RAVINDRA v. GHUGE AND Y.G.KHOBRAGADE, JJ.) DATE
Facts
- 1 -IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD935 WRIT PETITION NO. 591 OF 2024Dhananjay Deoram Jadhav,Age-34 years, Occu-Agriculture,R/o At Post : Dhandhane,Tq. and Dist.Dhule -- PETITIONER VERSUS 1. The State of Maharashtra, Through its Secretary, Revenue and Forest Department, Mantralaya, Mumbai – 32.2. The Collector, Dhule, Dist. Dhule3. The Tahsildar, Dhule, Tq. And Dist. Dhule -- RESPONDENTSMr.Y.B.Bolkar, Advocate for the Petitioner. Mr.S.B.Narwade, AGP for the Respondent/State. ( CORAM : RAVINDRA V. GHUGE AND Y.G.KHOBRAGADE, JJ.) DATE : JANUARY 16, 2024ORAL JUDGMENT (Per Ravindra V Ghuge, J): 1.Rule. Rule is made returnable forthwith and heard finallyby the consent of the parties. khs/Jan.2024/591 - 2 -2.The Tahsildar has passed certain orders and has carried outmutation entries by recording the factum of lis-pendence. ThePetitioner has moved an application/representation dated 23.03.2023calling upon the Tahsildar to review his own orders and set aside themutation entries that were carried out under his orders.3.The learned AGP submits that merely because arepresentation is filed, does not mean that the Court should direct anOfficer to entertain a revision. So also, this would amount to seeking areview by the Tahsildar of his own mutation entries.4. We are of the view that, a Writ of Mandamus is issuedwhen the Court notices that a particular Officer refuses to exercisejurisdiction duly vested in him by Law for deciding particular mattersand in a particular manner, warranting the High Court to issue a‘Command’ to ensure that he exercises the jurisdiction vested in him byLaw. As such, issuance of such a command is a reprimand to a statutoryauthority/officer for not discharging or failing to discharge, the legalobligation of exercising jurisdiction duly vested in him by law.khs/Jan.2024/591
Legal Reasoning
- 8 -his orders carrying out mutation entries. We find that on the one hand,there is no statutory provision by which the Tahsildar can review hisown orders. On the other hand, the statutory provision enables thePetitioner to file an appeal. The representation tendered by thePetitioner is without any foundation of Law and we cannot entertain aWrit Petition for issuing a direction under the Writ of Mandamus to theTahsildar to deal with such representation when he does not have thepower to review his own orders.12.In view of the above, we do not find that therepresentation made by the Petitioner, calling upon the Tahsildar toreview his orders of carrying out mutation entries, could be entertained.This Petition, being devoid of merit, is therefore dismissed. Rule isdischarged. 13. Liberty is granted to the Petitioner to avail of any statutoryremedy as is permissible in Law. ( Y.G.KHOBRAGADE, J. ) ( RAVINDRA V. GHUGE, J.)khs/Jan.2024/591
Arguments
- 3 -5.It would be apposite to refer to a few judgments definingthe scope of a Writ of Mandamus. In Naresh Kumar and Others Vs.Government (NCT of Delhi) [(2019)9 SCC 416], it was held by theHon’ble Supreme Court (3 Judges Bench) that, review is not aninherent power. It can be exercised only when the Statute provides forthe same expressly / specifically or by necessary implication. In theabsence of any such provision in the Statute, power of review cannot beexercised in case of judicial / quasi judicial orders. Exercise of powersof review in absence of express provision would be ultravirus, illegaland without jurisdiction.6.In Sureshsing s/o Sattarsingh Girase Vs. State ofMaharashtra and Others [2021(6) Mh.L.J.617], this Court concludedthat review of earlier orders passed would be impermissible since thescope of review is a creation of the Statute and would flow only fromthe provision of Law. Power of review can be exercised only if theStatute so provides. Reference was made by this Court to the judgmentsdelivered in (1) Dr.Smt.Kuntesh Gupta Vs. Management of HinduKanya Mahavidyalaya, Sitapur (UP) and others [(1987) 4 SCC 525],(2) O.P.Gupta Vs. Union of India and Others, [(1987) 4 SCC 328], (3)khs/Jan.2024/591 - 4 -Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Others[2010 Mh.L.J.Online (S.C.) 53 = (2010) 9 SCC 437], (4) NareshKumar and Others Vs. Government (NCT of Delhi) (2019) Mh.L.J.Online (S.C.) 106 = (2019) 9 SCC 416. 7.In U.P.State Road Transport Corporation and another Vs.Mohd.Ismail and others [(1991) 3 SCC 239], the Hon’ble SupremeCourt (3 Judges Bench) has concluded in paragraph Nos.11 and 12 asunder :-“11. The view taken by the High Court appears to be fallacious. Thediscretion conferred by Regulation 17(3) confers no vested right on theretrenched workmen to get an alternative job in the Corporation. Likeall other statutory discretion in the administrative law, Regulation17(3) creates no legal right in favour of a person in respect of whomthe discretion is required to be exercised other than a right to have hiscase honestly considered for an alternative job by the Corporation. 12. The High Court was equally in error in directing the Corporation tooffer alternative job to drivers who are found to be medically unfitbefore dispensing with their services. The Court cannot dictate thedecision of the statutory authority that ought to be made in the exerciseof discretion in a given case. The Court cannot direct the statutoryauthority to exercise the discretion in a particular manner not expresslyrequired by law. The Court could only command the statutory authorityby a writ of mandamus to perform its duty by exercising the discretionkhs/Jan.2024/591 - 5 -according to law. Whether alternative job is to be offered or not is amatter left to the discretion of the competent authority of theCorporation and the Corporation has to exercise the discretion inindividual cases. The Court cannot command the Corporation toexercise discretion in a particular manner and in favour of a particularperson. That would be beyond the jurisdiction of the Court.”8.In Director of Settlements, A.P. and Others Vs. M.R.Apparaoand another [(2002) 4 SCC 638], the Hon’ble Supreme Court (3 JudgesBench) has explained the meaning of Writ of Mandamus. It is held thatMandamus means a command. Existence of a legal right to theperformance of a legal duty by a public authority on the date of thepetition, is one of the conditions precedent for issuing a Writ ofMandamus. High Court committed a serious error in issuingMandamus directing release of interim payments.9.In Union of India and another Vs. S.B.Vohra and Others[(2004) 2 SCC 150] , the Hon’ble Supreme Court has held in paragraphnos. 12, 13, 32, 33, 52 and 53 as under :-“12.Mandamus literally means a command. The essence ofmandamus in England was that it was a royal command issued by thekhs/Jan.2024/591 - 6 -King's Bench (now Queen's Bench) directing performance of a publiclegal duty. 13.A writ of mandamus is issued in favour of a person whoestablishes a legal right in himself. A writ of mandamus is issuedagainst a person who has a legal duty to perform but has failed and/orneglected to do so. Such a legal duty emanates from either in dischargeof a public duty or by operation of law. The writ of mandamus is a mostextensive remedial nature. The object of mandamus is of to preventdisorder from a failure of justice and is required to be granted in allcases where law has established no specific remedy and whether justicedespite demanded has not been granted.32.It is not possible to lay down the standard exhaustively as to inwhat situation a writ of mandamus will issue and in what situation itwill not. In other words, exercise of its discretion by the Court will alsodepend upon the law which governs the field, namely, whether it is afundamental law or an ordinary law.33.It is, however, trite that ordinarily the Court will not exercise thepower of the statutory authorities. It will at the first instance allow thestatutory authorities to perform their own functions and would notusher the said jurisdiction itself.52.The High Court, however, should not ordinarily issue a writ of orin the nature of mandamus and ought to refer the matter back to thekhs/Jan.2024/591 - 7 -Central/ State Government with suitable directions pointing out theirrelevant factors which are required to be excluded in taking thedecision and the relevant factors which are required to be consideredtherefor. The statutory duties should be allowed to be performed by thestatutory authorities at the first instance. In the event, however, theChief Justice of the High Court and the State are not ad idem, thematter should be discussed and an effort should be made to arrive at aconsensus.53.We are further of the opinion that only in exceptional cases theHigh Court may interfere on the judicial side, but ordinarily it wouldnot do so. Even if an occasion arises for the High Court to interfere onits judicial side, the jurisdiction of the High Court should be exercisedwith care and circumspection.”10.It is further held that the limitations on the exercise ofdiscretion while issuing a Writ of Mandamus, are such that unlesspublic law element is involved, Court should not ordinarily interferewith the performance of statutory duty by a statutory authority andshould not exercise its writ jurisdiction. 11.The learned Advocate for the Petitioner submits that he cannot cite any such provision of Law by which a Tahsildar could reviewkhs/Jan.2024/591