JUDGMENT
A.B. Naik, J.
1. In this petition the petitioner sought
following reliefs. :
“(A)Call for the Record and Proceedings of
Rev. Revision
No.RTS-5391/CR-199/L-6/CR-44/93, A & R.
from the Respondent No.ls Office i.e. from
the Officer on Special Duty and Secretary,
(Appeals and Revision), Revenue and Forest
Department, Government of Maharashtra,
Bombay, and
(B)The writ petition be allowed and the
impugned judgment and order passed by the
respondent No.l on 2.ll.1993 vide Exhibit
H be set aside and to sanction the
rectification of ROR entries in favour of
the petitioner i.e. Mutation No.666 vide
Exhibit C” based on the actual possession
of the land in question.”
2. Few facts that are necessary to be
considered in deciding this writ petition. The
respondents herein/original revision petitioner filed
revision Application U/s 257 of the Maharashtra Land
Revenue Code before the Additional Commissioner,
Aurangabad Division, Aurangabad in which the present
petitioner was the opponent. The parties will be
referred to as per their description before the
Revisional authority i.e. State Government and they
will be referred to hereinafter as revisional
petitioner and opponent.
3. Land S.No.86 admeasuring 33 acres 37
gunthas situate at village Ahmedpur, Taluka Ahmedpur,
District Latur. (hereinafter referred to as the suit
land) was admittedly owned and possessed by one Babu
Teli, who died leaving behind him three sons. It is
the case of the parties that after death of Babu Teli
the land was divided amongst the brothers on the
basis of the fertility of the land. It appears from
the record that intimation was given to the revenue
authorities as required U/s 149 of the Maharashtra
Land Revenue Code (hereinafter referred to as
Code). Pursuant to the said intimation, Tahsildar
conducted spot inspection some time in the year 1964
and he noticed that the division was not equal and
rejected the theory of partition and ordered that
each brothers had equal share in the suit land. On
the basis of the decision of the Tahsildar a mutation
entry has been taken and certified on 5.ll.1964 being
mutation entry No.299. Vide this mutation entry the
names of three brothers i.e. the sons of deceased
Baburao Teli were recorded in respect of the suit
land in equal shares.
4. This position was continued till 1979 and
in the year 1979 the opponent Sambhappa gave an
application to Tahsildar that he was cultivating
S.No.86/1/3 admeasuring l hectare 58 Ares but on that
portion the name of his brother Bandappa is recorded
in Kabjedars column, and he requested the Tahsildar
to delete the name of Bandappa and record his name as
Kabjedar in 7/12 extract in respect of that portion
of the suit land.
5. The Tahsildar on the basis of the said
application conducted an enquiry and by his order
dated 9th September 1981 rejected the application
filed by the opponent. Being aggrieved and
dissatisfied with the order dated 9th September 1981
passed by the Tahsildar rejecting the application,
the opponent preferred an appeal before the
Sub-Divisional Officer, Udgir being Appeal
No.1981/ROR/128 (Ahmedpur MENo.666). This appeal
came to be allowed by the Sub-Divisional Officer,
Udgir by his judgment and order dated 15.7.1985 and
ordered that, name of the opponent in the record of
rights as owner of land Gat No.86/1/3 to the extent
of l hectare and 54 Ares to be recorded.
6. Feeling aggrieved by the judgment and
order passed by the Sub-Divisional Officer, Udgir, the
revision petitioners preferred appeal before the
Collector U/s 247 of the Code. When the appeal filed
by Bandappa was pending before the Collector, he died
and his heirs and legal representatives were brought
on record and they continued the litigation
thereafter. The Additional Collector, Latur by his
judgment and order dated 28.6.1988 dismissed the
appeal and confirmed the order passed by the
Sub-Divisional Officer.
7. On dismissal of appeal by the Additional
Collector, heirs of Bandappa, preferred revision
Application being Case No.88/Rev./R-59 U/s 257 of the
Code and the Addl. Commissioner dismissed the
revision application and confirmed the order of the
Addl. Collector, Latur.
8. On dismissal of the Revision by the
Addl. Commissioner, heirs of Bandappa i.e. Revision
Petitioner preferred Second Revision before the
Government of Maharashtra invoking the revisional
jurisdiction U/s 257. Admittedly, the said revision
application is heard and decided by the Officer on
Special Duty and Secretary (Appeals and Revision),
Revenue and Forest Department, Government of
Maharashtra, Mantralaya, Mumbai.
9. Curiously enough the IInd Revisional
authority upset all the three judgments delivered by
the Sub-Divisional Officer, Additional Collector and
the Additional Commissioner, and, by a cryptic order
allowed the revision application by his judgment and
order dated 2lst October 1993. This order is subject
matter of this writ petition.
10. Shri R.D. Deshpande, learned advocate
appearing for the petitioner has raised following
contentions :
(i) Second revision U/s 257 is not at all
maintainable and the Officer on Special Duty has
exceeded his jurisdiction in entertaining the Second
Revision.
(ii) Even if it is held that 2nd Revision
application is tenable the 2nd Revisional Authority
exceeded jurisdiction and interfered with the
findings of three authorities, that too without
assigning any reasons for his decision. Passing of
cryptic order shows non-applicatoin of mind by the
Second Revisional authority.
(iii) The Officer on Special Duty has no
jurisdiction to entertain Second Revision U/s 257 of
the Code when the revisional petitioners have already
exhausted remedy by filing a revision U/s 257 which
was heard and decided by the Additional Commissioner,
who has confirmed the order passed by the
Sub-Divisional Officer and the Additional Collector.
iv) Even if it is held that Second Revision is
competent before the State Government, but as the
same is heard by the Officer on Special Duty who has
no jurisdiction to hear and decide the revision U/s
257 r/w the Rules of Business framed under Article
166 of the Constitution of India.
v) Shri Deshpande submitted that U/s 257
party can invoke jurisdiction at one stage and the
second revision at the instance of the said party is
not maintainable and the entertainment of such
revision therefore, amounts to an error apparent on
the face of record and the authority who has
exercised it lacks the inherent jurisdiction to
entertain the Second Revision. To substantiate his
contention the learned advocate Shri Deshpande,
placed reliance on the unreported judgment of this
Court by the learned Single Judge (R.M. Lodha, J.) in
W.P.No.4l68/98 decided on 18.2.1999 (A.I.R. 1963 Supreme Court 1503, and 2002 Vol.I Maharashtra Law Journal 854).
.
11. Per Contra, Shri B.N. Patil, learned
advocate has contended that considering the true
import of Section 257, there is no restriction or
prohibiting the State Government to entertain Second
Revision. Shri Patil, contended that the Additional
Commissioner who has decided the first revision is a
delegatee exercising delegated powers of the
Government. The Revisional power has been exercised
by the Additional Commissioner in his jurisdiction
U/s 257 which also permits the State Government to
exercise the revisional power independently,
irrespective of the fact that a revision entertained
and decided by the Commissioner U/s 257 of the Code
by the same party. Shri Patil, in other words
contended that it is permissible for the State
Government to exercise revisional power as the
statute does not pohibit or limits number of the
revisions. To substantiate these contentions Shri
Patil, placed reliance on the judgment of this Court
reported in 1997 Vol.2 Maharashtra Law Journal 252.
Shri Patil, further contended that the question of
maintainability of the revision before the O.S.D.
was not at all raised by the opponent when the
revision was being heard and now it will be
impermissible for him to make grievance before this
Court and this Court may not ponder on that question
and declare that order as invalid. Shri Patil,
relied on a judgment of this Court reported in 2000
Maharashtra Law Journal 115 and submitted that the
Second Revision was competent and as the Revisional
authority has considered all the aspect and then
interfered in the order passed by the authorities
below. Shri Patil, in alternate contended that now
the parties have approached the Civil Court for
getting their rights decided therefore, this Court
may not entertain this writ petition and leave the
parties to abide by the outcome of the Civil Suit
which is pending before the competent Civil Court.
Shri Patil, contended that these proceedings are in
respect of mutation of name in Revenue Register which
do not confer any title or creates or distinguish any
right in respect of the property in question and
ultimately the parties have to go to Civil Court to
establish their rights.
12. Now I will consider the rival contentions
in detail. Taking last contention of Mr. Patil, first
regarding nature of the proceedings of the mutation
entries, there cannot be any quarrel as the question
is already settled by the judgment of the Apex Court
reported in 1996 Vol.I Mh. L.J. 209. I need not
poinder much on the said issue. It is always open
for the parties to get their rights decided before
competent Civil Court. I would have considered this
aspect of the matter if the Second Revisional
authority would have directed the parties to abide by
the orders of the Civil Court but having not done so
but Second Revisional authority interfered in the
finding recorded by the three authorities below I
have to decide this petition as it is on merit. and
to consider whether the finding recorded by Second
Revisional authority was proper and whether the 2nd
revisional authority has jurisdiction to interfere in
the finding of fact recorded by two appellate
authorities and confirmed by the Divisional authority
in lst revision. In view of this, it will not be
proper to dismiss this writ petition on the ground
that the parties have already approached Civil Court.
13. In order to appreciate the above said
contentions, it will be necessary to refer to some
provisions contained in the Code. The Land Revenue
Code enacted to prove land revenue in the State of
Maharashtra. Chapter 10 deals with land records and
Chapter XIII deals with Appeal, Revision and Review.
Section 148 and Section 149 of the Code deals with
record of rights. As per Section 148 the record of
rights to be maintained in every village and which
will include names of all persons (other than the
tenants) who are holders, occupation owners or
mortgages of the land as lessees, rent or revenue
payable etc.
It is not disputed in the present case
that on death of Babu Teli the parties (three sons of
Babu Teli) set up a theory of partition and applied
for the mutation entries, as per the requirement of
Section 148, way back in the year 1964. In those
proceedings it revealed by the Tahsildar that the
partition and/or division as alleged by the parties
being unequal he ordered to correct the record vide
mutation entry No.299 by providing 3 equal shares to
the parties. It is not disputed that the said entire
was corrected, and entered in record of rights and
from that date till 1979 the position did not change.
Section 247 provides for an appeal and the
appellate authorities which reads thus :
“247.Appeal and appellate
authorities :- (1) In the absence of any
express provisions of this Code, or of any law
for the time being in force to the contrary,
an appeal shall lie from any decisoin or
order passed by a revenue or survey officer
specified in column l 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 of order of the officer
specified in column l 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 should
lie to such other officer competent to decide
the appeal to whom it may be transferred
under the provisions of this Code.”
Section 248 provides for an appeal to
the State Government in some cases referred for in
that Section. Section 249 provides for an appeal
against an order of revision. Section 250 provides
for limitation for filing an appeal. Section 251
permits the appellate authority to entertain the
appeal after the period of limitation. Under Section
252 some orders are not made appealable. Section 253
makes a provision to entertain the appeal when the
last day for filing the appeal is Sunday or Holiday.
Section 255 provides the power of appellate
authority. By virtue of Section 256 the appellate
authority can stay the order challenged in the
appeal. Under section 257 a revision can be filed by
the aggrieved party. In this petition the question
arose about the scope of revisional jurisdiction, it
will be appropriate to reproduce Section 257 which
reads thus :
“257. (1) The State Government and any
revenue or survey officer, nor inferior in
rank to an Assistant or Deputy Collector or
a Superintendent of Land Records, in their
respective departments, may call for and
examine the record of any inquiry or the
proceedings of any subordinate revenue or
survey officer, for the purpose of
satisfying itself or himself, as the case
may be, as to the legality or propriety of
any decision or order passed, and as to the
regularity of the proceedings of such
officer.
(2) A Tahsildar, a Naib Tahsildar, and a
District Inspector of Land Records may in
the same manner call for an examine the
proceedings of any officer subordinate to
them in any matter in which neither a formal
nor a summary inquiry has been held.
(3) If in any case, it shall appear to the
State Government, or to any officer referred
to in sub-section (1) or sub-section (2)
that any decision or order or proceedings so
called for should be modified, annulled or
reversed, it or he may pass such order
thereon as it or he deems fit:”
It is the case of the opponent that though he was in
possession of l hectare and 54 Ares the name of
Bandappa was recorded as an occupant. This
application was enquired into as per Section 149. On
enquiry the Tahsildar found that :
“The record further shows that the pot Hissa
of the land S.No.86/1/C measuring 10/13
gunthas was in the name of Sambappa and
thereafter it was sold to Ramchandra
Vithalrao and others. The real relief
claimed by the applicant. The correction of
the entries in the pot Hissa Survey record.
This court is not competent to correct the
entries of the record preferred by the pot
Hissa Survey Officer. The proper remedy to
the parties in the present matter is to get
the Pot hissa remeasured and correct the
record by the said authority.”
With these observation the Tahsildar held that he being
incompetent to give any relief and accordingly, the
application came to be rejected. The rejection by the
Tahsildar was challenged by filing appeal U/s 247 of the
Code.
Dt.18.12.2002
14. The opponent then approached the
Sub-Divisional Officer Udgir by filing appeal. The
learned Deputy Collector, heard the parties at
length, considered the evidence on record and found
that the entries which are made in the revenue record
are contrary to the factual position. Considering
this aspect the learned S.D.O. allowed these appears
and set aside the order dated 9.9.1981. The learned
Deputy Collector i.e. S.D.O. while allowing the
appeal recorded the following finding :
“The facts discussed above and the
documentary evidence on record left to the
conclusion that the present entries in the
revenue record are contrary to the factual
position. It is clear that the appellant is
owner in possession of 15 acres 17 gunthas
of land. No land is left with the
respondent so far. No 86. The disputed
portion of 3 Acres 32 gunthas is held and
possessed by the appellant. The revenue
record needs to be corrected accordingly.
The Lower Court has erred in holding that
the appellant claims the relief to correct
the Pot Hissa record. In fact, the relief
claimed by the appellant is correction of
record of rights for which the lower court
was quite competent.”
15. Being aggrieved by the order passed by the
S.D.O. Udgir, on 15.7.1985 the Revisional
petitioners preferred Second Appeal U/s 247 of the
Code before the Additional Collector, Latur. The
Addl. Collector on considering the evidence produced
before the parties held that the evidence which is
produced on record goes in favour of the opponent.
This observation has been made by the Addl. Collector
on scrutiny of the available documents produced by
the parties. With these observations the appeal came
to be dismissed and the order passed by the S.D.O.
came to be confirmed. Accordingly, the
Addl. Collector, Latur by his judgment and order dated
28.6.1988 dismissed the appeal and confirmed the
order passed by the S.D.O. Udgir.
16. Feeling aggrieved by the judgment and
order dated l5.7.1985 passed by the S.D.O. Udgir and
order dated 28.6.1988 passed by the Addl. Collector,
Latur revision petitioners preferred revision before
the Addl. Commissioner, Aurangabad Division,
Aurangabad US 257 of the Code. The learned
Additional Commissioner on proper analysis of the
evidence on record found that the order of the
Addl. Collector the first appellate Court being valid
and correct, dismissed the revision application
confirming the orders which were challenged before
the Additional Commissioner Aurangabad Division,
Aurangabad.
17. Feeling aggrieved by the judgment and
order dated 20.2.1991 by the Revisional authority,
the revision petitioners approached the State
Government invoking the jurisdiction U/s 257 by
filing Second revision. The second revision was
heard by the Officer on Special Duty and he allowed
the revision by the order dated 20th October 1991.
While reversing the order passed by the three
authorities below, he found fault with the
Addl. Collector and Addl. Commissioner by observing
that they have unnecessarily based their judgments on
the affidavit filed by the parties. He also recorded
a finding that the partition deed is not a partition
deed at all. With these observations he allowed the
revision application by recording the following
finding :
“I have gone through the record of the case
and find that the order passed by the
Addl. Collector land Additional Commissioner
are very cryptic. They have unnecessarily
based their judgment on this affidavit of
the revision applicants. The partition deed
is not a partition deed at all. It does not
state the shares of each brother. Secondly,
this so called partition on fertility basis
has already been rejected by tahsildar in
1964, and tahsildars order becomes final as
it had not been challenged by other party.
The sub Divisional Officer has gone beyond
this jurisdiction to delete the name of the
applicant from Kabjedar column and to record
the name of the present opponent in his
place. The overwhelming documentary
evidence is in favour of revision
applicants. The order passed by the lower
authorities are not based on sound
judgment.”
18. As I disposed of the last submission of
learned counsel Shri Patil, now it will be
appropriate for me to consider the submissions of the
learned advocate Shri R.D. Deshpande, he made a
grievance that the second revisional authority had
interfered in the finding of fact recorded by three
authorities by considering the evidence on record.
He submitted that in a second revision the revisional
authority i.e. State Government can not reappreciate
the evidence and interfere in the finding so
recorded. Interfering in the finding of fact by
second revisional Court itself is a ground to
interfere with in this writ petition. It is true
that Sub-Divisional Officer, Addl. Collector and the
Addl. Commissioner have concurrently recorded a
finding in favour of the present petitioner by
observing that the revenue record is not in
consonance with the factual aspect and they have
directed to correct the revenue entries. Therefore,
in my judgment the second revisional authority as
such exceeded its jurisdiction in entertaining the
said application and interfering with the finding of
fact. By close scrutiny of Section 257 it is clear
that a revisional authority has to consider the
legality propriety of decision or order impugned.
From the order of Officer on Special Duty it is clear
that there is no satisfaction recorded by the O.S.D.
about legality or propriety of the order. The tenor
of the order shows that the O.S.D. has treated the
proceedings before him as an appeal, which is not the
scope of Section 257. On this aspect the grievance
of the learned advocate Shri Deshpande, is required
to be accepted.
19. Coming to the much debated question raised
by both the learned advocates regarding tenability of
the second revision U/s 257 and the question whether
the Officer on Special Duty can decide revision
application U/s 257. So far as the hearing of the
revision filed before the State Government by the
Officer on Special Duty is concerned, in my judgment
the question is concluded by the judgment of this
Court in Vinaykumar Kachrulal Abad Vs. Honourable
Minister, Revenue and Forest Department, Mantralaya,
Mumbai reported in 2002 (1) Maharashtra Law Journal
854). The question which is raised in this petition
has squarely fell for consideration before this Court
while considering the said issue. The learned single
Judge (Khandeparkar, J.) posed the following question
for his consideration :
“Who is the competent authority under
section 257 of the Maharashtra Land Revenue Code,1966
to hear and decide the revision application when the
same is filed before the State Government.”
The case of Vinaykumar can be summarised
as follows :
“4. Some times in the year, 1996 the
petitioner claiming to be owner and
possessor of part of the property bearing
Survey No.555, situated at Jalna obtained
order for conversion of land to Non
Agriculture use., In fact, the order to that
effect was passed by the Collector, Jalna on
1.7.1996. The said order of conversion of
land for Non Agriculture use was sought to
be challenged by predecessors of the
respondents No.3 to 15 by filing an
application before the Collector, Jalna but
the same was dismissed by the Collector on
10th April, 2000. Thereafter, on 11th
April, 2000, the respondent Nos.2 to 15
filed an application for cancellation of the
permission granted to the petitioner for
conversion of the land for Non Agriculture
purposes to the extent of the part of the
land claiming the same to be belonging to
the said respondents. The Collector allowed
the said application by order dated 14th
September, 2000. The same was sought to be
challenged by the petitioner by filing writ
petition No.4975/2000, which was allowed by
this Court and the order dated 14th
September, 2000 was quashed and set aside
while permitting the respondents No.2 to 15
to withdraw the proceedings before the
Collector, making it clear that the
withdrawal would not affect the legal rights
of the respondent No.2 herein in the
proceedings pending in the Civil Court, in
Civil Suit No.168/98 as well as before the
revenue authorities and the withdrawal was
permitted without prejudice to the rights
and contention of the respective parties.
The respondents No.2 to 15 thereafter, on
17th January, 2001 filed appeal before the
Additional Commissioner – respondent No.17
herein challenging the permission granted
for the Non Agriculture use of the land by
the petitioner alongwith the application for
condonation of delay in filing the appeal.
The application for condonation of delay was
objected to by the petitioner. However, the
respondent No.17 by his order dated
13.3.2001 condoned the delay of four and
half years in filing the appeal. Being
aggrieved, the petitioner filed the revision
application under Section 257 of the Code.
The same came to be heard by the Minister of
State (Revenue and Forest Department) on
23rd March, 2001 and on the very day, the
order admitting the revision application and
granting order of status quo for fifteen
days came to be passed. The matter was
fixed for hearing on 11th April, 2001.
Meanwhile, on 29.3.2001, the Desk Officer in
the Revenue and Forest Department, placed
the matter before the Cabinet Minister
(Revenue) with a note inviting the order of
the Cabinet Minister on the point as to the
procedure to be followed in the matter,
particularly, in relation to the hearing of
the matter, i.e. whether it should be heard
by the Cabinet Minister or by the Minister
of State and in relation to continuation or
discontinuation of order of status quo. The
Cabinet Minister thereupon, on 13th April
2001, vacated the order of status quo passed
by the Minister of State and further
observed that till the decision of the
Additional Commissioner, the concerned
authorities should take precaution against
the alienation or sale of the property in
question. The said order was also
communicated to the petitioner by letter
dated 19th April, 2001 by the Desk Officer
or Revenue and Forest Department.
Consequent thereto, the matter before the
appellate authority was taken up by the
Deputy Commissioner, Aurangabad for hearing
on 24th April, 2001 but, was adjourned at
the request of the petitioner; however,
simultaneously, the order to maintain status
quo was granted. The further hearing was
fixed in the matter on 25th June, 2001.
Meanwhile, the present petition came to be
filed on 24th April, 2001. Since the order
of 24th April, 2001 before the lower
Appellate Authority was passed subsequent to
the filing of the petition, the same was
sought to be brought to the notice of this
Court by filing Civil Application No. 3750 of
2001.
5.The first ground of challenge in the
matter relates to the jurisdiction of the
Cabinet Minister to hear and decide the
revision application under section 257 of
the Code. According to the petitioner, the
jurisdiction to hear and decide the revision
application under Section 257 of the Code
vests in the Minister of State and not in
the Cabinet Minister and, therefore, the
order the dated 13th April, 2001 passed by
the Cabinet Minister is ab initio bad in law
and therefore, the said order and the
communication dated 19th April, 2001 by the
Desk Officer are to be quashed and set
aside. Attention is drawn in that regard to
the various provisions of the Maharashtra
Government Rules of Business, and
Instructions issued thereunder. Reliance is
also placed in the decision of the Division
Bench of this Court in the matter of
Ganeshrao Kishanrao Deshmukh Vs.
Devisingh Venkatasingh and others . On
the other hand, it is sought to be contended
on behalf of the respondent No. l as well as
the other respondents that the Rules of
Business duly empower the Cabinet Minister
who is the Minister in-charge, of the
department concerned, to hear and decide the
revision application filed under the said
Code and, therefore, no fault can be found
with the impugned order or communication
thereof.”
On the above said facts this Court has considered the
rules of business framed under Article 166 of the
Constitution of India and considering the rules of
business this Court came to the conclusion that the
Officer on Special Duty has no jurisdiction to hear
and decide the appeal. This Court observed thus :
“6.Section 257 of the Code empowers the
State Government and certain other revenue
officers to call for and examine the records
and proceedings before the subordinate
officers and to pass appropriate order in
such matters. In exercise of powers
conferred by clauses (2) and (3) of Article
166 of the Constitution of India, the
Government of Maharashtra has framed the
Maharashtra Government Rules of Business by
order dated 26th June, 1975. Rule 15
thereof provides that those rules may to
such extent as necessary be supplemented by
instructions to be issued by the Governor on
the advice of the Chief Minister.
Accordingly, the necessary instructions were
issued by order dated 7th May, 1964. In
terms of those instructions under clause
l(v), “Minister-in-charge” means the
Minister appointed by the Governor to be in
charge of the department of Government to
which a case belongs. Clause 4 therein
provides that except as otherwise provided
in those instructions, cases shall
ordinarily be disposed of by, or under the
authority, of the Minister-in-charge, who
may by means of standing orders give such
direction as he thinks fit for the disposal
of cases in the Department. Further, the
standing orders issued on 10th January, 2000
in accordance with the Rule 15 of the
Business Rules, read with Clause 4 of the
Instructions dated 7th May, 1964, provide
for distribution of work between the Cabinet
Minister and Minister of State.
Accordingly, the matters listed in Schedule
I are required to be dealt with exclusively
by the Cabinet Minister. The matters
enlisted in Schedule III are in Schedule II
are to be disposed of by the Cabinet
Minister through the Minister of State.
Item No. 12 of the Schedule III is a
residuary clause, which provides for all the
matters excluding the appeals and revisions
which are specifically reserved by the
Cabinet Minister for disposal by himself and
all other matters which are specifically
allotted to the Secretary, Joint Secretary
or an Officer on Special Duty for their
disposal and in relation to the matters
concerning revenue and forest department.
7. On perusal of the Rules of Business
framed on 26th June, 1975, the instructions
issued thereunder on 7th May, 1964 and the
Standing Order dated 10th January, 2000, it
is apparent that the revision applications
filed under section 257 of the Code, unless
they are specifically reserved for being
hearing by the Cabinet Minister, or they are
being allotted to be heard by the Secretary,
Joint Secretary or Officer on Special Duty
in accordance with Clause 12 of the Schedule
III of the Standing Order dated 10th
January,2000, are required to be heard and
decided by the Minister of State. In this
connection, it was sought to be contended by
the learned A.G.P. that by letter dated
13th July, 2001, it was clarified that the
petitioner in the case in hand, was required
to forward the revision application before
the Cabinet Minister and having not done so,
nothing prevented the Cabinet Minister from
calling the file for his consideration and
passing the impugned order. As already
stated above, the Rules of Business read
with Instructions and the Standing Order
referred to above, nowhere provide that the
revision applications filed under the Code
are invariably to be heard by the Cabinet
Minister.(underline is mine) The respondents
have not been able to point out any rule
having been framed making it obligatory for
the revision applicants to present the
revision application before the Cabinet
Minister alone, when such revision
applications are addressed to the State
Government. On the contrary, Clause 12 of
the Schedule III of the Standing order
specifically requires an order by the
Cabinet Minister to hear the revision
application either by himself or an
allotment of the matter for hearing by the
Secretary, Joint Secretary or an Officer on
Special Duty. No such specific order of the
Cabinet Minister is required for the purpose
of hearing of the matter by the Minister of
State as the Clause 12 of Schedule III
itself empowers the Minister of State to
hear all such matters except those are
excluded by the specific order by the
Cabinet Minister. There is no dispute that
the matter in question was not allotted for
being heard either by the Secretary or the
Joint Secretary or Officer on Special Duty.
The records nowhere discloses any order by
the Cabinet Minister reserving the matter in
question to be heard by himself. Besides,
the letter dated 13th July, 2001 by the Desk
Officer addressed to the Government
Advocate, copy of which is placed on record,
nowhere refers to any order by the cabinet
Minister for reserving the matter for
hearing by himself. Such an order is
necessarily to be by the Cabinet Minister
and mere explanation in that regard by the
Desk Officer can be of no assistance.”
At this juncture it will also be appropriate to refer
to the Full Bench decision of this Court in case of
Shaikh Mohammed Fatemohamed and etc. Vs. Raisuddin
Azimuddin Katil and others . The Full Bench of this Court was dealing
with the situation where the appeal which was filed
U/s 2-A of the Hyderabad Abolition of Inams and Cash
Grants Act was required to be heard by the State
Government meaning thereby the Minister incharge but
the said appeal was heard by the Officer on Special
Duty. The Full Bench after considering the
provisions of Section 2-A of the Hyderabad Abolition
of Inams and Cash Grants Act and also rules of
business framed under Article 166 held thus :
“That the quasi judicial functions would
be out of the purview of Art.166 much less that would
not be covered by the Rules of business under Rule
15.”
By observing this the Full Bench approved
the view taken by the Division Bench of this Court in
the case of Ganeshrao Kishanrao Deshmukh Vs.
Devisingh Venkata Singh . Considering the above judgment of this
Court dealing with the subject I am of the view that
the Officer on Special Duty has no jurisdiction to
hear and decide the revision filed U/s 257 of the
Code. On the judgments by this Court (supra) it will
have to be declared that the judgment delivered by
the Officer on Special Duty is thus without
jurisdiction.
20. Turning now to the question whether Second
Revision is maintainable U/s 257 of the Code. It is
not disputed before me that the proceedings initiated
on an application filed by the petitioner complaining
about the entries in the revenue record. Initially
Tahsildar conducted enquiry and rejected the
application, that rejection gave rise to the
respondents to invoke the jurisdiction of the
authorities by filing appeal as provided U/s 247.
Accordingly, First Appeal was filed before the S.D.O.
Udgir. Aggrieved by the decision of the S.D.O.
Second Appeal came to be filed before the Additional
Collector, Latur. Section 247 provides for two
appeals. This remedy is fully exhausted by the
Revision Petitioner. After decision of
Addl. Collector, Latur the revision petitioners
involved the jurisdiction of the Commissioner by
filing a revision application U/s 257. The
Additional Commissioner, Aurangabad Division,
Aurangabad disposed of the revision and then second
revision was filed under the same provision. I have
to find out from the Code whether it is permissible
for a party to file two revisions or successive
revisions as contended by Shri Patil, the learned
advocate for the respondent. As a matter of fact, in
my judgment the issue stands concluded in view of the
unreported judgment of the learned Single Judge of
this Court in W.P. No. 4168/98. The unreported
judgment relied on by Shri Deshpande, rendered by the
Single Judge on 18.2.1999 squarely answers the
contention raised by Shri Patil. The learned Single
Judge on considering the provisions of Section 257
held that there is no provision for second revision
U/s 257 of the Code. The said unreported judgment
again came for consideration before another learned
Single Judge in case of Ramesh T. Gopalani Vs. Janata
Sahakari Bank Ltd., Kalyan and another reported in
2000 (3) Maharashtra Law Journal 115. The learned
Single Judge (J.A. Patil, J.) was considering a
question of second revision filed before the
Government of Maharashtra U/s 154 of the Maharashtra
Cooperative Societies Act. While considering the
issue the judgment rendered by Lodha, J. (supra) was
considered. In case of Ramesh the judgment in
W.P. No. 2084/1999 delivered by Gokhale, J. was also
considered. On considering these two judgments and
considering the provisions of Section 154 of the
Maharashtra Cooperative Societies Act, the learned
Single Judge held that no second revision lies U/s
154. These judgments are relied on by Shri Patil,
regarding his contention that the question of
jurisdiction was not raised before the Officer on
Special Duty when the second revision was heard. He
relied on the observation made by the learned Single
Judge in Rameshs case in para 6 of the report. I
have given my anxious consideration to the
observation made in para 6. The said observations
are not useful or helpful to substantiate the
contention of Shri Patil, that the point regarding
maintainability of Second Revision was not raised
before the Officer on Special Duty. It is nodoubt
true that the learned Single Judge has relied on a
judgment of the Apex Court in Rukmini Amma Saradamma
Vs. Kallyani Sulochana and others . On perusing the fact of the
Apex Court judgment Rukminis case it can be
distinguished on the facts. In the present case what
was contended by Shri Deshpande, that the Officer on
Special Duty has no jurisdiction at all to entertain
the Second Revision for the above said two grounds
which are referred to earlier. Therefore, question
goes to the root of the jurisdiction of the
revisional authority and it is well-known that the
parties by consent cannot confer the jurisdiction on
a Court or authority which has no inherent
jurisdiction to deal with the case. In the present
case in view of the above said judgments of this
Court where, this Court has held that U/s 257 (a)
second revision is not permissible; (b) that the
Officer on Special Duty has no jurisdiction to decide
the revision application (even if it is first
revision). Therefore, the question is of the
jurisdiction of the Officer on Special Duty that is
challenged in this petition. Therefore, if the party
has not taken the objection before the S.D.O. that
does not mean and said that the Officer on Special
Duty has a jurisdiction to decide the Second
Revision. Merely because the point is not raised
before the authority, one cannot say that the said
party is precluded from raising the question or point
after ultimate result of the proceedings. In view of
this aspect, I am not impressed by the submission
made by Shri Patil, that the point regarding
jurisdiction was not raised shall not be allowed to
be raised in this writ petition. As the question
goes to the root of the matter. When it pertains to
the question of jurisdiction, this Court in a writ
petition filed under Article 226 and 227 has to
consider whether the authority which decided a matter
has in fact has jurisdiction or not, on reading
of Section 257 it is clear that there is no provision
for 2nd revision empowering the State Government to
hear and consider the judgment of a revisional
authority rendered U/s 257, in my judgment the State
Government has no jurisdiction to hear and decide a
revision against an order or judgment passed by a
revisional authority though that authority may be
inferior to the State Government. As such the point
raised in this writ petition will have to be
considered which accordingly I considered and held
that no second revision lies U/s 257 before the State
Government.
21. Shri Patil, invited my attention to the
Division Bench of this Court in case of Parmeshwar
Sihoratan Bohara and another Vs. State of
Maharashtra and another (1997 [2] Maharashtra Law
Journal 252). Shri Patil, contended that in
Parmeshwars case Division Bench of this Court was
called upon to consider the question whether under
Maharashtra Scheduled Commodities (Regulation of
Distribution) Order 1975 clause 24 – second appeal is
tenable. This Court after considering two judgments
of the Apex Court in Rukminis case (supra) and
Anudal Ammals case
considering the issue the Division Bench proceeded to
consider the provisions of Rule 24.
“6.Now, it becomes necessary to refer to
clause 24 of the Regulation.
“24. Power to call for and examine records
of proceedings and revise orders – If any
person is aggrieved by an order passed by
the Collector, the Commissioner, and if any
person is aggrieved by an order passed by
the Commissioner, the State Government, may,
on an application made to him, or it by the
aggrieved person, within thirty days from
the date of receipt of such order, stay the
enforcement of such order. The Commissioner
or the State Government, as the case may be,
may also call for and examine the record of
any inquiry or proceedings of the concerned
Officer exercising or failing to exercise
the powers under this order to add to,
amend, vary, suspend or cancel any
authorisation issued or deemed to be issued
under clause 3 or any supply card issued or
deemed to be issued under clause 6 or to
forfeit the deposit (or any part deemed
thereof) paid or deemed to be paid by a fair
price shop or authorised agent as security
or to take any other action under the
provisions prescribed by or under this
order, for the purpose of satisfying himself
or itself as to the legality or propriety of
the order passed by such officer, and as to
the regularity of the proceedings of such
officer and may pass such order thereon as
he or it, as the case may be, thinks fit:
Provided that State Government may at
any time, during the tendency of any inquiry
or proceedings or within one year from the
date of any order passed by any officer
under the provisions prescribed by or under
this order, suo motu stay any pending
inquiry or proceedings or the enforcement of
such order if considered necessary and may
call for and examine the record of any such
inquiry or proceedings, and pass such order
thereon as it thinks fit:
Provided further that the Commissioner
or the State Government, as the case may be
shall not pass any order under this clause
which adversely affects any person unless
such person has been given a reasonable
opportunity of being heard” (emphasis
supplied).
A plain reading of the said clause shows
that if a person is aggrieved by the order
passed by the Collector, revision will lie
before the Commissioner; and if one is
aggrieved by the order passed by the
Commissioner a revision will lie before the
State Government. We may at this juncture,
advert to the argument advanced by Shri
Deshpande, learned counsel to the effect
that a revision can lie only against the
orders passed under clauses 3 and 6 of the
Regulation. Clause 3 deals with issue of
authorisation to fair price shops to obtain
and supply scheduled commodities; and clause
6 deals with power to issue of supply card
to a person or class of persons. Clause 3
enjoins that such authorisation can be
issued by State Government or Collector, and
clause 6 says, the State Government or the
Collector may issue or cause to issue supply
card. According to the learned counsel,
since authorisation under clause 3 can be
issued either by the Collector or the State
Government, and in this case the order was
by the Sub-Divisional Officer, revision can
be entertained by the Commissioner. The
further contention appears to be, since the
Commissioner is not an authority mentioned
in clause 3 or 6 an order passed by him is
not revisable under clause 24 as according
to the learned counsel clause 24 speaks of
revision only with respect to orders under
clauses 3 and 6. The implication appears to
be, the order of the Commissioner, if at
all, can be corrected only under the lst
proviso to clause 24. And since according
to the petitioner, there was no material to
exercise the suo motu power under the said
proviso, the order rendered by the
Commissioner is not amenable to the power in
the said lst proviso also.
7. We are unable to accept the said
interpretation placed by the learned counsel
for more than one reason. First of all,
clause 24 specifically mentions that from
the order of the Collector, a revision shall
lie to the Commissioner; and from the order
of the Commissioner the aggrieved party can
maintain a revision before the State
Government.(underline is mine) It may be
that the Commissioner is not mentioned in
clause 3, but clause 24, which provides for
revision, specifically mentions the
Commissioner as a revisional authority. The
assumption that the revisional power of the
State Government does not take in order
passed by the Commissioner is not
sustainable in view of the language of
clause 24. It should not be forgotten that
once the revisional authority after hearing
the party confirms the order, that order
alone will be the effective order because of
the doctrine of merger. Once the revisional
authority confirms the order, the order of
the lower authority merges with the order of
the revisional authority; even otherwise the
order of the Commissioner in revision has to
be treated as an order under clause 3 of the
Regulation. What is significant is that
this aspect is taken care of in clause 24
itself because, as noted, clause 24 says the
appropriate authority can suspend or cancel
any authorisation issued or “deemed to be
issued under clause 3”. This, in our view,
in effect makes the order passed by the
Commissioner as one passed under clause 3;
and this can be attained even by the
operation of the theory of merger once the
contested matter is disposed of by the
Commissioner on a proper revision filed
before him. Here, as noted, clause 24
itself makes the order by the Commissioner
deemed to be one under clause 3 of the
Regulation.
8. Inasmuch as clause 24 does not contain
any statement as is obtained under
sub-section (5) of section 18 of Kerala Rent
Control Act making the order of the
Collector or Commissioner as final; on the
basis of the decision in ;
cited supra, it cannot be contended that
second revision cannot be maintained.
Clause 24, as noted, does not employ any
word so as to restrict its operation only to
one revision. This has to be understood in
the context of the fact that this order
itself was issued under sub-sections (1) and
(2) of section 3 of the Essential
Commodities Act, 1955. The preamble part of
the said Act states that the same is an Act
to provide, in the interest of the general
public, for the control of the production,
supply and distribution of, and trade and
commerce in, certain commodities. The
commodities that would fall within the ambit
of the Act are essential commodities and
essential commodities are defined under
clause (a) of section 2 of the Act. The
whole scope of the clauses in the Regulation
have to be understood in the context of the
aforesaid object of enacting the said Act
and also the promulgation of the Regulation.
It is pertinent in this context to note that
there is absolutely no challenge against the
validity of any of the provisions of the
said Act or regulation. We do not consider,
a restricted meaning can be assigned to the
power of revision under clause 24 firstly
because the language of the said clause does
not permit it, and secondly, the object of
the Act and Regulation also does not allow
such restricted interpretation. Neither the
words employed in clause 24 nor the context
support the interpretation sought to be
placed by the learned counsel for the
petitioners. It must be noted that one of
the objects of the Act and Regulation is to
control the distribution of essential
commodities. Distribution is as much
important as production. Proper
distribution with supervision by the
authority concerned is a must in securing
the object of the Act as well as Regulation.
Incidentally, it has to be noted that
Article 39(b) of the Constitution of India
also directs that the State shall, in
particular direct its policy towards
ownership and control of the material
resources of the community are so
distributed as best to subserve the common
good. In interpreting the provision in the
Act as well as in the Regulation one should
not miss the spirit underlining the said
provision under Article 39. The Regulation,
since is framed as per the provision in the
Act, is a subordinate legislation. The
legislative wisdom in enacting a provision
as clause 24 cannot be called in question.
The provision of further revision to the lst
respondent is thus competent and the only
question is, whether as per the language
used in clause 24, such revision is
possible. As has already noted, revisional
power is expressly conferred on the State,
there is no restriction in the clause which
would lead to a conclusion that further
revision to the State is any way
barred.”(underline is mine)
It is to be noted that this Court was considering
clause 24 of the Regulation. This Court in para 7 of
the report has quoted in extenso Clause 24.
Comparing the provisions of Rule 24 it will be clear
that plain reading of Section 257 of the Code, there
is no scope to come to the conclusion that there is
provision for second revision. Shri Deshpande, on
the other hand, placed strong reliance on the
Constitution Bench judgment of the Apex Court in Roop
Chand Vs. State of Punjab and another . In Roop Chands case the Apex
Court was considering certain provisions of East
Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act (Punjab 50 of 1948).
22. Shri Deshpande, learned advocate brought
to my notice the majority view whereby the Apex Court
while interpreting Section 42 of that Act held that
unless the statute specifically provides for a
revision, one cannot assume jurisdiction and
entertain the proceedings. The Apex Court thus held:
“7. It is now necessary to set out S.42 on
the interpretation of which this petition
depends. That section was amended by Act
XXVII of 1960 with retrospective effect and
it is the amended section that has to be
considered by us. The amended section is in
these terms :
Section 42.”The State Government
may at any time for the purpose of
satisfying itself as to the legality or
propriety of any order passed, scheme
prepared or confirmed or repartition made by
any officer under this Act call for and
examine the records of any case pending
before or disposed of by such officer and
may pass such order in reference thereto as
it thinks fit.”
8. The petitioners contention is that an
order which can be interfered with under
S.42 is an order passed under the Act by any
officer in his own right and not an order
made by the Government itself or by any
officer exercising powers of the Government
upon delegation under S.41(1).
9. The question really is as to the
meaning of the words “any order passed…
by any officer under this Act” in S. 42.
Do these words include an order passed by an
officer in exercise of powers delegated to
him by the Government under S.41(1)? We do
not think, they do.
10. Now, there cannot be much doubt that S.
42 makes a distinction between the
Government and an officer, because under it
the Government is given power to interfere
with an order passed by an officer and,
therefore, it does not authorise the
Government to interfere with an order made
by itself. As we understood the learned
Advocate General of Punjab, who appeared for
the respondent State of Punjab, he conceded
that position. He said that the Government
could no doubt have itself heard an appeal
preferred under S.21(4) instead of getting
it heard by an officer to whom it delegated
its power, and if it did so, then it could
not under S.42 interfere with the order
which itself passed in the appeal. We think
that this is the correct position, and we
wish to make it clear that we are not basing
ourselves on the concession made by the
learned Advocate General. We feel no doubt
that an order passed by an officer of the
Government cannot be an order passed by the
Government itself.”
11. The question then arises, when the
Government delegates its power, for example,
to entertain and decide an appeal under
S.21(4), to an officer and the officer
pursuant to such delegation hears the appeal
and makes an order, is the order an order of
the officer or of the Government? We think
it must be the order of the Government., The
order is made under a statutory power. It
is the statute which creates that power.
The power can, therefore, be exercised only
in terms of the statute and not otherwise.
In this case the power is created by
S.21(4). That section gives a power to the
Government. It would follow that an order
made in exercise of that power will be the
order of the Government for no one else has
the right under the statute to exercise the
power. No doubt the Act enables the
Government to delegate its power but such a
power when delegated remains the power of
the Government, for the Government can only
delegate the power given to it by the
statute and cannot create an independent
power in the officer. When the delegate
exercises the power, he does so for the
Government. It is of interest to observe
here that Wills J. said in Huth V., Clarke
(1890) 25 Q.B.D. 391 that ” the word
delegate means little more than an agent” An
agent of course exercises no powers of his
own but only the powers of his principal.
Therefore, an order passed by an officer on
delegation to him under S.41(1) of the power
of the Government under S.21(4), is for the
purposes of the Act, an order of the
Government. If it were not so and were to
be held that the order had been made by the
officer himself and was not an order of the
Government and of course it had to be one or
the other then we would have an order made
by a person on whom the Act did not confer
any power to make it. That would be an
impossible situation. There can be no order
except as authorised by the Act. What is
true of S. 21(4) would be true of all other
provisions in the Act conferring powers on
the Government which can be delegated to an
officer under S.41(1). If we are wrong in
the view that we have taken, then in the
case of an order made by an officer as
delegate of the Governments power under
S.21(4) we would have an appeal entertained
and decided by one who had no power himself
under the Act to do either. Plainly, none
of these things could be done.”
Considering the ratio of the Roop Chands case, it is
not disputed that appeal and or revision is always
creation of statute. The statute which provides for
remedy of appeal, the proceedings will be governed by
the said statute. On plain reading of Section 257 I
am of the view that there is no scope to hold that
second revision is provided under the said Section.
In my judgment therefore, the judgment of the
Division Bench of Rameshs case is not applicable on
the facts of this case as I am construing the
provisions of Section 257 of the Code which is not
para materia with Rule 24 of the Regulation 1975. In
view of this aspect, it is not possible for me to
accept the contention of Shri Patil and I reject the
contentions of Shri Patil.
23. To conclude I hold that Officer on Special
Duty has committed an error in interfering with the
finding of fact recorded by three authorities below;
(ii) The Officer on Special Duty has no jurisdiction
to hear and decide the revision applications filed
U/s 257.
(iii) The second revision is not tenable. In view of
this, the petition succeeds. The order passed by the
Officer on Special Duty on 2nd November 1993 is
quashed and set aside by issuing writ of certiorari.
Rule made absolute in terms of prayer clause (B).
24. Taking into consideration the close
relations of the parties, there will be no order as
to costs. It is informed at the bar that the parties
have already approached to the Civil Court to get
their rights decided. It is made clear that any
observation made by this Court or the authorities
below shall not mean and construe to decide the
rights of the parties. These proceedings are in
respect of taking entries in the revenue record. The
Civil Court is free to decide the suit on its own
merits without being influenced by the result of this
petition or by the proceedings taken by the parties
before the revenue authorities.