2015(6) ALL MR 694
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

S. B. SHUKRE, J.

Sau. Anjali w/o. Vitthal Ingole Vs. The Sub-Divisional Officer, Washim & Anr.

Civil Revision Application No.75 of 2014

7th November, 2014.

Petitioner Counsel: Mr. R.N. GHUGE
Respondent Counsel: Mr. P.V. BHOYAR, Mr. T.G. BANSOD

(A) Mamlatdars' Courts Act (1906), S.23(2) - Revisional jurisdiction - Exercise of - Words "illegal or improper" u/S.23 confine the scope of examination to legality or propriety - Revisional court has to see whether impugned order conforms to the law - Findings of fact cannot be gone into unless the same is arbitrary and perverse.

Appreciation of evidence in exercise of revisional powers in a manner as if the revisional proceedings are appeal proceedings is not permissible. The revisional power is required to be exercised only within the prescriptive limits of the power conferred by the legislature. If the Section which confers the power prescribes that a revision would lie against an order so as to enable the revising Court to examine the legality or propriety of the order sought to be assailed by preferring revision application, the power has to be exercised only in the manner it is intended to be exercised by the legislature. In other words, the limits which have been laid down in the Section conferring such a power cannot be exceeded.

From the language of Section 23(2) of the said Act, 1906 it becomes crystal clear that the Collector or the competent authority has been conferred with power only with a view to examining the legality and propriety of lower Court's order and nothing more. The words "illegal or improper" used in thisSub section are significant and they confine the scope of examination to legality or propriety of the order assailed. While the word 'legality' cannotes lawfulness or strict adherence to law or legal principle or prescription or doctrine, the expression 'propriety' is understood as referring to fitness, appropriateness to the circumstances or conditions, conformity with requirement correctness, justness etc. In other words, a revisional Court has to see whether the impugned order is consistent with law or though generally coniforming to law, whether the order conforms to the demands of justice as accentuated by the facts glaring in the face of record. Such inquiry would rule out reappreciation of evidence, unless the finding of fact is arbitrary or perverse and confine itself to only legality, correctness and justness of the order. This would mean that finding of fact based upon some consideration of evidence available on record cannot be gone into. If the finding of fact is not based upon the evidence available on record or is based upon some extraneous material or is the result of nonconsideration of material facts established on record, it would be a finding which is arbitrary and perverse and, therefore, against the well settled principles of law set out earlier. Only in such a case that the finding of fact can be interfered with while exercising revisional jurisdiction under Section 23(2) by the competent authority. Of course, if the conclusions recorded by the Mamlatdar result in miscarriage of justice, that would be another reason available to the competent authority for interfering with the order of Mamlatdar on the ground of propriety in revisional jurisdiction.

1968 Mh.L.J.494 Ref. to. [Para 11,13]

(B) Mamlatdars' Courts Act (1906), S.23(2) - Revision - Dispute as to existence of access way - Setting aside findings of Mamlatdar - Ground that spot not inspected by Mamlatdar by making personal visit - However, case is not purely based upon inspection reports - Other evidence also available on record including sale deed and evidence of witnesses - Order of SDO setting aside findings of Mamlatdar not justified. (Paras 15, 16)

Cases Cited:
Syed Mahaboob Raju Vs. Habibsha Garibsha, 1968 Mh.L.J. 494 [Para 12]


JUDGMENT

JUDGMENT :- Heard.

2. Admit.

3. Heard finally by consent.

4. This application is preferred against the order dated 23.5.2014, passed by the Sub-Divisional Officer, Washim in Proceeding No. M.C.A.-5/Khandala Khurd/01/ 2013-2014 initiated under Section 23(2) of the Mamlatdar's Court Act, 1906 (in short, "the said Act, 1906") by respondent No.2 against the applicant.

5. The case of the applicant is that she is an owner of portion of Gat No.34, situated at Khandala Khurd, Taluka Washim and respondent No.2 is also an owner of another portion of the same Gat number and that there is a way providing access to the land of the applicant which passes from just inside the Southern boundary or dhura of the land of respondent No.2 and that is the only access way available for the land of the applicant. There was some obstruction caused to the use of the access way by respondent No.2, as alleged by the applicant and, therefore, applicant filed an application under Section 5(2) of the said Act, 1906 before the Mamlatdar or Naib Tahsildar, Washim, seeking order of injunction against the respondent No.2.

6. The application was registered as a proceeding bearing No. M.C.A.-5/Khandala Khurd/06/2012-13. The evidence was adduced by the applicant. Spot inspection was also directed to be carried by the Talathi, Khandala Khurd as well as Circle Officer, Revenue Circle of taluka Washim, who submitted their respective reports on 30th April, 2013 to the Mamlatdar. Upon consideration of the evidence available on record, spot inspection reports and arguments of both sides, learned Mamlatdar by his order dated 27.1.2013 found that the applicant succeeded in establishing existence of access way to her field passing from along Southern boundary of the land of respondent No.2 and making of obstruction to its user by respondent No.2 and, therefore, allowed the application and granted mandatory as well as prohibitory injunction against respondent No.2 by the order passed on 27.9.2013.

7. Being aggrieved by the same, respondent No.2 filed Revision Application under Section 23(2) of the said Act 1906 before the competent authority i.e. Sub-Divisional Officer, Washim. Learned Sub-Divisional Officer found that the Mamlatdar did not properly appreciate spot inspection reports and also did not personally take spot inspection and, therefore, by order dated 23.5.2014 quashed and set aside the order of Mamlatdar dated 27.9.2013.

8. Not satisfied with the same, the applicant is before this Court in this revision application.

9. I have heard Mr. R.N.Ghuge, learned counsel for the applicant and Mr. P.V.Bhoyar, learned A.G.P. for the respondent No.1 and Mr. T.G.Bansod, learned counsel for the respondent No.2.

10. Now, the only point which arises for my determination is :

Whether the impugned order is so illegal and improper as to warrant interference in this revision application ?

11. It is well settled law that appreciation of evidence in exercise of revisional powers in a manner as if the revisional proceedings are appeal proceedings is not permissible. The revisional power is required to be exercised only within the prescriptive limits of the power conferred by the legislature. If the Section which confers the power prescribes that a revision would lie against an order so as to enable the revising Court to examine the legality or propriety of the order sought to be assailed by preferring revision application, the power has to be exercised only in the manner it is intended to be exercised by the legislature. In other words, the limits which have been laid down in the Section conferring such a power cannot be exceeded.

12. In the case of Syed Mahaboob Raju Vs. Habibsha Garibsha, reported in 1968 Mh.L.J. 494, learned Single Judge of this Court has taken a similar view when in paragraph 3 of the judgment the learned Judge observed thus :

"I think, the learned Deputy Collector entertains a misconception about the scope of a revisional application. It is only in an appeal that findings of fact can be gone into and reversed. In a revision application, where the power to revise prescribes that the revisional Court may consider the question of legality and propriety of a finding of the lower Court, as is the case under section 23 of the Mamlatdars' Courts Act, the revisional Court can only go into questions of law, unless a findings of fact is manifestly perverse or unreasonable."

13. From the language of Section 23(2) of the said Act, 1906 it becomes crystal clear that the Collector or the competent authority has been conferred with power only with a view to examining the legality and propriety of lower Court's order and nothing more. The words "illegal or improper" used in this Sub-section are significant and they confine the scope of examination to legality or propriety of the order assailed. While the word 'legality' cannotes lawfulness or strict adherence to law or legal principle or prescription or doctrine, the expression 'propriety' is understood as referring to fitness, appropriateness to the circumstances or conditions, conformity with requirement correctness, justness etc. (see Advanced Law Lexicon, 3rd Edition, by P. Ramanatha Aiyar, PP. 2690, 3801). In other words, a revisional Court has to see whether the impugned order is consistent with law or though generally coniforming to law, whether the order conforms to the demands of justice as accentuated by the facts glaring in the face of record. Such inquiry would rule out reappreciation of evidence, unless the finding of fact is arbitrary or perverse and confine itself to only legality, correctness and justness of the order. This would mean that finding of fact based upon some consideration of evidence available on record cannot be gone into. If the finding of fact is not based upon the evidence available on record or is based upon some extraneous material or is the result of non-consideration of material facts established on record, it would be a finding which is arbitrary and perverse and, therefore, against the well settled principles of law set out earlier. Only in such a case that the finding of fact can be interfered with while exercising revisional jurisdiction under Section 23(2) by the competent authority. Of course, if the conclusions recorded by the Mamlatdar result in miscarriage of justice, that would be another reason available to the competent authority for interfering with the order of Mamlatdar on the ground of propriety in revisional jurisdiction. Now, in the light of these well settled principles of law that one has to examine the order impugned herein.

14. Upon going through the order of Mamlatdar as well as the order of Sub-Divisional Officer, which has been impugned herein, it can be seen that while Mamlatdar's order is well reasoned and based upon proper appreciation of evidence on record, the impugned order passed by the Sub-Divisional Officer, Washim does not appear to be so. He has made a reference to the inspection report of Circle Officer correctly but has incorrectly referred to the inspection report of Talathi. He has mentioned in the order that from the inspection report of Talathi, it is seen that access way is not found to be in existence at the spot. In fact, the inspection report submitted by Talathi specifically mentions about nonexistence of "any other way" for gaining access to the land of the applicant and that it does not make any mention about existence or non-existence of alleged access way. This is a first illegality committed by the Sub-Divisional Officer.

15. Learned counsel for the respondent No.2 submits that the evidence on record shows that the alleged access way is not in existence and that even though a specific prayer was made for making of personal visit and inspecting the spot by Mamlatdar, the request was refused by him and this fact has been properly considered by the Sub-Divisional Officer, Washim and, therefore, according to him, this order cannot be said to be crossing the limits of revisional power. I am not inclined to accept this argument for the reason that even though the prayer for personally making spot inspection by the Mamlatdar was refused, Mamlatdar has found it to be not necessary due to availability of alternate evidence sufficiently establishing the existence of access way. This is not a case, as sought to be argued on behalf of respondent No.2, which is purely based upon the spot inspection reports. There is also available on record some other evidence, which is of the saledeed, which specifically refers to existence of access way and oral evidence of two witnesses, namely, Bhagwan Tajne, the seller of land to the applicant and one Mohan Tulshiram Sawake, both of whom asserting existence of access way. Evidence of these witnesses has been found by the Mamlatdar, upon a detailed assessment, to be probablising the case of the applicant and the assessment has not been shown to be perverse or arbitrary.

16. Learned Sub-Divisional Officer has not at all considered the availability of other cogent evidence in this case as discussed above, which is another illegality committed by him. He appears to have only examined the matter through a narrow compass of spot inspection reports, that too incorrectly, and refusal of prayer for personally visiting and inspecting the spot by the Mamlatdar. Result of such an approach adopted by the Sub-Divisional Officer is passing of an illegal, perverse and improper order leading to miscarriage of justice. It is bad in law and in excess of the jurisdiction conferred upon the competent authority under Section 23(2) of the said Act, 1906 and, therefore, needs to be interfered with. The point is answered accordingly.

17. The revision is allowed.

18. The impugned order is quashed and set aside and the order passed by the Naib Tahsildar, on 27.9.2013 is confirmed. No order as to costs.

Revision allowed.