2014 Supreme(Bom) 2204

IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
S.B. Shukre, J.
Anjali - Appellant
Vs.
Sub-Divisional Officer and Ors. - Respondents
Civil Rev. Appln. No. 75 of 2014
Decided On: 07.11.2014

Headnote:Mamlatdar’s Courts Act, 1906 - Section 23(f) Revision Maintainability of. - Since Sub-Divisional Officer did not consider on availability of other cogent evidence in this case and passed impugned order, revision filed against such impugned order was held to be maintainable and thus it was allowed. There is also available on record some other evidence, which is of the sale deed, which specifically refers to existence of access way and oral evidence of two witnesses, namely, Bhagwan Tajne, the seller of land to the applicant and one ’M’, both of whom asserting existence of access way. Evidence of these witnesses has been found by the mamlatdar, upon a detailed assessment, to be probabilising the case of the applicant and the assessment has not been shown to be perverse or arbitrary.

       Sub-Divisional Officer has not at all considered the availability of other cogent evidence in this case as discussed above, which is another illegality committed by him. He appears to have only examined the matter through a narrow compass of spot inspection reports, that too incorrectly, and refusal of prayer for personally visiting and inspecting the spot by the Mamlatdar. Result of such an approach adopted by the Sub-Divisional Officer is passing of an illegal, perverse and improper order leading to miscarriage of justice. It is bad in law and in excess of the jurisdiction conferred upon the competent authority under Section 23(2) of the said Act, 1906 and, therefore, needs to be interfered with.

       Mamlatdar’s Courts Act, 1906 - Section 23(f) Revisional jurisdiction Determination. - The finding of fact can be interfered with while exercising revisional jurisdiction under Section 23(2) by a competent authority. Of course, it findings recorded by mamlatdar serves the purpose of miscarriage of justice order of mamlatdar on ground of propriety in revisional jurisdiction can be interfered with. Appreciation of evidence in exercise of revisional powers in a manner as if the revisional proceedings are appeal proceedings is not permissible. The revisional power is required to be exercised only within the prescriptive limits of the power conferred by the Legislature. If the section which confers the power prescribes that a revision would lie against an order so as to enable the revising Court to examine the legality or propriety of the order sought to be as sailed by prefering revision application, the power has to be exercised only in the manner it is intended to be exercised by the Legislature. In other words, the limits which have been laid down in the section conferring such a power cannot be exceeded.

       From the langauge of Section 23(2) of the said Act 1906 it becomes crystal clear that the Collector or the competent authority has been conferred with power only with a view to examining the legality and propriety of lower Court’s order and nothing more. The words "illegal or improper" used in this sub-section are significant and they confine the scope of examination to legality or propriety of the order assailed. While the word ’legality’ connotes lawfulness or strict adherence to law or legal principle or prescription or doctrine, the expression ’propriety’ is understood as referring to fitness, appropriateness to the circumstances or conditions, conformity with requirement correctness, justness etc.

        In other words, a revisional Court has to see whether the impugned order is consistent with law or though generally conforming to law, whether the order conforms to the demands of justice as accentuated by the facts glaring in the face of record. Such inquiry would rule out re-appreciation of evidence, unless the finding of fact is arbitrary or perverse and confine itself to only legality, correctness and justness of the order. This would mean that finding of fact based upon some consideration of evidence available on record cannot be gone into.

       If the finding of fact is not based upon the evidence available on record or is based upon some extraneous material or is the result of non-consideration of material facts established on record, it would be a finding which is arbitrary and perverse and, therefore, against the well-settled principles of law set out earlier. Only in such a case that the finding of fact can be interfered with while exercising revisional jurisdiction under Section 23(2) by the competent authority. Of course, if the conclusions recorded by the Mamlatdar result in miscarriage of justice, that would be another reason available to the competent authority for interfering with the order of Mamlatdar on the ground of propriety in revisional jurisdiction. 1968 Mh LJ 494Ref. to.