Back
2009 Supreme(Bom) 878
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE P.B. MAJMUDAR & THE HONOURABLE MR. JUSTICE R.M. SAVANT
Gorai Machhimar Sahakari Sanstha Limited & Another
Versus
The State of Maharashtra through its Law and Judiciary Department & Others
WRIT PETITION NO.1202 OF 2001
Decided On : 18-07-2009
For the Petitioners:A.J. Almeida, Advocate. For the Respondents:R1, K.R. Belosay, “A” Panel Counsel, R3, V.C. Kotwal, Senior Counsel, with Prakash Shah, instructed by M/s. DSK Legal, Advocates.
The doctrine of merger does not apply where the review petition is dismissed and the original order is confirmed.
Headnote:
GORAI MACHHIMAR SAHAKARI SANSTHA LTD. & ANR. V. STATE OF MAHARASHTRA & ORS. - [LAND REVENUE CODE, 1966] - [SECTION 20(2), 257, 258] - [REVIEW OF ORDERS] - [LIMITATION] - [APPEAL] - [FRAUD] - [COLLUSION] - [PUBLIC INTEREST LITIGATION] - [LOCUS STANDI] - [DOCTRINE OF MERGER] - [KHASRA LAND] - [FISHING ACTIVITY] - [GOVERNMENT CIRCULAR] - [REVENUE ENTRIES] - [TITLE SUIT] - [WRIT JURISDICTION] - [ARTICLE 226] - [CONSTITUTION OF INDIA] - The petitioners, a cooperative society of fishermen and its president, challenged the order passed by the Revenue Minister, setting aside the order of the Commissioner and restoring the land in dispute to the 3rd respondent. The land in question was originally leased to one Shamrao Velkar for 999 years in 1885. The lease was terminated in 1944 for breach of conditions and the land was recorded in the name of the State Government. The heirs of Shamrao Velkar filed a partition suit in 1972, which was settled by a consent decree. The land was put to auction and purchased by the 3rd respondent in 1981. In 1986, the Sub-Divisional Officer conducted an inquiry under Section 20(2) of the Land Revenue Code and set aside the entry in the revenue record in favor of the State Government and restored it in favor of the 3rd respondent. This order was challenged by the Tahsildar and set aside by the Deputy District Collector. The Commissioner, on revision, set aside the orders of the lower authorities and restored the entry in favor of the State Government. The 3rd respondent filed a writ petition, which was dismissed. The 3rd respondent then filed a suit for declaration of title and possession. During the pendency of the suit, the Revenue Minister passed the impugned order allowing the appeal filed by the 3rd respondent and setting aside the order of the Commissioner. The petitioners contended that the impugned order was illegal as it was passed after a delay of more than eight years, that the appeal was time-barred, and that the Revenue Minister had misused his powers. The 3rd respondent contended that the order of the Commissioner merged with the order of the reviewing authority and that the petition was not maintainable. The Court held that the doctrine of merger did not apply in the instant case as the review petition was dismissed and the original order was confirmed. The Court also held that the petitioners had locus standi to challenge the order as they were entitled to carry on fishing activities in the land in question as per the government circular. The Court further held that the impugned order was illegal as it was passed after a delay of more than eight years, that the appeal was time-barred, and that the Revenue Minister had misused his powers. The Court quashed and set aside the impugned order.
Fact of the Case:
The petitioners, a cooperative society of fishermen and its president, challenged the order passed by the Revenue Minister, setting aside the order of the Commissioner and restoring the land in dispute to the 3rd respondent. The land in question was originally leased to one Shamrao Velkar for 999 years in 1885. The lease was terminated in 1944 for breach of conditions and the land was recorded in the name of the State Government. The heirs of Shamrao Velkar filed a partition suit in 1972, which was settled by a consent decree. The land was put to auction and purchased by the 3rd respondent in 1981. In 1986, the Sub-Divisional Officer conducted an inquiry under Section 20(2) of the Land Revenue Code and set aside the entry in the revenue record in favor of the State Government and restored it in favor of the 3rd respondent. This order was challenged by the Tahsildar and set aside by the Deputy District Collector. The Commissioner, on revision, set aside the orders of the lower authorities and restored the entry in favor of the State Government. The 3rd respondent filed a writ petition, which was dismissed. The 3rd respondent then filed a suit for declaration of title and possession. During the pendency of the suit, the Revenue Minister passed the impugned order allowing the appeal filed by the 3rd respondent and setting aside the order of the Commissioner.
Finding of the Court:
The Court held that the doctrine of merger did not apply in the instant case as the review petition was dismissed and the original order was confirmed. The Court also held that the petitioners had locus standi to challenge the order as they were entitled to carry on fishing activities in the land in question as per the government circular. The Court further held that the impugned order was illegal as it was passed after a delay of more than eight years, that the appeal was time-barred, and that the Revenue Minister had misused his powers. The Court quashed and set aside the impugned order.
Issues: 1. Whether the doctrine of merger applied in the instant case? 2. Whether the petitioners had locus standi to challenge the order? 3. Whether the impugned order was illegal?
Ratio Decidendi: 1. The doctrine of merger does not apply where the review petition is dismissed and the original order is confirmed. 2. Petitioners have locus standi to challenge the order if they are entitled to carry on fishing activities in the land in question as per the government circular. 3. An order passed after a delay of more than eight years, where the appeal was time-barred, and where the Revenue Minister misused his powers, is illegal.
Final Decision: The Court quashed and set aside the impugned order passed by the Revenue Minister.
Oral Judgment: (P.B. Majmudar, J.)
1. By way of this petition, the petitioners, Gorai Machhimar Sahakari Sanstha Limited and its President, have challenged the order passed by respondent No.2 dated 29th April, 1997, a copy of which is annexed as Exhibit-B to the petition, on the ground that the same is illegal. The petitioners have also made various prayers such as directing the respondents to allot the land in dispute i.e. Survey Nos. 268, 269, 270A and 270B in Gorai Village to the first petitioner society in accordance with the Government Circular dated 4th February, 1983. It is also prayed that respondent No.1 may be restrained from carrying on building, land reclamation or any other activity upon land bearing Survey Nos. 268, 269,270A and 270B in Gorai Village.
2. During the course of hearing of the petition, learned counsel for the petitioners has fairly submitted that though various reliefs have been claimed in the petition, he is confining the reliefs only in connection with the impugned order passed by respondent No.2, who at the relevant time was the Revenue Minister. It is submitted that regarding other prayers, the petitioners are not pressing the same with a view to take appropriate recourse as per law. In this petition, this Court is, therefore, required to only examine the legality and validity of the impugned order dated 29th April, 1997.
3. It is the case of the petitioners that the petitioners are vitally interested in the disputed land which is the subject matter of this petition on the ground that the said land in question is khazan land and that the same has been used by the members of the petitioner No.1 for the purpose of fishing activities. It is the case of the petitioners that by way of circular dated 4th February, 1983, the petitioners rights were recognized by the State. It is submitted that, however, because of the impugned order passed by the then Revenue Minister, respondent No.2 herein, respondent No. 3 is not allowing the members of the petitioner No.1 to carry out the fishing activities. It is the case of the petitioners that since fishing is their traditional avocation, they are carrying out the said activity since time immemorial and were using the land in question for activities connected with fishing but now the petitioners are prevented by respondent No. 3 from enjoying the said activities on the ground that the disputed land belongs to respondent No.3 and not of the ownership of the State Government. In order to appreciate the grievance of the petitioners, certain factual aspects which are not in dispute are required to be taken into consideration.
4. The lands in question i.e. Survey Nos. 268, 269,270A and 270B in Gorai Village were subject to a lease executed between the State and one Shri Shamrao Pandurang Velkar for a period of 999 years. The said lease deed was executed as back as on 16th June, 1885. In the year 1896, the State Government terminated the said lease on the ground that the lessee has committed breach of the terms of the said lease deed. The concerned lessee thereafter instituted proceedings in this Court by way of a suit on the ground that the lessee had not committed any breach of the terms of the lease. That suit was ultimately decreed in appeal by this Court by holding that the lessee had not committed breach of the terms of lease and it was found that the lease was valid and subsisting.
5. Subsequently, in the year 1944, the concerned District Collector forfeited the said land on the ground of breach of terms and conditions of the lease deed. On the basis of the same, mutation entry No. 470/44 in the name of the State was recorded in the revenue record and from the said date onwards, the name of the State appeared in the revenue record showing to be the owner and in occupation of the aforesaid lands in question.
6. After considerable time in the year 1972, a civil suit was filed by the heirs of late Shamrao Pandurang Velkar (original lessee) being Suit
