High Court
Legal Reasoning
1 2-WP-1875,6-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 1875 OF 2024ARVIND VINAYAK MACHEVERSUSTHE STATE OF MAHARASHTRA, THROUGH THE HON’BLE REVENUEMINISTER AND OTHERS...Advocate for the Petitioner : Mr. Vijay P. LatangeA.G.P. for Respondents No.1 to 3 : Mr. P. D. Patil..ANDWRIT PETITION NO. 1876 OF 2024BHANUDAS KESHAV MACHE AND OTHERSVERSUSTHE STATE OF MAHARASHTRA, THROUGH THE HON’BLE REVENUEMINISTER AND OTHERS...Advocate for the Petitioners : Mr. Vijay P. LatangeA.G.P. for Respondents No.1 to 3 : Ms. A. S. Mantri...CORAM :S. G. MEHARE, J.DATE:20-03-2024PER COURT :-1.Heard the learned counsel for the petitioners and the learnedA.G.P for respondents No.1 to 3/State.2.Petitioners have approached this Court, against the order ofrespondent No.3/ Sub-Divisional Officer (Probationary), Shrigonda,District Ahmednagar, condoning the delay in preferring the appeal,passed in R.T.S. Applications No.178 and 165 of 2023, dated29.12.2023. 2 2-WP-1875,6-24.odt3.Learned counsel for the petitioners submits that a statutoryremedy is available; however, many litigations have cropped up,and after a lapse of many years, the revenue record was changed.Therefore, though the alternate remedy is available, this Courtmay invoke the jurisdiction under Article 226 of the Constitution ofIndia.4.To bolster his arguments, he relied on the case of M/s.Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority, A.I.R. 2023 Supreme Court 781,wherein the Hon’ble Supreme Court observed that “The mereavailability of an alternative remedy of appeal or revision, whichthe party invoking the jurisdiction of the High Court under Article226 has not pursued, would not oust the jurisdiction of the HighCourt and render a writ petition ‘not maintainable’. Availability ofan alternative remedy does not operate as an absolute bar to the‘maintainability’ of a writ petition, and the rule, which requires aparty to pursue the alternative remedy provided by a statute, is arule of policy, convenience and discretion rather than the rule oflaw. The ‘entertainability’ and ‘maintainability’ of a writ petitionare distinct concepts. The object of ‘maintainability’ goes to theroot of the matter, and if such an objection were found to be ofsubstance, the courts would be rendered incapable of evenreceiving the lis for adjudication. On the other hand, the question 3 2-WP-1875,6-24.odtof ‘entertainability; is entirely within the realm of discretion of theHigh Courts, writ remedy being discretionary. A writ petition,despite being maintainable, may not be entertained by a HighCourt for very many reasons, or relief could even be refused to thepetitioner, despite setting up a sound legal point, if a grant of theclaimed relief would not further public interest.”5.It has been further observed that, “Where the controversy isa purely legal one and it does not involve disputed questions offact but only questions of law, then it should be decided by theHigh Court instead of dismissing the writ petition on the ground ofan alternative remedy being available.”6.In paragraph 6, the Hon’ble Supreme Court referred toparagraph No.15 of the decision reported in (1998) 8 S.C.C. 1 :(A.I.R. 1999 SC 22) [Whirlpool Corporation v. Registrar ofTrade Marks, Mumbai and Others] and has carved out theexceptions on the existence whereof a Writ Court would bejustified in entertaining a writ petition despite the partyapproaching it not having availed the alternative remedy providedby the statute. The same reads as under:(i)where the writ petition seeks enforcement of any of thefundamental rights;(ii)where there is a violation of principles of natural justice;(iii)where the orders of the proceedings are wholly withoutjurisdiction; or 4 2-WP-1875,6-24.odt(iv)where the vires of an Act is challenged.7.Learned counsel for the petitioners further relied on the caseof Santoshkumar Shivgonda Patil and others vs. BalasahebTukaram Shevale and others, A.I.R. 2009 S.C. (Supp) 2471.In this case, it has been held that no time limit is prescribed for theexercise of revisional power. However, ordinarily, the reasonableperiod within which power of revision may be exercised would bethree years under Section 257 of the Maharashtra Land RevenueCode, 1966. However, a question arose before the Hon’bleSupreme Court: Could the power of revision under Section 257 ofMLRC be exercised at any time, although no time has beenprescribed for the exercise of such power? The Hon’ble SupremeCourt referred to the case of State of Gujarat v. Patil RaghavNatha, A.I.R. 1969 SC 1297, with reference to Sections 65 and211 of the Bombay Land Revenue Act, 1879, and finally held that“It seems to be fairly settled that if a statute does not prescribethe time limit for exercise of revisional power, it does not meanthat such power can be exercised at any time; rather it should beexercised within a reasonable time. It is so because the law doesnot expect a settled thing to be unsettled after a long lapse oftime.”8.In the case at hand it appears that the controversy involvedwas on the disputed facts. Every party has a right to explain the 5 2-WP-1875,6-24.odtdelay. The length of delay does not matter, but the reasons for thedelay matter, and that is always to be tested on hearing bothsides. The landmark judgment on this point is of Collector, LandAcquisition, Anantnag v. Katiji, (1987) 2 SCC 107. Thepetitioners have no grounds as carved out in the case ofWhirlpool (supra). The petitioners had no complaint that theauthority denied them an opportunity to hear. It is also not thecase that the S.D.O. has passed the orders were not within itsjurisdiction.9.In view of the facts of the case, this Court is of the view thatthe petition does not pass the tests on the touchstone of the ratiolaid down by the Hon’ble Supreme Court in a case M/s. Godrej(supra). So far as the case of Santoshkumar (supra) isconcerned, perhaps it might not have been brought to the noticeof the revisional authority. The Legislature has set up a hierarchyfor the purpose of proper administration of justice. The provisionsfor appeal and revision have also been made in the Acts. At thecost of repetition, it may be said that the delay is a mixedquestion of facts and law. Therefore, it would be inappropriate atthe hands of this Court to deal with the issue under the writjurisdiction without availing the statutory remedy available to thepetitioners.10.For the above reasons, this Court is of the view that this is
Decision
6 2-WP-1875,6-24.odtnot a matter to exercise discretion under Article 226 of theConstitution of India. Therefore, the petitions cannot beentertained as a statutory remedy is available to the petitioners.Hence, the petitions stand disposed of. ( S. G. MEHARE ) JUDGErrd