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2020 DIGILAW 767 (BOM)

Monte Carlo Company v. State of Maharashtra

2020-06-19

ANIL SATYAVIJAY KILOR, S.B.SHUKRE

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JUDGMENT : S.B. Shukre, J. 1. Hearing was conducted through Video Conferencing and the learned counsel agreed that the audio and visual quality was proper. 2. Heard Shri Bhandarkar, learned counsel for the petitioner and Shri Dharmadhikari, learned AGP for respondents/State who appears by waiving notice. 3. Rule. Rule is made returnable forthwith. By consent of the parties, petition is taken up for final hearing. 4. This petition takes an exception to the communication dated 9th March, 2020 issued by respondent No. 2 informing the petitioner that as the petitioner failed to deposit 25% of the amount payable to the Government in the matter, respondent No. 2, as an Appellate Authority could not entertain the appeal filed by the petitioner against the order dated 24th February, 2020 passed by respondent No. 3 under Section 247 of the Maharashtra Land Revenue Code, 1966 (hereinafter for short 'the Act, 1966'). 5. According to the learned counsel for the petitioner, the refusal to entertain the appeal by respondent No. 2 is patently illegal and, therefore, liable to be interfered with by this Court. 6. Mr. Dharmadhikari, learned AGP submits that whatever has been done by the respondent No. 2 is in accordance with the Government Resolution dated 1st March, 2017. 7. A similar issue was considered by a Co-ordinate Division Bench of this Court in Writ Petition No. 8353/2012 and while disposing of the petition by judgment dated 15th February, 2017, the Division Bench held that there is no power conferred upon any Appellate Authority under the Maharashtra Land Revenue Code, 1966 to insist upon a party to deposit 25% of the penalty or amount payable to the Government as a condition precedent for entertaining an appeal by it. The Division Bench further held that at the most, while exercising power to grant stay under Section 256 MLR Code, 1966, what the Appellate Authority can do is imposing of a suitable condition including a condition of furnishing of security. The relevant observations of the Division Bench as they appear in paragraphs Nos. 6 and 7 of the said judgment are reproduced as under:- "6. We have considered the submission. The Appeal preferred by the first Petitioner was under Section 247 of the said Code. There is no provision under the said Code which provides that any mount is required to be deposited by the Appellant as a condition precedent for entertaining an Appeal. We have considered the submission. The Appeal preferred by the first Petitioner was under Section 247 of the said Code. There is no provision under the said Code which provides that any mount is required to be deposited by the Appellant as a condition precedent for entertaining an Appeal. The purport of the Government Circular dated 8th March 2010 was that interim stay should not be mechanically granted by the Appellate Authority while entertaining an Appeal against an order directing payment of an amount. It was directed under the impugned Government Circular that the Appellate Authority should ensure that 50% of the amount demanded should be deposited. The Circular cannot be interpreted to mean that an Appeal under Section 247 of the said Code should not be entertained on the ground of non-deposit of 50% of the amount under demand. As the said Code does not provide for such a condition precedent for entertaining an Appeal, on the basis of the said Circular such a condition could not have been imposed. As stated earlier, the purport of the Circular was that a blanket stay should not be granted as a matter of course. Now, the said Government Circular dated 8th March, 2010 has been withdrawn. 7. The power of the Appellate Authority or the Revisional Authority to grant stay is under Section 256 of the said Code. Under sub-section (5) of Section 256 of the said code, the Appellate Authority while exercising the power of granting stay of impugned order is empowered to impose such condition as it deems fit including a condition of furnishing security". 8. Thus, the issue is well settled and it is clear that no Appellate Authority appointed under Section 247 of MLR Code can refuse to entertain an appeal filed under that Section on the ground that certain percentage of amount payable to the Government has not been deposited by the appellant. It is a different matter that when it comes to exercise of its discretion to grant stay to the order under challenge in the appeal filed under Section 247 of the MLR Code that the Appellate Authority may impose a condition of depositing 25% of amount or alternatively furnishing of security by the appellant for stay of effect and operation of the order impugned before it. 9. 9. The above referred position prevailed till amendment was introduced to Section 256 of the MLR Code by the Government Resolution dated 1st March, 2017 issued by Revenue Forest Department, Mantralaya, Mumbai. The effect of the amendment is that now it is mandatory for the Appellate Authority, which considers the question of grant of interim stay to the order under challenge or otherwise, to impose a condition regarding deposit of the amount payable to the government in certain percentage up to maximum of 25% of the amount payable to Government. This amended provision has different provisos which make the position clear. First proviso lays down that where an order against which appeal is preferred involves payment of any amount to the Government, the execution of such order shall not be stayed unless the appellant deposits 25% of such amount as is payable to the Government under the order impugned. However, this condition has been toned down in another proviso which comes into play when an exceptional case is made out by the appellant and in an exceptional case, the appellate authority may suitably reduce deposit of amount, but while doing that, the reasons are to be recorded. So, the condition of certain percentage of pre-deposit subject to maximum limit as stated earlier applies only when question of grant of interim stay is under consideration and that it is not necessary that in all the cases, the Appellate Authority must impose the condition of deposit of 25% of the amount payable to the Government. In exceptional case, a further discretion has been granted to the Appellate Authority to reduce the percentage of such pre-deposit suitably, however, reasons for the same are required to be recorded in writing. This amended provision does not incorporate any further discretion in the Appellate Authority to impose alternately a condition of furnishing of the security. The discretion is limited to only decide upon the percentage of pre-deposit subject to maximum limit of 25% while granting stay of the order impugned before it. 10. This amended provision does not incorporate any further discretion in the Appellate Authority to impose alternately a condition of furnishing of the security. The discretion is limited to only decide upon the percentage of pre-deposit subject to maximum limit of 25% while granting stay of the order impugned before it. 10. Having considered the purport of the provisions contained in the amended Section 256, we have no doubt that the action of respondent No. 2 in not even entertaining the appeal for the reasons stated in the impugned communication is inconsistent with the provisions of Section 246 of the MLR Code and, therefore, it is now necessary that suitable direction is given to the respondent No. 2 regarding entertaining of the appeal. 11. Accordingly, we allow the petition partly. The impugned communication is quashed and set aside. 12. Respondent No. 2 is directed to entertain the appeal filed by the petitioner under Section 247 of the MLR Code. We further direct respondent No. 2 to hear the application filed by the petitioner for grant of interim stay and decide the same, on its own merit, in accordance with law and if respondent No. 2 decides to grant the application, such conditions as are consistent with Section 256 provisions can be imposed by him. The application for grant of stay shall be decided on merits by respondent No. 2 within two weeks from the date of appearance of petitioner/appellant before him. The petitioner-appellant is directed to appear before respondent No. 2 on 29th June, 2020 at 11 AM either through its representative or advocate. We direct that till the application for grant of stay is decided finally, the demand notice dated 19.05.2020 shall not be acted upon. 13. Rule is made absolute in the above terms. No costs. 14. This order be communicated to the learned counsel appearing for the parties, either on the email address or on the WhatsApp or by such other mode, as is permissible in law. It be uploaded on official website too.