2023:BHC-AS:25862-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8086 OF 2017

1. Avinash Madhukar Kharat ) Age 41,Occu: Nil, ) R/o Kharatwadi, Tal Walwa, ) District Sangli ) 2. Dhanaji Rajaram Patil ) Age 45, Occu: Nil ) R/o Sakhrale, Tal. Walwa )

District – Sangli ) ….Petitioners V/s.

1.The State of Maharashtra ) through its department of ) Forest and Land Revenue ) 2.The State of Maharashtra ) through its department of ) Law and Justice ) 3. The Sub-Divisional Officer, ) Sangli, District- Sangli ) 4. Tehsildar ) Islampur, District- Sangli ) 5. The Collector )

Sangli, District – Sangli ) …Respondents ----

Mr. Ashutosh Kumbhakoni, Senior Advocate a/w Mr. Nilesh Wabale i/b Mr.Umesh Mankapure for Petitioner.

Mr. A.I. Patel, Addl. G.P. a/w Mr. K.S. Thorat, AGP for State-Respondents.

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CORAM : K.R. SHRIRAM &

DR. N.K. GOKHALE, JJ.

DATED : 31st AUGUST 2023 (ORAL JUDGMENT PER K. R. SHRIRAM J.) :

1. Petitioners are impugning an order dated 27^th April 2017 passed by Respondent No.3 – Sub Divisional Officer dismissing petitioner’s appeal that was filed under Section 247 of the Maharashtra Land Revenue Code, 1966 (the MLRC).

2. Petitioners had filed an appeal before Respondent No.3 under Section 247 of the MLRC impugning an order dated 31^st July 2016 passed by Respondent No.4. Petitioners appeal came to be dismissed by the impugned order dated 27^th April 2017, copy whereof is annexed at Exhibit “G” to the petition, on the grounds that petitioners did not deposit 25% of the amount payable as per first proviso to Sub Section (2) of Section 256 of the MLRC. The impugned order states that unless this 25% of amount payable is deposited even an appeal would not lie.

3. Mr. Kumbhakoni appearing for petitioners submitted that Section 247 of the MLRC that provides for Appeal and Appellate Authorities does not mention about any pre-deposit for filing the appeal or hearing of the appeal. Mr. Kumbhakoni submitted that pre-deposit will apply only when an party applies for a stay of execution of the order under Section 256 of the MLRC.

4. Mr. Patel appearing for respondents reiterated what Respondent No.3 has stated in the impugned order.

5. Section 247 and Section 256 of the MLRC read as under :

Section 247 – Appeal and appellate authorities (1) In the absence of any express provisions of the Code, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a Revenue or Survey Officer specified in column I of the Schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that Schedule whether or not such decision or order may itself have been passed on appeal from the decision or order of the officer specified in column I of the said Schedule :

Provided that, in no case the number of appeals shall exceed two.

(2) When on account of promotion or change of designation, an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against, the appeal shall lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this Code.

Section 256 - Stay of execution of orders (1) A Revenue or Survey Officer who has passed any order or his successor in office may, at any time before the expiry of the period, prescribed for appeal, direct the execution of such order to be stayed for such time as he thinks fit, provided no appeal has been filed.

(2) The appellate authority may, at any time, direct the execution of the order appealed from, to be stayed for such time as it may think fit:

[Provided that, where an order against which appeal is preferred involves payment of any amount to the Government, the execution of such order shall not be stayed unless the appellant deposits twenty-five per cent. of such amount payable to the Government under the order impugned:

Provided further that, in exceptional cases, the appe