: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL LETTERS PATENT APPEAL LETTERS PATENT APPEAL NO.55 OF 2003 NO.55 OF 2003 NO.55 OF 2003 AGAINST AGAINST AGAINST WRIT PETITION NO.7477 OF 2002 WRIT PETITION NO.7477 OF 2002 WRIT PETITION NO.7477 OF 2002 Gurudassing Nawoosing Panjwani Indian Inhabitant Aged about 65 years Residing at Golden House, Hill View Apartment, Section 17, Near Ekta Apartment, Ulhasnagar-3, Dist: Thane. ..Applicant Versus 1. The State of Maharashtra Through Revenue Minister, Mantralaya, Mumbai. 2. Shri Prem Hasmatraj Lalwani Indian Inhabitant, Hindu, Adult, R/at.102, Gajdhar Apartments, Juhutara Road, Vile Parle (West) 3. Smt. Gulabai Gajanan Desai 4. Shri Anil Gajanan Desai (Respondent Nos.3 and 4 dead) 5. Shri Genu Baburao Kadu, Indian Inhabitant, Hindu, Adult, R/at. Lonavala, Tal. Maval, Dist. Pune. 6. The Addl. Collector & The Custodian of Evacuee Properties, Pune. ..Respondents Mr.P.K.Dhakephalkar i/b.Shri A.S.Rao for the appellant Mr.Anil V. Anturkar for the respondent No.2 : 2 : CORAM: S.B.MHASE & CORAM: S.B.MHASE & CORAM: S.B.MHASE & S.R.SATHE, JJ. S.R.SATHE, JJ. S.R.SATHE, JJ. DATE : 13th July, 2005 DATE : 13th July, 2005 DATE : 13th July, 2005 ORAL JUDGMENT (PER S.B.MHASE, J) ORAL JUDGMENT (PER S.B.MHASE, J) ORAL JUDGMENT (PER S.B.MHASE, J) 1. This Letter Patents Appeal is directed against the Judgment and Order passed by the learned Single Judge of this Court on 24th April, 2003 in Writ Petition No.7477 of 2002. By the said judgment and order the Single Judge dismissed the said Writ Petition and thereby confirmed the orders passed by the State Minister for Revenue in the proceeding R.T.S.3402/Pra.kra.309/L-6 dated 18th October, 2002. 2. The facts leading to this LPA are as follows: . Survey Nos.118, 328 and 351 of Lonavala were originally owned by one Haji Habib Tar Mohammed Janu. The said Haji Habib Tar Mohammed Janu migrated to Pakistan and while going to Pakistan, said Haji Habib Tar Mohammed Janu sold his property to one Smt. Hajrabi Haji Yusuf on 4.6.1949. However, this transaction was cancelled by the Collector and Custodian of Evacuee Property on 17.4.1949 as per Section 8(i) of the Evacuee Properties Act and these : 3 : lands were accordingly entered as Evacuee Property by the Tahsildar, Maval on 26.10.1949. It appears that these survey numbers were also given C.T.S.No. 129, 130-A, 130-B and 133. It appears that in CTS No.129, 130-A, 130-B and 133, apart from vacant land there is a bungalow No.52- Habib Villa. It appears that the Regional Settlement Commissioner placed this property for auction through Government Auctioner and the Respondent No.3 Gulabai purchased the said property in auction for consideration of Rs.16,750/- on 17.5.1956 and accordingly sale certificate was issued by the Regional Settlement Commissioner, Bombay on behalf of the Government. In the said sale certificate the C.T.S. No 129, 130-A, 130-B and 133 of Village Lonavala were mentioned. The area of this CTS Nos. were / are as under: 129 - 55.16 sq.mts. 130A - 1651.1 sq.mts. 130B - 2934.02 sq.mts 133 - 3237.00 sq.mts ______________ Total 7897.21 sq.mts. -------------- . On the basis of the said sale certificate the : 4 : mutation Entry No.1836 was effected in the village record in favour of Gulabai Desai, Respondent No.3 and thereby the name of Respondent No.3 was entered to Survey Nos.118/1B and 328 of village Lonavala to the extent of 29.30 Ares and 70 Ares respectively. Thereafter, the Respondent No.3 Gulabai sold CTS No.133 admeasuring 33 Gunthas on 24.4.1977 to Respondent No.5 Genu Kadu. The said Gulabai also gifted her remaining area from this Survey numbers to her grandson Anil Gajanan Desai- Respondent No.4 on 15.1.1979 and in turn, thereafter, the Respondent No.4 Anil has sold his properties to Respondent No.2 in the year 1980. Thus, on the basis of the mutation entry No.1836 and auction certificate the above referred transactions have taken place in between the Respondents. 3. The Survey Nos.118/2 and 351 since were Evacuee Properties, were allotted to the Appellant in the year 1956. Later on, it was found that the Appellant is in possession of more area and therefore the said order was modified on 6.5.1982 and excess area was granted to the Appellant on payment of Rs.31,360/-, which Appellant had paid on 17.5.1982 in Government Treasury and thereby the Deputy Collector and Assistant Settlement Commissioner, Pune granted the excess land to Appellant and thereafter the dispute started between : 5 : the parties. It is made clear that the dispute between the parties is in respect of the area, as to what has been purchased in auction sale by the Respondent No.3 Gulabai Desai and what is the area allotted to the Appellant by the orders of the Deputy Collector and Deputy Custodian of Evacuee Properties. (The Appellant, accordingly has requested this Court not to enter into the merits on this question in this LPA since the parties may prosecute their remedies in the Civil Court for such adjudication, and therefore, that aspect has not been considered in this LPA.) However, in the facts of the conflicting claims, the Appellant made grievance to the Respondent Deputy Collector and the Deputy Custodian of Evacuee Properties in respect of the Mutation made in favour of the Respondent Gulabai and other Respondents and therefore by order dated 18.9.1984 the Deputy Collector and Deputy Custodian of Evacuee Properties, Pune, directed the Sub-Divisional Officer, Haveli Sub Division to take up the case in revision under Section 257 of Maharashtra Land Revenue Code and pass necessary orders. In view of these directions, the Sub-Divisional Officer, Haveli, Sub Division, Pune, initiated proceeding RTS Revision 14 of 1984 and by order dated 30.7.1985 cancelled the mutation entry No.1836 and directed necessary corrections in the record as per the : 6 : observations made in the order. It appears that the said order was taken into appeal (number of the same is not available) and the matter was remanded to the Sub Divisional Officer. After remand the Sub Divisional Officer, conducted inquiry and again passed order on 29.10.1987 and confirmed the earlier order. Therefore, the RTS Appeal No.128 of 1987 was preferred before the Collector which was disposed off by the Additional Collector on 13.7.1993. By the said order, the Order of the third Sub-Divisional Officer was maintained. However, further inquiry as directed by the SDO was to be conducted. Since the mutation Entry No.1836 was cancelled by above order, the Talathi gave effect to these orders and effected the mutation entry No.2176 and showed the disputed properties in the name of the Collector and Deputy Custodian of Evacuee Properties. The directions were issued by the Collector to the Tahsildar to place the appellant in possession of the property as per the orders of the Deputy Collector and the Deputy Custodian of Evacuee Properties. However, instead of giving effect to those orders, it appears that the Revenue Officers at Tahsil level effected two mutations, namely the Mutation No.2377 and 2394. By mutation entry No.2377 the name of Gulabai Desai, Respondent No.3 was again mutated in the record and by the mutation entry No.2394 the name of Respondent No.5 : 7 : Genu Kadu was mutated in the record. Since the Collector noticed on complaint that the orders of the Collector has been bypassed or surpassed by the Subordinate Revenue Officers, the Collector by order dated 12.7.1999 directed the SDO to take these mutations namely the mutation entry No.2377 and 2394 in revision and therefore the Sub-Divisional Officer, Maval Division has taken these mutations in revision bearing RTS Revision No.12 of 1999. The said revision was decided by the Sub Divisional officer at Maval on 28.1.2000 and those mutations were cancelled. Being aggrieved by the order passed in said revision, the Respondent No.1 Lalwani preferred RTS Appeal No.81 of 2000 and the Respondent No.5 Genu Kadu preferred RTS Appeal No.114 of 2000. Both these RTS Appeals were heard by the Additional Collector, Pune and by order dated 28.5.2001 the Addl. Collector, Pune dismissed the said appeals and confirmed the order of the Sub Divisional Officer, Maval. Therefore, being aggrieved by the said order of the Additional Collector, the Respondent No.1 Lalwani preferred RTS Revision No.330 of 2001 invoking the power under Section 257 of Maharashtra Land Revenue Code, 1966 before the Additional Commissioner, Pune Division, Pune. The said revision was decided by the Additional Commissioner, Pune by order dated 22.11.2001 and the said revision : 8 : was dismissed. 4. This order of the Additional Commissioner was challenged by the Respondent No.1 Lalwani by filing the proceeding RTS 3402/Pra.kra.309/L-6 before the Revenue Minister for State and the said proceeding was decided by the Minister for State on 18.10.2002. The Revenue Minister for State allowed the said proceeding and set aside the orders passed by the Sub Divisional Officer, Maval on 28.1.2000, the Additional Collector, Pune on 28.5.2001 and Additional Commissioner on 22.11.2001 and thus restored the position as reflected by the Mutation entries Nos.1836 and 2377 and 2394. Thus, all the entries in favour of the Respondents were protected and maintained by the order of the State Minister for Revenue. This order passed by the State Minister for Revenue in RTS 3402/Pra.Kra.309/L-6 was challenged by the appellant by filing the Writ Petition No.7477 of 2002 before the Single Judge of this Court. The said petition was dismissed by order dated 24.4.2003 and therefore the present LPA. 5. By the order dated 6.4.2004 the LPA was admitted and we have heard this LPA finally. 6. The learned Counsel for the Appellant, Mr. : 9 : Dhakephalkar, submitted that it is not necessary to scrutinize and decide the main controversy between the Appellant and Respondent in respect of the disputed property. The learned Counsel submitted that all the orders passed by the Revenue Officers from the stage of Sub-Divisional Officer upto the Additional Commissioner are in favour of the Appellant and it is only the order passed by the State Minister for Revenue which is challenged in the Writ Petition in this LPA, is the order against the appellant. He further submitted that if the order passed by the State Minister for Revenue is found to be without jurisdiction and incompetent and thereby if this court set asides said order, the rest of the orders upto the stage of the Additional Commissioner being in favour of the Appellant, those orders will stand and thereby the purpose of the Writ Petition and LPA will be achieved and the grievance of the Petitioner/Applicant will stand redressed. He, therefore, submitted that according to him the Additional Commissioner, when he decided the RTS Revision No.330 of 2001 has exercised the powers under Section 257 of the Maharashtra Land Revenue Code and has dismissed the Revision Application filed by the Respondent No.1. He submitted that it is rather difficult to understand which powers were exercised by the State Minister for Revenue when State Minister has : 10 : decided the RTS 3402/Pra.kra/309/L-6. The learned Counsel pointed out that in the initial part of the judgment it is stated that the appeal application is under Section 249 of the Land Revenue Code. He, further demonstrated that in the introductory part of the judgment it is stated that the Respondents have approached under Section 257 of the said Code. The learned Counsel further pointed out that the Minister has relied upon the directions given in Writ Petition No.5590 of 1999 dated 21.10.1999 and has assumed the jurisdiction under Section 257 holding that the Second Revision is permissible. The learned Counsel submitted that thus the Revenue Minister for State has committed error in clubbing the power under Section 257 for Second Revision, and Section 249 which is appellate power of State Government. He submitted that the orders passed in Writ Petition No.5590 of 1999 are absolutely irrelevant, since those are the orders not pertaining to the litigation between the parties and that too whether the second revision is permissible or not is not the issue decided by the High Court in the said Writ Petition. He submitted that under the Land Revenue Code the second revision is not permissible and relied upon the judgment delivered by the Single Judge of this Court in Writ Petition No.4168 of 1998 dated 18.2.1999. The learned Counsel, further, pointed out : 11 : that the Letters Patent Appeal No.349 of 2000 preferred against the said Writ Petition was rejected by the Division Bench of this Court at admission stage itself. He, further pointed out that another single Judge of this Court, while admitting the Writ Petition No.2084 of 1999 has prima facie observed that the second revision is not permissible under Section 154 of the Maharashtra Co-operative Societies Act. It is further pointed out that both the orders of the Single Judge have been followed by another Single Judge while deciding the Writ Petition No.735 of 1999 reported in 2000(3) MLJ 115 in the matter of Ramesh T. Gopalani 2000(3) MLJ 115 in the matter of Ramesh T. Gopalani 2000(3) MLJ 115 in the matter of Ramesh T. Gopalani vs. Janata Sahakari Bank vs. Janata Sahakari Bank vs. Janata Sahakari Bank and has concluded that the second revision is not tenable under Section 154. The learned Counsel further invited the attention of this Court to reported Judgement Sambappa Babappa Teli vs. Sambappa Babappa Teli vs. Sambappa Babappa Teli vs. State State State of Maharastra & others reported in 2003(4) ALL MR f Maharastra & others reported in 2003(4) ALL MR f Maharastra & others reported in 2003(4) ALL MR 252 252 252 and submitted that the learned Single Judge of Aurangabad Bench has relied upon the cases referred to above and has concluded that the Second Revision under Section 257 of the Land Revenue Code is not permissible. Thus, thrust of his argument is that the State Minister for Revenue has committed error in entertaining and exercising the powers under Section 257 by way of Second Revision and reference to the said provision in the said order does not confer : 12 : jurisdiction on him. Making reference to Section 249 of the Code the learned Counsel submitted that the appeal under Section 249 would have been permissible, had the Additional Commissioner being the Revisional Authority, passed an order varying/ reversing the order passed by the Subordinate Revenue Officer. However, he submitted that the Additional Commissioner has dismissed the RTS revenue petition No.330 of 2001 without modification and or variance in the orders of the subordinate Revenue Officers and therefore the assumption of appellate jurisdiction under Section 249 by Minister of Revenue was absolutely illegal. Learned Counsel concluded that the facts and circumstances of the present case the proceedings which were decided by the Minister for Revenue were decided when the Minister had no power and jurisdiction under the Land Revenue Code either under Section 257 and/or under Section 249 and therefore prayed that the impugned orders passed by the State Minister for Revenue and learned Single Judge of this Court be set aside. 7. The learned Counsel for the Appellant further assailed the order passed by the Single Judge of this Court and submitted that the Single Judge of this Court, while passing the impugned order has misread the judgment of the single Judge of this Court passed in : 13 : Writ Petition No.4168 of 1998. According to the learned Counsel it has been decided in the said Writ Petition No.4168 of 1998 that the second revision is not tenable. However, in the facts of that case alongwith the Second Revision there was another Revision against order passed by the Sub Divisional Officer which was decided alongwith Second Revision. Therefore, the directions were given by learned Single Judge to decide the said revision which was directed against the order of Sub Divisional Officer. Thus, he submitted that there is improper reading of the judgement of Writ Petition No.4168 of 1998 while passing the impugned order, and therefore the learned Single Judge of this Court erred in confirming the order passed by the Revenue Minister invoking the powers under Section 257 and 249 of the Maharashtra Land Revenue Code. 8. The learned Counsel Mr. Anturkar who appears for the Respondent seriously objected the points raised by the learned Counsel for the Appellant. He submitted that provisions of the Maharashtra Land Revenue Code, pertaining to the appeal, revision and review have not been properly assessed, scrutinized and construed by the single Judges who have decided the cases referred to above. He submitted that the scheme of each Act is : 14 : required to be scrutinised in the light of the provisions contained in the said Act, since the appeal, revision and review are the powers and remedies being the creature of law. But he submitted that it is permissible for the legislature to provide the number of appeals and the number of revisions as is found proper in its legislative wisdom. He submitted that the order passed by the Single Judges of this Court, though may be considered by this Court, are not binding on this Court, and this Court shall further proceed to scrutinize the provisions of the Land Revenue Code and find out as to whether more than one revision is possible under the Land Revenue Code. He actually submitted that the order passed in LPA No.349 of 2000 dated 5.2.2001, though passed by Division Bench of this Court, is not binding on this Court because according to him the said order was passed at the stage of admission and thereby it is not the judgment so as to create any binding precedent on this Court. He submitted that only those judgments of the Division Bench which has been delivered finally after admission of the matter, are binding and that too if same question as raised in present matter is finally adjudicated in the earlier matter. The learned Counsel submitted that jurisdiction under Section 257 of Land Revenue Code is concurrent and simultaneous with State : 15 : Government and any Revenue or Survey Officer not inferior in rank to the Assistant or Deputy Collector or Superintendent of Land Records in the respective departments and thereby learned Counsel submitted that when it is to be held that the second revision is not possible then the word "and" which appears in between the words "State Government" and "the Revenue or Survey Officer" etc is required to be interpreted as disjunctive and submitted that usual normal rule of interpretation is to interpret the said "and" as conjunctive. The normal rule of interpretation can be only deviated if the absurd result is followed and the interpretation results into giving meaning to said provision against the legislative policy or intention. However, learned Counsel submitted that this is not the case, wherein the word "and" appearing in the Section 257 of the Code shall be interpreted as "or" that is as disjunctive, because according to the learned Counsel the Officers to whom the revisional powers have been given under Section 257 are not equal in ranks and thereby they are not interchangeable in respect of their powers and status and therefore he submitted that Section 257 of the Code shall have to be interpreted as Section 128 of Rajasthan Co-opertive Societies Act was interpreted by the Apex Court in the matter of Ishwarsingh Vs. State of Rajasthan and Others reported Ishwarsingh Vs. State of Rajasthan and Others reported Ishwarsingh Vs. State of Rajasthan and Others reported : 16 : in 2005(2) SCC 334 in 2005(2) SCC 334 in 2005(2) SCC 334. He also submitted that the Single Judge of this Court while deciding Writ Petition No.4168 of 1998 has not analysed the provisions of the Land Revenue Code and has directly observed that the Second Revision is not maintainable and blamed the learned Counsel for the Respondent in that case to the effect that said learned Counsel failed to show the maintainability of such revision. Thus, the learned Counsel emphasized that the scheme of the Act is required to be looked into. He also invited for that purpose, our attention to Parmeshwar Shiroharan Bohara Parmeshwar Shiroharan Bohara Parmeshwar Shiroharan Bohara and Others vs. State of Maharashtra reported in and Others vs. State of Maharashtra reported in and Others vs. State of Maharashtra reported in 1992(2) MLJ page 257 1992(2) MLJ page 257 1992(2) MLJ page 257 and submitted that considering the language of clause 24 of the Maharashtra Schedule Commodities (Regulation of Distribution) Order 1975, the Division Bench of this Court at Nagpur has found that the second revision is permissible under the said order and thereby learned Counsel insisted that in similar manner this Court shall scrutinize the provisions of land Revenue Code and more specifically the provisions of appeal, revision and review and thereafter shall decide as to whether more than one revisions are possible under Section 257 or not. Learned Counsel submitted that according to him more than one revisions are possible under the Land Revenue Code and thus he submitted that the State Minister for : 17 : Revenue has rightly entertained the application of the Respondent under Section 257 of the said Code and therefore submitted that the submissions made by the learned Counsel for the Appellant be rejected. 9. Thus, the main question which arises for our consideration is as to whether more than one revisions are possible under Section 257 of the land Revenue Code or not, because the fate of this LPA depends upon the finding on this issue. Namely, if we come to the conclusion that more than one revisions or second revision/s is/are possible then the LPA has to be dismissed. If we come to the conclusion that the Second Revision is not possible then the LPA will have to be allowed and the order passed by the State Minister for Revenue shall have to be set aside. 10. Before we proceed to consider the provisions of the Land Revenue Code, we find it appropriate to consider the judgment of the Apex Court in the matter of Ishwarsingh Vs. State of Rajasthan and Others referred to above and the ratio and test laid down by the Apex Court while interpreting Section 128 of Rajasthan Co-operative Societies Act. The brief facts from the said reported judgment are as follows: : 18 : . The Sadul Shahar Kray Vikray Sahakari Samiti is a society registered under Rajasthan Co-operative Societies Act, 1965. The Appellant in that case was serving as a Manager. On attainment of 56 years and completion of service for more than 27 years the administrator of the said society having found that there is continuous fall in his work performance, in public interest, issued the order of Compulsory Retirement. The said order dated 1.4.1988 was challenged by appellant in the revision petition before the Addl. Registrar II, Co-operative Societies, Rajasthan, Jaipur. By order dated 9.5.1996 the revision was allowed. The employer society challenged the decision of the Additional Registrar by way of revision before the State Government under Section 128 of the Act. The Secretary, Co-operative Department, Government of Rajasthan, Jaipur, set aside the order passed by the Additional Registrar having found that the revision before the Additional Registrar was incompetent. That order was challenged by the Appellant under Article 226 of the Constitution before the Single Judge of High Court. The contention was raised that the power of revision under Section 128 of the Act stood exhausted by order of the Additional Registrar and as such the Secretary, could not have exercised the revisional power in respect of the same : 19 : order. The learned Single Judge rejected the contention holding that the Additional Registrar had exercised the delegated power of the Registrar and not of the State Government and, therefore, the revision before the State Government was maintainable and the Secretary to said Government had jurisdiction to deal with the matter. In the Letters Patent Appeal before the