1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1097 OF 2009 Prabhuappa S/o Shivanappa Garthe .... PETITIONER V E R S U S Limbabai W/o Tukaram Dhangar Died – through L.Rs. and others. .... RESPONDENTS Mr. R.B.Deshpande, Advocate for Petitioner. Mr. S.N.Kendre, A.G.P. for State. Mr. M.P.Tripathi, Advocate for Respondent nos. 1 -A. [ CORAM : S.S.SHINDE, J. ] JUDGMENT RESERVED ON : 07/09/2009 JUDGMENT PRONOUNCED ON : 01/10/2009 PER COURT : 1. This Writ Petition is filed with following prayer ‘ C ’ as under : “ By an appropriate Writ or directions in the like nature, the impugned paper panchanama and Taba Pawati dated 14/10/2003 (Exhibit – G and H) stated to have been prepared by the Circle Inspector Dharmapuri, Tq. Parli, Dist. Beed in pursuance of the execution proceedings in R.D. No. 78 of 1987 arising out of the decree 2 in R.C.S. No. 16 of 1970 Limbabai Vs. Kondiba and others and the entire execution proceedings in R.D. No. 78 of 1987 against the petitioner as well as the Order dated 25/8/2008 passed by Sub Divisional Officer, Ambajogai (Exhibit – M) be quashed and set aside ”. 2. The learned counsel for the petitioner invited my attention to the pleadings and grounds in the petition, annexures thereto, written submissions filed by him and Judgments of this Court as well as Apex Court cited in support of his contention and submitted that the impugned alleged paper panchanama and Taba pawati dated 14/10/2003 executed by the revenue authorities in pursuance to the execution proceedings in R.D. No. 78 of 1987 arising out of R.C.S. no. 16 of 1970 (Limbabai Tukaram Dhangar V/s Kondiba S/o Sambha Gawali & Others), is in violation of the principles of natural justice, equity and good conscience. It is further submitted that the petitioner is not a party to the Suit R.C.S. No. 16 of 1970. There is no relief claimed against the petitioner in that Suit. There is no decree against the petitioner, therefore, the executing court can not go beyond the decree. It is further submitted that the petitioner was not given any prior notice or opportunity of hearing before the preparation of the alleged panchanama and Taba pawati dated 14/10/2003 and on this ground alone, the entire proceedings against the petitioner deserves to be quashed and set aside. It is further submitted that the petitioner is in possession of the land on account of the paper panchanama and Taba 3 pawati dated 14/10/2003, from which irreparable injury is caused to the petitioner. On the basis of the false documents of paper panchanama and Taba pawati, respondent no. 1-A and 1/B i.e. the decree holders are making every haste to dispossess the petitioner. It is further submitted that it is well settled that no one can be dispossessed without following due process of law. In support of his contention, the learned counsel invited my attention to the reported Judgments of the Hon’ble Apex Court as well as this Court. It is further submitted that the present petitioner had filed objection petition on 6/6/2003. However, without deciding the said objection petition, the revenue authorities are coming forward stating that they have already executed Decree on 14/10/2003. It is further submitted that the objection petition came to be dismissed on 15/7/2005 by the Tahsildar. It is further submitted that in case of Brahmadev Choudhari reported in AIR 1997 SC 856, the Apex Court in paragraph 5 of the Judgment has observed that once resistance is offered to the decree and which comes to be noted by the Executing Court as well as by the decree holder, the remedy available to the decree holder against such obstructionist is only under Order XXI, Rule 97 Sub Rule (1) and he can not by-pass such obstruction and insist on re-issuance of warrant for possession. The learned counsel further submitted that the action of the revenue authorities while preparing the false paper panchanama and Taba pawati is high handed, politically motivated and the same is malafide, illegal and arbitrary. The learned counsel further submitted that the 4 entire execution proceedings in R.D. No. 78 of 1987 arising out of the decree in R.C.S. No 16 of 1970 are in contravention of the mandatory provisions of Order XXI of the Code of Civil Procedure. The learned counsel further submitted that Article 300-A of the Constitution of India lays down that a person can not be deprived of property save by authority of law. The learned counsel invited my attention to each and every argument narrated in the written note submitted by him and submitted that this Writ Petition deserves to be allowed. 3. The learned counsel appearing for the respondent has invited my attention to the affidavit in reply filed on behalf of respondent no. 1 -A as well as written arguments submitted by him and raised preliminary objection to entertain the Writ Petition in view of the alternate remedy available for the petitioner to file Appeal under Section 247 of the Maharashtra Land Revenue Code. According to the learned counsel for the respondent no. 1-a, Section 247 of the M.L.R. Code provides for appeal and appellate authority prescribed under Schedule – E of the Code. Therefore, when any order is passed by the Sub-Divisional Officer, appeal is provided to the Collector. After decision of the Collector in any such appeal, revision under section 257 of the Land Revenue Code is provided. Therefore, learned counsel would submit that the petitioner has effective and efficacious remedy available, which he has not availed and petition is filed under misconception. Therefore, learned counsel would submit that this 5 Court may not entertain this Writ Petition on the ground of alternate remedy under M.L.R. Code. 4. I have heard the learned counsel for the petitioner as well as respondent and A.G.P. for State. The A.G.P. also submits that the petitioner herein has alternate and efficacious remedy under the provisions of Maharashtra Land Revenue Code. In paragraph 9 of the affidavit in reply filed by the State, it is submitted that there is alternate remedy as per the M.L.R. Code specified in Schedule ‘ E ’. Therefore, learned counsel for the respondent as well as A.G.P. have stated that there is alternate remedy available to the petitioner to agitate his grievance raised in this petition. On perusal of the synopsis of the Writ Petition, it appears that the petitioner filed objection petition with the Tahsildar, however, according to the petitioner, the Tahsildar proceeded for the execution of the decree behind back of the petitioner without deciding objection petition filed by the petitioner. Therefore, the petitioner lodged complaint to the Collector regarding the above stated affairs on 7/1/2004. In pursuance to the complaint filed by the petitioner to the Collector, Collector Beed directed the Tahsildar to see as to whether the decree of possession has been effected legally as per the decree passed by the Civil Court. On 15/7/2005, the objection petition filed by the petitioner came to be dismissed by the Tahsildar with observations. It is observed by Tahsildar that the possession is already delivered to the 6 Decree holders in pursuance to the Map Field Book Exh. 112, which is part of decree. It further appears from the averments in the petition that, the Sub Divisional Officer, Ambajogai has treated objection petition of the petitioner as Case No. 2006/ROR/A/38. It appears from the perusal of Exh. M to the petition that in proceedings before the S.D.O., the petitioner and his Advocate participated to put forth the case of the petitioner. It also appears that the Sub Divisional Officer has treated these proceedings as Appeal under Section 247 of the M.L.R. Code. Therefore, in substance, powers which are exercised by the Sub Divisional Officer are under M.L.R. Code and more particularly under the provisions of Section 247 of the M.L.R. Code. The perusal of the prayer clause in the petition would also show that in substance the petitioner is requesting to quash and set aside the Order passed by the Sub Divisional Officer dated 25/8/2008 as well as impugned paper panchanama and Taba pawati dated 14/10/2003 in executing proceedings in R.D. No. 78 of 1987 arising out of the Decree in R.C.S. No. 16 of 1970. The Sub Divisional Officer in substance has considered the subject matter i.e. execution proceedings and panchanama and Taba pawati dated 14/10/2003 in R.D. No. 78 of 1987 arising out of Decree in R.C.S. No. 16 of 1970. It also appears that this Court, while deciding the Civil Revision Application No. 885 of 1992 in paragraph 6 has set aside the Order of the Civil Judge (J.D. ), Ambajogai dated 30/11/1987 and the Civil Judge (J.D. ), Ambajogai was directed by this Court to transmit the papers of the execution proceedings i.e. R.D. 7 No. 78 of 1997 to the Collector, Beed for effecting partition of the suit land in terms of the Decree and as per the provisions of Section 54 read with Order XX Rule 10 of the Code of Civil Procedure with observations that partition be effected . 5. Therefore, in my considered view, without entering into the merits and demerits of the matter and without expressing any opinion on the merits of the matter, in the given facts of this case, I feel that there is an alternate remedy available to the petitioner under M.L.R. Code to challenge the impugned Judgment and Order of the Sub Divisional Officer. The M.L.R. Code has provided appropriate remedy as rightly contended by the Assistant Govt. Pleader and on perusal of the provisions of M.L.R. Code, more particularly, Section 247 of the M.L.R. Code, I am of the view that alternate and efficacious remedy is available to the petitioner, which he can avail to agitate his grievance raised in this petition. 6. This Court in case of Paygonda Survgonda Patil and others V/s Jingonda Surgonda Patil and others reported in AIR 1968 BOMBAY 198 held that the decision or order made by the Collector in effecting a partition of revenue paying lands in execution of a decree passed by a Civil Court is subject to an appeal to the Commissioner and also held that under Article 226 and 227 of the Constitution of India, this Court should not interfere in the orders 8 passed by revenue authorities in the interest of justice. In the above mentioned Judgment, this Court in paragraph 5 held , “ Any decision or order made by the Collector in effecting a partition of revenue paying lands in execution of a decree passed by a Civil Court is subject to an appeal to the Commissioner under S. 203 and is also revisable under Section 211 of the Bombay Land Revenue Code ”. 7. What follows from paragraph 5 is that, when there is a remedy available under Code, this Court should not exercise its extra ordinary jurisdiction under Article 227 and even under Article 226 of the Constitution of India. In the instant case, there is remedy available under Section 247 of the M.L.R. Code to the petitioners. In the said Judgment, this Court in paragraph 18 held, “ Articles 226 and 227 of the Constitution is discretionary and it is the settled practice of this Court not to interfere under those provisions unless it is necessary to do so in the interests of justice ”. 8. In the present case, this Court feels that in view of the 9 appropriate remedy available to the petitioner under M.L.R. Code, 1966 , at this stage, interference by this Court under Writ jurisdiction is not warranted. Therefore, Writ Petition is dismissed in view of remedy available to the petitioner under section 247 of the M.L.R. Code. It is made clear that this Court has not expressed any opinion on the merits of the matter. The observations in this Order are restricted only to conclude that the petitioner has alternate remedy available and in view of that, no interference is warranted to adjudicate issue involved on merits. Therefore, Writ Petition is dismissed with liberty to the petitioner to avail remedy available under M.L.R. Code. [ S.S.SHINDE ] JUDGE knp/WP1097.09