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2007 DIGILAW 478 (BOM)

Popat s/o. Moti Rathod v. State of Maharashtra

2007-04-03

A.B.CHAUDHARI

body2007
JUDGMENT:- By the present petition, petitioner has challenged the order dated 4-101985, passed by Sub-Divisional Officer, Amravati in Revenue Case No.59/82/ Bhankhedakhd-20/1985-86 as well as the order dated 30th October, 1987, passed by Maharashtra Revenue Tribunal, Nagpur in Revision Application No.Ten-A-166/ 1986. 2. FACTS :- The petitioner purchased field survey Nos.36, 37 and 38 of Mauje Bhankheda, District Amravati, admeasuring 6.30 acres by registered sale-deed dated 16-5-1979 from Jaisingh Jagannathsingh Rathod. In the year 1985, Sub-Divisional Officer, Amravati initiated proceedings against him under Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as Tenancy Act) by registering Revenue Case No.59/(32)/ Bhankhedakhd-20/1985-86 on the ground that sale-deed obtained by him was not valid as the petitioner had not obtained permission from the Collector/S.D.O. under Section 89 of the Act. The petitioner, however, stated that he is an agriculturist having land of his own at Kothewad in Gujrat State and was also doing business of dairy farming and as such he falls within the meaning of definition of agriculturist under the Act. Petitioner also opposed the proceedings by raising preliminary objection that the jurisdiction to declare sale-deed invalid under any of the provisions of the Tenancy Act under Section 122 was with Tahsildar and not with Sub-Divisional Officer, and therefore, the proceedings initiated by S.D.O. were without authority of law. Sub-Divisional Officer, Amravati, however, made an order on 4-10-1985 and invalidated the sale-deed in the name of petitioner for want of permission under Section 89 of the Tenancy Act and directed that his land vested in the State. 3. Being aggrieved by the said order, petitioner preferred an appeal under Section 107 of the Tenancy Act to the Collector, Amravati, who held that the appeal was not maintainable before him as the powers of Collector were exercised by the S.D.O. vide order dated 9-121985. Petitioner then preferred revision before Maharashtra Revenue Tribunal, Nagpur under Section III of the Act and challenged the order of Sub-Divisional Officer, Amravati. Since there was delay in filing revision application before Maharashtra Revenue Tribunal, an application was filed for condonation of delay in filing revision. The Maharashtra Revenue Tribunal rejected application for condonation of delay in filing revision as well as revision on the ground that the same was time barred. Being aggrieved by those orders, petitioner has preferred the instant writ petition. 4. The Maharashtra Revenue Tribunal rejected application for condonation of delay in filing revision as well as revision on the ground that the same was time barred. Being aggrieved by those orders, petitioner has preferred the instant writ petition. 4. ARGUMENTS: Shri. Bhuibhar, learned Counsel appeared for petitioner and argued that the Sub-Divisional Officer had acted without jurisdiction and as such the order passed by S.D.O. being without jurisdiction may be quashed and set aside. Apart from that he further argued that the authority superior in hierarchy by deciding the matter in question, which ought to have been decided by Tahsildar, has taken away the right of appeal provided under Section 247 r/w Schedule (E) of the Maharashtra Land Revenue Code. He invited my attention to Sections 2(A), 89, 107, 122 of the Tenancy Act and Section 13(4) of the Maharashtra Land Revenue Code, 1966. He also took me through the order made by Collector, dismissing appeal as not maintainable and agreed that the Collector has rightly passed the order. While criticising the order, made by M.R.T. refusing condonation of delay in filing revision and dismissing the revision on the ground of delay, he argued that the reason that was given was that though the order of Collector was known to the Counsel for petitioner, the same could not be communicated to the petitioner, as the petitioner had left for Gujrat and his address was not known to his Counsel. This statement was not controverted by the other side, and therefore, there was no reason for the M.R.T. to reject the application for condonation of delay in filing revision or dismiss the revision as time barred. He finally argued that even then the delay was only of 175 days and proper explanation was given which went uncontroverted. Per contra, Mrs. Jog, learned A.G.P. for respondent sole submitted that in its decision the M.R.T. has held that the revision was time barred by 175 days and M.R.T has refused to believe the explanation tendered by petitioner. She argued that the petitioner could not have filed appeal before the Collector against the order of S.D.O., as S.D.O. has exercised the powers of Collector under Section 89 of the Act. Finally, she supported the impugned orders and prayed for dismissal of writ petition. 5. She argued that the petitioner could not have filed appeal before the Collector against the order of S.D.O., as S.D.O. has exercised the powers of Collector under Section 89 of the Act. Finally, she supported the impugned orders and prayed for dismissal of writ petition. 5. CONSIDERATION :- As regards the validity of order made by M.R.T., rejecting revision application on the ground of delay, I find that the Tribunal ought to have condoned the delay in filing revision. In the first place, petitioner was bonafidely prosecuting the remedy of appeal before the Collector, Amravati which came to be dismissed on 9-12-1985. Further after communication of the said order to Counsel for petitioner, the Counsel could not communicate the said order to petitioner as the petitioner had left for Gujrat and his address was not known to his Counsel. From the record, I find that the petitioner had come from Gujrat with his animals due to drought conditions in Gujrat and was residing at Bhankheda and doing the business of selling milk. The statement that the Counsel did not know address of petitioner in Gujrat and the petitioner had left for Gujrat went uncontroverted. In this view of the matter, the M.R.T. ought to have condoned the delay in filing revision before it. Hence, the order dated 30-10-1987 made by M.R.T. refusing condonation of delay in filing revision and dismissing revision as time barred is quashed and set aside. 6. Now having quashed and set aside the order made by M.R.T., only alternative is to remand the matter to M.R.T. for hearing of the revision on merits. I am however aware that P.I.L. No.56/2002 with connected matters was finally heard and allowed by Division Bench of the Bombay High Court, quashing the amendment providing for abolition of M.R.T. and designating Commissioner of Revenue Division as Tribunal in place of M.R.T. During the pendency of P.I.L. No.56/2002, the Bombay High Court had made an interim order that Commissioner of the Revenue Division shall be entitled to accept the filing of the appeals/revisions etc. and pass interim orders but shall not dispose of any matter finally. and pass interim orders but shall not dispose of any matter finally. After the said P.I.L. and the connected matters were allowed by the Bombay High Court, the said interim order merged in that judgment, but the Hon'ble Supreme Court of India revived the interim order after admitting Special Leave Petition filed by the State of Maharashtra, and thus, the same arrangement is still continuing. Proceedings in this matter were initiated in the year 1985 and in my opinion, since the Commissioner of the Revenue Division has no power to decide any matter finally it would be in the interest of justice to decide the matter finally in this Court, as otherwise it would further delay the end of this litigation. With this idea, I had put the Counsel for both the sides on notice and with their consent I decided to hear the petition on merits. 7. The question which arises for consideration is framed as under: Whether under Section 89 of the Tenancy Act, the Collector/S.D.O. is entitled to declare a sale-deed invalid for want of permission from the Collector/S.D.O. in the contingencies required by Section 89 when a specific provision under Section 122 of the Tenancy Act exists on the statute book empowering Tahsildar to declare such saledeed invalid and also to direct that the land shall be vested in the State Government after making declaration to that effect under Section 122 Sub-Section (2)? Section 89 reads thus; "89: Transfer to non-agriculturists barred.- (1) Save as provided in this Act,- (a) no sale (including sales in execution of a decree of a Civil court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee. shall be valid in favour of a person who is not an agriculturist or who being an agriculturist (will, after such sale, gift, exchange, lease or mortgage, hold land as tenure holder or tenant or partly as tenure holder and partly as tenant exceeding two-thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (Mah XXVII of 1961) or who is not an agricultural labourer: Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, in such circumstances (and subject to such conditions) as may be prescribed." 8. Perusal of this section shows that a person who is not an 'agriculturist' or 'agricultural labourer' cannot purchase any land or interest therein without permission from the Collector or an officer authorised by the State Government in that behalf, as stated in the proviso to Sub-Section (1). Section 89 however does not enable the Collector/S.D.O. to either declare such sale-deed invalid nor does it empower him to order vesting of land in the State Government after making declaration. Section 89 thus provides consequences of sale deed obtained by a person without permission from the Collector/S.D.O. or an officer authorized by the State Government, if such person is not agriculturist or agricultural labourer. Section 13(4) of the Maharashtra Land Revenue Code reads thus; "Section 13 : Powers and duties of revenue officers. Sub-Section (4) : The Sub-Divisional 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 sub-division in his charge: Provided that, the Collector may whenever he may deem fit direct any such Sub-Divisional 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 such particular duties and powers as he may form time to time deem fit." 9. Perusal of Sub-Section 4 shows that Sub-Divisional Officer can perform all duties and functions and exercise all powers conferred upon a Collector by this Code or any law for the time being in force. There is no doubt that wherever the term Collector is used even in the Tenancy Act, Sub-Divisional Officer is entitled to exercise those powers. That is the reason why under Section 89 the Sub-Divisional Officer is entitled to exercise powers of Collector in the matter of grant of permission as mentioned in the proviso to Sub-Section (1) of Section 89. Now section 122 of the Tenancy Act reads thus; "122. Disposal of land transfer or acquisition of which is invalid. (1) Where in respect of the transfer or acquisition of any land (made on or after the commencement of this Act) the Tahsildar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Tahsildar shall issue a notice in the prescribed form to the transferor, the transferee or the person acquiring such land as the case may be, to show cause as to why the transfer or acquisition should not be declared to be invalid and shall hold an inquiry and decide whether the transfer or acquisition is or is not invalid. (2) If after holding such inquiry the Tahsildar comes to a conclusion that the transfer or acquisition of land is invalid, he shall make an order declaring the transfer or acquisition to be invalid: Provided that where the transfer of land was made by the landlord to the tenant in possession of the land and the area of the land so transferred together with the area of other land, if any, cultivated personally by the tenant did not exceed three family holdings, the Tahsildar shall not declare such transfer to be invalid if,- (i) the price of the land received by the landlord does not exceed the reasonable price thereof under Section 90 and the transferee pays to the State government a penalty of one rupee within such period not exceeding three months as the Tahsildar may fix, or (ii) the price of the land received by the landlords exceeds the reasonable price thereof under Section 90 and the transferor as well as the transferee pays to the State Government each a penalty equal to one-tenth of the reasonable price within such period as the Tahsildar may fix. (3) On the declaration made by the Tahsildar under Sub-section (2).- (a) The land shall be deemed to vest in the State Government free from all encumbrances lawfully subsisting thereon on the date of such vesting, and shall be disposed of in the manner provided in subsection (4); the encumbrances shall be paid out of the occupancy price in the manner provided in Section 44 for the payment of encumbrances out of the purchase price of the sale of land, but the right of the holder' of such encumbrances to proceed against the person liable for the enforcement of this right in any other manner shall not be affected;" 10. Section 122 of the Tenancy Act thus empowers Tahsildar suo motu or on the application of any person interested to declare a particular transfer or acquisition or sale invalid under any of the provisions of Tenancy Act. Thus, this power to declare the sale-deed invalid under any of the provisions of the Tenancy Act including Section 89 of the Act is specifically given to Tahsildar. But such power to declare the sale-deed invalid is not to be found in Section 89 of the Act. Thus, this power to declare the sale-deed invalid under any of the provisions of the Tenancy Act including Section 89 of the Act is specifically given to Tahsildar. But such power to declare the sale-deed invalid is not to be found in Section 89 of the Act. Sub-Section (1) then provides for issuance of show-cause-notice to a person as to why his sale-deed should not be declared invalid. Sub-Section (2) provides that Tahsildar shall declare the transfer or acquisition of land as invalid and that he can do only after holding an enquiry consistent with the principles of natural justice. Sub-Section (3) provides that if the Tahsildar makes such declaration under Sub-Section (2), the land shall be deemed to be vested in the State Government. Thus, power to give declaration that the sale deed/transfer/acquisition is invalid under the provisions of Tenancy Act is given under Section 122 of the Act only to Tahsildar and not to the Collector and S.D.O. A particular procedure is also prescribed for making such declaration under Sub-Section (1) & (2) of Section 122 of the Tenancy Act. In the case reported in 2003(2) SCC 111 , Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and others, in para 40, the Apex Court observed as under: "40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.” It is well settled legal position that when a particular thing is required to be done in a particular manner, it has to be done in that manner. 11. It is pertinent to note that Section 107 of the Tenancy Act provides for various appeals. Section 107(za) reads thus; "107. Appeals - (1) An appeal against the order of the Tahsildar or Tribunal may be filed to the Collector in the following cases, -........ (za) an order under Section 122." 12. From the above, it is clear that the legislature has specifically provided an appeal under Section 107(za) against the order made by Tahsildar under Section 122 declaring any transfer, sale or acquisition invalid under the provisions of Tenancy Act. (za) an order under Section 122." 12. From the above, it is clear that the legislature has specifically provided an appeal under Section 107(za) against the order made by Tahsildar under Section 122 declaring any transfer, sale or acquisition invalid under the provisions of Tenancy Act. Now under hierarchy provided by Section 247 r/w. Schedule (E) of the Maharashtra Land Revenue Code, it is clear that appeal against the order made by Tahsildar under Section 122 would lie before the Sub-Divisional Officer or such Assistant or Deputy Collector as may be specified by the Collector in that behalf. Thus, statutory right of appeal under Section 127(za) would be lost to a party, if the S.D.O. is allowed to exercise the powers which are vested in Tahsildar under Section 122 of the Tenancy Act. This aspect therefore supports the interpretation that neither Section 89 nor Section 122 empowers Sub-Divisional Officer to declare the sale-deed invalid. 13. Hence, the answer to the question framed as above is that the Collector/Sub-Divisional Officer has no power or authority to declare a particular transfer, acquisition of land by sale-deed as invalid under the provisions of Tenancy Act under Section 89 but the Tahsildar alone is cloathed with such power under Section 122 of the Tenancy Act. 14. In view of above discussion, I hold that the impugned order passed by the S.D.O. on 4-10-1985 is without jurisdiction. The same is therefore quashed and set aside. In view of the findings recorded by me as above, the proceedings are now remitted to Tahsildar, Amravati who is directed to register appropriate case under Section 122 of the Tenancy Act. The Tahsildar, Amravati shall decide the proceedings under Section 122 of the Tenancy Act within a period of six months from the date of receipt of writ of this Court. Tahsildar shall serve the notice of the proceedings before him under Section 122 of the Act to the petitioner and give him appropriate opportunity to defend the proceedings. 15. Rule is made absolute in the above terms. No order as to costs. Petition allowed.