wp9290­10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9290 OF 2010 Vinayak B. Mayekar (since deceased) through legal heirs & Ors .. Petitioners versus Ramakant Shankar Mayekar & Ors ..Respondents Mr.Balkrishna D. Joshi for the petitioner. Mr.Sameer Tendulkar i/by Swati Narvekar for respondent No.2. Ms.P.S.Cardozo, A.G.P for respondent No.3. CORAM : S.C.DHARMADHIKARI, J. DATE : 28th JUNE 2011. P.C.: 1] The petitioner has filed this petition under Article 226 of the Constitution of India, challenging the order passed on 17th September 2010, a copy of which is at Annexure E to this petition. By the said order, the Additional Chief Secretary (Appeal and Revision) has set aside the order of the Additional Commissioner dated 16th January 2006 and maintained that of the Collector so also the Tahsildar. wp9290­10.doc 2 2] Since the controversy is narrow, the petition itself is taken up for hearing and final disposal at the stage of admission. It is common ground that the petitioners are heirs and legal representatives of Vinayak Mayekar. One Jagannath Mayekar, father of respondent No.2 is karta and as such effected partial partition of two lands bearing S.No.55 Hissa No. 7 admeasuring 10 gunthas and S.No.56 Hissa No.4 admeasuring 14 gunthas from Village Kalbadevi and mutation entry No.1477 dated 18th July 1969 records such partition. Therefore, S.No.56 Hissa No.4/B was entered in the name of Vinayak and Padmakar, his brother. There was a civil suit filed being Civil Suit No.82 of 1996 by the petitioners against the respondent Nos. 1 and 2 to this petition and others in the Court of Civil Judge, Senior Division, Ratnagiri. This suit was for a partition. The same came to be decreed on 17th November 1999. Against this decree the respondent No.2 and 6 filed Regular Civil Appeal No.5 of 2000 before Joint Dist. Judge which was dismissed on 24th April 2003. The second appeal therefrom to this Court has also been dismissed by this Court wp9290­10.doc 3 on 1st December 2003. 3] It appears that the petitioners filed an application for execution of this partition decree which was refused by Tahsildar, Ratnagiri. In the meanwhile, respondent No.1 filed an application alleging that the house constructed by the petitioner on the suit property falls within coastal regulation zone Regulations and can be categorised as CRZ-III. The Tahsildar instead of effecting partition issued notice to the petitioners with regard to this construction and that is how the matter got diverted from the real issue. It appears that the first respondent made an application before the Collector also complaining that house of petitioner has been unauthorisedly constructed without obtaining N.A. permission and, therefore, there is a breach of CRZ Regulations. An enquiry was conducted by Tahsildar and after hearing both sides, he by an order dated 22nd January 2004 directed the petitioners to demolish the house. Against this order passed by the Tahsildar, an appeal was filed before the Sub-Divisional wp9290­10.doc 4 Officer, SDO being Appeal No.51 of 2004. It was pointed out that S.No.4 Hissa 4/B in Village Dhulewadi exclusively belonged to petitioners and mutation entry was also referred to in respect of the same. It was contended that the house was constructed by petitioners after obtaining requisite permission from Gram Panchayat and occupation certificate was granted in the year 1991. Yet, the SDO dismissed this appeal by an order dated 19th March 2004. 4] Against this order an appeal was filed before the Collector, Ratnagiri. All these facts were narrated and the Collector was requested to cancel the earlier orders. The Collector by his order dated 30th May 2005 dismissed the said appeal. Against this order of Collector, the matter was carried by the petitioners in Revisional proceedings before the Commissioner, Konkan Division who by an order dated 16th January 2006, allowed the said application and set aside the order of Additional Collector and remitted the case back to the Collector for fresh decision on the basis of the observations in wp9290­10.doc 5 the said judgement/ order. 5] Thereafter, another Revision Application was filed by the second respondent under section 247 of the Maharashtra Land Revenue Code, 1966. That revision application was entertained by the Government and the Additional Chief Secretary having allowed the same and set aside the order of Additional Commissioner, this petition has been filed. 6] Mr.Joshi learned Counsel appearing for petitioners has contended that the authorities viz., Tahsildar, Collector and Additional Chief Secretary were in complete error in holding that the house constructed is affected by CRZ Regulations. None of them except the Additional Commissioner has bothered to peruse the relevant records and documents before reaching such a conclusion. Mr.Joshi submits that apart from the fact that revision before Government was not maintainable as Commissioner himself has exercised revisional jurisdiction, additionally, he submits that the main matter is an application wp9290­10.doc 6 for execution of a partition decree. In terms of the relevant provisions of the CPC, 1908, the partition decree has to be executed by firstly forwarding the same to the Collector of the District so as to effect partition if the lands involved in the dispute are agricultural lands. Accordingly, the Collector of Dist. and Revenue authorities working under him take appropriate steps so as to have a partition by metes and bounds in accordance with the decree. In such proceedings, the issue as to any house was constructed unauthorisedly cannot be decided. There is no lis between the parties which can be determined by the authorities. There plain duty is to implement the decree and effect the partition. In such circumstances and even otherwise when there was ample material to show that construction was not unauthorised, the Authorities were in error in passing the impugned order. Mr.Joshi has invited my attention to the order of the Additional Commissioner which is Annexure D to the petition and particularly the observations at internal page 7 running page 42 thereof. wp9290­10.doc 7 7] For all these reasons Mr.Joshi submits that the petition be allowed. 8] On the other hand, the Counsel appearing for contesting respondent No.2 has supported the observations and findings of the authorities other than the Commissioner. It is submitted by Mr.Tendulkar that the Additional Chief Secretary has observed that the status of the land under dispute being declared as agricultural and construction having undertaken without permission of joint owners and importantly the structure is contravening the CRZ Regulations, then, it was not necessary to have gone into the other facts. 9] Mr.Tendulkar submits that it has been held concurrently that the land was agricultural but no N.A. permission was taken. Permission of the joint holders of the property had not been taken. Therefore, Tahsildar’s order that the structure is unauthorised and should be demolished is wp9290­10.doc 8 proper. He has invited by attention to the observations in paras 8 and 9 of the order of the Additional Chief Secretary and submitted that these findings of fact require no interference in writ jurisdiction. He, therefore, submits that the petition be dismissed. 10] With the assistance of the Counsel for both parties, I have perused the petition and the annexures thereto. 11] None of the parties dispute the fact that what was before them was the issue of implementation and execution of a decree for partition of joint family property. The partition decree was passed by competent civil court and confirmed right upto this Court. One of the property involved is S.No.4 Hissa No.4/B. The Tahsildar was requested to survey the land, measure the boundaries and make a report so that the partition can be effected. However, it appears that at the request of second respondent, the Tahsildar took up the issue as to whether the structure on the subject land is authorised or not. wp9290­10.doc 9 During the course of the proceedings, he deviated from the main issue and went about considering the allegations that the house is unauthorised, as no non agricultural permission was taken or obtained so also there is violation of the CRZ Regulations. Therefore, the Tahsildar directed demolition of that house. In all these the main proceedings were kept aside and their fate is that they are kept in abeyance for endless duration. This was not expected of revenue authorities in the peculiar facts of this Case. If at all they were of the opinion that the house is unauthorised allegedly on account of certain violations that could have been stated by them in their report. Merely because some complaint is made to them during the course of execution of partition decree, there was no reason for them to take cognisance of the same. If the revenue authorities go about in this manner, then, the execution and implementation of the decree of partition of joint family property can never be completed. The execution can go on for endless duration. Like in the present case, since the original party to the litigation has already expired, his heirs are pursuing the wp9290­10.doc 10 matter. One does not know as to how many more generations will have to wait to see the fruits of partition decree. This is a clear instance where without any reason there was a complete deviation from the main issue. The main matter now is kept pending and unnecessary and futile issues and matters which are not relevant have been taken in to account. One does not know as to how the Additional Chief Secretary has upheld these conclusions. Atleast from him it was expected that he would go to the root cause and show awareness with regard to the same. He would decide the matter in the perspective in which it is to be decided. He would place before him the main aspect and focus on it completely. Instead he has allowed himself to be carried and swayed away by the exercise undertaken by the Tahsildar and Collector. Under what provisions the complaint made by respondent No.2 was taken note of and under what powers the same has been decided that too while implementing and execution of decree of partition passed by civil court has not been clarified at all. If in such manner the matters coming from civil court are to be dealt with, wp9290­10.doc 11 then, the very purpose of sending the case to effect the partition to the revenue authorities will be defeated and frustrated. The execution application was pending before the Civil Court. The Civil Court ought to have been informed about the complaint. If there was any complaint made by the second respondent, he could have also approached civil court by filing appropriate proceedings. Instead, he chose to raise this issue before the revenue authorities and the revenue authorities straight away took it up. To my mind, in this unnecessary and futile exercise, precious time has been wasted. Further, nobody has applied the mind to the observations and the conclusions of the Additional Commissioner. The Additional Commissioner has in his order observed thus:- “ I have gone through the papers available and also considered the arguments of both the sides. My observations and inferences in this case are as follows: This case revolves around the partition wp9290­10.doc 12 decree passed by Civil Judge, Sr.Dn.Ratnagiri which was to be executed by Tahasildar Ratnagiri, Construction of house belonging to applicant, whether comes under CRZ-III notification or not, is the main issue in this proceeding. The issue regarding construction of house without proper n.a permission has been raised by respondent but the process of regularisation is going on. There is evidence on record which proves that permission for house construction was obtained in November 83 and application for completion certificate is dt.7th March 1991. It is hence no doubt proved that house construction was begun well before CRZ-III was notified. Delay of 15 days in applying for completion certificate would not render that the house was constructed illegally.” 12] In the light of the above there was no necessity for the Additional Commissioner as well to have remanded back wp9290­10.doc 13 the case to the Collector. With these conclusions, he should have straight away allowed the revision. Even against such an order the matter was carried by respondent No.2 before the State Government and without adverting to any of these reasons in the order of the Additional Commissioner, the State Government has set aside his order. In my view, the authorities have far exceeded their jurisdiction and their orders are patently unsustainable in law. None of them have been able to point out as to under what powers, authority and jurisdiction have they taken up the complaint for adjudication. However, none of them have pointed out as to how when the house which was constructed had some permissions and whether those permissions can now be nullified and set at naught in the proceedings that are before them. Once the issue of their jurisdiction and authority itself is at stake, the higher authorities should have cautioned them and to have made over the complaint of the second respondent either to the civil court by making it subject matter of their report or plainly informing the second respondent to raise the same before the wp9290­10.doc 14 Civil Court or any other appropriate forum. Having not done this, their orders are vitiated by errors apparent on the face of record. They are, therefore, quashed and set aside. The revenue authorities should now proceed to effect partition in accordance with the decree of the civil court and bearing in mind that the decree was passed by the civil court in a suit instituted as far as back as in 1991, they should take expeditious steps and forward their necessary reports within a period of 3 months from the date of receipt of a copy of this order. It is clarified that if the respondent No.2 has any grievance with regard to the construction activity on the subject survey number, he is at liberty to adopt such proceedings as are permissible in law. The orders of the authority having been set aside on the ground of jurisdiction and lack of authority to take cognisance of complaint of second respondent and decide the same, it is clarified that this Court has not expressed any opinion insofar as the subject construction. Petition is allowed. No costs. (S.C.DHARMADHIKARI, J)