WP-12165-2016.doc v. Shri. Nathrimal Sundardas Muyani (Deceased)

Judgment

1. This Court by order dated 23rd January, 2017 issued notice before admission. The Respondent No. 6 is appearing through learned

counsel, Ms. Karnik. The learned AGP appears for Respondent Nos. 3, 4 &

5. As far as notice of Respondent Nos. 1a & 2 is concerned, they have been served by private notice and affidavit of service has been filed.

2. The impugned order in the present Writ Petition is order dated 16th May, 2016 passed by learned Member, Maharashtra Revenue Tribunal, Mumbai in Tenancy Revision Application No. 1095/B/2003.

3. Mr. Narvekar, learned counsel appearing for the Petitioner submitted that, by the impugned order the Revision has been transferred to the Additional Commissioner, Konkan Division, Konkan on the ground that Maharashtra Revenue Tribunal, Mumbai has no jurisdiction. He submitted that, the said issue was decided by the President, Maharashtra Revenue Tribunal, Mumbai by order dated 28th December, 2011. The said order was passed after hearing the present Petitioner as well as the Respondent No. 6 who is contesting Respondent. He submitted that, the impugned order before the Tribunal is order dated 12th June, 1995 passed by Sub-Divisional Officer, Thane Division, Thane in RTS Appeal No. 56 of 1994. The said Appeal was RTS Appeal regarding Mutation Entry No. 593 and Mutation Entry No. 661. He submitted that, at the time of hearing of the said RTS Appeal challenging the said Mutation Entries, the Sub-Divisional Officer entertained suo moto Revision and held that as the property in question is an evacuee property, the provisions of the Bombay Tenancy & Agricultural Lands Act, 1948 are not applicable to the same and therefore, cancelled the order of sale under Section 32(G) of the Tenancy Act. He submitted that, therefore, the Maharashtra Revenue Tribunal, Mumbai has jurisdiction to decide or to entertain challenge to the said order passed by exercising power under Section 256 of the Maharashtra Land Revenue Code, 1966. He submitted that the Tribunal has power to entertain Revision under Section 76 of the Bombay Tenancy & Agricultural Lands Act, 1948.

4. On the other hand, Ms. Karnik submitted that challenge before the Tribunal was to order dated 12th June, 1995 passed by Sub-Divisional Officer, Thane Division, Thane which was passed in an Appeal under Section 247 of the Maharashtra Land Revenue Code, 1966. She submitted that as the challenge is to the order passed by S.D.O. the Appeal lies to the Additional Commissioner Kokan Division, Kokan. She therefore, supported the impugned order.

5. Before considering the rival contentions, it is necessary to set out relevant portion of order dated 28th December, 2011 passed by President, Maharashtra Revenue Tribunal, Mumbai in same Revision No. 1095/B/2003 in which the impugned order is passed. “In this case, though the S.D.O. was entertaining RTS Appeal as against Mutation Entry No. 594 and 661, still during proceedings, he entertained suo motu Revision and observed that since it was an evacuee property, the provisions of Bombay Tenancy & Agricultural Lands Act are not applicable and therefore, the sale of land to Revision Applicant was wrong and he cancelled the order of sale u/s. 32G of the Tenancy Act. In these circumstances, this Tribunal has jurisdiction as in RTS matter, the issue under the Tenancy Act is decided.” (Emphasis added)

6. A perusal of the impugned order dated 16th May, 2016 shows that above earlier order dated 28th December, 2011 has not been noticed by the learned Member, Maharashtra Review Tribunal, Mumbai. It is significant to note that while passing impugned order, it has been wrongly assumed that challenge is only to the order regarding Mutation Entry. As set out in order dated 28th December, 2011 of the Tribunal challenge is also to the invocation of suo moto revisional powers. The relevant portion of the impugned order dated 16th May, 2016 is reproduced hereinbelow :-. ß,danfjr izdj.kkps Lo:i ikgrk QsjQkj dz- 661 jn~nckry dj.;kph dk;Zokgh QDr vkOgkfur dsysyh fnlwu ;srs- Eg.ktsp ftYgkf/kdkjh ;kaP;kdMwu visf{kr vlysyh dk;Zokgh vkrk vkOgkfur dj.;kph vlY;keqGs vtZnkjkus vIij vk;qDr dksd.k foHkkx ;kaP;kiq<s tk.ks vko’;d gksrs- dnkfpr egkjk”Vª eglwy U;k;kf/kdj.k gs 2003 lkyh dk;Zjr ulrkauk gs izdj.k nk[ky dsys vlY;keqGs vtZnkjkus rs izdj.k vIij vk;qDr dksd.k foHkkx ;kaP;kiq<s nk[ky dsys vlkos- ijarw R;keqGs R;k izdj.kkps eqG Lo:i rFkk gs izdj.k egkjk”Vª tfeu eglwy vf/kfu;e 1966 P;k dye 257 vUo;s nk[ky dsY;k xsY;kph ckc utjsvkM djrk ;s.kkj ukgh- Eg.kwu 2008 lkykuarj egkjk”Vª eglwy U;k;kf/kdj.kkdMs oxZ u djrk gs izdj.k vIij vk;qDr dksd.k foHkkx ;kauh R;kaP;kp dk;kZy;kiq<s Bso.ks vko’;d vlrkauk vtZnkj gk ák U;k;kf/kdj.kkiq<s ikBfoyk xsyk- R;kauh mHks dsysys iz’u vIij vk;qDr dksd.k foHkkx ;kaP;kdMwup fu”df”kZr d:u ?ks.ks vko’;d vlrkauk fdacgwuk R;kauh iq<s vk.kysys iz’u gs vIij vk;qDr dksd.k foHkkx ;kaP;k v[kR;kjhrhy vlY;keqGs gs U;k;kf/kdj.k vf/kd foospu u djrk gs izdj.k iqUgk vIij vk;qDr dksd.k foHkkx ;kaP;kdMs ikBfo.;kP;k fu.kZ;kizr vkysys vkgs-Þ (Emphasis added)

7. It is settled legal position that order passed in the same legal proceeding will act as res-judicata at the subsequent stage of the same proceeding when the question or issue involved has been decided at an earlier stage [Erach Boman Khavar Vs. Tukaram Shridhar Bhat & Anr1]. It is the submission of Ms. Karnik that by order dated 28th December, 2011 the 1 (2013) 15 SCC 655 issue regarding jurisdiction is not conclusively decided. In any case perusal of the impugned order do not show that the earlier order dated 28th December, 2011 has been taken into consideration. Thus, while passing the impugned order the effect of the earlier order dated 28th December, 2011 on the continuation of proceedings before the Tribunal is not considered. Thus impugned order suffers from illegality and perversity and the same is required to be quashed and set aside.

8. In view of the above discussion, the Writ Petition is disposed of by passing following order :- ORDER (a) Impugned order dated 16th May, 2016 passed in Tenancy Revision No.1095/B/2003 by learned Member, Maharashtra Revenue Tribunal, Mumbai is quashed and set aside. (b) The Tenancy Revision Application No. 1095/B/2003 is restored to file of the Maharashtra Revenue Tribunal, Mumbai. (c) The Maharashtra Revenue Tribunal, Mumbai shall decide issue regarding jurisdiction by taking into consideration the earlier order dated 28th December, 2011 and also simultaneously to decide on merits as the Revision is of the year 2003. (d) The learned President, Maharashtra Revenue Tribunal, Mumbai is requested to dispose of the Revision expeditiously and in any case on or before 30th April, 2023. (e) All contentions of the parties are expressly kept open. (MADHAV J. JAMDAR, J.) ARJUN VITTHAL KUDHEKAR Digitally signed by ARJUN VITTHAL KUDHEKAR 18:44:20 +0530