Allowed

Samir Tufel Taheer and Anr. v. Shripati Ganpat Padwal Throu. Poa Prashant Prakash Jori and Ors.

Bombay HC1 Apr 2024WP/3659/2024

Case brief

AI extract

What is this about?

Court held that Appellate Authority under Maharashtra Land Revenue Code lacks power to grant injunction during mutation appeal. Order set aside as without jurisdiction under Article 226 despite availability of statutory remedy.

What did the court decide?

Rule made absolute setting aside impugned order directing parties to maintain status quo. Writ petition disposed of.

Samir Tufel Taheer and Anr. Vs Shripati Ganpat… — Civil Procedure and Limitation | Bombay HC (2024)

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Nikita

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.3659 OF 2024

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NIKITA KAILAS DARADE

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Digitally signed by NIKITA KAILAS DARADE Date: 2024.04.02 18:16:09 +0530

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Samir Tufel Taheer and Anr.… Petitioners
V/s.
Shripati Ganpat Padwal Through POA
Prashant Prakash Jori and Ors.… Respondents

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Mr. Kishor Patil a/w Mr. Yatin Yeole i/b Mr. Sidheshwar
Biradar, for the Petitioner.

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Mr. Hamid D. Mulla AGP for State-Respondent Nos. 2
and 3.

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Mr. Hitesh Vyas i/b Mr. Chandrashekhar Yadav a/w
Mr. Rasik Raut for the Respondents.

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CORAM :AMIT BORKAR, J.

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DATED:APRIL 1, 2024

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P.C.:

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1. Rule. Rule is made returnable forthwith.

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2.Challenge in this petition is to the order passed by the
Sub-divisional Officer in an appeal filed by respondent No.1
challenging the mutation entry based on registered sale deed
effected in favour of the petitioners in the year 1995-1996.

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3.The facts on record indicates that the respondent No.1 had
earlier filed an Appeal No.1189 of 2023. There was delay of 27
years and three months in filing the appeal. The application for the

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condonation of delay was also filed. However, during the pendency
of the such appeal. The appellant filed an Application No.186 of
2024 seeking injunction against the petitioners from constructing
over the properties in dispute. The Sub-divisional Officer by the
impugned order has directed parties to maintain status quo. This
order is subject matter of the present writ petition.

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4.Learned counsel for the petitioners submitted that the
impugned order is ex-facie without jurisdiction as it travels way
beyond the powersconferred on Authorities under the provisions
of conferred under Sections 149 and 150 of the Maharashtra Land
Revenue Code, 1966 (“Code” for short).

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5.Learned counsel for the respondent No.1 submitted that the
petitioners have remedy by way of revision under Section 257 of
the Code and the petition need not be entertained. He submitted
that during the pendency of the appeal, the petitioners tried to
make construction over the property in dispute which prompted
them to file such application and, therefore, this Court need not
interfere with such discretionary order.

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6.I have heard the parties. For the purpose of adjudicating the
point raised, it is necessary to consider the scheme of the Section
149 and 150 of the Code which reads as under:

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“149. Acquisition of rights to be reported.

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Any person acquiring by succession, survivorship,
inheritance,partition, purchase, mortgage, gift, lease or
otherwise, any rights as holder, occupant, owner, mortgagee,
landlord, Government lessee or tenant of the land situated in
any part of the State or assignee of the rent or revenue

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thereof, shall report orally or in writing his acquisition of
such right to the Talathi within three months from the date
of such acquisition, and the said Talathi shall at once give a
written acknowledgement of the receipt of such report to the
person making it.

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150. Registration of Mutation and register of disputed cases

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1) The Talathi shall enter in a register of mutations
every report

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made to him under section 149 or any intimation of
acquisition or transfer under section 154 or from any
Collector.

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(2) Whenever a Talathi makes an entry in the register
of mutations, he shall at the same time post up a complete
copy of the entry in a conspicuous lace in the Chavdi, and
shall give written intimation to all persons appearing from
the record of rights or register of mutations to be interested
in the mutation, and to any other person whom he has
reason to believe to be interested therein.”

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7.On reading of the aforesaid provisions, it appears that the
Authorities under the Code are empowered to enter name of a
person claiming acquisition of right by succession, survivorship,
inheritance, partition, purchase, mortgage, gift, lease or other aids.
It is well settled that the limited enquiry which the Circle Officer or
Talathi is empowered is to ascertain acquisition of right under the
document claimed by the person applying for entry of his name.
Since the Talathi or the Circle Officer are creature of statute, they
cannot exercise more power than the power conferred under the
provisions of statute.

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8.In the facts of the case it is undisputed that the petitioners’
names were entered in revenue record based on registered
instrument in the year 1995-1996. Such entry was challenge in the
year 2023 after an lapse of period of 27 years. The appeal was
accompanied by an application for condonation of delay.
Considering the scheme of the Code and settled interpretation of
Section 149 of the Code that such entries can not create or
extinguish substantive rights over immovable property, the
Appellate Authority while exercising power under Section 247 of
the Code have no power to grant interim relief during the
pendency of the application of condonation of delay. Such power is
available only if the order impugned affects substantive rights of
the parties like the appeal arising out of decree passed by Civil
Court wherein provisions of Order 41 Rule 3(A) are interpreted to
confer power on Appellate Court to grant interim relief during the
pendency of the application for condonation of delay.

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9.However, considering the scheme of the Code and the
mutation entries have no effect on substantive rights over
immovable property, in my opinion, the Appellate Authority could
not have granted any interim relief in favour of the appellant
during the pendency of the application for condonation of delay.

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10. On reading of the application for interim relief, it indicates
that the respondent No.1 was seeking relief of injunction against
the petitioners. Such injunction in absence of source of power
could not have been granted by the Appellate Authority. It needs to
be noted that only power which inheres in Appellate Authority is
to grant stay to the order impugned. In absence of conferment or

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specific power under a statute, the Appellate Authority under the
Code has no power in an appeal arising out of challenge to
mutation entry under Section 149 of the Code to grant relief of
injunction.

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11. It is well settled that the order of grant of stay is directed
against the effect and operation of the order passed by the
Sub-ordinate Authority. However, the order of injunction is
directed against the respondents as a person. Therefore, it is
necessary that the Appellate Authority need to pass such order
only in a case where statute confers such Authority with power of
injunction. Considering the scheme of Section 149 and 150 of the
Code, it cannot be said that such power of injunction is incidental
or necessary for the purpose of exercise of power conferred under
a statute.

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12. Therefore, I am of the considered view that the Appellate
Authority under Section 247 of the Code has no power to grant
injunction against the respondent in relation to property in
question.

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13. The objection raised on behalf of the respondent No.1, is of
availability of alternative statutory remedy. The said question is no
longer res-integra in view of the judgment in the case of
Whirlpool Corporation Vs. Registrar of Trademarks,
Mumbai reported in (1998) 8 SCC 1, the Apex Court in the said
judgment held that non-interference in an order passed by
Statutory Authority is self-imposed restriction by the High Court.
It is policy of prudence adopted by the High Court however such

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rule of availability of alternative statutory remedy is subject to well
recognized inceptions such as:

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a) Breach of principles of natural justice;

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b) The order impugned is without jurisdiction;

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c) The order has effect of affecting fundamental rights of
the litigants.

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14. Since I have already recorded a finding that order is without
jurisdiction. The objection regarding availability of alternative
statutory remedy need not detain this Court from setting aside the
impugned order.

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15. Rule is made absolute in terms of prayer clause (b).

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16. The writ petition is disposed of. No costs.

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(AMIT BORKAR, J.)

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Samir Tufel Taheer and Anr. v. Shripati Ganpat Padwal Throu. Poa Prashant Prakash Jori and Ors.

Case brief

What is this about?

What did the court decide?

Samir Tufel Taheer and Anr. v. Shripati Ganpat Padwal Throu. Poa Prashant Prakash Jori and Ors.

Case brief

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What did the court decide?

What the court decided

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