At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE A.P. DESHPANDE
Shri A.S. Bajaj, Advocate for Petitioner. Smt. A.D. Rakh, AGP for Respondent. Shri V.S. Bedre, Advocate for Respondent Nos.1 to 6.
Heard. Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing.
2.It is the case of the petitioners that mutation entry is revenue records was taken in the name of the petitioners, way back in the year 1980. According to the petitioner, after a lapse of about 22 years, the respondent No.1 to 6, moved the Superintendent of Land Records by filing an appeal as the mutation entry was taken by the city Survey Officer and in the said appeal, filed two applications, one for seeking condonation of delay in filing of the appeal and the second for stay of the mutation entry recorded in the year 1980. The Superintendent of Land Records, condoned the delay and proceed to admit the appeal. He also passed interim orders granting stay to the mutation entry taken in the year 1980.
3.Aggrieved by the orders passed by the Superintendent of Land Records, the petitioners preferred a revision before the State Government. The petitioners were served with a communication from the State Govt. that the petitioners should file a proper appeal before the Deputy Director of Land Records, challenging the order passed by the Superintendent of Land Records dated 30-1-2003. By so advising the petitioners to prefer an appeal before the said authority, the State Govt. proceeded to grant stay to the impugned order dated 30-1-2003. Obviously, the stay order was passed so as to enable the petitioners to move the appellant authority.
4.Shri Bajaj, the learned counsel for the petitioners has pointed out that the order of admission of appeal by condoning the delay in preferring the same, is an order referable to Section 251 of the Maharashtra Land Revenue Code, 1966, whereas, order granting stay is referable to Section 252 of the Code. A conjoint reading of Sections 251 and 252 reveals that no appeal shall lie from an order admitting an appeal, so also, no appeal lies from an order granting or rejecting an application far stay, by virtue of sub-section (3) of Section 252. As an appeal has been expressly barred against the orders passed by the Superintendent of Land Records, by Section 252, Section 247 is not attracted at all. Section 247 provides that only in the absence of express provision, an appeal shall lie from any decision or order passed by the revenue or survey officer, specified in Column No.1 of Schedule E under the Code, to the Officers specified in Column No.2 of the Schedule. Section 247 operate as and when there is no specific provision made elsewhere in the code. As the impugned orders are referable to Section 251 and 252 of the Maharashtra Land Revenue Code Section 247 cannot have any application and having regard to the mandate of Section 259, whereever, it is provided in the Code that a decision or order is given finality, meaning thereby, when no appeal lies from any such decision or order, it shall be permissible for the State Govt. alone to modify, annul or reverse any such decision or order under the provisions of Section 257. Section 257 provides remedy by way of revision. Reading of Sections 251, 252 and 259 makes it amply clear that the petitioners had rightly filed a revision and the order impugned dated 5-3-2003 passed by the State Government directing the petitioners to file an appeal instead of revision is illegal and improper. In the result, writ petition deserves to be allowed. Hence, l pass the following order:
"Writ petition is allowed. The impugned order dated 5-3-2003 passed by the State Govt., directing the petitioners to file an appeal is quashed and set aside. I proceed to hold that the revision filed by the petitioners is maintainable in law and the State Govt. is obliged to decide the same in accordance with law. It is made clear that it shall be open for the petitioner lo move the State Govt. seeking appropriate in
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terim orders in regard to stay of the impugned order so as to enable the petitioners to move for interim reliefs in the pending revision before the State Govt. I continue the interim order passed by the State Govt. dated 5-3-2003, staying the order passed by the Superintendent of Land Records dated 30-1-2003, for a period of eight weeks from today." Rule made absolute in above terms, with no orders as to costs.