Writ Petition No.3738 of 1995

8th June, 2007

Petitioner Counsel: Shri. S. P. HEDAOO
Respondent Counsel: Shri. J. B. JAISWAL

JUDGMENT

JUDGMENT :- By the present writ petition, the petitioner - Housing Society has challenged the order dated 7-10-1995, passed by the Sub-Divisional Officer, Nagpur granting permission to Tahsildar, Nagpur for review as well as order dated 12-10-1995, passed by the Tahsildar cancelling the mutation entry Nos.78, 79 and 80 dated 23-1-1990 in respect of the land purchased by the petitioner - Housing Society.

FACTS :

2. The petitioner - Housing Society purchased land admeasuring 7.96 hectares by three separate registered sale-deeds dated 23-6-1989 from survey No.23/1 of village Wadi from its owner M/s. Canara Workshop Limited. After purchase thereof the petitioner - Society reported the said transfer to respondent No.3 - Tahsildar Nagpur (Rural) and requested for taking necessary mutation entries. Accordingly, the Tahsildar made an order on 23-1-1990 and entry into record of rights was made showing the petitioner - Society as owner of the said land. The petitioner - Society, thereafter, drew lay outs for 330 plots and after approval of the Grampanchayat allotted the plots to its members for construction of houses and the members also constructed their houses after getting their building plans approved. It appears that somewhere in October, 1995 new Tahsildar, namely Shri. Dilip Pandharinath Talmale came on transfer as Tahsildar, Nagpur (Rural) and made a reference to S.D.O., Nagpur, seeking review of the said mutation entries i.e. 78, 79 and 80 and that proposal was received on 6-10-1995 by S.D.O., Nagpur and on 7-10-1995, the S.D.O. granted permission for review. It then appears that on 12-10-1995, Tahsildar, Nagpur (Rural) cancelled the mutation entries No.78, 79 and 80 and directed the concerned Talathi to report compliance accordingly.

ARGUMENTS :

3. Shri. Hedaoo, learned Counsel for the petitioner - Society contended that the new Tahsildar, who came on transfer suddenly on 6-10-1995 made a reference to S.D.O., Nagpur for grant of permission to review the mutation entries No.78, 79 and 80 without assigning any reason in his reference letter. The S.D.O. immediately on the next day without recording any reason granted permission which is illegal. He then submitted that thereafter Tahsildar, Nagpur (Rural) passed an order dated 12-10-1995 cancelling the entries without even issuing a simple notice to the petitioner - Society. The petitioner - Society was thus shocked to know about such cancellation. Referring to various provisions under the Maharashtra Land Revenue Code, 1966 he submitted that the impugned orders are totally illegal and as such liable to be quashed and set aside.

4. Per contra, Shri. Jaiswal, learned A.G.P. for the respondents drew my attention to the return that is filed in the writ petition and submitted that though the impugned orders do not contain any reason, the same can be justified inasmuch as no procedure as required by Section 150(2) of the Maharashtra Land Revenue Code, 1966 was followed. He submitted that the petitioner - Society was given a notice to remain present before Tahsildar, Nagpur (Rural) on 4-10-1995 i.e. before making the order dated 12-10-1995 but nobody remained present for petitioner - Society and, therefore, the order was passed cancelling the mutation entries. Shri. Jaiswal, learned A.G.P., however, could not point out the copies of the notice or acknowledgment of service of the notice to appear on 4-10-1995 though in the return there is a mention that the same was at Annexure - R-1. But no such annexure is annexed with the return. He, thus, prayed for dismissal of the writ petition.

CONSIDERATION :

5. Having carefully considered the submissions made by the Counsel for the petitioner as well as A.G.P. for respondents before me and having gone through the entire writ petition as well as impugned orders, it would be appropriate to quote Section 258 of the Maharashtra Land Revenue Code, 1966.

"258. (1) The State Government and every revenue of survey officer may either on its or his own motion or on the application of any party interested, review any order passed by itself or himself or any of its or his predecessors in office and pass such orders in reference thereto as it or he thinks fit :

Provided that,

(i) if the Collector or Settlement Officer thinks it necessary to review any order which he has not himself passed, on the ground other than that of clerical mistake, he shall first obtain the sanction of the Commissioner or the Settlement Commissioner, as the case may be, and if an officer subordinate to a Collector or Settlement Officer proposes to review any order on the ground other than that of clerical mistake, whether such order is passed by himself or his predecessor, he shall first obtain the sanction of the authority to whom he is immediately subordinate;

(ii) no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order;

(iii) no order from which an appeal has been made, or which is the subject of any revision proceedings shall, so long as such appeal or proceedings are pending be reviewed.

(iv) no order affecting any question of right between private persons shall be reviewed except on an application of a party to the proceedings, and no such application for review of such order shall be entertained unless it is made within ninety days from the passing of the order.

(2) No order shall be reviewed except on the following grounds, namely :

(i) discovery of new and important matter or evidence;

(ii) some mistake or error apparent on the face of the record;

(iii) any other sufficient reason.

(3) For the purposes of this section the Collector shall be deemed to be the successor in office of any revenue or survey officer who has left the district or who has ceased to exercise powers as a revenue or survey officer and to whom there is no successor in the district.

(4) An order which has been dealt with in appeal or on revision shall not be reviewed by any revenue or survey officer subordinate to the appellate or revisional authority.

(5) Order passed in review shall on no account be reviewed."

6. Now perusal of Section 258(1)(ii) of the Code shows that without service of notice on the parties interested, no order of review can be passed. In the instant case, there is absolutely no proof from the record to show that any notice was served on the petitioner - Society before passing the impugned order dated 12-10-1995. There is a reference in the return that at Annexure R-1 copy of notice is placed but it is not filed with the return. That apart, the statement made on affidavit by respondent No.3 in the return, which is sworn by Shri. Dilip Pandharinath Talmale, the then Tahsildar that notice of hearing before passing of the order dated 12-10-1995 was issued to the petitioner to remain present on 4-10-1995 along with relevant documents appears to be false. Respondent No.3 made a reference to S.D.O., Nagpur on 6-10-1995 and received permission to review the order dated 23-1-1990 granting mutation only on 7-10-1995. It is only after permission was granted by the S.D.O. for making review, the notice of hearing of review application before passing order under review dated 12-10-1995 could be issued to the petitioner - Society. However, Tahsildar, Nagpur (Rural) i.e. respondent No.3 claims that even before submission of proposal for review on 6-10-1995, notice of hearing of the review proceedings was given to the petitioner - Society and since the petitioner - Society did not appear on 4-10-1995, the order dated 12-10-1995 was passed. It is thus clearly seen that respondent No.3 Tahsildar, Nagpur (Rural) has in order to justify his illegal act sworn false affidavit and, therefore, I hold that the petitioner - Society had no notice of the proceedings for review and, consequently, order dated 12-10-1995 was passed without notice in violation of the aforesaid provisions.

7. Now referring to the provisions of Section 258(1)(iv) of the Maharashtra Land Revenue Code, 1966 it is clear that the impugned orders could not have been passed as no private party or person made any application for review before the Tahsildar, Nagpur (Rural) at any point of time much less within 90 days from passing of the order dated 23-1-1990. Admittedly, in the instant case the transfer of property was made by a private party in favour of the private party i.e. petitioner - Society and, therefore, Tahsildar, Nagpur (Rural) had absolutely no reason to initiate the proceedings for review and on the contrary the mandate of the above provisions shows that there is a specific bar in opening the proceedings for review, if the question of rights between private parties is involved. It cannot be said that either S.D.O. or Tahsildar did not know this provision. Hence, I hold that the impugned orders are contrary to the aforesaid provisions of Section 258(1)(iv) of the Code.

8. Perusal of the impugned orders show that there is absolutely no reason given for reviewing the mutation entries that too after a period of five years. There is absolutely no explanation by respondent No.3 as to why after five years such suo motu review proceedings were initiated, particularly when none disputed the title of the petitioner - Society nor there was any other material to initiate review proceedings. I asked learned A.G.P. for the respondents repeatedly to point out the reason for doing so. He submitted that since no public notice was published in the village Chawadi when mutation entry on 23-1-1990 was taken, there was violation of Section 150(2) of the Maharashtra Land Revenue Code, 1966 and that was the only reason for passing the impugned orders. No record has been shown to this Court to support this contention in the first place. Secondly, this reason appears to be lame excuse inasmuch as the period of five years that had passed clearly shows that the said reason actually did not exist. Neither Talathi was examined in support of this contention raised by Tahsildar nor the record shows any such reason. At any rate, somewhere in the reference order as well as in the impugned orders, fact of alleged non-publication would have been reflected but that is not so. I, therefore, conclude that the said reason advanced by the respondent No.3 is not factually correct but advanced with a view to take some defence.

9. From the above discussion, it is clear that there is total misuse of authority by the respondent No.3 Tahsildar, Nagpur (Rural) and it clearly appears that he has undertaken the entire exercise for harassing the petitioner - Society and its members and for extraneous reasons. Harassment of the petitioner - Society and its members in the manner which has been done in the instant case cannot be taken lightly and so also the conduct of Shri. Dilip Pandharinath Talmale the then Tahsildar, who has passed the impugned order. Shri. Dilip Pandharinath Talmale, the then Tahsildar, Nagpur (Rural), who has sworn the affidavit to the return is wholly responsible for this litigation. It is, therefore, necessary to award exemplary costs to the petitioner recoverable personally from Shri. Dilip Pandharinath Talmale, the then Tahsildar, who passed the impugned order. I have already come to the conclusion that the affidavit sworn by the then Tahsildar Shri. Dilip Pandharinath Talmale to the return that he had served notice on the petitioner - Society to appear along with documents on 4-10-1995 is clearly false and with a view to mislead this Court to believe that opportunity of hearing was given to the petitioner - Society before passing the impugned order dated 12-10-1995. As earlier pointed out, the permission to make review was itself granted on 7-10-1995 by the S.D.O. and, hence, there was no question of issuing notice to appear on 4-10-1995. The affidavit being false, I am satisfied that this is a fit case where action deserves to be taken against Shri. Dilip Pandharinath Talmale, the then Tahsildar for swearing false affidavit in this Court. Hence, the following order.

10. Rule is made absolute in terms of prayer Clause - (A) to the writ petition and order dated 7-10-1995, passed by the S.D.O. and order dated 12-10-1995, passed by Tahsildar, Nagpur (Rural) are quashed and set aside. The costs of Rs.10,000/- (Rupees Ten Thousand Only) shall be personally paid by Shri. Dilip Pandharinath Talmale, the then Tahsildar, Nagpur (Rural) to the petitioner - Society within ten weeks from today.

11. Registry is directed to issue show cause notice to Shri. Dilip Pandharinath Talmale, the then Tahsildar, Nagpur (Rural) as to why action for swearing false affidavit dated 5-6-1996 to the return filed in this writ petition on 10-6-1996 should not be taken. Show cause notice is made returnable within ten weeks from today. The registry is directed to issue notice to Shri. Dilip Pandharinath Talmale, the then Tahsildar, Nagpur (Rural) after obtaining his present address from the Commissioner, Nagpur Division, Nagpur.

Petition allowed.