1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.410 OF 2008 IN REVIEW PETITION NO.27 OF 2008 IN WRIT PETITION NO.5740 OF 2007 1. The State of Maharashtra through ] its Secretary to the Revenue and ] Forest Department, Mantralaya, ] Petitioners Mumbai – 400 032 ] (Original ] Respondents) 2. The Collector, Nashik ] 3. The Commissioner, Nasik Division ] Vs. 1. Namdeo Eknath Bankar & Ors. ] through their Power of Attorney ] Mr.Nemichand L. Poddar, ] Respondents R/o Poddar House,Patil Lane no.3 ] (Original HPT College Road,Nashik–422 005 ] Petitioners) Mr.B.R. Chinchalikar, AGP for State – Petitioners Mr.G.S. Godbole, Advoate with Mr. S.S. Kanetkar, Advocate for respondents no.1 and 2. CORAM : S.A. Bobde & Smt. R.P. SondurBaldota,JJ. Judgment reserved on : 12th December, 2008 Judgment pronounced on : 18th August 2009 JUDGMENT (PER SMT.JUSTICE R.P. SONDURBALDOTA) : 1. Heard counsels for both the sides. 2. This Letters Patent Appeal arises out of the order dated 21st January 2008 passed by the single Judge in the above writ petition and the order dated 21st April 2008 passed on the review petition arising therefrom. Respondents no.1 and 2 are the original petitioners. 2 3. The facts leading to the Letters Parent Appeal shorn of unnecessary details are as follows : Respondent no.1 is the owner of land at survey no.836 at Nashik having been allotted to his father on new impartible tenure as a permanent grant. In the year 1983, the State of Maharashtra issued a G.R. permitting transfer of the land and/or its conversion for non agricultural use on payment of premium of 50% of the net unearned income therefrom. Therefore, respondent no.1 on 19th September 1989 filed application before the appropriate authority i.e. the Collector, Nashik for conversion of the land to old tenure. On 24th January 2001, respondent no. 1 was informed by appellant no.2 that he should deposit an amount of Rs. 59,52,000/- as premium for permission to sell the land and its conversion into non agricultural user. Respondent no.1 challenged the valuation by preferring an appeal under Section 247 of the Maharashtra Land Revenue Code, 1966 before the State Government. The appeal was partly allowed by the order dated 9th August 2002. By the appellate order, it was directed that the Ready Reckoner value of agricultural land as on 1st January 1997 should be the basis for the valuation of the premium and 75% amount should be charged as unearned income and 25% amount should be charged as one time premium for conversion of the land to the old tenure. On receipt of the order of the appellate authority, the petitioner 3 immediately offered to pay the premium and requested for its calculation. However, the appellant No.2 went on dillydallying on the matter which constrained respondent no. 1 to file Writ Petition No.9688 of 2003 in the month of October 2003. After filing the Writ Petition, respondent no. 1 learnt that the State of Maharashtra is contemplating to review its own order dated 9th August 2002. Respondent no.1 also received notice of the review on 28th October 2003. Therefore, he withdrew the Writ Petition so that the review petition could be taken up for hearing. But the review petition was left pending for almost an year. Therefore respondent no.1 filed second Writ Petition being Writ Petition No.9981 of 2004. During the pendency of the second petition, respondent no. 1 was called for hearing of the review petition. Therefore, the Division Bench hearing the Writ Petition passed the order dated 7th August 2006 disposing off the Writ Petition without any orders with observation that in case the decision or the order passed in the review petition initiated suo motu by the State of Maharashtra is adverse the aggrieved party may challenge that order and all the contentions of the review petition will be kept open in the subsequent proceedings. 4. About six months after disposal of the second Writ Petition, the Hon’ble Minister for Revenue Department, Government of Maharashtra heard the review proceedings and 4 passed his order dated 7th February 2007. By the said order, the order under review was set aside and it was directed that amount be recovered from respondent no.1 as unearned income with interest as per Government Resolution dated 8th July 1999. Respondent No.1 then filed the petition herein being Writ Petition No.5740 of 2007 challenging the order on the suo motu review proceedings essentially on three grounds : firstly that there is no provision for initiating suo motu review proceedings from the order of the appellate authority. Therefore, it was arbitrary exercise of power by the Government. Secondly that imposition of payment of interest by the learned Minister was totally arbitrary and without any justification. Thirdly that though the petitioner had been ready and willing to deposit an amount as per the order of appellate authority dated 9th August 2002, appellant no.2, the Collector, Nashik had for no reason delayed the acceptance of the amount, for which the respondents cannot be held responsible. It was alleged that even the review proceedings were unnecessarily delayed by the appellants. The notice of review proceedings was served upon respondent no.1 on 28th October 2003 and the review petition came to be ultimately disposed off by the order dated 7th February 2007 i.e. almost four years later. 5. The learned single Judge disposed off the Writ Petition by his order dated 21st January 2008. After narrating the 5 rival contentions in the first 7 paragraphs, the learned Judge at paragraph 8 of the order has recorded as follows : After the matter was heard for some time, both sides agree that as per the petitioners are ready to pay a sum as computed under the appellate order with reasonable interest for the period spread over, the matter can be finally concluded. Both sides do not dispute that the condition No.4 could not have been imposed by the Revenue Minister. In such circumstances, it is directed that the petitioners shall pay the principal sum of Rs. 15,28,626/- plus an additional quantum after the area under reservation is excluded with interest thereon from 1998 till 2002 at the rate of 12% and from 2002 till 2007 at the rate of 9%. All sums as computed with interest shall be remitted within a period of six weeks from the date a revised computation / calculation is forwarded and received. If remittance is made within this period, the concerned authorities to accept the same as full and final settlement of the claim towards unearned income and Authorities to take necessary steps so that the Purchaser / Transferee of the land holds the same on the terms and conditions stipulated in the order of allotment. 6. On 14th February 2008, the respondents filed precipae for getting the matter on board for speaking to minutes for correction of some typographical errors. By the order dated 25th February 2008, the application for speaking to minutes of the order was considered and necessary corrections directed to be carried out. At the same time, a request was made on behalf of the appellants vide the precipae dated 16th February 2008 filed by the learned Assistant Government Pleader that the consent recorded at paragraph 8 quoted above of the order dated 21st January 2008 be deleted therefrom. Therefore, the learned Single Judge recorded as follows : 6 “In so far as the request of the learned Asstt. Government Pleader vide precipae dated 16th February 2008, a copy of which is tendered by Shri Godbole is concerned, in para 8 of the order, in the sentence commencing from “After the matter was heard for some time ….” the words “both sides agree” and “both sides do not dispute” are deleted and now the said sentence would read as : “After hearing both sides, I do not find any material to support imposition of condition no.4 and even the learned Asstt. Govt. Pleader found it difficult to support the same”. 7. Thereafter there was Review Petition No.27 of 2008 filed by the respondents, which was disposed off by the Single Judge by his order dated 21st April 2008. The application for the review had been moved only for the purpose of carrying out corrections to the computations. The amount of Rs.15,28,626/- referred to at paragraph 8 of the judgment had been calculated not on the basis of the original appellate order, but on the basis of the original valuation done by the State of Maharashtra at Rs.400/- per square meter. By the order dated 21st April 2008, the Review Petition was allowed and after carrying out the correct calculations, the respondents were directed to pay a sum of Rs.9,24,185/- as premium for conversion of the land. 8. The appellants contend that the order passed by the learned Single Judge is bad in law as same does not consider the relevant Government resolution issued by the appellant i.e. the Government Resolution dated 8th September 1983, which 7 was relied upon by the learned Minister for Revenue Department in passing his order on suo motu proceedings. According to the State of Maharashtra, the original valuation carried out by the Assistant Director of Town Planning of Nashik of Rs.400/- per square meter is correct and proper and the learned Single Judge ought to have accepted the same. As per that valuation, respondent no.1 is required to pay premium of Rs.32,98,009/-. 9. In view of the challenge to the order dated 21st January 2008 disposing off the writ petition, it is necessary to see whether the same is justified in law. Perusal of the said order shows that the same was, in effect, a consent order passed after both the sides agreed to the certain legal position. Once on the application of the State of Maharashtra, the consent recorded in the order was removed, if the order was to be maintained, it was necessary for the learned Single Judge to give reasons justifying his order. Since the reasons are not provided the order becomes a non speaking order. In that circumstance question arises whether the appeal should be allowed on that ground alone, particularly on the background of the gross delay in deciding the issue since the year 1989. We are of the view that on that ground alone, there is no reason to allow the appeal and remand the writ petition for fresh hearing. Correction in the order, if any, can be made in the present Letters Patent 8 Appeal also. Therefore, we have extensively heard both the sides on merits. As regards imposition of interest, there is no justification whatsoever as there was no provision made for it any where. State of Maharashtra has not even sought to justify the same before us and rightly so. Therefore, the order of the learned Minister as regards imposition of interest can, under no way be sustained. 10. This brings us to the main controversy of maintenability of review of the order of the appellate authority by the Hon’ble Minister. The order under review was the order dated 9th August 2002 passed in the appeal filed by respondent no.1 under Section 248 of Maharashtra Land Revenue Code, 1966 against the order of Revenue Commissioner, Nasik Division. Section 248 of the Code provides for an appeal to the State Government from the order or decision of the Commissioner or of a Settlement Commissioner or Director of Land Records or of Deputy Director of Land Records. As per the standing order dated 24th June 2002, the appeal which would otherwise be heard by the Revenue Minister was made over for hearing to the Secretary and Special Works Officer (Appeal), Revenue and Forest Department designated for the purpose. Section 258 of the Code provides for review of the order by the State Government and every Revenue or Survey Officer either on its or his own motion or an application of any party interested. Therefore,there can be no doubt that 9 the order passed by the appellate authority under Section 248 of the Code was subject to review. However,once the powers of appeal are made over by standing order to a specific officer,the Hon’ble Minister could not have exercised the same himself. If at all the order was to be reviewed, it could be by the same officer who passed it in exercise of his powers under the standing order. 11. Even on merit, in our considered opinion, the impugned order cannot be sustained. Section 258(2) of the Maharashtra Land Revenue Code, 1966 restricts review of the order to three grounds (i) discovery of new and important matter or evidence (ii) some mistake or error apparent on the face of the record (iii) any other sufficient reason. In the instant case, the reason stated in the order by the Hon’ble Minister for exercising power of review is that the the appellate authority had ignored Government order (Revenue and Forest Department) dated 8th September 1983 while deciding the appeal. This observation is factually incorrect as can be seen from the order of the appellate authority. The appellate authority noted the Government order (Revenue and Forest Department) dated 8th September 1983 that while fixing valuation of unearned income, current valuation of market rate is to be considered. He further noted that the order did not specify the date of valuation whether the date of the application or the date of the order granting permission. In 10 his well reasoned order, the appellate authority has held that if the application for conversion is decided within reasonable time after it is made, no dispute can arise. However, in the instant case, the decision for granting permission was being taken 7 years later. During such long period, there can be substantial variation in the market value of the property. The appellate authority then noted that the applications filed by the appellant in the year 1989 and 1995 were not on record. Only the application dated 12th December 1996 was on record. Therefore for the purpose of calculating valuation at the market rate, he fixed the date of 1st January 1997. The Hon’ble Minister in his order of review, without discussing this aspect of the matter has taken a pedantic view and held that the valuation is to be calculated as on the date of the order irrespective of length of the period for which the application is kept pending by the Government without taking decision. This view taken by the Hon’ble Minister, in our opinion is neither correct nor reasonable. 12. There is one more aspect of the matter. Even the suo motu review application was kept pending by the Hon’ble Minister for almost five years. If the order was to be reviewed it ought to have been done within a reasonable period. 11 13. In the circumstances, the order passed by the Hon’ble Minister cannot be justified. For the reasons given above, we confirm the order dated 7th August 2006 passed in the Writ Petition. There is no need to consider the subsequent order dated 21st April 2008 passed by the learned Single Judge on Review Petition because that was preferred only for the purpose of correcting the computation of the premium payable. The Letters Patent Appeal is dismissed. (SMT.R.P.SondurBaldota,J.) ( S.A. BOBDE, J.)