required to be quashed and set aside. The petition is, therefore, allowed in terms of prayer clause (c) with the parties left to bear their respective costs. Order accordingly.