WRIT PETITION NO. 387 OF 2017

31st July 2019

Petitioner Counsel: Shri Anand Deshpande
Respondent Counsel: Shri A.S. Fulzele Shri S.U. Nemade
Act Name: Mamlatdar Courts Act, 1906 Maharashtra Land Revenue Code, 1966

Section :
Section 5 Mamlatdar Courts Act, 1906 Section 23 Mamlatdar Courts Act, 1906 Section 23(2) Mamlatdar Courts Act, 1906 Section 23(2A) Mamlatdar Courts Act, 1906 Section 2(34) Maharashtra Land Revenue Code, 1966 Section 7(3) Maharashtra Land Revenue Code, 1966 Section 13(3) Maharashtra Land Revenue Code, 1966 Section 13(4) Maharashtra Land Revenue Code, 1966 Section 247 Maharashtra Land Revenue Code, 1966

Cases Cited :
Paras 2, 3, 10: Bija Maroti Hatwar Vs. Kisan Chirkut Padole and another, reported in 2015(1) Mh.L.J. 282
Para 2: Narayan S/o Bhagwan Bholankar and others Vs. Dattatraya S/o Digambar Tayade and others, [Writ Petition No.4609 of 2015 decided on 28-4-2016]
Para 2: Ramesh Damu Patil Vs. Purushottam Umrao Chavan and others, reported in 2017(1) Mh.L.J. 818
Paras 2, 4: Vilas Gajanan Bhujbal and others Vs. Pushpa Chandrakant Dabhade and others, reported in 2018(2) Mh.L.J. 322
Para 2: Bachulal @ Narayandas s/o Rambilas Rathi and another Vs. Mohan Bhagwatrao Thakare and ors., reported in 2016 Mh.L.J. Online 52
Para 3: Shantaram Namdeo Ghule and another Vs. Sub-Divisional Officer, Jalgaon Jamod and others, [Writ Petition No.5169 of 2015 decided on 18-12-2017]
Para 10: Kashiram Asaram Ghadge and others Vs. Ramdas Bhanudas Pund and another, decided by the learned Single Judge [Writ Petition No.7839 of 2017 decided on 13-10-2017]

JUDGEMENT

R.K. DESHPANDE, J.

1. This reference by the learned Single of this Court (Shri A.S. Chandurkar, J.) by his order dated 12-4-2018 is constituted to decide the following question of law :
“ Whether it is permissible for the Collector to delegate powers conferred on him by Section 23(2) of the Mamlatdar Courts Act, 1906 to any Sub-Divisional Officer as defined by Section 2(34) of the Maharashtra Land Revenue Code, 1966? If such delegation of powers is permissible, whether such delegation would entitle the SubDivisional Officer to exercise jurisdiction under Section 23(2) of the Mamlatdar Courts Act, 1906?”

2. The first decision in point of time on the aforesaid question is in the case of Bija Maroti Hatwar v. Kisan Chirkut Padole and another, reported in 2015(1) Mh.L.J. 282, in which it is held that the Sub-Divisional Officer had no jurisdiction to entertain, try and decide the revision application under Section 23(2) of the Mamlatdars' Courts Act, 1906 (for short, “the said Act”) and hence the order passed by the Sub-Divisional Officer was set aside. This decision was followed in the cases of (1) Narayan S/o Bhagwan Bholankar and others v. Dattatraya S/o Digambar Tayade and others [Writ Petition No.4609 of 2015 decided on 28-4-2016]; (2) Ramesh Damu Patil v. Purushottam Umrao Chavan and others, reported in 2017(1) Mh.L.J. 818; (3) Vilas Gajanan Bhujbal and others v. Pushpa Chandrakant Dabhade and others, reported in 2018(2) Mh.L.J. 322; and (4) Bachulal @ Narayandas s/o Rambilas Rathi and another v. Mohan Bhagwatrao Thakare and ors., reported in 2016 Mh.L.J. Online 52. In all these decisions, it is held that the Collector was not competent under sub-section (2A) of Section 23 of the said Act to delegate the powers of deciding the revision under sub-section (2) of Section 23 therein to the Sub-Divisional Officer and accordingly the decision was set aside.

3. In Shantaram Namdeo Ghule and another v. SubDivisional Officer, Jalgaon Jamod and others [Writ Petition No.5169 of 2015 decided on 18-12-2017], it is held that the powers exercisable by the Collector under Section 23(2) of the said Act can be delegated to the Sub-divisional Officer as per the order of delegation dated 28-2-1961 and, therefore, it cannot be said that the Sub-Divisional Officer had no authority to entertain, try and decide the revision application filed by the petitioners. This decision is by the same learned Single Judge, who delivered it in Bija Maroti Hatwar's case, cited supra, taking a contrary view even after referring to the said decision.

4. The learned Single Judge noted in the order of reference that there is a conflict between the two decisions in the cases of Shantaram Namdeo Ghule and Vilas Gajanan Bhujbal, cited supra, taking a contrary view and, therefore, the question of law framed, as above, was referred for decision by the larger Bench.

5. Section 23 of the Mamlatdars' Courts Act being relevant, is reproduced below :
“23. (1) There shall be no appeal from any order passed by a Mamlatdar under this Act.
(2) But the Collector may call for and examine the record of any suit under this Act, and if he considers that any proceeding, finding or order in such suit is illegal or improper, may, after due notice to the parties, pass such order thereon, not inconsistent with this Act, as he thinks fit.
(2A) The Collector may delegate the powers conferred on him by this section to any Assistant Collector, Deputy Collector or Assistant Commissioner subordinate to him.
(3) Where the Collector, Assistant Collector, Deputy Collector or Assistant Commissioner takes any proceedings under this Act he shall be deemed to be a Court, under this Act.”
We are concerned with the exercise of revisional jurisdiction under sub-section (2) of Section 23 of the said Act. The power is essentially conferred upon the Collector, who is also made competent under sub-section (2A) therein to delegate the powers to any Assistant Collector, Deputy Collector or Assistant Commissioner subordinate to him.

6. An order was passed by the Collector, Wardha, on 31-5-2016, which is reproduced below :
“ In exercise of the powers conferred on me by the provision of Section 23(2A) of the Mamlatdars Courts Act, 1906, I, Shaileshh Naval, Collector, Wardha, hereby delegate powers of Collector under the Mamlatdars Courts Act, 1906, specified in section 23(2) to the Deputy Collector or Assistant Collector who is working as Sub-Divisional Officer of the concerned division of district Wardha from this date.”
By an aforesaid order under sub-section (2A) of Section 23 of the said Act, the Deputy Collector or Assistant Collector, who is working as Sub-Divisional Officer of the concerned division of District Wardha, is conferred with the power to decide the revision under sub-section (2) of Section 23 of the said Act. Though 'Sub-Divisional Officer' is not defined under the said Act, the Maharashtra Land Revenue Code, 1966 defines it under Section 2(34), which is reproduced below :
“2. Definitions
In this Code, unless the context otherwise requires.-
(34) “Sub-Divisional Officer” means an Assistant or Deputy Collector who is placed in charge of one or more subdivisions of a district.”

7. Our reading of the delegation of the power, as per the order dated 31-5-2016, is that essentially it is conferred upon the Deputy or Assistant Collector, subordinate to the Collector. Even if we see the definition of 'Sub-Divisional Officer' under Section 2(34) of the Maharashtra Land Revenue Code, it is only the Assistant or Deputy Collector, in charge of one or more sub-divisions of a district, is called as 'Sub-Divisional Officer'. Merely because such Deputy or Assistant Collector is also performing the function of the Sub-Divisional Officer in respect of sub-division under sub-section (1) of Section 4 or is called as such under sub-section (3) of Section 7 of the Maharashtra Land Revenue Code, he would not be incompetent to act as a delegatee of the Collector under sub-section (2A) of Section 23 of the said Act. Hence, such delegation of power is permissible and would entitle him to exercise jurisdiction under sub-section (2) of Section 23 of the said Act, to decide revision. The question referred to is answered accordingly. However, this would not mean that any Sub-Divisional Officer, who is not the Assistant Collector, Deputy Collector or Assistant Commissioner can be a delegatee or empowered by the Collector under sub-section (2A) of Section 23 of the said Act to entertain, try and decide the revision under sub-section (2) of Section 23. Such question, if raised, can be decided independently upon the pleading and material, if any, placed on record.

8. In Bija Maroti Hatwar's case, the actual order of delegation under sub-section (2A) of Section 23 of the said Act was neither produced nor noticed by the Court. The Court had, therefore, no occasion to look into the actual order of delegation by the Collector. The same learned Single Judge, who decided the said case, noticed in the subsequent case of Shantaram Namdeo Ghule the order dated 28-2-1961 issued by the then Collector, Buldana, delegating the power conferred upon him under sub-section (2) of Section 23 of the said Act upon the Assistant Collector or Deputy Collector, who is placed in charge of one or more sub-divisions of a district, in exercise of his power under sub-section (2A) of Section 23 therein and it is held that this is permissible and it cannot be held that the Sub-Divisional Officer had no authority to entertain and decide the revision application.

9. The result of a view taken in Shantaram Namdeo Ghule's case is that the decision in the case of Bija Maroti Hatwar was rendered per incuriam. Consequently, the other decisions in the cases of Narayan Bhagwan Bholankar, Ramesh Damu Patil, Vilas Gajanan Bhujbal, and Bachulal @ Narayandas Rambilas Rathi, which followed the view taken in Bija Maroti Hatwar, no longer remain a good law and we, therefore, overrule the decision in Bija Maroti Hatwar's case along with the other decisions which follow it and confirm the view taken in Shantaram Namdeo Ghule's case.

10. In the case of Kashiram Asaram Ghadge and others v. Ramdas Bhanudas Pund and another, decided by the learned Single Judge [Writ Petition No.7839 of 2017 decided on 13-10-2017], the provisions of Sections 5 and 23 of the Mamlatdars' Courts Act along with the provisions of Sections 2(34), 7(3), 13(3), 13(4) and 247 of the Maharashtra Land Revenue Code read with Schedule E therein are considered and in Paragraph 27, the view is taken as under :
“27. Considering the above, I am of the view that the SDO under the MLR Code can not be presumed to be an SDO under the MC Act since the MC Act does not prescribe or define any role for the SDO. The Assistant Collector or Deputy Collector upon delegation of authority, would be entitled to hear the RTS Revision under Section 23 since the Collector delegates his powers to the Deputy Collector or Assistant Collector under Section 23(2A) under the MC Act. He does not delegate his authority to the SDO under the MLR Code for the purposes of hearing the revision petitions under Section 23 of the MC Act. Once an Assistant or Deputy Collector becomes a Divisional Officer in charge of the sub-divisions, thereby terming him to be an SDO, would not mean that he would no longer remain an Assistant or Deputy Collector. He would perform the role designed for him under the MLR Code as an SDO and while dealing with the matters under the MC Act, he would be discharging his duties as an Assistant or Deputy Collector after receiving delegated powers from the Collector under Section 23(2A) of the MC Act.”
The learned Single Judge also considers the decisions in the cases of Bija Maroti Hatwar and Narayan Bhagwan Bholankar, cited supra, and it is held that the revision under sub-section (2) of Section 23 of the said Act is decided by the Assistant or Deputy Collector, though he is routinely referred to as the SubDivisional Officer. It is held that the Collector does not delegate his powers to the Sub-Divisional Officer under the Maharashtra Land Revenue Code for the purposes of hearing of revision under Section 23(2) of the said Act. We, therefore, express our complete agreement with the aforestated view of the learned Single Judge.

11. It is urged by Shri Nemade, the learned counsel appearing for some of the respondents in Writ Petition No.387 of 2017, that the Mamlatdars' Courts Act is a self-contained Code relating to the judicial functions to be exercised by the authorities. The revisional authority of the Collector under sub-section (2) or of the Assistant Collector, Deputy Collector or Assistant Commissioner under sub-section (2A) of Section 23 of the said Act is deemed to be a 'Court' under subsection (3) therein and, therefore, the provisions of Sections 2(34), 7(3), 13(3), 13(4) and 247 of the Maharashtra Land Revenue Code read with Schedule E therein cannot be invoked as an aid to construe the authorities of the Assistant Collector, Deputy Collector or Assistant Commissioner to include the Sub-Divisional Officer. According to him, the object and purpose of both the legislations is different.

12. No doubt, that the Mamlatdars' Courts Act is a selfcontained Code relating to the judicial functions to be exercised by the authorities deemed to be a 'Court'. The object and purpose as well as the field of operation of both these enactments, viz. The Mamlatdars' Courts Act, 1906 and the Maharashtra Land Revenue Code, 1966, are different There cannot be a delegation of power of adjudication or the judicial function, in the absence of such provision under the Statute. If the Statute confers delegation of power upon the authorities specified, the delegatee can only be such specified authority and no one else. However, what we find in the present case is that the actual delegation of power is upon the Deputy or Assistant Collector, subordinate to the Collector, who can be described as 'delegatee' under sub-section (2A) of Section 23 of the said Act.

13. In view of the aforesaid discussion, we answer the reference and hold that the delegation of power by the Collector under sub-section (2A) of Section 23 of the Mamlatdars' Courts Act to the Deputy Collector or Assistant Collector, who is working as the Sub-Divisional Officer of the concerned divisions of the district, is correct, legal and proper. We, however, hold that if any dispute arises as to whether a particular Sub-Divisional Officer is not the Assistant Collector or Deputy Collector or Assistant Commissioner, as is referred to in sub-section (2A) of Section 23 of the said Act, it can be decided on its own merits, and in none of the decisions referred to above, such dispute was ever raised and decided.

14. The matter, therefore, be placed before the learned Single Judge for decision in accordance with the aforesaid view.