Dismissed

Dattatraya Janardan Dahiwal v. Anil Chandraprakash Gupta and Another

Bombay HC8 Jul 2014WP/9050/2013

Case brief

AI extract

What is this about?

Division Bench dismissed the writ petition challenging a rejection of an appeal regarding a mutation entry. The Court held the writ was not tenable due to the availability of statutory revision under Section 257 of the Maharashtra Land Revenue Code and the filing of a concurrent civil suit.

What did the court decide?

Writ petition dismissed with liberty to file revision under Section 257 of the Maharashtra Land Revenue Code, if not time-barred.

Dattatraya Janardan Dahiwal Vs Anil Chandraprakash Gupta and… — Land Acquisition | Bombay HC (2014)

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W.P.No.9050/2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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WRIT PETITION NO.9050 OF 2013

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Dattatraya s/o Janardan Dahiwal

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..Petitioner

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Versus

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Anil s/o Chandraprakash Gupta and anr.

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..Respondents

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Mr V.D.Sonawane, Advocate for petitioner Mr B.V.Wagh, Advocate for respondent Nos.1 and 2

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CORAM : N.W. SAMBRE, J.

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DATE : 8th July 2014

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PER COURT

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The present writ petition is preferred by the petitioner questioning the order dated September 27, 2012 passed by the Deputy Director, Land Records, Nasik Region, Nasik in Appeal No.43/2012. By the said order, the appeal preferred by the present petitioner came to be rejected. The subject matter of the appeal was the mutation entry taken in the revenue record in relation to Survey No.91/3.

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According to petitioner, when the initial measurement of the said survey number was carried out, it was expected of the authorities to issue notice to him and then based upon the title, measurement ought to have been carried out. He submits that the measurement was carried out by the authorities as per the

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W.P.No.9050/2013

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instructions of the parties, who were present on the spot. Notice was never served on the petitioner and as such, he was not present at the time of measurement of the said survey number. He submits that the revenue entries, as are taken in relation to holdings in the survey number, after the measurement, has caused prejudice to the petitioner and as such, he preferred an appeal. The above referred appeal was carried against the order dated 29^th November 2011 passed by the District Superintendent of Land Records, Ahmednagar.

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Against the order of dismissal of appeal on 29^th November 2011, the petitioner preferred Second Appeal under Section 247 of the Maharashtra Land Revenue Code before the Deputy Director of Land Records, Nasik Region, Nasik.

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The learned Counsel for the respondents has raised a preliminary objection as regards petitioner not availing alternate remedy. For the purpose, learned Counsel for respondents has invited attention of this Court to the provisions of Section 257 of the Maharashtra Land Revenue Code so as to canvass that an efficacious remedy of revision is available to the petitioner and the petitioner has not exhausted the same.

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W.P.No.9050/2013

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The learned Counsel for the petitioner was called upon to make submission as regards availability of alternate remedy and conduct of the petitioner in not exhausting the same. In response to the same, learned Counsel for petitioner submits that the bar of alternate remedy is a rule of self restriction imposed by the Court while exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India. He submits that it could be demonstrated before the Court that the order is without jurisdiction and is passed in violation of principles of natural justice, the bar of alternate remedy will not operate. He has invited attention of this Court to the judgment of this Court in the matter of Laxman R.Vajage Vs. Collector of Bombay and ors., reported in 2005 (1) Mh.L.J.487. He submits that the Court while dealing with the issue of alternate remedy, in paragraph 11 of the judgment observed thus :

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“ 11 . Referring to the Writ Petition No.1252 of 1995, it was also sought to be contended on behalf of the respondents that statutory remedies in the form of appeal and revision were also sought to be exhausted by the petitioner without any success as they were beyond the period of limitation. One fails to understand the logic behind the said argument as once the initial order is to be held as bad in law ab initio, even failure on the part of the parties to challenge such order by way of appeal or revision either within time or beyond the

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W.P.No.9050/2013

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period of limitation will hardly make any difference as an order passed without jurisdiction is a nullity and can be challenged in writ petition without exhausting the alternate remedies and the law in that regard is wellsettled. It is also to be noted that the points relating to bar of limitation was not raised before the concerned authority and it has been pointed out by the learned Advocate for the petitioners that the appeal was not rejected on the ground of bar of limitation. In any case, it is too late in the day for the respondents to raise the plea of limitation.”

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The learned Counsel for the petitioner further relied on the judgment of this Court in the matter of Malpani Infertility Clinic Pvt.Ltd., and ors., Vs. Appropriate Authority, PNDT Act and ors., reported in 2004 (4) Mh.L.J.1058. Para 6 of the said judgment reads thus :

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“6. Mr. Sakhare, learned senior Counsel appearing for respondent No.1, submitted that an Appeal having been provided, it ought to be first exhausted. As far as this submission is concerned, undoubtedly there is some merit therein. However, the principle of exhaustion of internal remedies is a rule of self restriction as far as the powers of the High Court are concerned. That being so, if a party feels that there is no use in resorting to the remedy inasmuch as it is like going from Caesar to Caesar and if the party wants the grievance to be redressed in the High Court, the High Court cannot prevent the party from doing so.”

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Having gone through the observations made by the Court in the said proceedings, as regards the availability of the alternate remedy and not exhausting of the said remedy by the party concerned, it is worth to mention here that the very procedure which is adopted by the authority while carrying out measurement, whether the petitioner was noticed or not and the appreciation of the factual matrix qua the sale deed/title deed in favour of the parties, strict compliance of procedure of measurement, in my opinion cannot be appreciated while exercising powers under writ jurisdiction.

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In the first judgment (Laxman Vs. Collector), cited by the learned Counsel for the petitioner, the petitioner has already exhausted the alternate remedy available under the provisions of Bombay Prohibition Act and after exhausting the alternate remedy, the petitioner has approached the High Court. The Court has made observations as regards the bearing of the order passed in appeal and the revision preferred under the Bombay Prohibition Act in the said matter in case if the first order is bad in law, ab initio. The facts of the said matter and this matter are altogether different and the scheme of the statute by Maharashtra Land Revenue Code and Bombay Prohibition Act cannot be taken at par.

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W.P.No.9050/2013

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The second judgment relied upon by the petitioner is under the Pre-Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994). The contention of the petitioner based upon the said judgment that once a party approaches the High Court, the High Court is duty bound to entertain his writ petition and he cannot be relegated to redress his grievance. The said case is based upon the penal provisions under Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, whereas in the case in hand, the petitioner is objecting action of the authority in carrying out the measurement of land, is a civil consequence.

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In fact, it is noticed that but for remedy under Section 257 of the Maharashtra Land Revenue Code, petitioner has taken recourse to remedy of appeal under Maharashtra Land Revenue Code. However, in this petition, his contention that remedy of revision under Section 257 is not efficacious, is required to be rejected in view of his earlier conduct and preferring an appeal under Maharashtra Land Revenue Code.

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In addition to above, serious note is required to be taken of the fact that the petitioner has also taken recourse to filing of the civil suit in the matter under consideration in this writ petition. In that view of the matter, writ petition is not tenable and same is dismissed.

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W.P.No.9050/2013

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In case the petitioner chooses to file a revision under the Maharashtra Land Revenue Code, the time consumed by the petitioner in prosecuting this petition before this Court be taken into account while dealing with issue of delay.

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( N.W. SAMBRE, J.)

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(vvr/9050.13wp)

Dattatraya Janardan Dahiwal v. Anil Chandraprakash Gupta and Another

Case brief

What is this about?

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Dattatraya Janardan Dahiwal v. Anil Chandraprakash Gupta and Another

Case brief

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