(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 666 OF 2011 Sau. Sarswati Nanabhau Satav, Age : 46 years, Occupation : Agriculture, R/o. Arangaon (Dumala), Taluka : Shrigonda, District : Ahmednagar. .. Petitioner. versus 1. The Divisional Commissioner, Nashik Division, Nashik. 2. The Collector, Ahmednagar, District : Ahmednagar. 3. The Sub-Divisional Officer, Karjat, Taluka : Karjat, District : Ahmednagar. 4. The Tahsildar, Shrigonda, Taluka : Shrigonda, District : Ahmednagar. 5. Sau. Indubai Apruk Bhosle, Age : 61 years, Occupation : Household, R/o. P.W.D. Bungalow, Taluka : Shirur, District : Pune. .. Respondents. (2) ....................... Mr. V.D. Hon, Advocate, for the petitioner. Mr. K.J. Ghute Patil, Assistant Government Pleader, for respondent nos. 1 to 4. Mr. P.B. Shirsath, Advocate, for respondent no.5 / caveator. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 28TH JANUARY 2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. By this petition, styled as one under Article 227, read with Article 226 of the Constitution of India, the petitioner claiming to be purchaser of land from respondent no.5, has assailed the orders dated 14-1-2011 passed by the respondent no. 1 / Divisional Commissioner. By the said orders, Divisional Commissioner has vacated interim stay protecting her possession granted on 4-1-2011, disposed of the revision filed by the petitioner and directed respondent no.2 / Collector to decide her (3) pending appeal expeditiously. 3. Mr. V.D. Hon, learned Counsel appearing for the petitioner, at the outset, has pointed out that the impugned order may also be dated 10th January 2011, as it contains some overwriting in date. I find that the date recorded therein is either 10th January or 14th January with year as 2010. However, it is not in dispute that by the said order, ex parte interim order granted on 4-1-2011 has been vacated. 4. Mr. V.D. Hon, learned Counsel appearing for the petitioner, has urged that the petitioner / purchaser is in possession since 1995 and appeal filed by her under the statute, as per provisions of Section 246 of the Maharashtra Land Revenue Code, 1966, is pending before respondent no.2 / Collector. In the appeal, as petitioner apprehended dispossession, she moved application for interim relief and that application was rejected by the Collector. The prayer for interim protection was rejected and hence petitioner approached respondent no.1 / Divisional Commissioner, in revision, under Section 256 of the Maharashtra Land Revenue Code. After hearing Counsel for the petitioner, respondent no.1 ordered status quo. The respondent no.5 then approached respondent no. 1 and behind back of the petitioner, respondent no.1 has recalled (4) that order of status quo. According to him, this is in breach of principles of natural justice and unsustainable. 5. Because of objection raised by Mr. P.B. Shirsath, learned Counsel appearing for respondent no.5, about territorial jurisdiction, Mr. V.D. Hon, learned Counsel appearing for the petitioner, has invited attention to the fact that the provisions of Article 226 were amended in 1963 by 15th amendment and the power to take cognizance of all causes, which arise in the territorial jurisdiction of High Court, has been given. He points out that here, the subject matter of the controversy, namely, land is situated within the jurisdiction of Aurangabad Bench of this High Court; the first authority which passed some orders in the matter, namely, Tahsildar; appellate authority i.e. Sub-Divisional Officer and then the second appellate authority, namely, Collector, are all within the jurisdiction of this Court. He clarifies that though Aurangabad is Division and Divisional Commissioner should be available at Aurangabad, the power is being exercised by the Divisional Commissioner sitting at Nashik and hence only on that count, this Court cannot lose the jurisdiction which it otherwise possesses. He further states that all orders, whether by respondent no.1 or by other respondents, are to have effect on property within the jurisdiction of this Court and hence the petition, as filed, is competent. (5) 6. Mr. P.B. Shirsath, learned Counsel appearing for respondent no.5, has by placing reliance on the judgment of the Honourable Apex Court, reported at AIR 1963 SC 1124, in the case of Collector of Customs, Calcutta Vs. East India Commercial Co. Ltd., Calcutta and others, i.e. of Constitution Bench, contended that when impugned order lastly passed by the respondent no.1 is being assailed, as that authority is sitting outside the jurisdiction of this Bench, petition is not maintainable. He has also relied upon judgment of learned Single Judge of this Court, reported at 2006(1) Mh.L.J. 184, in the case of Haji Abdul Razak Yasim Patel Vs. Bara Imam Masjid Trust & others, to show that when Joint Charity Commissioner at Pune refused a Public Trust, permission to sell immovable property, this Court has found that the Court at Bombay alone has jurisdiction and cognizance could not have been taken by the Bench at Aurangabad though immovable properties were situated at Aurangabad. 7. Without prejudice to the preliminary objection raised by the respondent no.5 and in the alternative, he has produced on record, a copy of order passed by the Sub-Divisional Officer on 7-10-2010. He relies upon last paragraph thereof to show how there is strong prima facie case in favour of respondent no.5. He (6) states that the matter is being kept pending only to harass the respondent no.5. 8. Mr. K.J. Ghute Patil, learned Assistant Government Pleader appearing for respondent nos.1 to 4, points out that on 4-1-2011, the respondent no.1 directed parties to maintain status quo and had disposed of revision finally. When this error was pointed out to him, that error was corrected on 10th January or 14th January. 9. The facts on record show that remedy of filing second appeal under Section 246 of the Maharashtra Land Revenue Code is being exhausted by the petitioner and her appeal before respondent no.2 / Collector is pending. The respondent no.5 claiming herself to be tribal, has obtained orders from lower authorities declaring the sale deed executed by her in favour of the petitioner as invalid. Those orders form subject matter of challenge. She is also seeking recovery of possession. The petitioner, therefore, moved Collector and sought interim relief to protect her possession. Its rejection was questioned by her in revision under Section 256 of the Maharashtra Land Revenue Code before the Divisional Commissioner. The Divisional Commissioner on 4-1-2011, after realizing these facts, protected that possession but then found that grievance before him was of (7) limited nature and hence disposed of the revision finally. 10. After realizing this, the respondent no.5 approached the Divisional Commissioner and pointed out that she had filed caveat and in spite of that caveat, she was not heard. Because of this position, respondent no.1 thought it fit to recall his order dated 4-1-2011. He then directed the respondent no.2 / Collector to decide pending appeal at the earliest. 11. The facts, therefore, clearly show that on 10-1-2011 or 14-1-2011, the respondent no.1 should not have disposed of the revision finally and he should have given opportunity of hearing to the other side. He did not do so. 12. The petitioner is in possession since 1995 and he has obtained a sale deed from respondent no.5. The litigation is going on between the parties and hence interest of justice can be met with, by directing respondent no.2 / Collector to decide the appeal filed by the petitioner at the earliest. However, before undertaking that exercise, it is necessary to consider the preliminary objection raised by Mr. P.B. Shirsath, learned Counsel appearing for respondent no.5. 13. The Constitution Bench of the Honourable Apex (8) Court, in the judgment reported at AIR 1963 SC 1124 (supra) has noted that order assailed before the Honourable Calcutta High Court, was by an appellate authority which had seat outside the jurisdiction of High Court. The Constitution Bench, therefore, relied upon the earlier judgment reported at AIR 1953 SC 210, in the case of Election Commission of India Vs. Venkata Rao Subba Rao, and held that the High Court at Calcutta lacked territorial jurisdiction. Because of these observations, 15th amendment to the Constitution was effected and Sub-Article 2 has been provided to Article 226. By that provision, even if part of cause of action arises within the limits of territorial jurisdiction of the High Court, power has been conferred on High Court to exercise the jurisdiction. This position is affirmed by the Honourable Apex Court, in its judgments reported at 2007(4) Mh.L.J. 586, in the case of Alchemist Ltd. and another Vs. State Bank of Sikkim and others, and 2010(2) Mh.L.J. 597, in the case of Rajendran Chingaravelu Vs. R.K. Mishra, Additional Commissioner of Income Tax and others. In AIR 1967 SC 1244, in the case of M/s. Haji Esmail Noor Mohammad and Company and others Vs. Competent Officer, Lucknow and others, Constitution Bench of the Honourable Apex Court has noted 15th amendment to the Constitution effected in 1963 and also noticed that original authority was within limits of High Court but then, the appellate authority had its seat beyond it. The effect of doctrine of merger (9) has been, in these circumstances, looked into. It is observed that the appellate authority legally and factually located within State but for convenience having its head office outside State. The judgment of Allahabad High Court was reversed and, therefore, it was held that the Allahabad High Court had necessary jurisdiction. 14. The learned Single Judge of this Court, in the judgment reported at 2006(1) Mh.L.J. 184 (supra), has considered challenge to an order of Joint Charity Commissioner refusing permission to the Trust to alienate immovable property. The order was passed at Pune i.e. within ordinary territorial limits of the appellate side of principal seat at Bombay. The learned Single Judge has found that parties can approach the Principal Seat or the Bench of Bombay High Court within whose ordinary territorial limits the impugned order has been passed. The situation of properties within jurisdiction of Aurangabad Bench was held not determinative of the jurisdiction. The facts show that there a Civil Application was moved seeking return of Writ Petition for its presentation before Aurangabad Bench of Bombay High Court. The proposition then advanced was that cause of action had not arisen within territorial jurisdiction of the appellate side of the Principal Seat of the High Court of Bombay. It is this proposition which has been examined and the finding (10) has been delivered. The judgment does not say that Aurangabad Bench did not have jurisdiction. 15. In view of this, I do not find any substance in the preliminary objection raised by Mr. P.B. Shirsath, learned Counsel appearing for respondent no.5. The facts here clearly show that office of Divisional Commissioner should have been located in Aurangabad Division only i.e. territorial jurisdiction of this Bench. However, for some reason, the Divisional Commissioner at Nashik is discharging said obligation as Divisional Commissioner, Aurangabad. In any case, when doctrine of merger applies, it is apparent that the objection to territorial jurisdiction in the present facts is misconceived. The reliance placed by the learned Counsel for respondent no.5, on the judgment delivered by the Constitution Bench of the Honourable Apex Court, reported at AIR 1963 SC 1124 (supra), is also misconceived. 16. In the result, the petition is partly allowed. (i) The respondent no.2 / Collector, Ahmednagar, is directed to decide appeal filed by the petitioner, being Appeal No. RTS/Appeal/9/10, in accordance with law and on its own merits, as early as possible and in any case, before 15th February 2011. (11) (ii) Parties are directed to appear before the Collector, Ahmednagar, on 31st January 2011 and communicate this order by filing appropriate affidavit. (iii) As the petitioner has been served with notice dated 18-1-2011 by the Circle Officer directing the petitioner to remain present on 29-1-2011 at site, for handing over possession to respondent no.5, the possession of the petitioner is protected till the Collector decides pending appeal as directed above. 17. Rule is made absolute accordingly. In the circumstances of the case, there shall be no order as to costs. 18. The learned Assistant Government Pleader appearing for respondent nos.1 to 4 shall communicate this order to the concerned Circle Inspector. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp666