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2011 Supreme(Bom) 821
2011(6) ALL MR 744
IN THE HIGH COURT OF JUDJCATUREAT BOMBAY (NAGPUR BENCH)
R.M. SAVANT, .J.
Khatijabi w/a Ahmed Rajkotwala – Appellant
Vs.
Abdul Rauf s/o Abdul Sattar & Ors. – Respondent
Writ Petition No.2066 of 2011
Decided On: 19th July, 2011.
Mr. ANAND DESHPANDE, Adv. for the Petitioner.
Mr. A.S. CHANDURKAR with Mr. J.M. GANDHI, counsel for Respondents 1 to 3.
Mr. P.V. BHOYAR, AGP for Respondents 4 to 7
Headnote:Maharashtra Land Revenue Code, 1966 - Section 247-Appeal-Maintainability of-Scope of Section 247 of Act-Appeal and Revisional Proceedings-Scope of is different-Authority would have to be alive to jurisdiction which it was exercising.-In view, since the scope of an appeal and revisional proceeding is different the authority would have to be alive to the jurisdiction which it was exercising. In the instant case the authority has proceeded on the premise that it was dealing with an Appeal and not a Revision and in the said context has dealt with the matter. May be if the proceedings were to be a Revision the approach of the authority would have been different.
MAHARASHTRA LAND REVENUE CODE, 1966 - Sections 247(1) and 257(1) - Jurisdiction of Commissioner. Since Commissioner, has no jurisdiction to entertain third appeal in view of proviso to Section 247(1) of Act hence Commissioner also has no revisional jurisdiction under Section 257(1) of Act.
A revenue entry made by the Talathi was challenged in an appeal preferred before the Sub-Divisional Officer under Section 247 of the Maharashtra Land Revenue Code, 1966. On said appeal being dismissed further appeal under Section 247 of the Code was filed before the Additional Collector who allowed the same. The party aggrieved filed further appeal before the Additional Commissioner who allowed said appeal. In writ petition by the aggrieved party, it was urged that in view of provisions of Section 247 of the Code, a third appeal was not tenable before the Additional Commissioner. On behalf of the successful party, it was urged that as the Additional Commissioner was vested with both appellate as well as revisional powers, the order impugned could be construed as one passed by said authority in exercise of revisional powers.
As the scope of an appeal and revisional proceeding was different, the authority would have to be alive to the jurisdiction which it was exercising. It was possible that if the proceedings were to be a revision the approach of the authority would have been different. Impugned order set aside and proceedings remanded with liberty to convert appeal into revision application.
Rule. With the consent of the parties, made returnable forthwith and heard.
2. The above petition takes exception to the order dated 19.11.2010 passed by the Additional Commissioner, Amravati Division, Amravati by which order, the appeal tiled by the respondents 1 to 3 herein came to be allowed and the order passed by the Addl. Collector dated 22.9.2009 came to be set aside.
3. Shorn of unnecessary details, a few facts can be stated thus:
The dispute in the above petition is as regards the mutation entry in respect of survey No. 28/2 (New Gut No. 92) admeasuring 6 H 98R of village Nimbi, Tq. Balapur, Dist. Akola. Suffice it to say that an entry in the revenue record came to be made in favour of the respondents 1 to 3 by the Talathi, by order dated 25.6.1998. Against the said order, the petitioners herein tiled an Appeal before the Sub-Divisional Officer which came to be dismissed by the order dated 17.10.2008. Against which, the petitioner filed a further Appeal under section 247 of the Maharashtra Land Revenue Code (in short "the Code") before the Additional Collector which came to allowed by the Additional Collector by the order dated 22.9.2009, which resulted in the respondents filing further Appeal before the State Government under the same provisions, which came to be allowed by the impugned order dated 19.11.2010 and the entries effected in favour of the petitioners came to be set aside in respect of the said land in question.
4. The principal ground of challenge to the impugned order is that the third appeal is not maintainable under section 247 of the Code as the respondents 1 to 3 had already exhausted two appeals - one before the SDO and second before the Additional Collector. To this, Mr A.S. Chandurkar, learned counsel appearing for respondents 1 to 3 submitted that initially the proceedings filed before the SDO were in the nature of an application against the entries made by the Talathi by his order dated 25.6.1998 and, therefore, the said proceeding cannot be equated with an appeal. Learned counsel for the respondents would further contend that the instant proceedings were tried by the Additional Commissioner who is vested with both the powers of appeal as well as revision under section 247 of the Code and, therefore, even though the proceeding was styled as appeal, it could be construed as an order passed in a Revision Application filed under sec. 247 of the Code.
5. Insofar as the submissions of the learned counsel for respondents 1 to 3 are concerned, it is required to be noted that the proceedings filed before the SDO were in the nature of Appeal in as much as the preface of the said proceeding itself discloses the SDO has proceeded on the basis that he was dealing with an Appeal and, therefore, the proceedings filed before the Additional Commissioner which were admittedly treated as an Appeal were not maintainable in the scheme of the Code wherein a third appeal is not contemplated. Insofar as the submissions of the learned counsel for respondents 1 to 3 that the order passed can be construed as one passed in the revisional jurisdiction. In my view, since the scope of an appeal and revisional proceeding is different the authority would have to be alive to the jurisdiction which it was exercising. In the instant case the authority has proceeded on the premise th<\t it was dealing with an Appeal and not a Revision and in the said context has dealt with the matter. May be if the proceedings were to be a Revision the approach of the authority would have been different.
6. The judgment cited on behalf of the respondents 1 to 3 of the Apex Court to the effect that merely mentioning of a wrong provision would not invalidate a order, in the fact situation of the present case, would not be applicable. In that view of the matter, the impugned order dated 19.11.2010 would have to be set aside and the matter would have to be relegated back to the Additional Commissioner and the petitioners and respondents 1 to 3
