1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk WRIT PETITION NO. 2024 OF 2009 M/s. Rikki Ronie Developers & Ors. .. Petitioners Vs. The State of Maharashtra & Ors. .. Respondents Mr. D. D. Madon, Sr. Counsel with Mr. Atul Daga i/b A. N. Jakhadi for the Petitioners. Mr. Chirag Balsara i/b RMG Law Associates for Respondent Nos. 6 & 7. Mr. Arif Bookwalla Sr. Counsel i/b Abhay Thorat for Respondent Nos. 4, 5, 8 to 11. Mr. D. H. Mehta i/b Divya Shah & Associates for Respondent No. 13. CORAM : MRS. R. S. DALVI, J. Date of reserving the order : 30th June, 2010 Date of pronouncing the order : 7th July, 2010 P.C. 1. The Petitioner has challenged the order of the Revenue Minister, Government of Maharashtra passed under Section 258 of the Maharashtra Land Revenue Code, 1966 (MLRC) reviewing the order of his predecessor passed earlier. The Petitioner claims that the order was passed under Section 258(1), 4th proviso and is barred thereunder, it having been passed more than 90 days after the passing of the order which came to be reviewed. 2 2. The Respondents claim that the Petitioner has no locus. Hence the locus of the Petitioner has to be first determined. The Petitioner claims through Respondent No. 12. Respondent No.12 got their rights to the property initially leased by the Government to Respondent Nos. 4 to 11. Respondent No.12 was assigned the development rights by Respondent Nos. 4 to 11 under the permission to development granted by the Government. Respondent No. 12 claims rights under the initial assignment dated 04.08.2002 executed by Respondent Nos.4 to 11 who entered the agreement for development-cum-assignment with Respondent No.12. Under the said agreement the uninterrupted possession of Respondent Nos. 4 to 11 was recited. They were shown as “Kul and Khand” in the 7/12 extract. They agreed to sell, transfer and assign their rights including the development rights, title, interest, claims and benefits to Respondent No.12 who agreed to acquire and purchase their property admeasuring 4 acres and 2 gunthas in Survey No. 263 (Part) of village Malwani, Taluka-Borivali, Mumbai Suburban District (MSD). Respondent No.12 made payment of the consideration of Rs.50,00,000/- as specified therein. 3. Respondent No.12 could develop the said property under the assignment as per the agreement for development. It assigned its right to develop the said land to the Petitioner on 23.02.2007. The Petitioner paid Rs. 3 51,00,000/- to Respondent No.12 as consideration thereunder. 4. The Petitioner also claims to have paid consideration to Respondent Nos. 4 to 11 to take over the development. This is under an oral agreement. Respondent Nos. 4 to 11 executed an irrevocable Power of Attorney in favour of the Petitioner on 20.01.2008. Respondent Nos. 4 to 11 contend that this was in fact a revocable Power of Attorney and has been revoked and terminated and hence the Petitioner, who was an agent of Respondent cannot act thereunder and consequently has no locus to file the Petition. Mr. Bookwalla on behalf of Respondent Nos. 4 to 11 contended that these Respondents as the owners and as the principals, command the Petitioner not to act under the Power of Attorney to prosecute this Petition. 5. The Petitioner contends that the Power of Attorney is irrevocable power under Section 202 of the Indian Contract Act, the Petitioner having acquired an interest in the said property which is the subject matter of the agency. The interest is said to be acquired upon payment of consideration, which fact is stated never to have been denied, and upon investing in the property by further acts. 6. A reading of the Power of Attorney as a whole 4 would determine its revocability or irrevocability upon the interest, if any, created thereunder or which could be created therefrom. The Power of Attorney which is registered and on which ad valoram stamp duty of Rs. 37,14,450/- is paid under the Bombay Stamp Act as a transfer of property shows the principal as the assignor. It shows that the principals jointly and severally irrevocable empower their agent, the Petitioner. The power is granted for the following acts. :- (a) To submit the building plans. (b) To complete all construction work. (c) To represent the owners in Government Offices and before Government Authorities. (d) To apply for electricity power and municipal sanctions. (e) To make applications for change of user of the land. (f) To apply for obtaining commencement, completion and occupation certificates of the Municipality. (g) To enter upon the property and develop and sell the leased disputes of tenements, flats, shops on ownership basis. (h) To demolish the existing structures and construct thereon. (i) To negotiate, compromise and settle dispute and represent the owners in legal proceedings and Arbitration. 5 (j) To engage professionals for development. (k) To enter into and execute contracts on behalf of the owners. (l) To enter into Arbitration Agreements. (m) To transfer the assigned rights in the property and also to sell the property and execute documents with regard thereto. (n) To execute conveyance in respect of property. (o) To form co-operative societies or association of tenement holders etc. Several of these powers have been oft repeated and need not be repeated herein. 7. The owners declared that the Power of Attorney would be valid and binding for 10 years and would not be revoked and would also binding on their heirs, executors, administrators. It is seen that such detailed power specifying all acts which, an assignee or a purchaser would be entitled to do shows the contract on a principal to principal basis, its title notwithstanding. It can never be taken to be revocable. Payment of consideration is implicit in such a power and a fact of which judicial notice is required to be taken. The power has not been sought to be revoked earlier. Consequent upon the power Respondent Nos. 4 to 11 obtained the permission to development from the Government which has leased the land initially to the predecessor-in-title of Respondent Nos.4 to 11 on 6 06.05.2008. 8. The Petitioner’s locus, therefore, cannot be disputed. 9. The challenge to the impugned order is on the ground that it having been made after 90 days is barred by the law of limitation specified in Section 258 (1) proviso 4 of the MLRC. The impugned order Exhibit O to the Petition is passed in the application in case No. S-30/LEN-2601/704/ C.No.798/J-3 made before Respondent No.14 by Respondent No.13 shown as the society, Respondent Nos.4 to 11 as the Appellants and Respondent No.3 as the Respondent therein. The application was, therefore, made by Respondent No. 13 society for review of the order dated 05.03.2008 passed by the Revenue Minister. 10. The parties to the proceeding before the Revenue Minister were Respondent Nos. 4 to 11 herein as the Appellants and Respondent No.3 herein as the Respondent. The society is a different third party. It is a private party. It was not a party to the original proceeding. Yet it applied for review of the order dated 05.03.2008 on the ground that the order affected its rights. The Review Application was, therefore, filed by a private person (Respondent No.13 society) for review of an order affecting its rights. Such a Review Application by a third party could not have been entertained by Respondent No.14 as under 7 proviso 4 to Section 258(1) of the MLRC it had to be made on the application of a party to the proceeding. Neither a party to the proceeding being Respondent Nos. 4 to 11 nor Respondent No.3 applied for review. The order of the learned Minister stands vitiated on the ground that the Petition by a third party was entertained under Section 258 (1) proviso 4. 11. It is contended by the Respondents that the order was passed suo motu. The very title of the application belies that fact. The society has applied and has been represented before Respondent No.4. The society has submitted to Respondent No.4 to consider “its request” and to direct the Collector (Respondent No.3 herein) to hand over the possession of the property to it and also to execute the necessary lease documents in its favour. The order is, therefore, not passed suo motu, the statement in para 4 of the order that Respondent No.4 has taken the decision to review the earlier order notwithstanding. 12. It is argued by Mr. Madon that the order passed 90 days after the initial order would be barred under Section 258 (1) proviso 4 of the MLRC and hence it is sought to be contended that it was passed suo motu so that it can fall within Section 258 (1) thereof. 13. Under Section 258(1) the State Government has power to review any order of the State Government on its 8 own motion or on the application of the any interested party. Under proviso 4 an order affecting rights of private persons can be reviewed only on the application of a party to the proceeding and if it is made within 90 days of the passing of the order to be reviewed. This order is passed upon the application not by a party to the proceeding. It, therefore, could not be reviewed at all under such an application. Consequently the impugned order of Respondent No.1 passed by Respondent No.4 dated 17.02.2009 is set aside. 14. Rule is made absolute accordingly. ( R. S. DALVI, J.)