2006(4) ALL MR 705
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
D.K. DESHMUKH, J.
Smt. Archana S. Pashine & Ors.Vs.Addl. Commissioner (Revenue), Nagpur Dn., Nagpur & Anr.
Writ Petition No.133 of 1998
30th January, 2006
(A) Maharashtra Co-operative Societies Act (1960), S.91 - Constitution of India, Art.226 - Cancellation of mutation entry - Petitioner lost power in the Society - Petitioner hastily transferred plot to his wife by executing sale deed - Entry mutated name of his wife - Revenue authorities cancelling mutation entry holding sale deed as invalid - Challenge in writ petition - Though order should not have been made by revenue, writ not entertained as the conduct of the petitioner was not above board.
(B) Constitution of India, Art.226 - Cancellation of mutation entry - Challenge in writ - Scope - Failure of justice - Interference in favour of petitioner - Court not to interfere if such interference results in failure of justice.
(C) Constitution of India, Art.226 - Cancellation of mutation entry - Challenge in writ - Alternate remedy - Revenue authorities canceling mutation entry holding sale deed as invalid - Cancellation does not extinguish title - Petitioner claiming title - Civil suit is appropriate remedy - Petition cannot be entertained.
JUDGMENT
JUDGMENT :- By this petition, the petitioner challenges the orders made by the Revenue Authorities canceling the mutation entry taken in the Revenue record. The facts are relevant and material for deciding this petition are that:
2. The petitioner no.1 was the secretary of a Co-operative Housing Society to the respondent no.2. The society, it appears, by a registered sale deed, dt. 17-2-1994 transferred that plot to the petitioner no.2 and an entry in the revenue record was made mutating her name in the place of name of respondent no.2. That entry has been cancelled by the authorities. The Authorities have found that the day on which the sale deed was executed on behalf of the society by respondent no.1 in favour of respondent no.2, the respondent no.1 was prohibited by the Registrar from functioning as a Secretary of the Society. The petitioner no.2 is wife of petitioner no.1. In substance, after he was prohibited by the Registrar from acting on behalf of the Society as a secretary, just a day prior to his handing over the charge of the office of Secretary, the petitioner no.1 executed sale deed of a plot which was allotted by the Society and against which the respondent no.2 had paid the amount in excess of Rs.24,000/- to the Society. The petitioner no.2 is wife of petitioner no.1. The Revenue Authorities have found that the that the sale deed executed by petitioner no.1 in favour of petitioner no.2 is invalid because he had no authority to act on behalf of the society on 17-2-1994 and therefore, the mutation entry taken pursuant to the sale deed has been cancelled. The submission of the learned counsel appearing on behalf of the petitioner is that the Revenue Authorities have no jurisdiction to record such a finding. They should have gone merely by Registered Sale deed and should not have disturbed the entry. According to the learned counsel, the remedy available for respondent no.2 to get the sale deed executed by the society in favour of petitioner no.2 cancelled was to approach the Co-operative Court u/s.91 of the Maharashtra Cooperative Societies Act. According to the learned counsel, the Revenue Authorities should have assumed that jurisdiction and made the impugned order. It is no doubt true that there is some substance in the submission that the learned counsel is making. But in my opinion, in exercise of the extra-ordinary jurisdiction of this Court, the present petition cannot be entertained. Before making any order in favour of a petitioner in exercise of its extra-ordinary jurisdiction the Court must be satisfied that the conduct of the petitioner is above board. In so far as the present petition is concerned, it is not disputed before me that on 17-2-1994 when the sale deed was executed by petitioner no.1 on behalf of the society of the plot concerned in favour of petitioner no.2. Petitioner no.1 was prohibited by an order made by the Registrar from discharging the functions of the Secretary. The relationship between the petitioner no.1 and petitioner no.2 is also not disputed. It is, thus clear that the petitioner no. I having lost power in the society, hastily transferred the plot in favour of his own wife. In my opinion, this conduct of the petitioners disentitle them to any interference at the hands of this Court in their favour in exercise of its extraordinary jurisdiction. This Court in its extraordinary jurisdiction under the Constitution interferes in favour of the petitioners to prevent failure of justice. But if the Court finds that interference by the Court in favour of the petitioner would result in failure of justice, in my opinion, the Court will be justified in declining to interfere in favour of such petitioners. In my opinion, this is such a case where this Court cannot help the petitioners looking their conduct. This Court would not be justified in interfering with the order impugned in the petition for one more reason. The orders impugned in the petition are the orders by which a mutation entry taken earlier in the revenue record has been cancelled. An entry in the revenue record does not extinguish title. If according to the petitioner they have title to the plot, the appropriate remedy is civil suit. As an alternate remedy is available, the petition cannot be entertained. In the result, therefore, the present petition fails and is dismissed. Rule is discharged.
3. The petitioners are directed to pay costs of this petition to the respondents, as incurred by the respondents.