2023:BHC-AS:37869 Arjun IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2210 OF 2023 Rajendra Shivkumar Pawar & Ors. …Petitioners V/s.

Sanjay Bhau Dalvi & Ors. …Respondents __________________________________________________________

Mr. P. G. Lad, for the Petitioners.

Mr. Yogesh D. Keny, for Respondent Nos.1 to 4.

Mr. S. D. Rayrikar, AGP, for the Respondent Nos.5 & 6-State. __________________________________________________________

CORAM : MADHAV J. JAMDAR, J.

DATED : DECEMBER 11, 2023 JUDGMENT :

1.

Heard Mr. Lad, learned Counsel appearing for the Petitioners, Mr. Keny, learned Counsel appearing for Respondent Nos.1 to 4 and Mr. Rayrikar, learned AGP for the Respondent Nos.5 and 6-State.

2.

The Petitioners have challenged the Order dated 12th August 2022 passed by the Sub-Divisional Offcer, Kalyan Division, Kalyan in Tenancy Appeal No.9 of 2019 (“impugned Order”). By the impugned Order, the Sub-Divisional Offcer has rejected the Petitioners’ Application by which an objection to the jurisdiction of the Sub-Divisional Offcer to hear the said Appeal, was raised. In the said Appeal, the challenge was to the legality and validity of the Order dated 16th May 2017 passed by the Tahsildar, Kalyan in the proceeding fled under Section 32-P of the Maharashtra Tenancy and Agriculture Lands Act [Act No.

LXVII of 1948] ("Tenancy Act").

3.

It is the contention of Mr. Lad, learned Counsel appearing for the Petitioners that under Section 74 of the Tenancy Act an Appeal challenging the Order passed by the Mamlatdar lies before the Collector. He further pointed out Section 2 (2-E) of the Tenancy Act which defnes the term ‘Collector’, and contended that the Appeal fled before the Sub-Divisional Offcer is without jurisdiction and, therefore, not maintainable.

4.

Mr. Rayrikar, learned AGP has pointed out the Reply dated

13th June 2023 fled on behalf of the Respondent Nos.5 and 6. It is his contention that the Government of Bombay by Circular dated 6th June 1951 empowered the Prant Offcer, i.e. Sub- Divisional Offcer to exercise all powers of a Collector. He therefore submitted that there is no substance in the challenge to the present Writ Petition. Mr. Keny, learned Counsel appearing for Respondent Nos.1 to 4 also supported the learned AGP.

5.

For considering the rival submissions, Section 74 of the Tenancy Act is very important. The relevant portion of said Section 74 reads as under:-

“74. Appeals.—(1) An appeal against the orders of the Mamlatdar and the Tribunal may be fled to the Collector in the following cases—

(a) to (ma)……….

(mb) an order under Section 31, 32-F, 32-G, or 32-P (n) to (w)……….

(2) Save as otherwise provided in this Act, the provisions of Chapter XIII of the Bombay Land Revenue Code, 1879, shall apply to appeals to the Collector under this Act, as if the Collector were the immediate superior of the Mamlatdar or the Tribunal. The Collector in appeal shall have power to award costs.”

Thus, as per said Section 74, an Appeal against the orders passed by the Mamlatdar in the cases wherein orders are passed under Sections which are more particularly set out in the said Section 74, are to be fled before the Collector. Said Section 74 includes an order passed under Section 32-P and as the impugned Order in the Appeal fled before the Sub-Divisional Offcer arises out of Section 32-P, the Appeal lies before the Collector in terms of said Section 74.

6.

The defnition of the Collector as defned under Section 2(2-

E) of the Tenancy Act, on which Mr. Lad, learned Counsel has heavily relied, reads as under:-

“2. Defnitions.—In this Act, unless there is anything repugnant in the subject or context,—

(2-E) "Collector" includes an Assistant or Deputy Collector performing the duties and exercising the powers of the Collector under the Bombay Land Revenue Code, 1879, or any other offcer specially empowered by the State Government to perform the functions of the Collector under this Act;”

The defnition of ‘Collector’ includes an Assista