1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY WRIT PETTION NO. 3570 OF 2008 Ghanshyamdas Dwarkadas Khandelwal ... Petitioner v/s Rameshchandra Badriprasad Khandelwal & ors. ... Respondents Mr.S.G.Karandikar for the petitioner. Mr.C.Y.Korde i/by Mr.K.Shivramkrishnan for the respondent No.1. CORAM: SMT.NISHITA MHATRE,J. DATED: 20TH APRIL, 2009 P.C.: Rule. Rule made returnable forthwith, by consent. 1. The petitioner is aggrieved by the order of the Maharashtra Revenut Tribunal dated 4.3.2008 as well as by the order dated 29.4.2008 passed by the Additional Commissioner, Konkan Division, in an appeal filed by him. The Additional Commissioner has held that the appeal is maintainable before him in view of the order passed by the Maharashtra Revenue 2 Tribunal on 4.3.2008. The Maharashtra Revenue Tribunal had returned the appeal preferred by the respondent No.1 for presentation to the proper forum as it was of the view that the appeal was not maintainable before the Tribunal. 2. In exercise of his powers under Section 300(1) of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as “the M.L.R. Code”), the Collector, Mumbai City, passed an order affecting the rights of the respondent No.1. The petitioner received the notice from the office of the respondent No.2 i.e. the Additional Commissioner, Konkan Division, dated 11th/24th March, 2008 informing him about the appeal preferred by the respondent No. 1 against the order dated 2.2.2007. The petitioner, on 20.4.2008 raised an objection regarding the jurisdiction of the respondent No.2 to entertain the appeal preferred by the respondent No.1 under Section 247 of the M.L.R. Code. An appeal had already been preferred by the respondent No.1 before the Tribunal. That appeal was returned to the respondent No.1 by the Tribunal by the order dated 4.3.2008, directing him to present it to the proper forum. Relying on this order, the respondent No.2 rejected the contention of the petitioner that the 3 appeal before him was not maintainable by the order dated 29.4.2008. Aggrieved by these decisions, the petitioner has approached this Court. 3. The question of law raised in this petition is, whether an appeal would lie under Section 274 of the Maharashtra Land Revenue Code before the Tribunal in respect of land within Mumbai City in view of the judgment of a learned Single Judge of this Court in the case of Subherdevi Chandradeo Varma, reported in 2003(3) Mh.L.J. 386. According to the learned counsel for both, the petitioner as well as the respondent No.1, this judgment does not deal with certain provisions of the M.L.R. Code which would reflect on the maintainability of an appeal under Section 274 before the Tribunal and hence is per incuriam. 4. It would be necessary to consider the historical back ground of the enactment of the M.L.R. Code. The precursor of this statute is the Bombay Land Revenue Code, 1879 (hereinafter referred to as “the B.L.R. Code”) which was enforced in the Presidency of Bombay during the British Rule. Section 1 of the B.L.R. Code stipulated that the Code would not apply to the City of Bombay. At that point of time the 4 lands in the City of Bombay were governed by the provisions of the Bombay City Land Revenue Act, 1876 and the Bombay City Survey Act, 1915. 5. In 1966, the M.L.R. Code was enacted and consequently the Bombay City Land Revenue Act, 1876 and Bombay City Survey Act, 1915 were repealed. Section 1 sub-section (2) of the M.L.R. Code stipulates that certain provisions of the M.L.R. Code would not apply to the City of Bombay. 6. Section 247 of the M.L.R.Code deals with the appeals and appellate authorities. An appeal lies from any decision or order passed by a Revenue or Survey Officer, in the absence of any express provision in the Code or of any law for the time being in force, to the contrary. Thus, though Section 247 is generally applicable for filing appeals against orders passed by a Revenue or Survey Officer specified in that behalf, no appeal would lie if there was an express provision contrary to Section 247. Chapter XIV of the M.L.R. Code contains special provisions for land revenue in the City of Bombay. This chapter was inserted in the Code and was brought into force in 1966, while repealing the Bombay City Land Revenue Act, 1876 and 5 Bombay City Survey Act, 1915. Section 260 contained in this chapter expressly provides that the chapter is applicable only to the City of Bombay. 7. Various provisions contained in Chapter XIV of the M.L.R.Code expressly provide for the assessment and collection of land revenue within the City of Bombay, the recognition of the description of Bombay City Survey of Government lands and foreshore, transfer of lands, levy of house rent, fees, penalties and the procedure for conducting any proceedings under this chapter. Thus, Chapter XIV is a Code in itself contained in the M.L.R. Code and is applicable only to the City of Bombay. The provisions of this Chapter are similar to those contained in the other chapters of the Code which relate to the lands outside the city limits of Bombay. Significantly, Chapter XIV also contains a special provision regarding appeals against the assessment and collection of land revenue in the City. Besides, words and expressions not defined in the chapter, are to be assigned the same meaning which was assigned to them in the City Tenures Abolition Act. This is an another pointer to the fact that the lands in the City of Bombay are to be treated differently from those outside the revenue 6 division of the City of Bombay. Section 262-B contained in Chapter XIV provides that the Collector may fix the rate of assessment for the land for each revenue division. Sub-section (4) of this Section permitted an appeal to the Commissioner against the decision of the Collector regarding the standard rate of assessment or market value of lands. The other provisions of the M.L.R. Code which are applicable to lands within the City of Bombay have been expressly stated in Section 268. 8. Another circumstance indicating that Chapter XIV is a Code in itself and applicable to the lands in the City of Bombay, is Section 274. Under this section, an appeal lies against any decision or order passed by the Collector under Chapter XIV to the concerned Divisional Commissioner except as provided under sub-sections (4) and (5) of Section 262-B. This provision is in contradistinction to the provisions of Section 247 of the code wherein an appeal lies to certain officers specified in Schedule “E” of the Code. The Court fee payable in respect of appeals before the Maharashtra Revenue Tribunal under Chapter XIV are to be prescribed under the Rules framed under that chapter and not under the general provisions of the Code relating to 7 the payment of Court fee. 9. The rule making power of the Government to implement and to carry into effect the provisions of Chapter XIV is contained in Section 306. Under Section 328, which finds place in Chapter XVI of the Code, the government is authorised to frame rules for effectively implementing all the other provisions of the code. Thus, had the City of Bombay not been covered exclusively by the provisions of Chapter XIV, the question of having two sections under the Code empowering the Government to make rules would not arise. Again the provisions of Section 307 which are contained in Chapter XIV deal with the saving of acts done or actions taken under the Bombay City Land Revenue Act, 1876 and Bombay City Survey Act, 1915 as if they were made under Chapter XIV. Significantly, Section 336 which is contained in Chapter XVI deals with repeal and savings of acts undertaken under the various enactments mentioned therein. Thus, despite the repeal of the Bombay City Land Revenue Act, 1876 and the Bombay City Survey Act, 1915 contained in Section 336 and a saving of acts undertaken under those acts, a special provision has been enacted under Section 307 for acts undertaken under those 8 laws for the City of Bombay. The provisions of Chapter XVI do not in any manner affect the jurisdiction conferred on the Maharashtra Revenue Tribunal under Chapter XV of the M.L.R. Code which has been inserted in the Code by the Amendment of 2007. 10. The Maharashtra Revenue Tribunal was abolished as the provisions of Chapter XV were deleted by the Amendment Act 25 of 2002. These provisions were later re-enacted and reintroduced on to the statute book by the Maharashtra Act No. XXIII of 2007 i.e. the Maharashtra Land Revenue Code (Second Amendment) Act, 2007. The Tribunal has been conferred with the power to entertain appeals under Section 274. Thus appeals in respect of lands situated within the City of Bombay, now known as Mumbai, are maintainable before the Maharashtra Revenue Tribunal. 11. In the present case, the petitioner is aggrieved by the decision of the Additional Commissioner, Konkan Division, wherein he has directed the petitioner to prefer an appeal before the Maharashtra Revenue Tribunal as per the Amendment Act of 2007. When the petitioner preferred an appeal before the Tribunal, by an order 9 of 4.3.2008 the Tribunal dismissed the appeal by concluding that it did not have jurisdiction to try the appeal in view of the decision of a learned Single Judge of this Court in the case of Subherdevi Chandradeo Varma v/s Indramani Gangaprasad Varma, reported in 2003(3) Mh.L.J. 386. 12. A bare perusal of the judgment in the case of Subherdevi (supra) indicates that the learned Single Judge was dealing with the question whether the Maharashtra Revenue Tribunal has jurisdiction to entertain and decide appeals arising out of the entries which are made by the Superintendent of Land Records in respect of property situated within the City of Bombay. The learned Single Judge considered the provisions of Section 274 of the M.L.R. Code and those of Section 247 of the Code. However, it appears that the fact that Section 274 was contained in Chapter XIV which deals with special provisions for land revenue in the City of Bombay was not noticed. Apparently, the attention of the learned Single Judge was not drawn to this fact and hence it was held that the Maharashtra Land Revenue Tribunal had no jurisdiction to hear appeals arising out of entries made by the Superintendent of Land Records in respect of the lands situated within 10 the City of Bombay. 13. In my opinion, this judgment of the learned Single is per incuriam as the provisions of the Chapter XIV of the M.L.R. Code and other relevant provisions were not brought to the notice of the learned Judge. As stated above, Chapter XIV is a special code in itself and applicable only to the City of Bombay. This would indicate that the lands in the City of Bombay, for the purposes of assessment and revenue, etc., are to be treated differently and must be considered under Chapter XIV of the Code only. Undoubtedly, the provisions of the M.L.R. Code have been amended in 2007 by the Maharashtra Land Revenue Code, Second Amendment Act, 2007. Under the Amendment Act, Section 272 of the M.L.R. Code has been amended and the words “Maharashtra Revenue Tribunal” have been substituted for the word “Commissioner”. Similarly, under Section 274 of the Code of 1966, the words “the concerned Divisional Commissioner” have been substituted by the words “the Maharashtra Revenue Tribunal”. Thus, there can be no doubt that the appeals filed in respect of the assessment and collection of land revenue within the City of Bombay must be preferred before the Maharashtra Revenue 11 Tribunal. 14. The decision of the Revenue Tribunal in the present case is therefore erroneous and must be set aside. The Revenue Tribunal has the jurisdiction to entertain and decide the appeals from the decisions and orders of the Collector, his assistants or his subordinates exercising the powers of the Collector. Section 12 of the Amendment Act of 2007 specifically provides for the transfer of proceedings pending before the Divisional Commissioner to the Maharashtra Revenue Tribunal. Thus, there can be no doubt that the Tribunal, in the present case, has erred in deciding that it had no jurisdiction to entertain the appeal, even after the Amendment Act of 2007. 15. Writ petition allowed. Rule made absolute. 16. The appeal filed by the respondent No.1 which is pending before the Additional Commissioner shall be transferred to the Maharashtra Revenue Tribunal. 17. Parties to appear before the Maharashtra Revenue Tribunal after the Tribunal gives notice to them. ..... 12