Writ Petition No. 7263 of 2014 · Bombaybench High Court
Case Details
2025:BHC-AUG:9194 1 7263-14-WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.7263 OF 2014WITH CIVIL APPLICATION NO.2651 OF 20251.Sandip Aniruddh JadhavAge: Major years, Occu. Agri.2.Sambhaji Aniruddh JadhavAge: Major years, Occu. Agri.Both R/o Morandi Mohalla, Jalna,Tal. & Dist. Jalna … PetitionersVersus1.The State of Maharashtra,Through its Secretary,Revenue and Forest Department,Mantralaya, Mumbai.2.The Additional Commissioner (R.O.R.),Aurangabad.3.The Additional Collector,Jalna4.The Tahsildar,Tahsil Office, Jalna.5.Maharashtra Hybrid SeedsCompany Ltd.,B-4, Industrial Estate, Jalna … Respondents…Mr. Mahesh V. Ghatge, Advocate for PetitionersMrs. P. V. Diggikar, AGP for Respondents – StateMr. S. V. Adwant, Advocate for Respondent No.5Mr. A. B. Kale, Advocate h/f Mr. Yash Pareek, Advocate for Applicantin CA/2651/2025… CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 10th MARCH, 2025 PRONOUNCED ON : 28th MARCH, 2025JUDGMENT :1.Rule. Rule made returnable forthwith. Heard finally withthe consent of the parties.SVH
Legal Reasoning
2 7263-14-WP.odt2.Petitioner challenges order dated 23/06/2014 passed bythe Minister of Revenue, State of Maharashtra, in Revision No.ROR/5300/2014 along with the order dated 21/10/2013 passed byrespondent No.2 Additional Commissioner, Aurangabad, in RevisionNo.ROR/149/2012.3.Petitioners' father Aniruddha Santaram Jadhav wasprotected tenant of the land admeasuring 6 Acre 31 Are in SurveyNo.164, situated at Jalna. Hence, the petitioners are owners andpossessors of the said land as protected tenants. In view of the factthat their father was protected tenant, the said land is not capableof being alienated without permission of the Collector as providedunder the Hyderabad Tenancy and Agricultural Lands Act, 1950 (forshort ‘the said Act’). In spite of that, Aniruddha Santaram, PrayagbaiSantaram, Avantikabai Santaram and Sulochana Santaram haveexecuted sale deed of the land to the extent of 6 Acre 31 Are fromSurvey No.164 in favour of respondent No.5 Maharashtra HybridSeeds Company. The transaction has taken place without obtainingprior permission of the Collector as provided under Section 50-B ofthe said Act. Pursuant to execution of sale deed Mutation EntryNo.2525 was taken in the revenue record in favour of respondentNo.5 Company. The Sub-Divisional Officer, Jalna, in exercise of hispowers under Section 257 of the Maharashtra Land Revenue Code,1966 (for short ‘MLR Code’) issued notices to all the partiesSVH 3 7263-14-WP.odtincluding respondent No.5 Company and after hearing themcancelled Mutation Entry No.2525 vide order dated 21/08/1998, onthe ground that no previous sanction is obtained from the Collectoras required under Section 50-B of the said Act.4.Being aggrieved by order dated 21/08/1998, passed bythe Sub-Divisional Officer, respondent No.5 Company filed theReview Application. It is contended by learned advocate forrespondent No.5, that his Review Application is still pending beforethe Sub-Divisional Officer. Pursuant to the order dated 21/08/1998and further orders passed in that regard by the Deputy Collector,Jalna, Mutation Entry No.4408 is recorded thereby deleting name ofrespondent No.5 Company and recording names of AniruddhaSantaram, Prayagbai Santaram, Avantikabai Santaram andSulochana Santaram in respect of land to the extent of 6 Acre 31Are in Survey No.164.5.Respondent No.5 filed Appeal against Mutation EntryNo.4408 before the Sub-Divisional Officer, Jalna, under Section 247of the MLR Code. Petitioner contends that though respondent No.5has challenged Mutation Entry No.4408, he has not challenged theorder dated 21/08/1998 passed by the Sub-Divisional Officer, Jalna,pursuant to which Mutation Entry No.4408 has been taken. It iscontended that in the Appeal filed by respondent No.5, falsegrounds have been raised. On 08/11/2010 the Sub Divisional OfficerSVH 4 7263-14-WP.odthas rejected the Appeal by refusing to interfere with the order onthe ground that, order under challenge is passed by the Officer whois equivalent in rank, therefore, it would not be appropriate tointerfere with the same. Thereafter, respondent No.5 filed Appealbefore the Additional Collector, Jalna, challenging the order dated08/11/2010, passed by Sub-Divisional Officer. The AdditionalCollector also rejected the Appeal vide order dated 28/03/2012,observing that pursuant to order dated 21/08/1998 passed by theSub-Divisional Officer, Mutation Entry No.2525 has been cancelled.However, record does not disclose whether order dated 21/08/1998has been challenged; and from the Appeal memo it appears thatReview application is still pending before the Sub-Divisional Officer.Hence, he has refused to interfere in the order.6.Respondent No.5 Company, thereafter, filed RevisionPetition No.149/2012 before the Additional Commissioner,Aurangabad, along with Misc. Application seeking condonation ofdelay. The Revision came to be allowed vide order dated21/10/2013, thereby quashing order dated 28/03/2012 passed bythe Additional Collector, Jalna and cancelling the Mutation EntryNo.4408 and restoring Mutation Entry No.2525. It is held in theorder that the case of Revision Applicant should be placed beforeCompetent Authority for post facto sanction to the transfer by saledeed and directions are given to the Deputy Collector (GeneralSVH 5 7263-14-WP.odtAdministration), Jalna, to take steps for regularization and paymentof Najarana amount. The order passed by Additional Commissionercame to be challenged by the petitioners by filing Appeal before theMinister for Revenue, which has been dismissed vide order dated23/06/2014, holding that since Revision Applicants have alienatedthe land in favour of respondent No.5 by way of registered saledeed in the year 1992, their rights stand extinguished, after thetransfer and respondent No.5 who has purchased the land forvaluable consideration, is eligible for regularization of the sale deed.It is held that, question of regularization of transaction is betweenrespondent No.5 and the Government, therefore, applicants do nothave any locus to challenge the order passed by Additional Collectorin favour of respondent No.5.7.On the background of above facts, learned advocate forpetitioners submits that respondent No.5 has challenged MutationEntry No.4408 in the Appeal filed before Additional Collector andhas failed to challenge the order passed by Sub-Divisional Officer on21/08/1998. While challenging Mutation Entry No.4408, respondentNo.5 raised patently false grounds. First ground taken by respondentNo.5 is that before cancelling Mutation Entry No.2525, no notice wasissued to them. Learned advocate for petitioner relies on theobservation made by the Sub-Divisional Officer in order dated21/08/1998, wherein it is clearly mentioned that the Manager ofrespondent No.5 Company has submitted his written submissionsSVH
Legal Reasoning
6 7263-14-WP.odtand after taking into consideration the same, order dated21/08/1998 has been passed.8.Other ground raised by respondent No.5 in the Appeal isthat when they purchased the land from father of petitioners, theywere not aware that the land was under restrictions due toprotected tenancy, and the 7/12 extract did not reflect therestriction on the land. It is the contention of petitioners that thisstand of respondent No.5 stands falsified from the 7/12 extractannexed at Page Nos.209 to 216 of the paper-book. According tohim, 3rd column of Form No.7 from Talathi Office, Jalna, dated20/01/1997, reflects the name of Satwa Raoji, who is predecessor ofpetitioners and is shown as a protected tenant. Even the 3rd columnof 7/12 extract of the year 1985-86 reflects name of Satwa Raoji asprotected tenant and Mutation Entry No.3138 is shown to bedeleted.9.It is urged by learned advocate for petitioners that in allthe proceedings filed by respondent No.5 before Sub-DivisionalOfficer, Jalna, as well as in the Appeal filed before the AdditionalCollector and Revision filed before Additional Commissioner,Aurangabad, respondent No.5, has not added petitioners as a party,though they were necessary party to the proceedings. By virtue oforder passed by Sub-Divisional Officer on 21/08/1998 MutationEntry No.2525 has been cancelled, as a result names of petitionersSVH 7 7263-14-WP.odtalong with Aniruddha Santaram, Prayagbai Santaram, AvantikabaiSantaram and Sulochana Santaram have been recorded videMutation Entry No.4408. Therefore, in view of challenge to theMutation Entry No.4408, petitioners were necessary party to theproceedings filed by respondent No.5. Yet without adding them as aparty respondent, respondent No.5 has challenged Mutation Entryrecorded in their name.10.It is the contention of petitioners that respondent No.5has raised patently false grounds in Revision Petition No.149/2012.Respondent No.5 has claimed that while cancelling Mutation EntryNo.2525 from the record of rights, the mandatory notice underSection 150 of the MLR Code has not been given to petitionersthereby depriving them of the opportunity to file their say or raiseany objection. Since the order cancelling Mutation Entry No.2525 ispassed without being heard it is against the principles of naturaljustice. It is further contended that when the petitioners gotknowledge about pendency of Revision Application No.149/2012,they have filed Misc. Application before Additional Commissioner,Aurangabad, seeking directions to the Revision Applicant, to addthem as party respondent. However, the application filed bypetitioners came to be rejected vide order dated 04/12/2012,holding that he is not interested party as he was not made party inthe proceedings filed before subordinate authorities. It is furtherSVH 8 7263-14-WP.odtcontended that Additional Commissioner vide order dated21/10/2013, has allowed the Revision filed by respondent No.5 bypassing a cryptic order, without recording appropriate reasons.Though the Additional Commissioner did not possess powers underthe said Act, he has passed the order by usurping powers ofauthorities under the said Act. Though there was no prayer torestore the Mutation Entry No.2525, the Additional Commissionerhas restored the same by cancelling Mutation Entry No.4408 whichwas taken on 28/03/2005. The Additional Commissioner hastravelled beyond his jurisdiction by giving directions to the DeputyCollector (General Administration) to take steps for regularization ofsale deed of respondent No.5, by accepting the Najarana amount.Thus, the order suffers from jurisdictional error.11.Being aggrieved by the order passed by AdditionalCommissioner, Aurangabad, petitioners preferred Appeal/ Revisionbefore the Minister of Revenue, raising specific ground that previoussanction was required to be obtained by respondent No.5 beforepurchasing the land from father of petitioners as the ownership oftheir land was of restricted nature. As a result of transfer by saledeed, there is contravention of procedure prescribed under Section50-B(2) of the said Act. Therefore, the transaction i.e. sale deedexecuted by father of petitioners was invalid, therefore the orderpassed by Sub-Divisional Officer was correct and proper, which didSVH 9 7263-14-WP.odtnot need any interference. It is also brought to the notice of theMinister that though order was passed on 21/08/1998, respondentNo.5 has not taken any steps for a period of 14 years, hence on theground of delay and latches the order does not deserve to beinterfered with. It was brought to the notice of the Minister thatthough respondent No.5 has challenged the Mutation EntryNo.4408, the Additional Commissioner has travelled beyond hispowers by granting regularization of the transfer. Order passed bythe Additional Commissioner has caused great prejudice to thepetitioner, therefore, it was necessary to add them as partyrespondent to the proceedings. However, respondent No.5 hasavoided to add petitioners as party in all the proceedings inhierarchy before the respective authorities.12.In spite of raising valid grounds, the Minister has refusedto interfere with the order passed by the Additional Commissionerby recording erroneous finding that since respondent No.5 haspurchased the land by registered sale deed the rights of petitionersstand extinguished. The Minister while rejecting the Appeal/Revisionhas not taken into consideration that the Additional Commissioner isnot authorized to pass an order of regularization under Section 50-Bof the said Act.13.It is contended by learned advocate for petitioners thatvarious case laws in support of his contentions were placed onSVH 10 7263-14-WP.odtrecord before the Minister. In the judgment of Saraswati ShamraoDhere Vs. Khutub Babu Malani, reported in 2015(2) Mh.L.J.566, this Court has taken a view that mandatory provision forobtaining previous sanction cannot be diluted by permitting postfacto sanction. In view of this decision of this Court, the orderpassed by Additional Commissioner as well as the Minister directingDeputy Collector, Land Reforms, to take steps for regularization bygranting post facto sanction is not at all sustainable.14.Learned advocate for petitioners has placed reliance onRita Premchand and Another Vs. State of Maharashtra,reported in 2001 (4) Bom.C.R. 826, and Lala Shri Bhagwan Vs.Ram Chand, reported in AIR 1965 SC 1767, in support of hiscontention that since no opportunity of being heard was granted topetitioners, the order passed by Additional Commissioner deservesto be quashed and set aside and the authority or body dealing withthe rights of citizens must follow the principles of natural justice.15.Learned advocate for petitioners further relies on thejudgment of this Court in Ramkrishna Jogdand Vs. KondiramNaikwade, reported in 2001(3) Bom.C.R. 242 and DnyanobaLande Vs. Shrirang Dhurwade, reported in 1982(2) Bom.C.R.18, in support of his contention that protection under Section 53-Aof the Transfer of Property Act, cannot be granted in case of salewhich is invalid by virtue of Section 50-B(2) of the said Act.SVH 11 7263-14-WP.odtTherefore, according to learned advocate for petitioners, theAdditional Commissioner as well as the Minister have over steppedtheir jurisdiction, while passing the orders impugned, in flagrantviolation of the provisions of the said Act, as well as the MLR Code.Hence, it is prayed that the orders passed by Minister as well asAdditional Commissioner deserves to be quashed and set aside.16.Per contra, learned advocate Mr. Adwant appearing forrespondent No.5 Company, opposed the prayers made bypetitioners on the ground that respondent No.5 Company isbonafide purchaser of the land, for valuable consideration fromAniruddha Santaram, Prayagbai Santaram, Avantikabai Santaramand Sulochana Santaram. The land is purchased for the purpose ofconducting research on various seeds, vide registered sale deedNo.1909 dated 12/05/1992 to the extent of 6 Acre 31 Guntha landfrom Survey No.164/1. Since they have purchased the land, theyhave acquired right, title, interest, ownership and possession overthe suit property. After registration of sale deed, the respondentNo.5, reported acquisition of its right to the revenue authorities,who after being satisfied with the acquisition of right, title, interest,ownership and possession over a part of the property, have mutatedname of respondent No.5 Company in the revenue record bysanctioning Mutation Entry No.2525 on 15/01/1997.17.It is his contention that, in view of the provisions ofSVH 12 7263-14-WP.odtTransfer of Property Act and Sections 53 and 54 of the Contract Actread with provisions of MLR Code, the transaction effected is acomplete sale and it cannot be disturbed by the revenueauthorities. Pursuant to the application made by respondent No.5,procedure contemplated under Sections 149 and 150 of the MLRCode has been undertaken and thereafter Mutation Entry No.2525has been recorded.18.It is contended that the Sub-Divisional Officer, Jalna, insuo moto proceedings under Section 257 of the MLR Code hascancelled Mutation Entry No.2525 vide order dated 21/08/1998. Hesubmits that Section 257 of the MLR Code merely empowers certainrevenue officers and survey officers to call for record andproceedings from the subordinate officers and does not contemplatepassing of any order. In exercise of powers under Section 257 hecan merely examine legality or propriety of any decision of suchofficer. Therefore, the Sub-Divisional Officer is not empowered topass any order when any inquiry is undertaken, unless the revenueofficer is delegated with powers to pass such orders. 19.It is further contended that unless the revenue officer isdelegated with the powers by way of notification as contemplatedunder Section 330A, he cannot exercise powers vested with theCollector. Reliance is placed on Section 257(3), which provides thatif it appears to the State Government or any officer referred underSVH 13 7263-14-WP.odtSub-Section (1) or (2) that any decision or order or proceedingshould be modified, annulled or reversed, he may pass such orderas he may deem fit. Those powers can be exercised upon fulfilmentof certain conditions. One such condition is that the StateGovernment or such officer shall not vary or reverse any orderaffecting any question of right between private persons withoutgiving them notices. It is submitted that respondent No.5 was notissued any notice before passing such order. Since powers ascontemplated under Section 330-A were not delegated to the Sub-Divisional Officer, the order passed by him is neither enforceablenor executable as it was coram non judice.20.Learned advocate Mr. Adwant has further placedreliance on the order dated 11/03/2004, passed by AdditionalCollector, Jalna, under Section 247 of the MLR Code, in the Appealfiled by Jagannath Haribhau Magar challenging the cancellation ofMutation Entry No.854 in Survey No.164 vide order dated21/08/1998, wherein the Appeal has been partly allowed and theorder passed by Sub-Divisional Officer has been quashed and setaside. Both the Entries i.e. Mutation Entry Nos. 2525 and 854 inSurvey No.164 have been cancelled in sue moto proceedings by theSub-Divisional Officer, Jalna, by a common order. It is the very orderwhich is under challenge in this writ petition. The Sub-DivisionalOfficer has cancelled two entries vide order dated 21/08/1998. EntrySVH 14 7263-14-WP.odtNo.854 was in respect of ownership of Jagannath Magar while EntryNo.2525 was in respect of ownership of respondent No.5 Company.Since the Appeal filed in respect of Mutation Entry No.854 is partlyallowed by the Additional Collector, Jalna, by setting aside the orderpassed by Sub-Divisional Officer, Jalna, on 21/08/1998, it wouldsquarely cover the subject matter of present writ petition.21.Mr. Adwant, learned advocate for respondent No.5further submits that whether property under sale is tenantedproperty or not, is an issue arising under the said Act, as a result ofwhich it requires to be determined exclusively by the authoritiesconstituted under the said Act and not by any revenue authoritiesunder the MLR Code. The order passed by Sub-Divisional Officerdated 21/08/1998 refers to the order dated 12/01/1998 passed byCollector, Jalna, by which directions were given to review themutation entries in respect of survey No.164. According to him, theCollector, Jalna, cannot direct Sub-Divisional Officer to pass orderunder the said Act. Therefore, the order passed by Sub-DivisionalOfficer dated 21/08/1998, is without jurisdiction since he was notauthorised to pass order under the said Act.22.It is his contention that Collector, Jalna is personadesignata and his power is not accessible to any other revenueofficer subordinate to him either suo moto or by delegation orauthorization by the Collector himself. Therefore, the order passedSVH 15 7263-14-WP.odtby Sub-Divisional Officer is not in consonance with the MLR Code.23.The respondent No.5 has relied on judgment in JointAction Committee of Air Line Pilots’ Association of India(ALPAI) and Others Vs. Director General of Civil Aviation andOthers, reported in (2011) 5 SCC 435, in support of hiscontention that, the Sub-Divisional Officer did not possess power topass order though he was directed by the Collector, hence it is apatently illegal order. Learned advocate particularly relied onparagraph No.28 wherein it is observed that “the legal positionemerges that the authority who has been vested with the power toexercise its discretion alone can pass the order. Even a seniorofficial cannot provide for any guideline or direction to the authorityunder the statute to act in a particular manner.”24.It is submitted that respondent No.5, in fact, has filed aReview of the order passed by Sub-Divisional Officer on 09/11/1998,invoking powers under Section 258 of the MLR Code, which is stillpending with the Sub-Divisional Officer, Jalna. It is his contentionthat though the order came to be passed on 21/08/1998, it wasexecuted by taking Mutation Entry No.4408 on 30/01/2008.Therefore, being aggrieved by the change in the record of rights,respondent No.5 has filed Appeal before Sub-Divisional Officer,Jalna, seeking cancellation of Mutation Entry No.4408. However,Sub-Divisional Officer has refused to interfere with the change onSVH 16 7263-14-WP.odtthe ground that the order on the basis of which Mutation EntryNo.4408 is recorded is passed by the officer who is equivalent to hisrank / designation. Therefore, he did not deem it appropriate tointerfere with the said order. Being aggrieved by the order passedby Sub-Divisional Officer, respondent No.5 has filed Appeal beforethe Additional Collector, Jalna on 09/02/2011, which is alsodismissed on 28/03/2012.25.It is submitted that, both in Appeal as well as Revisionfiled by respondent No.5, petitioners have not been added asnecessary party, since it is the prerogative of plaintiff to add partiesto the litigation. It is settled position of law that plaintiff is dominuslitis and it is his prerogative to add the necessary party to thelitigation. Since he did not deem it necessary to add petitioners asparty, they are not added as party to the proceedings. Therefore,considering the settled position of law, application filed bypetitioners for intervention has been rightly rejected by theAdditional Commissioner in Revision filed by respondent No.5. Evenafter rejection of intervention application, petitioners have filedReview Application of the order which was rejected by the AdditionalCommissioner on 12/04/2013, and after rejection of Review, theRevision Application No.149/2012 filed by respondent No.5 came tobe allowed by the Additional Commissioner, Aurangabad, vide orderdated 21/10/2013.SVH 17 7263-14-WP.odt26.In the Revision filed by respondent No.5 specific groundsare raised by them. The gist of the grounds is as under:-(i) At the time of execution of sale deed, in 7/12 extract i.e. in therecord of right the agricultural land did not contain entry as InamiLand, therefore, the Collector ought to have considered thatrespondent No.5 was not at all at fault;(ii) The 7/12 extract of the land clearly shows that the land is“Occupant Class-I”, which inter alia proves that the land istransferable and not of restricted ownership.It is also urged that no notice is issued to them beforecancelling Mutation Entry No.2525, and the Sub-Divisional Officerhas failed to appreciate that application for regularization of saletransaction under Section 50-B of the said Act, filed by respondentNo.5, is still pending with the Collector.27.It is contended that, in view of the prayers made byrespondent No.5, and after taking into consideration the record,Additional Commissioner has rightly held that provisions under theMaharashtra Land Revenue Records of Rights and Register(Preparation and Maintenance) Rules 1971, do not seem to havebeen followed while cancelling Mutation Entry No.2525. The 7/12extract also reflects that it is Class-I land, relying on which therespondent No.5 has purchased the land by way of registered saledeed. Review filed by respondent No.5 is still pending, andSVH 18 7263-14-WP.odtconsidering that for some part of the land in Survey No.164 theDeputy Collector of Land Reforms has already granted permissionfor sale vide order dated 22/08/1984, the order cancelling MutationEntry No.2525 deserves to be set aside. It is further observed thatthe transfer / sale deed of the subject land also deserves to begranted post facto sanction, since respondent No.5 is a bonafidepurchaser for valuable consideration.28.Mr. Adwant, learned advocate for respondent No.5contends that, considering that the application filed under Section50-B of the said Act is still pending with the authority, the AdditionalCommissioner has rightly passed the order directing DeputyCollector (General Administration) to take steps for regularization ofsale transaction by accepting the Najarana amount and restoringMutation Entry No.2525. It is further contended that beingaggrieved by the order passed by Additional Commissioner,Aurangabad, dated 21/10/2013, petitioners herein have filed Appealbefore the Minister under Section 249(2) of the MLR Code, whichaccording to him is not maintainable. It is his contention that sincepetitioners were not party to the proceedings before all theauthorities, they did not possess any right to file Appeal.29.It is contended that right to Appeal is creature ofstatute, for which procedure prescribed under the statute isrequired to be followed. The right of Appeal can be exercised only inSVH 19 7263-14-WP.odtaccordance with the prescribed procedure and failure to follow thesettled procedure, entails in rejection of Appeal. It is submitted thatpetitioners did not possess any right to file Appeal before theMinister of Revenue.30.According to him, while filing Appeal before the Ministerit was incumbent upon petitioners to file application seeking leaveto file Appeal which is sine qua non for filing Appeal. A third partywho is affected by a judgment but is not a party to the suit, canprefer an Appeal only with the leave of the Court. In the presentcase, petitioners have not filed any such application seeking leaveto file Appeal. Therefore, the Appeal filed by petitioners before theMinister is without any jurisdiction. In order to support hiscontention, he places reliance on Sections 96 to 100 of the Code ofCivil Procedure. He also relies on the reported judgment in MyPalace Mutually Aided Cooperative Society Vs. B. Maheshand Others, reported in 2022 SCC OnLine 1063, in support of hiscontention that Appeal itself was not tenable since no prior leavehas been sought by petitioners.31.Learned advocate for respondent No.5 while concludinghis arguments submitted that exercise of powers of this Court underArticle 227 of the Constitution of India, are restricted only to theextent of grave dereliction of duty and flagrant abuse offundamental principles of justice. The powers under Article 227 areSVH 20 7263-14-WP.odtneither original, nor appealable; they are supervisory in nature.Therefore, interference of this Court is limited only to the cases ofperversity in the orders of tribunal or Courts, subordinate to it orwhere there has been a gross and manifest failure of justice orviolation of basic principles of natural justice. While invoking powersof this Court under Article 227 petitioners have in fact requestedthis Court to sit in the Appeal which is not at all permissible underthe supervisory jurisdiction of this Court.32.Learned advocate for respondent No.5, relies on thetheory of ‘useless formality'. It is his contention that this theory isexception and not a rule. However, in the present case, the orderpassed by Sub-Divisional Officer, Jalna, is without any legal sanctionor authority. If order passed by the Minister is quashed and set asideon the ground that the principles of natural justice are not followed,it would not be appropriate and it would result in revival of the non-est order which in itself is illegal and passed without following anyprocedure prescribed under law. In this regard, he has relied on thedecision in Dharampal Satyapal Limited Vs. DeputyCommissioner of Central Excise, Gauhati and Others,reported in (2015) 8 SCC 519, wherein it is observed that,“40.In this behalf, we need to notice one other exceptionwhich has been carved out to the aforesaid principle by theCourts. Even if it is found by the Court that there is aviolation of principles of natural justice, the courts have heldthat it may not be necessary to strike down the action andrefer the matter back to the authorities to take freshSVH
Decision
21 7263-14-WP.odtdecision after complying with the procedural requirement inthose cases where non-grant of hearing has not caused anyprejudice to the person against whom the action is taken.Therefore, every violation of a facet of natural justice maynot lead to the conclusion that the order passed is alwaysnull and void. The validity of the order has to be decided onthe touchstone of “prejudice”. The ultimate test is alwaysthe same viz. the test of prejudice or the test of fairhearing.”33.Relying on the above observation, learned advocateurges that end result and prejudice that would result, will have to beassessed before setting aside an order on the ground of non-adherence to Principles of natural justice. If quashing of the orderwould result in empty formality, then it would stand covered by the‘useless formality’ theory. It is, therefore, contended that since orderpassed by the Sub-Divisional Officer on 21/08/1998, is without anyjurisdiction and without following Principles of natural justice, theorder passed by Additional Commissioner, Aurangabad, does notdeserve any interference.34.The learned advocate submits that it also needs to beconsidered that Review Application filed by respondent No.5 underSection 257 of the MLR Code and the Aspplication filed underSection 50-B of the Tenancy Act, are still pending with therespective authorities. In view of pendency of proceedings, orderpassed by the Additional Commissioner as well as Minister does notdeserve any interference. Hence, the writ petition deserves to bedismissed.SVH 22 7263-14-WP.odt35.After hearing the parties and going through the recordfollowing question arise for consideration before this Court:(I)Whether order passed by Sub-Divisional Officer dated21/08/1998 is without jurisdiction and without following principles ofnatural justice?(II)Whether the petitioners were necessary party to theproceedings filed by respondent No.5 before Additional Collectorand Additional Commissioner?(III)Whether the Additional Commissioner as well as the Ministerhave exceeded their jurisdiction while passing the order grantingregularization of sale deed of respondent No.5?36.Upon perusal of order dated 21/08/1998 it is evidentthat the Sub-Divisional Officer has invoked powers under Section257 of the MLR Code. Section 257 reads thus :-“257. Power of State Government and of certainrevenue and survey officers to call for and examinerecords and proceedings of subordinate officers:(1) The State Government and any revenue or survey officer,not inferior in rank to an Assistant or Deputy Collector, or aSuperintendent of Land Records, in their respectivedepartments, may call for and examine the record of anyinquiry or the proceedings of any subordinate revenue orsurvey officer, for the purpose of satisfying itself or himself,as the case may be, as to the legality or propriety of anydecision or order passed, and as to the regularity of theproceedings of such officer.Provided that, on such proceedings undr this sub-section or sub-section (2) shall be initiated by any revenueor survey offficer after expiry of a period of five years fromthe date of decision or order of the sub-ordinate officerexcept with the prrevisous permission of the StateGovernment(2) A Tahsildar, a Naib-Tahsildar, and a District Inspector ofSVH 23 7263-14-WP.odtLand Records may in the same manner call for and examinethe proceedings of any officer subordinate to them in anymatter in which neither a formal nor a summary inquiry hasbeen held.(3) If in any case, it shall appear to the State Government, orto any officer referred to in sub-section (1) or sub-section (2)that any decision or order or proceedings so called forshould be modified, annulled or reversed, it or he may passsuch order thereon as it or he deems fit;Provided that, any proceeding brought before anyrevenue or survey officer shall be disposed of within a periodof one year from the date on which such proceeding is filed;Provided further that, any proceeding pending underthis section, before any revenue or survey officer on thedate of comencement of the Maharashtra Land RevenueCode (Amendment) Act, 2016, shall bedisposed of within aperiod of one year from the date of such commencement;Provided also that, where the revisional authority failsto dispose of any such proceeding within the period specifiedin this sub-section, the State Government alone shall becompetent to grant such further extension of time fordisposing of any such proceeding as it may deem fit, afterrecording reasons therefor in writing;Provided also that, in exceptional circumstances, forreasons to be recorded in writing, the period for disposing ofany such proceeding may be extended further by six monthsby the State Government or an officer not below the rank ofCollector designated in this behalf who is superior to therevisional authority;Provided also that, if the revisional authority fails todispose of any such proceedings within the period specifiedin sub-section (3), without sufficient cause, then he shall beliable for disciplinary actio in accordance with the concerneddisciplinary rules applicable to him;Provided that, the State Government or such officershall not vary or reverse any order affecting any question ofright between private persons without having given to theparties interested notice to appear and to be heard insupport of such order;Provided further that, an Assistant or Deputy Collectorshall not himself pass such order in any matter in which aformal inquiry has been held, but shall submit the recordwith his opinion to the Collector, who shall pass such orderthereon as he may deem fit.SVH 24 7263-14-WP.odt(4) (1) Revision of an order issued under sub-section (1) or(2) by any officer referred to therein shall not be permissible;but it shall be lawful for the State Government alone tomodify, annual or reverse any such order issued under sub-section (1) or (2).”37.From perusal of above provisions it is manifest that theState Government and any revenue or survey officer and all theauthorities mentioned in Section 257(1) are empowered to call forand examine the record of any subordinate officer for the purpose ofsatisfying itself about legality or propriety of any decision or orderpassed and as to the regularity of the proceedings of such officer. Ifthe officer of the State Government finds it is necessary he maypass such order, modifying or reversing such decision, for which it isnecessary to issue notice to the interested party.38.Though learned advocate for respondent No.5 Companyhas raised objection that Sub-Divisional Officer was not empoweredto pass an order upon such inquiry. Upon perusal of the order dated21/08/1998, it is evident that vide order dated 24/12/1997, theCollector had directed to conduct the inspection and submit reportin respect of Survey Nos.164/1 and 164/2 and on the basis of thatreport the Sub-Divisional Officer was directed to pass appropriateorders under Section 257 of the MLR Code. Therefore, vide orderdated 12/01/1998, the Sub-Divisional Officer was delegated powersunder Section 257 of the MLR Code to pass appropriate orders andaccordingly, Sub-Divisional Officer has exercised powers and passedSVH 25 7263-14-WP.odtthe order dated 21/08/1998.39.So far as the contention of respondent No.5 that noopportunity of being heard was given to him before passing of orderby the Sub-Divisional Officer is concerned, there is no substance inthe allegation, since the Sub-Divisional Officer in his order hasrecorded that respondent No.5, who is represented by the Manager,has submitted written submissions. Though respondent No.5 hasfiled review of the said order, for the reasons best known to theauthorities concerned, it seems to be still pending. Though videorder dated 21/08/1998 Mutation Entry No.2525 has been cancelled,respondent No.5 has not challenged the cancellation of that entry inthe Appeal filed by him before any of the authorities right from Sub-Divisional Officer upto the Additional Commissioner and he hasprayed for cancellation of Mutation Entry No.4408, which is takenafter cancellation of Mutation Entry No.2525.40.It is also undisputed fact that the land purchased byrespondent No.5 by way of registered sale deed is of restrictedownership and it was sold by the protected tenant without obtainingprior permission of the competent authority as required underSection 50-B of the said Act. Though it is contended by respondentNo.5 that they were not aware that the land was of restrictedownership, upon perusal of 7/12 extract it is apparent that the landis owned by Protected Tenant. However, fact remains that theSVH 26 7263-14-WP.odttransfer by way of sale deed which is in contravention of Section 50-B of the said Act, is directed to be regularised by accepting Najranaamount.41.Section 50-B of the said Act reads thus:“50B. Restrictions on transfer of land purchased orsold under this Act.(1) No land purchased by a tenant under Sections 38, 38A,38E, 38F, 38G, 38H or 46D or 48, or sold to any personunder sections 53F, 53G, 53H, or 98C shall be transferred bysale, gift , exchange, mortgage, lease or assignment withoutthe previous sanction of the Collector.Provided that, no such previous sanction shall be necessaryfor the sale, gift, exchange, mortgage, lease or assignmentof the land in respect of which ten years have elapsed fromthe date of purchase or sale of land under the sectionsmentioned in the sub-section, subject to the conditions that,(a) before selling the land, the seller shall pay a nazaranaequal to forty times the assessment of the land revenue tothe Government;(b) the purchaser shall be an agriculturist;(c) the purchaser shall not hold the land in excess of theceiling area permissible under the Maharashtra AgriculturalLands (Ceiling on Holdings) Act, 1961; and(d) the provisions of the Bombay Prevention ofFragmentation and Consolidation of Holdings Act, 1947 shallnot be violated.(2) Any transfer of the land in contravention of sub-section(1) shall be invalid”In view of Section 50-B(2) as reproduced hereinabove, thetransaction in respect of land of petitioners is hit by Section 50-B(2),making it invalid. 42.While passing order dated 21/10/2013 in ReviewApplication No.149/2012, the Additional Commissioner has recordedSVH 27 7263-14-WP.odtfinding contrary to record that, no notice was issued to respondentNo.5 before cancelling Mutation Entry No.2525, as can be seen fromthe contents of order passed by Sub-Divisional Officer on21/08/1998. The respondent No.5 was very much representedthrough it’s Manager and had submitted written submissions inresponse to the notice issued.43.The Additional Commissioner has overstepped hisjurisdiction while passing the order relying upon the permissiongranted to sale of land in Survey No.164 since he is not competentauthority under the Hyderabad Tenancy and Agricultural Lands Act,to give directions to the Deputy Collector to take steps forregularization of the sale deed of respondent No.5.44.Apart from that, Section 50-B of the said Act, does notcontemplate any post facto sanction to the transaction which hastaken place in contravention of Section 50-B. In fact, upon perusal ofSection 50-B it can be gathered that if at all any transaction hastaken place without prior permission of the competent authority inrespect of tenanted land, such transfer of land is declared to beinvalid.45.Considering that the land in question is purchased byProtected Tenant under Section 38-E, it could not have beentransferred without previous permission of the Collector and all suchSVH 28 7263-14-WP.odttransactions / transfers which are made in contravention of Section50-B(2) are invalid by operation of law. Hence, the transfer cannotbe legalized by granting post facto sanction, and the order passedby Additional Commissioner is passed by usurpation of powers ofcompetent authority under Section 50-B of the said Act.46.So far as objection raised by respondent No.5 thatpetitioners ought to have filed leave to Appeal before filing Appealbefore the Minister since they were not party to the proceedings isconcerned, the petitioners have challenged the order passed byAdditional Commissioner dated 21/10/2013, before this Court in WritPetition No.9982/2013. During the course of hearing of writ petition,learned advocate appearing for respondent No.5 himself had raisedthe objection that petitioners have remedy under Section 249(2) ofthe MLR Code. By recording the objection the writ petition wasdisposed of by this Court vide order dated 07/01/2014, by grantingliberty to petitioners to avail alternate remedy by keeping all thecontentions open. It is further directed that the time spent bypetitioners in prosecuting the writ petition shall be considered bythe Competent Authority and even status quo was granted in favourof petitioners for a period of two weeks in order to enable them tofile Appropriate proceedings. After passing of order by this Court,petitioners have filed Appeal under Section 249(2) of the MLR Code.47.The MLR Code is a complete code in itself, therefore,SVH 29 7263-14-WP.odtprovisions of Code of Civil Procedure cannot be read into provisionsof the MLR Code. Section 249 of the MLR Code reads thus:“249. Appeal against review or revision.(1) An order passed in review varying or reversing any ordershall be appealable in the like manner as an original decisionor order.(2) An order passed in revision varying or reversing anyorder shall be appealable as if it were an order passed bythe revisional authority in appeal.”Sub-section (2) of Section 249 provides for challenge toorder passed in Revision varying or reversing any order. It does notrestrict the rights only to the extent of persons who are party to theproceedings in subordinate Court. Even otherwise, when the orderpassed by the Additional Commissioner was challenged before thisCourt, upon objection being raised by respondent No.5 about theavailability of alternate remedy under Section 249(2) petitioner hasfiled Appeal before the Minister. Therefore, considering the scope ofSection 249(2) there is no substance in the objection raised by therespondent No.5. The provisions of Maharashtra Land Revenue Codeitself do not provide for filing of any such application prior to filing ofAppeal.48.The Minister while passing the order impugned hasconfirmed order dated 21/10/2013, passed by AdditionalCommissioner by holding that, considering that the transfer hastaken place by way of registered sale deed, as a result the right ofpetitioners stand extinguished. It is further observed that since theSVH 30 7263-14-WP.odtland is of restricted ownership the question of granting post factosanction is an issue to be decided between respondent No.5 and theGovernment, therefore, petitioners cannot take objection to the saidorder.49.So far as the question whether petitioners werenecessary party to the proceedings is concerned, petitioners aredefinitely necessary party to the proceedings filed by respondentNo.5 for the reason that Entry No.4408 has been taken in the nameof petitioners and respondent No.5 is challenging the said entry.Therefore, no orders can be passed to the prejudice of thepetitioners unless they are heard in respect of cancellation of entryrecorded in their favour. Hence, petitioners are necessary party tothe proceedings initiated by respondent No.5.50.Though petitioners have objected to the order passedby Additional Commissioner on the ground that the impugned orderis passed without affording any opportunity of hearing to petitionersas well as it is beyond jurisdiction of Additional Commissioner toregularize purchase of respondent No.5, the Minister has not at alltaken into consideration the same. Though sale transaction ofrespondent No.5 is invalid in view of Section 50-B(2) of the said Actand the Additional Commissioner is not competent authority toregularize the same, yet the Minister has refused to interfere withthe order passed by Additional Commissioner. The order passed bySVH 31 7263-14-WP.odtthe Minister is passed without application of mind as well as withoutrecording any satisfactory reasons. In the view of conspectus of thematter, the orders impugned deserve to be quashed and set aside.51.Learned advocate for petitioners has rightly relied onthe decision in Saraswati Shamrao Dhere (supra), wherein it is held that,“12. The conjoint reading of provisions under Section 43 ofthe said Act and Rule 25A of the said Rules, makes it clearthat the sanction contemplated by the provisions, is indeed'previous sanction' of the Collector or the competentauthority as may be prescribed. Further, it is also clear thatthe provisions contained in Section 43(1) of the said Act aremandatory and any non-compliance would render thetransfer of land invalid.13. ….14. ….15. The provisions specifically makes reference to 'previoussanction'. If the objective of said enactment is taken intoconsideration alongwith phraseology employed by thelegislature, then the mandatory nature of the requirementcontained in Section 43(1) cannot be diluted by permittingsome post-facto sanction for a transfer in breach of Section43(1) of the said Act. This would render the provisions ofSection 43(2) as otiose. Accordingly, there is no merit in thecontention that the provisions of Section 43 of the said Actare are only directory and that post-facto sanctionconstitutes substantial compliance. ”Section 43 of the Bombay Tenancy and AgriculturalLands Act, 1948 is pari materia to Section 50-B of the HyderabadTenancy and Agricultural Lands Act, 1950. In view of the findingsrecorded by this Court, it is undisputed position of law that non-compliance of obtaining ‘previous sanction’ from the Collector orcompetent authority prescribed would render the transfer of landinvalid. Considering the mandatory nature of requirement asSVH 32 7263-14-WP.odtprovided under Section 50-B, post facto sanction to transfer, wouldamount to breach of Section 50-B of the said Act, and sub-Section(2) therein would be rendered as otiose. In view of the aboveobservations post facto sanction is not at all permissible as held bythis Court.52.Though learned advocates for the respective partieshave argued on both facts as well as law, this Court is aware aboutthe limitation and powers to be exercised under Article 227 of theConstitution of India. It is well settled that while exercising powersunder Article 227 the Courts cannot sit in Appeal over the orderswhich are under challenge. The impugned order can be interferedonly if such order is erroneous on account of non-consideration ofevidence, non-adherence to principles of natural justice, and orderspassed are without jurisdiction.53.In present case, the Additional Commissioner hasexercised the powers not vested in him by law. Therefore, he hasoverstepped his jurisdiction by granting post facto permission forsale of the land and further directing the Deputy Collector to takesteps for regularization of sale deed.54.The other ground on which the Courts can interfere withthe order is non-adherence to the principles of natural justice,resulting into prejudice to a party. In the present case, thoughpetitioners are a necessary party they were not added as a party,SVH 33 7263-14-WP.odtthereby depriving them opportunity to represent before theconcerned authority, resulting in deprivation of their precious rights.Though petitioners had filed application for adding them as partyrespondent, the same has been rejected by the AdditionalCommissioner. In view of the above, petitioners have made out acase for causing interference in the order passed by the AdditionalCommissioner, which is confirmed by the Minister, in exercise ofpowers under Article 227.55.In the result, writ petition is allowed. Order dated23/06/2014 passed by the Minister of Revenue, State ofMaharashtra, in Revision No. ROR/5300/2014 and the order dated21/10/2013 passed by respondent No.2 Additional Commissioner,Aurangabad, in Revision No.ROR/149/2012, are hereby quashed andset aside. Rule is made absolute in the above terms.56.Accordingly, pending civil application also standsdisposed of.57.At this stage, learned advocate for respondent No.5makes request that in order to enable him to challenge theimpugned order the status quo existing as on date be continued fora period of six weeks. Considering the request made by respondentNo.5, the status quo shall be continued for a period of six weeksfrom today. (MANJUSHA DESHPANDE, J.)SVH