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2019 DIGILAW 1094 (BOM)

Raju Leeladhar Sawwalakhe v. State of Maharashtra

2019-04-18

MANISH PITALE

body2019
JUDGMENT : Manish Pitale, J. 1. Heard. 2. Rule. Rule made returnable forthwith. The Writ Petition is heard finally with the consent of the learned counsel for the parties. 3. By this Writ Petition, the petitioner has challenged order dated 9.2.2018 passed by the respondent No. 2-Divisional Commissioner, whereby a review application filed by the respondent No. 3-Collector, Yavatmal has been allowed and earlier order dated 22.4.2016 passed by the Additional Commissioner in favour of the petitioner has been reviewed and findings have been rendered against the petitioner. The consequence of the impugned order is that the petitioner stands blacklisted from participating in any further auction of sand ghats and the direction requiring him to deposit difference of amount between his bid and the final bid accepted in view of re-auction has come into operation. 4. The facts leading to the filing of present Writ Petition are that the petitioner, being active in the field of excavation of sand from sand ghats in the district of Yavatmal for about 20 years, participated in an auction of sand ghat undertaken by the respondent no. 3 in January 2014. The bid offered by the petitioner for auction of four sand ghats at Mahagaon was accepted on 9.1.2014, pursuant to which the petitioner deposited 20% of the bid amount on the said date itself. According to the petitioner, as per prescribed procedure, the petitioner was supposed to deposit the balance bid amount upon notice being issued by the respondent No. 3 and that such notices were issued by the respondent No. 3 after the environmental clearance certificates were issued from the concerned department. It is the case of the petitioner that he never received any notice in that regard and that he received a notice only on 24.2.2014 asking him to deposit the balance bid amount by the next day i.e. 25.2.2014, failing which, adverse consequences were to have followed. Since the said notice dated 24.2.2014 gave a very short period to the petitioner, he filed Writ Petition No. 3243 of 2014 before this Court challenging the said action of respondent No. 3-Collector. 5. A Division Bench of this Court partly allowed the Writ Petition and directed the respondent No. 3 to give an opportunity of fresh hearing to the petitioner before passing any further orders. The said order of the Division Bench of this Court was passed on 13.10.2014. 5. A Division Bench of this Court partly allowed the Writ Petition and directed the respondent No. 3 to give an opportunity of fresh hearing to the petitioner before passing any further orders. The said order of the Division Bench of this Court was passed on 13.10.2014. But, in the interregnum, on 3.3.2014 the respondent No. 3 undertook re-auction of the sand ghats and accepted the highest bid that was offered. The said bid amount was far less than the amount that had been offered in the first instance by the petitioner. This fact was also taken into consideration by the respondent No. 3-Collector when he gave hearing to the petitioner, pursuant to the aforesaid order of the Division Bench of this Court. 6. On 17.1.2015 the respondent No. 3-Collector passed an order holding the petitioner responsible for the loss suffered by the State on account of re-auction that had to be undertaken and apart from directing the petitioner to deposit the difference amount between his offer and the offer that was finalised in the process of re-auction, further directed that the petitioner shall stand blacklisted. 7. Aggrieved by the same, the petitioner filed an appeal under section 247 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as the "Code of 1966") before the respondent No. 2-Commissioner. The said appeal filed by the petitioner was taken up for consideration by the Additional Commissioner in view of the power to hear the appeals delegated to the said Authority. By an order dated 22.4.2016, the Additional Commissioner allowed the appeal filed by the petitioner and set aside the said order dated 17.1.2015 passed by the respondent No. 3-Collector. The said state of affairs continued to exist till about one and half years later and then on 12.10.2017, the respondent No. 3-Collector filed a review application before the respondent No. 2-Divisional Commissioner against the said order dated 22.4.2016 passed by the Additional Commissioner. The said application for review was filed under section 258 of the Code of 1966. An interim order was passed by the respondent No. 2-Divisional Commissioner having the effect of virtually allowing the review application filed by the respondent No. 3-Collector, which was challenged by the petitioner by filing Writ Petition No. 7435 of 2017. The said application for review was filed under section 258 of the Code of 1966. An interim order was passed by the respondent No. 2-Divisional Commissioner having the effect of virtually allowing the review application filed by the respondent No. 3-Collector, which was challenged by the petitioner by filing Writ Petition No. 7435 of 2017. The said Writ Petition was allowed and the interim order was set aside, with a direction to the parties to appear before the Divisional Commissioner for hearing on the review application. 8. By the impugned order dated 9.2.2018, the respondent No. 2-Divisional Commissioner allowed the review application, thereby setting aside the order of the Additional Commissioner and restoring the order dated 17.1.2015 passed by the Collector. Aggrieved by the same, the petitioner has filed the present Writ Petition. By order dated 15.3.2018, while issuing notice for final disposal, this Court granted ad-interim relief in favour of the petitioner, thereby staying the effect of impugned order dated 9.2.2018. 9. Mr. R.D. Bhuibhar, learned counsel appearing on behalf of the petitioner, has raised two fold contentions before this Court. Firstly, the review application filed by the respondent No. 3-Collector before the respondent No. 2-Divisional Commissioner was not maintainable, because a review application, if at all, could have been filed only before the Additional Commissioner, who had passed the original order. According to the learned counsel, the powers to be exercised by the Commissioner by a notification issued by the State Government under Section 13(4) of the Code of 1966 were delegated the power to the Additional Commissioner. It was contended that once the Delegated Authority (Additional Commissioner) had exercised the power, an application for review should have been entertained only by the said Authority and not by the Commissioner. On this basis, it was submitted that the impugned order was without jurisdiction and that on this ground itself the Writ Petition deserved to be allowed. In fact, the maintainability of the present Writ Petition was also supported on this ground that as the impugned order passed by the respondent No. 2-Divisional Commissioner was an order passed without jurisdiction, it could be interfered in writ jurisdiction by this Court under Article 226 of the Constitution of India. Secondly, it was submitted on merits that the petitioner never received purported notice dated 12.2.2014 issued by the respondent No. 3-Collector calling upon the petitioner to deposit the balance bid amount. Secondly, it was submitted on merits that the petitioner never received purported notice dated 12.2.2014 issued by the respondent No. 3-Collector calling upon the petitioner to deposit the balance bid amount. This was so found by the Additional Commissioner while allowing the appeal filed by the petitioner and that the respondent No. 2-Divisional Commissioner, wrongly proceeded on the basis that such a notice had been duly served. It was submitted that no material was placed on record by the respondent No. 3- Collector to show that such a notice was ever served on the petitioner thereby showing that any action pursuant thereto was illegal and wholly unsustainable. It was also pointed out that in the case of another auction pertaining to a sand ghat within the same district, the respondent No. 3- Collector had indeed issued a separate notice to the petitioner (highest bidder in that case also) for depositing the balance bid amount after the Environmental Clearance Certificate had been received. On this basis, it was submitted that the practice followed by the respondent No. 3-Collector was that after such Environmental Clearance Certificate was received, the highest bidder was called upon to deposit the balance bid amount within 15 days. Therefore, it was submitted that respondent No. 3-Collector should not have insisted upon Clauses mentioned in the Government Resolution dated 12.3.2013. Hence, on merits also the impugned order was assailed on behalf of the petitioner. The learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in the Case of State of Orissa and Ors. Vs. Commissioner of Land Records and Statement, Cuttack and Ors. reported in 1998 (7) SCC 162 . 10. Per contra, Ms. Swati Kolhe, learned Assistant Government Pleader appearing on behalf of the respondents submitted that the contention of the petitioner that the review application could have been heard only by the Additional Commissioner was not justified and that the power exercised by the Divisional Commissioner was nothing but power vested with the Commissioner and that therefore, a power that could have been exercised by the delegate could certainly be exercised by the principal himself. On this basis, it was submitted that the impugned order could not have been said to be without jurisdiction and if the said contention was accepted, the present Writ Petition was not maintainable, in view of availability of alternative remedy to the petitioner to file revision application before the State Government under Section 257 of the Code of 1966. It was further submitted that a perusal of the Government Resolution dated 12.3.2013 and the clauses incorporated in the document, whereby the process of auction was set into motion would show that no separate notice was required to be issued to the highest bidder like the petitioner, because time limits were specified in the aforesaid Government Resolution. It was submitted that the initial amount was required to be deposited by the highest bidder on the very day of the auction and the balance amount was to be deposited within 15 days thereafter. It was also specified in the Government Resolution that, if there was failure on the part of the highest bidder to deposit the balance amount and the re-auction was required to be undertaken, the loss that would occur to the revenue would be recovered from such highest bidder, who had failed to deposit the balance amount in the first place. It was submitted that since the petitioner had admittedly failed to deposit the balance bid amount within 15 days from 9.1.2014, the order dated 17.1.2015 passed by the respondent No. 3-Collector was justified and that the Writ Petition deserved to be dismissed. 11. Heard learned counsel for the parties and perused the material on record. In the present case, it is evident that after the auction was undertaken and the petitioner was found to be highest bidder in January-2014, he did deposit the initial amount as required. Thereafter, it was claimed on behalf of the respondents that a notice dated 12.2.2014 was issued to the petitioner for depositing the balance bid amount. The Additional Commissioner, in his order dated 22.4.2016, has found on facts that there was nothing to show service of the said notice dated 12.02.2014 on the petitioner. Even before this Court, the respondents have not been able to adduce any material to show that the said notice was indeed served on the petitioner. The Additional Commissioner, in his order dated 22.4.2016, has found on facts that there was nothing to show service of the said notice dated 12.02.2014 on the petitioner. Even before this Court, the respondents have not been able to adduce any material to show that the said notice was indeed served on the petitioner. Yet, in the impugned order dated 9.2.2018, the respondent No. 2-Divisional Commissioner had proceeded on the basis that such a notice was duly served on the petitioner. Therefore, the error on facts committed by the respondent No. 2-Divisional Commissioner is evident. Hence this Court is proceeding on the basis that the notice dated 12.2.2014 was never served on the petitioner. It was only on 24.2.2014 that notice was issued to the petitioner to deposit the balance bid amount immediately on the next day on 25.2.2014. As noted above, this was subject matter of challenge before this Court and by order dated 13.10.2014 passed by Division Bench of this Court, the respondent No. 3-Collector was directed to give a fresh hearing to the petitioner before passing any order. 12. But in the meanwhile, fresh auction proceeding was undertaken on 3.3.2014 and the fresh auction process had resulted in the highest bid amount being much less than the offer that was made by the petitioner in the first place. On this basis, while granting fresh hearing, pursuant to the order of this Court, the Collector in his order dated 17.1.2015 held that the petitioner had failed to satisfy the requirements of the Government Resolution dated 12.3.2013 and that since he had failed to deposit the balance bid amount within stipulated period, he was responsible for the loss suffered by the revenue on account of re-auction of the sand ghats. Therefore, the petitioner was directed to deposit the difference amount and he was also blacklisted. The question whether the petitioner could be held liable for payment of the difference of bid amount and whether he was liable to be blacklisted depends upon the determination by this Court on the contentions raised by the rival parties in respect of strict adherence to Government Resolution dated 12.3.2013 and the clause contained therein. But, the said aspect concerns merits of the matter and before rendering any findings thereon, it would be appropriate to first deal with the pure question of law raised on behalf of the petitioner. 13. But, the said aspect concerns merits of the matter and before rendering any findings thereon, it would be appropriate to first deal with the pure question of law raised on behalf of the petitioner. 13. The said question has been raised on behalf of the petitioner based on the judgment of the Hon'ble Supreme Court in the case of State of Orissa and Ors.. Vs. Commissioner of Land Records and Statement, Cuttack and Ors. (supra). In the present case, it needs to be examined whether, the review powers exercised by the respondent No. 2- Divisional Commissioner while passing the impugned order could at all have been exercised under the provisions of the Code of 1966 read with the notification issued by the State under Section 13(4) of the Code of 1966. It is an undisputed fact that the said notification delegated the power of the respondent No. 2-Divisional Commissioner, whereby the Additional Commissioner was empowered to entertain and decide the appeals, including the appeal filed by the petitioner in the present case under section 247 of the Code of 1966. Having exercised the powers so delegated on the Additional Commissioner the question is, as to whether a review application filed under Section 258 of the Code of 1966 could be entertained only by the said Officer or his successor or it could be entertained by the respondent No. 2-Divisional Commissioner, as the office of the Divisional Commissioner is indeed the Appellate Authority under the provisions of the Code of 1966. A similar question had arisen in the aforesaid judgment of the Hon'ble Supreme Court in the case of State of Orissa and Ors. Vs. Commissioner of Land Records and Statement, Cuttack and Ors. (supra), wherein the Commissioner had exercised powers and passed an order as a delegatee of the Board of Revenue. The revisional powers of the Board of Revenue were exercised by the Commissioner, as they were delegated to him. A review application was filed against the order passed by the Commissioner before the Board of Revenue and a question arose as to whether the review application would be maintainable only before the Commissioner as the delegatee or the Board of Revenue as the principal could also entertain such a review application. While considering the said question, the Hon'ble Supreme Court held as follows:- "Can the Board review an order passed by its delegate, the Commissioner? 28. While considering the said question, the Hon'ble Supreme Court held as follows:- "Can the Board review an order passed by its delegate, the Commissioner? 28. It may be argued that if the order of the delegate is tantamount to the order of the principal, then the principal can review such an order of the delegate. This appears to be plausible at first blush but is, in our opinion, not correct because of the intervention of another fundamental principle relating to 'review' of orders. The important principle that has to be kept in mind here is that a review application is to be made only to the same Judge or if he is not physically available to his successor. 29. The decision of the Privy Council in Maharajah Moheshur Singh v. Bengal Govt. to which reference was made by learned Senior Counsel, Shri T.L. Vishwanatha Iyer, is very apt in this connection. Adverting to the basic concept of review, it was observed by the Privy Council (p. 47): "It must be borne in mind that a review is perfectly distinct from an appeal; that is quite clear from all these Regulations that the primary intention of granting a review was a re-consideration of the same subject by the same Judge, as contradistinguished to an appeal which is a hearing before another tribunal." Their lordships added: "We do not say that there might not be cases in which a review might take place before another and a different Judge; because dealt or some other unexpected and unavoidable cause might prevent the Judge who made the decision from reviewing it: but we do say that such exceptions are allowable only ex necessitate. We do say that in all practicable cases the same Judge ought to review;" It is, therefore, clear that the same Judge who disposes of a matter, if available, must "review" the earlier order passed by him inasmuch as he is best suited to remove any mistake or error apparent on the face of his own order. Again, he alone will be able to remember what was earlier argued before him or what was not argued. In our opinion, the above principle is equally applicable in respect of orders of review passed by quasi-judicial authorities. 30. Again, he alone will be able to remember what was earlier argued before him or what was not argued. In our opinion, the above principle is equally applicable in respect of orders of review passed by quasi-judicial authorities. 30. In the light of the above, it is therefore clear that the Board of Revenue which never heard the case cannot review the order of the Commissioner, its delegate, passed under section 15 of the 1958 Act. In fact, if it does so, that will amount to the exercise of an indirect power of revision by the Board which is not permissible in the light of the rulings in Roop Chand's case and the case in Behari Kunj Sahakari Awas Samithi referred to above". 14. Applying the said position of law to the facts of the present case, it becomes at once clear that the respondent No. 2-Divisional Commissioner, in the present case could not have exercised review jurisdiction under Section 258 of the Code of 1966. Review application, if at all, could have been entertained only by the Additional Commissioner, who had passed the order or his successor in office. Therefore, it is found that the impugned order dated 9.2.2018 is liable to be set aside only on this ground. It is also relevant to note that while the Additional Commissioner had passed his order in favour of the petitioner, on 22.4.2016, the review application was filed by the respondent no. 3-Collector after about one and half years on 12.10.2017. This aspect was not even considered or referred to by the respondent No. 2-Divisional Commissioner in the impugned order. 15. Although this Court is convinced that the impugned order deserves to be set aside only on the aforesaid question of law raised on behalf of the petitioner, in order to satisfy its conscience, this Court has considered the merits of the order as well. 16. As noted above, there is nothing to show that notice dated 12.2.2014 purportedly issued by the respondent No. 3-Collector was ever served on the petitioner. Therefore, there was nothing to show that the procedure adopted in other cases, including an auction in which the petitioner was found to be the highest bidder for another sand ghat was followed. 16. As noted above, there is nothing to show that notice dated 12.2.2014 purportedly issued by the respondent No. 3-Collector was ever served on the petitioner. Therefore, there was nothing to show that the procedure adopted in other cases, including an auction in which the petitioner was found to be the highest bidder for another sand ghat was followed. In the present case, it becomes evident that the respondents were insisting upon the strict adherence to the clause of the Government Resolution dated 12.3.2013 only in this particular case pertaining to the petitioner. It would have been a different matter if the respondents would have placed on record material to show that in every such auction of sand ghat undertaken by them under the procedure established by Government Resolution dated 12.3.2013, they had insisted upon deposit of balance bid amount within 15 days of the date of auction. On the contrary, the practice was that the highest bidder was given specific separate notice granting time of 15 days to deposit the balance bid amount after the environmental clearance certificate was issued by the concerned department. This was also the procedure adopted in the case of the highest bidder in the re-auction of sand ghats. Even in the present case, the auction was admittedly conducted on 9.1.2014 and the first notice in the present case was issued on 12.2.2014. If the clause of the Government Resolution was to be followed strictly, there was no need at all to have issued the notice dated 12.2.2014, which was admittedly, well beyond the period of 15 days from 9.1.2014. Therefore, the material on record clearly shows that in the present case, the respondents did act arbitrarily and that there was no occasion for them to have blacklisted the petitioner and to have insisted upon the petitioner to deposit the difference amount. The Additional Commissioner, correctly found in his order dated 22.4.2016 that the order of the Collector dated 17.1.2015 was unsustainable. The impugned order dated 9.2.2018 of the respondent No. 2-Divisional Commissioner is therefore, found to be unsustainable even on merits. 17. In view of the above, the present Writ Petition is allowed and the impugned order dated 9.2.2018 is quashed and set aside and order of the Additional Commissioner dated 22.4.2016 stands revived. The impugned order dated 9.2.2018 of the respondent No. 2-Divisional Commissioner is therefore, found to be unsustainable even on merits. 17. In view of the above, the present Writ Petition is allowed and the impugned order dated 9.2.2018 is quashed and set aside and order of the Additional Commissioner dated 22.4.2016 stands revived. Consequently, respondent No. 3-Collector shall refund the amount that was deposited on 9.1.2014 by the petitioner within a period of six weeks from today. No costs.