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2015 DIGILAW 1925 (BOM)

Hemraj v. Sub Divisional Officer, Mouda

2015-08-19

Z.A.HAQ

body2015
JUDGMENT Z.A. HAQ, J. 1. Heard. 2. Rule. Rule made returnable forthwith. 3. The petitioners have challenged the order passed by the learned Sub Divisional Officer allowing the appeal filed by the respondent Nos. 2 to 4 under Section 247 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as “MLR Code”). The substantive challenge raised on behalf of the petitioner is that the appeal filed by the respondent Nos. 2 to 4 was not maintainable. 4. Shri Kothari, learned advocate for the petitioners has submitted that the order passed by the Tahsildar under Section 140(1) of the MLR Code is required to be challenged by filing civil suit as laid down by Section 143(4) of the MLR Code. It is submitted that the appeal or revision under the MLR Code is provided subject to the provisions of sub- sections (4) and (5) of Section 143 of the MLR Code, meaning that the appeal or revision under the MLR Code cannot be filed until the party challenging the order passed by the Tahsildar under Section 143(1) of the MLR Code files civil suit. In support of the submission, reliance is placed on the following judgments:- (i) Judgment given in the case of Vidya Vijay Karandikar vs. State of Maharashtra, 2006 (6) ALL MR 542. (ii) Judgment given in the case of Shantabai vs. Bhagwan, 2011 (1) Mh. L.J. 481. The provisions of Section 143(3), (4) and (5) of the MLR Code read as follows:- “143. Right of way over boundaries. (1)…………. (2)…………. (3) The Tahsildar's decision under this Section shall, subject to the provisions of sub-sections (4) and (5), be subject to appeal and revision in accordance with the provisions of this Code. (4) Any person who is aggrieved by a decision of the Tahsildar under this Section may, within a period of one year from the date of such decision, institute a civil suit to have it set aside or modified. (5) Where a civil suit has been instituted under sub-section (4) against the Tahsildar's decision, such decision shall not be subject to appeal or revision.” Reading of the above referred provisions show that an option is given to the party challenging the order passed by the Tahsildar, either to file appeal under the provisions of the MLR Code or to file civil suit. The conjoint reading of the above referred provisions show that the person who challenges the order passed by the Tahsildar by filing civil suit as per Section 143(4) of the MLR Code cannot avail the remedy of filing the appeal and revision under the provisions of the MLR Code. It is clear that the person aggrieved by the order passed by the Tahsildar under Section 143(1) of the MLR Code can either file appeal under the MLR Code or may file civil suit. 5. The judgment given in the case of Vidya Vijay Karandikar (supra) does not deal with the point which arises for consideration in the present petition. In that case, the order passed by the Tahsildar under Section 143(1) of the MLR Code was neither challenged in appeal under the MLR Code nor by filing the civil suit and it had become final. The legality of the orders passed by subordinate authorities for enforcing that order passed by the Tahsildar under Section 143(1) of the MLR Code was the subject matter before this Court. 6. In the judgment given in the case of Shantabai vs. Bhagwan (supra) this Court concluded that the appeal under the MLR Code would not be available to the party as the party had filed civil suit and it was pending. The above referred judgment does not assist the petitioners. 7. It has to be held that the appeal filed by the respondents No. 2 to 4 was maintainable. 8. Having come to the conclusion that the appeal filed by the respondent Nos. 2 to 4 is maintainable, the petitioners or any party aggrieved by that order have the remedy of revision under Section 257 of the MLR Code. In view of the fact that the petitioners have alternate statutory remedy available, I am not inclined to entertain this writ petition. The petition is disposed of accordingly. In the circumstances, the parties to bear their own costs. Rule stands discharged.