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IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
Z.A. Haq, J.
Nago Hari Zangte – Appellant
Vs.
State of Maharashtra – Respondent
Writ Petition No. 2977/2012
Decided On: 17.11.2014
Maharashtra Land Revenue Code, 1966 - Sections 143(4) and 247 Right of way. - Though award of Lok Adalat in a dispute as to right of way, not showing names of signatories and that respondents have accepted terms of compromise, respondents can prosecute legal remedies. - The copy of the award dated 27th January, 2008 does not show the names of the signatories on the terms of compromise. The advocate for the petitioners have produced the Xerox copy of the award which shows two signatures. The advocate for the petitioners is not in a position to point out as to who agreed to the terms of compromise and who has signed the terms of compromise pursuant to which the award came to be passed. In any case even if the contentions of the petitioners are to be accepted that the parties cannot be permitted to resile from compromise arrived at before the Loknyayalaya, the terms of compromise does not show that the respondents 5, 6 and 7 have accepted the terms of compromise. Therefore, the respondents 5, 6 and 7 cannot be deprived of the opportunity of prosecuting the legal remedies only on the ground that a compromise was arrived at before the Loknyayalaya when there is nothing on the record to show that all the three respondents (respondents 5, 6 and 7) have accepted the terms of compromise and have signed on the terms of compromise before the Members of the panel of the Loknyayalaya. In these facts, the judgment given by the Hon’ble Supreme Court in the case of Punjab and another v. Jalour Singh and others, 2008 All SCR 692 does not assist the petitioners.
Case Details: - High Court of Bombay at Nagpur Bench, Z.A. Haq, J., Writ Petition No. 2977/2012, decided on 17.11.2014. (!)
Subject Matter: - Land dispute concerning right of way.[judgement_subject]
Relevant Provisions: - Maharashtra Land Revenue Code, 1966: Sections 143(4), 143(5), 247.[judgement_act_referred] - Limitation Act, 1963: Section 5 (condonation of delay).[judgement_act_referred] (!) (!) (!)
Factual Background: - Petitioners filed application before Tahsildar claiming right of way through fields of respondents 6 and 7; Tahsildar allowed it on 7th September, 2007.[4000497050003] - Lok Adalat award dated 27th January, 2008 purportedly recorded compromise for Tahsildar to examine and recommend way.[4000497050003][4000497050005] - Respondent No. 5 and wife filed civil suit under Section 143(4) on 30th June, 2009 challenging Tahsildar order; delayed, condonation application rejected, suit dismissed.[4000497050003] (!) [4000497050008] - Respondents 5, 6, 7 filed appeal under Section 247 before Sub-Divisional Officer (dismissed); Additional Collector allowed appeal on 29th December, 2010, remitted for fresh enquiry; Commissioner upheld.[4000497050002] (!)
Ruling on Lok Adalat Award: - Award copy does not show names of signatories to compromise terms; no evidence respondents 5, 6, 7 accepted or signed it.[4000497050005] - Respondents 5, 6, 7 not bound; entitled to pursue legal remedies.[4000497050005]
Ruling on Maintainability of Appeal under Section 247 vis-à-vis Civil Suit under Section 143(4): - Civil suit by respondent No. 5 and wife dismissed as time-barred, not on merits; respondents 6 and 7 filed no suit.[4000497050006] - Section 143(5) bars appeal/revision only if civil suit "instituted" under Section 143(4); "institute" means to begin/commence suit. (!) (!) - Delayed suit not instituted until condonation application under Limitation Act Section 5 granted; court lacks jurisdiction pre-condonation; suit not registered.[4000497050008][4000497050009] (!) - Condonation application not part of civil suit itself.[4000497050009]
Outcome: - No interference with Additional Collector's remand order; no material irregularity.[4000497050010] - Writ petition dismissed; parties bear own costs.[4000497050010]
Z.A. Haq, J.
1. Heard Shri A.B. Mirza, the learned advocate for the petitioners, Ms Tajwar Khan, the learned A.G.P. for the respondents 1 to 4 and Shri M.P. Kariya, the learned advocate for the respondents 5 and 6.
2. Rule. Rule made returnable forthwith.
3. The petitioners have challenged the order passed by the learned Additional Collector by which the appeal filed by the respondents 5, 6 and 7 is allowed and the matter is remitted to the Sub-Divisional Officer for fresh enquiry and decision. The petitioners have also challenged the order passed by the learned Additional Commissioner rejecting the revision filed by the petitioners and upholding the order passed by the learned Additional Collector.
4. The petitioners had filed an application before the Tahsildar claiming right of way for their fields through southern side of field Gat Nos.141/1, 141/2, 137 and 138 owned by the respondents 6 and 7. The Tahsildar by the order dated 7th September, 2007 allowed the application filed by the petitioners and granted right of way as sought by the petitioners. The petitioners relied on the award which according to them has been passed by the Loknyayalaya on 27th January, 2008 recording that the parties have agreed that the Tahsildar, Ralegaon would examine the factual position on the spot and would recommend the way and the parties would accept that. According to the petitioners after the award passed by the Loknyayalaya, the respondent no.5 and his wife filed the civil suit under Section 143(4) of the Maharashtra Land Revenue Code, 1966 challenging the order passed by the Tahsildar on 30th June, 2009 granting right of way to the petitioners. As there was delay in filing the civil suit, an application praying for condonation of delay came to be filed.
The learned trial Judge rejected the application filed by the respondent no.5 praying for condonation of delay in filing the civil suit and consequentially, the civil suit is also dismissed.
Simultaneously, the respondents 5, 6 and 7 filed appeal before the Sub-Divisional Officer challenging the abovementioned order on 30th June, 2009. The Sub-Divisional Officer dismissed the appeal. The respondents 5, 6 and 7 filed appeal before the Additional Collector which came to be allowed by the order dated 29th December, 2010 as stated above. The revision filed by the petitioners challenging the above mentioned order is dismissed. The petitioners have therefore, filed this writ petition.
5. Shri Mirza, the learned advocate for the petitioners has submitted that the respondents 5, 6 and 7 having settled the matter before the Loknyayalaya and pursuant to the settlement the award having been passed, it is not open for the respondents 5, 6 and 7 to go beyond the settlement and challenge the order passed by the Tahsildar granting way as claimed by the petitioners. In support of his submission, the learned advocate has relied on the judgment given by the Hon'ble Supreme Court in the case of State of Punjab & Anr. V/s. Jalour Singh & Ors. reported in [2008] 2 SCC 660. In addition, it is submitted that the respondent no.5 having filed the civil suit under Section 143(4) of the Maharashtra Land Revenue Code challenging the order passed by the Tahsildar, the appeal under Section 247 of the Maharashtra Land Revenue Code challenging the same order is not maintainable. Reliance is placed on the judgment given by this Court in the case of Jaglal s/o Premlal Jayaswal and another V/s. Waman s/o Premlal Jayaswal and another reported in 2008(4) Mh.L.J. 467 and in case of Smt. Shantabai W/o Bhagwan Patil and & Others V/s. Bhagwan S/o Revanand Patil & Others reported in [2011] 1 Mh.L.J.481.
6. The copy of the award dated 27th January, 2008 does not show the names of the signatories on the terms of compromise. Shri Mirza, the learned advocate for the petitioners have produced the xerox copy of the award which shows two signatures. The learned advocate for the petitioners is not in a position to point out as to who ag
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