1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2957 OF 2008 Ganpat S/o Dagadu Dhas } Age : 64 Years, Occ. : Agriculture, } Through its power of attorney } Vikram S/o Ganpat Dhas } Age : 42 Years, Occ. Agriculture, } R/o : Mulukwadi, Tq. Dist. : } Beed. } .... PETITIONER V E R S U S Kisan S/o Pandurang Dhas } ( Since deceased ) } Through L.Rs. : } 1. Padminibai W/o Kisan Dhas } Age : 58 Years, Occ. Agriculture } R/o : Mulukwadi, Tq. & Dist. } Beed. } 2. Tukaram S/o Kisan Dhas } Age : 30 Years, Occ. Agriculture, } R/o : Mulukwadi, Tq. & Dist. } Beed. } 3. Sakharam S/o Kisan Dhas } Age : 28 Years, Occ. Agriculture, } R/o : Mulukwadi, Tq. & Dist. } Beed. } 4. Pandurang S/o Sakharam Dhas } Age : 26 Years, Occ. Agriculture, } 2 R/o : Mulukwadi, Tq. & Dist. } Beed. } 5. The State of Maharashtra } Through the Chief Secretary } and Officer on Special Duty (Appeals) Revenue & Forest Department, } Mantralaya, Mumbai. } .... RESPONDENTS Mr. A.K.Tikale, Advocate holding for Mr. V.D.Salunke, Advocate for Petitioner. Mr. N.N.Jadhav, A.G.P. for State – Respondent No. 5. Mr. M.K.Deshpande, Advocate for respondent no. 2 & 3.. CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 03/03/2010 ORAL JUDGMENT : 1. By this petition, the petitioner impugns Order No. Con./4106/CR/147/L-1/CR/173 (12)/2007/A & R dated 24/1/2008 rendered by the learned Additional Chief Secretary and Officer on Special Duty (Appeals) Revenue and Forest Department, Mantralaya, Mumbai. 2. The petitioner alleges that he is owner of agricultural 3 lands, which were originally recognized as S.Nos. 56 and 78 situated at village Mulukwadi. The area of the said two ( 2 ) lands was 2 H. 71 Rs. He alleges further that both the lands were consolidated as G.No. 459 during implementation of the Consolidation Scheme. According to him, there was a clerical mistake while implementing the Consolidation Scheme. Resultantly, the area of his land was shown as 1 H. 69 Rs. instead of 2 H. 71 Rs. He was not paid compensation in respect of the land which was allegedly reduced nor was given any land in exchange thereof. The petitioner commenced proceedings for rectification of the consolidation record. The Dy. Director of consolidation issued a notification dated 5/12/2005. The Consolidation Scheme was altered and amended in order to rectify the clerical mistake. The respondent was, however, aggrieved due to such rectification of the consolidation record. The respondent preferred Revision Application under the provisions of Section 35 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ( For short, ‘ the Act ’ ). The learned Additional Chief Secretary allowed the revision petition holding that variation in the consolidation scheme as per the notification issued by the Dy. Director was impermissible. The order of the Dy. Director was thus set aside. 3. Heard learned counsel for the parties and the learned A.G.P. 4 4. The short question raised by the petitioner is regarding lack of jurisdiction with the learned Additional Chief Secretary (Appeals), Revenue and Forest Department. It is contended that the learned Additional Chief Secretary could not have decided the revision application which was within the domain of only the State Government. 5. The variation in the Consolidation Scheme can be ordered by the competent authority under section 32 of the said enactment. The order rendered by the competent authority may be challenged by way of revision under Section 35 of the said enactment. Section 35 reads as follows, “ 35. The [State ] Government [ or the Commissioner in respect of such matters as the State Govrnment may by general or special order specify in this behalf ] may at any time for the purpose of satisfying itself [ or himself as the case may be, ] as to the legality or propriety of any order passed by any officer under this Act call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it [ or he, as the case may be, ] thinks fit : Provided that no order shall be varied or revised until the parties interested have been given a reasonable opportunity of showing cause against the proposed variation or revision 5 of the order ]. 6. It is not in dispute that the revisional jurisdiction was unavailable with the Commissioner for want of delegation of the powers in the context of the variation of the scheme. The clinching question is, : Whether the Additional Chief Secretary ( Appeals ) could have decided the revision application without legal and proper delegation of the powers to entertain the revision application ? The learned A.G.P. was unable to pin point as to under what authority, there is delegation of powers to the Additional Chief Secreatary ( Appeals ). The general delegation of powers under the revenue enactments can not be of much avail. The delegated power must be in the context of the special enactment, namely, the Bombay Prevention of the Fragmentation and Consolidation Act, 1947. No notification is placed on record to show that the learned Additional Chief Secretary (Appeals) was duly empowered to entertain the revision application. 7. In “ Sombharti Guru Damu Bharti V/s State of Maharashtra and others ” ( 2001 (1) Mh.L.J. 914 ), a full bench of this Court held that, “ “ Notification issued under Bombay Commissioners of Divisions Act, 1957 empowering ‘ Commissioner ’ to hear appeal under section 2 A (2) of the Hyderabad Abolition of Inams and Cash Grants Act must be struck down ” . 6 The said notification was, therefore, struck down. It is well settled that when quasi judicial power is required to be exercised by the State Government, it is to be exercised in the manner provided under the law. The power can not be delegated to the Officer on Special duty unless the law itself provides any such kind of delegation. The learned Additional Chief Secretary (Appeals) was not empowered to exercise the revisional jurisdiction, which power was available only to the State Government. The concerned Minister ought to have decided the revision application on merits thereof. 8. Considering the foregoing discussion and the legal flaw as noticed above, the petition is partly allowed. The impugned order is set aside. The matter is remitted to the concerned Minister for decision of the revision application which be deemed as restored to its original position. The Hon’ble Minister is requested to decide the revision application on its own merits within period of eight ( 8 ) months as far as possible. The parties are directed to appear before the Hon’ble Minister on 7/4/2010. Rule made partly absolute accordingly. No costs. [ V.R.KINGAONKAR ] JUDGE knp/WP 2957.08