Thus, the decision of the Tahsildar can be challenged by filing the
civil suit and if the civil suit is “instituted” under Section 143(5) of the
Maharashtra Land Revenue Code challenging the Tahsildar's decision, then the
decision of the Tahsildar cannot be challenged in appeal or revision under the
provisions of the Maharashtra Land Revenue Code. The word “institute” as per
Black's Law Dictionary means “to begin or start; commence.” Thus, the bar
under Section 143(5) of the Maharashtra Land Revenue Code to file an appeal
or revision under the provisions of the Maharashtra Land Revenue Code would
apply only if the civil suit has been “instituted” under Section 143(4) of the
Maharashtra Land Revenue Code which means that if the civil suit is filed. In
the present case, the civil suit having been filed after the period of limitation, the
application praying for condonation of delay was filed. It is established practice
that until the delay is condoned, the civil suit is not registered and the civil Court
cannot look into the civil suit. In these facts, it cannot be said that the civil suit
was “instituted” by the respondent no.5 and his wife as per Section 143(5) of the
Maharashtra Land Revenue Code. Consequentially, the bar created by Section
143(4) of the Maharashtra Land Revenue Code for filing of the appeal or revision
to challenge the decision of the Tahsildar will not apply. In these facts, it cannot
be said that the civil suit was instituted as per Section 143(4) of the Maharashtra
Land Revenue Code, 1966.
Shri Mirza, the learned advocate for the petitioners submits that the
application filed by the respondent no.5 and his wife under Section 5 of the
Limitation Act is a part and parcel of the civil suit and therefore, it has to be
treated that the civil suit was instituted as contemplated by Section 143(4) of the
Maharashtra Land Revenue Code. The submission as made on behalf of the
petitioners is misconceived and contrary to the established principles of law.
The application praying for condonation of delay can never be part and parcel of
the civil suit and the civil suit is not registered until and unless the delay is
condoned. It is the settled law that Court gets its jurisdiction to entertain and
decide the proceedings before it, only after the delay is condoned and till that
time the Court does not get the jurisdiction to entertain the proceedings.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2977/2012
Shri Nago Hari Zangte, Vs State of Maharashtra,
CORAM : Z.A. HAQ, J.
DATE : 17.11.2014
Citation; 2015(3) MHLJ 381 Bom
3. The petitioners have challenged the order passed by the learned
2.
Additional Collector by which the appeal filed by the respondents 5, 6 and 7 is
allowed and the matter is remitted to the SubDivisional Officer for fresh enquiry
and decision. The petitioners have also challenged the order passed by the
learned Additional Commissioner rejecting the revision filed by the petitioners
and upholding the order passed by the learned Additional Collector.
4.
The petitioners had filed an application before the Tahsildar
claiming right of way for their fields through southern side of field Gat
Nos.141/1, 141/2, 137 and 138 owned by the respondents 6 and 7. The
Tahsildar by the order dated 7th September, 2007 allowed the application filed by
the petitioners and granted right of way as sought by the petitioners. The
petitioners relied on the award which according to them has been passed by the
Loknyayalaya on 27th January, 2008 recording that the parties have agreed that
the Tahsildar, Ralegaon would examine the factual position on the spot and
would recommend the way and the parties would accept that. According to the
petitioners after the award passed by the Loknyayalaya, the respondent no.5
and his wife filed the civil suit under Section 143(4) of the Maharashtra Land
Revenue Code, 1966 challenging the order passed by the Tahsildar on 30 th
June, 2009 granting right of way to the petitioners. As there was delay in filing
the civil suit, an application praying for condonation of delay came to be filed.
The learned trial Judge rejected the application filed by the
respondent no.5 praying for condonation of delay in filing the civil suit and
consequentially, the civil suit is also dismissed.
Simultaneously, the respondents 5, 6 and 7 filed appeal before the
SubDivisional Officer challenging the abovementioned order on 30th June,
2009. The SubDivisional Officer dismissed the appeal. The respondents 5, 6
and 7 filed appeal before the Additional Collector which came to be allowed by
the order dated 29th December, 2010 as stated above. The revision filed by the
petitioners challenging the above mentioned order is dismissed. The petitioners
Shri Mirza, the learned advocate for the petitioners has submitted
5.
have therefore, filed this writ petition.
that the respondents 5, 6 and 7 having settled the matter before the
Loknyayalaya and pursuant to the settlement the award having been passed, it
is not open for the respondents 5, 6 and 7 to go beyond the settlement and
challenge the order passed by the Tahsildar granting way as claimed by the
petitioners. In support of his submission, the learned advocate has relied on
the judgment given by the Hon'ble Supreme Court in the case of State of Punjab
& Anr. V/s. Jalour Singh & Ors. reported in [2008] 2 SCC 660. In addition, it is
submitted that the respondent no.5 having filed the civil suit under Section
143(4) of the Maharashtra Land Revenue Code challenging the order passed by
the Tahsildar, the appeal under Section 247 of the Maharashtra Land Revenue
Code challenging the same order is not maintainable. Reliance is placed on the
judgment given by this Court in the case of Jaglal s/o Premlal Jayaswal and
another V/s. Waman s/o Premlal Jayaswal and another reported in 2008(4)
Mh.L.J. 467 and in case of Smt. Shantabai W/o Bhagwan Patil and & Others
The copy of the award dated 27th January, 2008 does not show the
6.
V/s. Bhagwan S/o Revanand Patil & Others reported in [2011] 1 Mh.L.J.481.
names of the signatories on the terms of compromise. Shri Mirza, the learned
advocate for the petitioners have produced the xerox copy of the award which
shows two signatures. The learned advocate for the petitioners is not in a
position to point out as to who agreed to the terms of compromise and who has
signed the terms of compromise pursuant to which the award came to be
passed. In any case even if the contentions of the petitioners are to be accepted
that the parties cannot be permitted to resile from compromise arrived at before
the Loknyayalaya, the terms of compromise does not show that the respondents
5, 6 and 7 have accepted the terms of compromise. Therefore, the respondents
5, 6 and 7 cannot be deprived of the opportunity of prosecuting the legal
remedies only on the ground that a compromise was arrived at before the
Loknyayalaya when there is nothing on the record to show that all the three
respondents (respondents 5, 6 and 7) have accepted the terms of compromise
and have signed on the terms of compromise before the Members of the panel
of the Loknyayalaya. In these facts, the judgment given by the Hon'ble
Supreme Court in the case of Punjab & Anr. V/s. Jalour Singh & Ors. (cited
supra) does not assist the petitioners.
The submission made on behalf of the petitioners that the orders
7.
passed by the Tahsildar granting right of way to the petitioners having been
challenged in the civil suit and the civil suit having been dismissed, the appeal
filed by the respondents 5, 6 and 7 challenging the same order was not
maintainable, is misdirected. The civil suit was filed by the respondent no.5 and
his wife. The respondents 6 and 7 have not filed any civil suit challenging the
order passed by the Tahsildar. Moreover, the civil suit filed by the respondent
no.5 and his wife is not decided on the merits but it is dismissed as barred by
limitation. In the cases of Jaglal s/o Premlal Jayaswal and another V/s. Waman
s/o Premlal Jayaswal and another and Smt. Shantabai W/o Bhagwan Patil and
& Others V/s. Bhagwan S/o Revanand Patil & Others (cited supra), the appeals
under the provisions of Section 247 of the Maharashtra Land Revenue Code
were held as not maintainable in view of the filing of the civil suit under Section
143(4) of the Maharashtra Land Revenue Code as the civil suits were decided
8.
on merits.
The reliance placed by the learned advocate for the petitioners on
the provisions of Section 143(5) of the Maharashtra Land Revenue Code to
contend that in view of the filing of the civil suit by the respondent no.5 and his
wife challenging the order passed by the Tahsildar, the appeal under Section 247
of the Maharashtra Land Revenue Code to challenge the same order is not
maintainable, cannot be accepted.
9.
In the present case, the civil suit having been presented beyond
the prescribed period of limitation, an application under under Section 5 of the
Limitation Act was filed praying for condonation of delay in filing the suit which
came to be rejected and consequentially, the civil suit is also dismissed.
Sections 143(4) and 143(5) of the Maharashtra Land Revenue
Code read as follows :
it set aside or modified.
“143(4) Any person who is aggrieved by a decision of the
Tahsildar under this section may, within a period of one year
from the date of such decision, institute a civil suit to have
143(5) Where a civil suit has been instituted under
subsection (4) against the Tahsildar's decision, such
decision shall not be subject to appeal or revision.”
(Emphasis supplied)
Thus, the decision of the Tahsildar can be challenged by filing the
civil suit and if the civil suit is “instituted” under Section 143(5) of the
Maharashtra Land Revenue Code challenging the Tahsildar's decision, then the
decision of the Tahsildar cannot be challenged in appeal or revision under the
provisions of the Maharashtra Land Revenue Code. The word “institute” as per
Black's Law Dictionary means “to begin or start; commence.” Thus, the bar
under Section 143(5) of the Maharashtra Land Revenue Code to file an appeal
or revision under the provisions of the Maharashtra Land Revenue Code would
apply only if the civil suit has been “instituted” under Section 143(4) of the
Maharashtra Land Revenue Code which means that if the civil suit is filed. In
the present case, the civil suit having been filed after the period of limitation, the
application praying for condonation of delay was filed. It is established practice
that until the delay is condoned, the civil suit is not registered and the civil Court
cannot look into the civil suit. In these facts, it cannot be said that the civil suit
was “instituted” by the respondent no.5 and his wife as per Section 143(5) of the
Maharashtra Land Revenue Code. Consequentially, the bar created by Section
143(4) of the Maharashtra Land Revenue Code for filing of the appeal or revision
to challenge the decision of the Tahsildar will not apply. In these facts, it cannot
be said that the civil suit was instituted as per Section 143(4) of the Maharashtra
Land Revenue Code, 1966.
10.
Shri Mirza, the learned advocate for the petitioners submits that the
application filed by the respondent no.5 and his wife under Section 5 of the
Limitation Act is a part and parcel of the civil suit and therefore, it has to be
treated that the civil suit was instituted as contemplated by Section 143(4) of the
Maharashtra Land Revenue Code. The submission as made on behalf of the
petitioners is misconceived and contrary to the established principles of law.
The application praying for condonation of delay can never be part and parcel of
the civil suit and the civil suit is not registered until and unless the delay is
condoned. It is the settled law that Court gets its jurisdiction to entertain and
decide the proceedings before it, only after the delay is condoned and till that
11.
time the Court does not get the jurisdiction to entertain the proceedings.
In view of the above, I find no reason to interfere with the order
passed by the learned Additional Collector remanding the matter to the
SubDivisional Officer for fresh enquiry in the matter. The petitioners have not
been able to point out any material irregularity or illegality in the impugned
orders which necessitates the interference with the order of remand in the
extraordinary jurisdiction. The writ petition is, therefore, dismissed. In the
circumstances, the parties to bear their own costs.
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