1 wp 1783.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1783 OF 2011 Samir Vasantrao Patil, Age : 24 Years, Occu. : Business, R/o Devgaon, Tq. Paroda, District Jalgaon. .. Petitioner Versus 1. The State of Maharashtra, Through its Secretary, Revenue and Forest Department, Mantralaya, Mumbai. 2. The Divisional Commissioner, Nashik Divisional Commissioner's Office, Nashik Road, Tq. & Dist. Nashik. 3. The Additional Commissioner, Divisional Commissioner's Office, Nashik Road, Tq. & Dist. Nashik. 4. The Collector, Jalgaon, Dist. Jalgaon. 5. The Tahsildar, Paroda, Tq. Paroda, Dist. Jalgaon. .. Respondents 2 wp 1783.11 Mrs. Quazi Sadaf, Advocate h/f Shri J. R. Shaikh, Advocate for the Petitioner. Shri V. G. Shelke, A.G.P. for the Respondents/State. CORAM : S. V. GANGAPURWALA, J. DATE : 20TH JUNE, 2011. ORAL JUDGMENT : . Heard Mrs. Quazi, the learned counsel holding for Shri J. R. Shaikh, the learned counsel for the petitioner and Shri V. G. Shelke, the learned Assistant Government Pleader for respondents. 2. Rule. Rule returnable forthwith. With consent of learned counsel for parties taken up for final hearing. 3. The petitioner had preferred an appeal aggrieved by the levy of the penalty and the royalty. The said appeal was preferred U/Sec. 247 of the Maharashtra Land Revenue Code before the Commissioner. The Additional Commissioner vide the impugned order observed that as the petitioner has not paid the 50% of the amount, the appeal is incompetent and only after deposit of the 50% of the amount the appeal would be considered. The petitioner has assailed the said order in the present petition. 3 wp 1783.11 4. The learned counsel for the petitioner submits that the learned Commissioner had no powers of legislation. Section 247 of the Maharashtra Land Revenue Code does not lay down any condition of pre deposit for entertaining the appeal and when provision itself does not lay down such a condition, the Commissioner could not have imposed such a condition. The same would be alien to the provisions of the Maharashtra Land Revenue Code. The learned counsel further contends that appeal is statutory right and the said statutory rights cannot be curtailed by the Commissioner by imposing such onerous condition. 5. Shri Shelke, the learned Assistant Government Pleader supports the order passed and submits that it was within the competence of the Commissioner to pass such an order. The statute nowhere prohibits the Commissioner from passing such orders. Huge amount is due towards the petitioner and so in the interest of justice the order passed is perfectly valid. 6. It is trite law that appeal is a substantive right of a party. The same would be governed precisely by the provisions of the statute. Perusal of the phraseology of Section 247, it is manifest 4 wp 1783.11 that the said provisions nowhere lays down a condition of pre deposit of an amount for entertaining an appeal nor does it authorize the authority entertaining the appeal to lay down such a condition of pre deposit for considering the appeal on merits. The authority cannot travel beyond the provisions governing the appeals. 7. The impugned order directing the petitioner to deposit 50% of the amount as a condition for entertaining the appeal on merits is an order coram non judice and as such cannot sustain. In the light of that, the impugned order is quashed and set aside. The authority shall register the appeal if otherwise it complies with all other legal requirements. The Rule is made absolute accordingly, however, no costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/June 11