A.B. Naik, J.
1. In this petition the petitioner soughtfollowing reliefs. :
'(A)Call for the Record and Proceedings ofRev. RevisionNo.RTS-5391/CR-199/L-6/CR-44/93, A & R.from the Respondent No.ls Office i.e. fromthe Officer on Special Duty and Secretary,(Appeals and Revision), Revenue and ForestDepartment, Government of Maharashtra,Bombay, and
(B)The writ petition be allowed and theimpugned judgment and order passed by therespondent No.l on 2.ll.1993 vide ExhibitH be set aside and to sanction therectification of ROR entries in favour ofthe petitioner i.e. Mutation No.666 videExhibit C' based on the actual possessionof the land in question.'
2. Few facts that are necessary to beconsidered in deciding this writ petition. Therespondents herein/original revision petitioner filedrevision Application U/s 257 of the Maharashtra LandRevenue Code before the Additional Commissioner,Aurangabad Division, Aurangabad in which the presentpetitioner was the opponent. The parties will bereferred to as per their description before theRevisional authority i.e. State Government and theywill be referred to hereinafter as revisionalpetitioner and opponent.
3. Land S.No.86 admeasuring 33 acres 37gunthas situate at village Ahmedpur, Taluka Ahmedpur,District Latur. (hereinafter referred to as the suitland) was admittedly owned and possessed by one BabuTeli, who died leaving behind him three sons. It isthe case of the parties that after death of Babu Telithe land was divided amongst the brothers on thebasis of the fertility of the land. It appears fromthe record that intimation was given to the revenueauthorities as required U/s 149 of the MaharashtraLand Revenue Code (hereinafter referred to asCode). Pursuant to the said intimation, Tahsildarconducted spot inspection some time in the year 1964and he noticed that the division was not equal andrejected the theory of partition and ordered thateach brothers had equal share in the suit land. Onthe basis of the decision of the Tahsildar a mutationentry has been taken and certified on 5.ll.1964 beingmutation entry No.299. Vide this mutation entry thenames of three brothers i.e. the sons of deceasedBaburao Teli were recorded in respect of the suitland in equal shares.
4. This position was continued till 1979 andin the year 1979 the opponent Sambappa gave anapplication to Tahsildar that he was cultivatingS.No.86/1/3 admeasuring l hectare 58 Ares but on thatportion the name of his brother Bandappa is recordedin Kabjedars column, and he requested the Tahsildarto delete the name of Bandappa and record his name asKabjedar in 7/12 extract in respect of that portionof the suit land.
5. The Tahsildar on the basis of the saidapplication conducted an enquiry and by his orderdated 9th September 1981 rejected the applicationfiled by the opponent. Being aggrieved anddissatisfied with the order dated 9th September 1981passed by the Tahsildar rejecting the application,the opponent preferred an appeal before theSub-Divisional Officer, Udgir being AppealNo.1981/ROR/128 (Ahmedpur MENo.666). This appealcame to be allowed by the Sub-Divisional Officer,Udgir by his judgment and order dated 15.7.1985 andordered that, name of the opponent in the record ofrights as owner of land Gat No.86/1/3 to the extentof l hectare and 54 Ares to be recorded.
6. Feeling aggrieved by the judgment andorder passed by the Sub-Divisional Officer, Udgir, therevision petitioners preferred appeal before theCollector U/s 247 of the Code. When the appeal filedby Bandappa was pending before the Collector, he diedand his heirs and legal representatives were broughton record and they continued the litigationthereafter. The Additional Collector, Latur by hisjudgment and order dated 28.6.1988 dismissed theappeal and confirmed the order passed by theSub-Divisional Officer.
7. On dismissal of appeal by the AdditionalCollector, heirs of Bandappa, preferred revisionApplication being Case No.88/Rev./R-59 U/s 257 of theCode and the Addl. Commissioner dismissed therevision application and confirmed the order of theAddl. Collector, Latur.
8. On dismissal of the Revision by theAddl. Commissioner, heirs of Bandappa i.e. RevisionPetitioner preferred Second Revision before theGovernment of Maharashtra invoking the revisionaljurisdiction U/s 257. Admittedly, the said revisionapplication is heard and decided by the Officer onSpecial Duty and Secretary (Appeals and Revision),Revenue and Forest Department, Government ofMaharashtra, Mantralaya, Mumbai.
9. Curiously enough the IInd Revisionalauthority upset all the three judgments delivered bythe Sub-Divisional Officer, Additional Collector andthe Additional Commissioner, and, by a cryptic orderallowed the revision application by his judgment andorder dated 2lst October 1993. This order is subjectmatter of this writ petition.
10. Shri R.D. Deshpande, learned advocateappearing for the petitioner has raised followingcontentions :
(i) Second revision U/s 257 is not at allmaintainable and the Officer on Special Duty hasexceeded his jurisdiction in entertaining the SecondRevision.
(ii) Even if it is held that 2nd Revisionapplication is tenable the 2nd Revisional Authorityexceeded jurisdiction and interfered with thefindings of three authorities, that too withoutassigning any reasons for his decision. Passing ofcryptic order shows non-application of mind by theSecond Revisional authority.
(iii) The Officer on Special Duty has nojurisdiction to entertain Second Revision U/s 257 ofthe Code when the revisional petitioners have alreadyexhausted remedy by filing a revision U/s 257 whichwas heard and decided by the Additional Commissioner,who has confirmed the order passed by theSub-Divisional Officer and the Additional Collector.
iv) Even if it is held that Second Revision iscompetent before the State Government, but as thesame is heard by the Officer on Special Duty who hasno jurisdiction to hear and decide the revision U/s257 r/w the Rules of Business framed under Article166 of the Constitution of India.
v) Shri Deshpande submitted that U/s 257party can invoke jurisdiction at one stage and thesecond revision at the instance of the said party isnot maintainable and the entertainment of suchrevision therefore, amounts to an error apparent onthe face of record and the authority who hasexercised it lacks the inherent jurisdiction toentertain the Second Revision. To substantiate hiscontention the learned advocate Shri Deshpande,placed reliance on the unreported judgment of thisCourt by the learned Single Judge (R.M. Lodha, J.) inW.P.No.4l68/98 decided on 18.2.1999 : AIR1963SC1503 and .1 MLJ 854..
11. Per Contra, Shri B.N. Patil, learnedadvocate has contended that considering the trueimport of Section 257, there is no restriction orprohibiting the State Government to entertain SecondRevision. Shri Patil, contended that the AdditionalCommissioner who has decided the first revision is adelegatee exercising delegated powers of theGovernment. The Revisional power has been exercisedby the Additional Commissioner in his jurisdictionU/s 257 which also permits the State Government toexercise the revisional power independently,irrespective of the fact that a revision entertainedand decided by the Commissioner U/s 257 of the Codeby the same party. Shri Patil, in other wordscontended that it is permissible for the StateGovernment to exercise revisional power as thestatute does not prohibit or limits number of therevisions. To substantiate these contentions ShriPatil, placed reliance on the judgment of this Courtreported in 1997 2 MLJ 252.Shri Patil, further contended that the question ofmaintainability of the revision before the O.S.D.was not at all raised by the opponent when therevision was being heard and now it will beimpermissible for him to make grievance before thisCourt and this Court may not ponder on that questionand declare that order as invalid. Shri Patil,relied on a judgment of this Court reported in 2000Maharashtra Law Journal 115 and submitted that theSecond Revision was competent and as the Revisionalauthority has considered all the aspect and theninterfered in the order passed by the authoritiesbelow. Shri Patil, in alternate contended that nowthe parties have approached the Civil Court forgetting their rights decided therefore, this Courtmay not entertain this writ petition and leave theparties to abide by the outcome of the Civil Suitwhich is pending before the competent Civil Court.Shri Patil, contended that these proceedings are inrespect of mutation of name in Revenue Register whichdo not confer any title or creates or distinguish anyright in respect of the property in question andultimately the parties have to go to Civil Court toestablish their rights.
12. Now I will consider the rival contentionsin detail. Taking last contention of Mr. Patil, firstregarding nature of the proceedings of the mutationentries, there cannot be any quarrel as the questionis already settled by the judgment of the Apex Courtreported in 1996 1 Mh. L.J. 209. I need notpointer much on the said issue. It is always openfor the parties to get their rights decided beforecompetent Civil Court. I would have considered thisaspect of the matter if the Second Revisionalauthority would have directed the parties to abide bythe orders of the Civil Court but having not done sobut Second Revisional authority interfered in thefinding recorded by the three authorities below Ihave to decide this petition as it is on merit. andto consider whether the finding recorded by SecondRevisional authority was proper and whether the 2ndrevisional authority has jurisdiction to interfere inthe finding of fact recorded by two appellateauthorities and confirmed by the Divisional authorityin lst revision. In view of this, it will not beproper to dismiss this writ petition on the groundthat the parties have already approached Civil Court.
13. In order to appreciate the above saidcontentions, it will be necessary to refer to someprovisions contained in the Code. The Land RevenueCode enacted to prove land revenue in the State ofMaharashtra. Chapter 10 deals with land records andChapter XIII deals with Appeal, Revision and Review.Section 148 and Section 149 of the Code deals withrecord of rights. As per Section 148 the record ofrights to be maintained in every village and whichwill include names of all persons (other than thetenants) who are holders, occupation owners ormortgages of the land as lessees, rent or revenuepayable etc.
It is not disputed in the present casethat on death of Babu Teli the parties (three sons ofBabu Teli) set up a theory of partition and appliedfor the mutation entries, as per the requirement ofSection 148, way back in the year 1964. In thoseproceedings it revealed by the Tahsildar that thepartition and/or division as alleged by the partiesbeing unequal he ordered to correct the record videmutation entry No.299 by providing 3 equal shares tothe parties. It is not disputed that the said entirewas corrected, and entered in record of rights andfrom that date till 1979 the position did not change.Section 247 provides for an appeal and theappellate authorities which reads thus :
'247.Appeal and appellateauthorities :- (1) In the absence of anyexpress provisions of this Code, or of any lawfor the time being in force to the contrary,an appeal shall lie from any decision ororder passed by a revenue or survey officerspecified in column l of the Schedule Eunder this Code or any other law for the timebeing in force to the officer specified incolumn 2 of that Schedule whether or notsuch decision of order of the officerspecified in column l of the said Schedule:Provided that, in no case the number ofappeals shall exceed two.
(2)When on account of promotion or changeof designation, an appeal against anydecision or order lies under this section tothe same officer who has passed the decisionor order appealed against, the appeal shouldlie to such other officer competent to decidethe appeal to whom it may be transferredunder the provisions of this Code.'
Section 248 provides for an appeal tothe State Government in some cases referred for inthat Section. Section 249 provides for an appealagainst an order of revision. Section 250 providesfor limitation for filing an appeal. Section 251permits the appellate authority to entertain theappeal after the period of limitation. Under Section252 some orders are not made appealable. Section 253makes a provision to entertain the appeal when thelast day for filing the appeal is Sunday or Holiday.Section 255 provides the power of appellateauthority. By virtue of Section 256 the appellateauthority can stay the order challenged in theappeal. Under section 257 a revision can be filed bythe aggrieved party. In this petition the questionarose about the scope of revisional jurisdiction, itwill be appropriate to reproduce Section 257 whichreads thus :
'257. (1) The State Government and anyrevenue or survey officer, nor inferior inrank to an Assistant or Deputy Collector ora Superintendent of Land Records, in theirrespective departments, may call for andexamine the record of any inquiry or theproceedings of any subordinate revenue orsurvey officer, for the purpose ofsatisfying itself or himself, as the casemay be, as to the legality or propriety ofany decision or order passed, and as to theregularity of the proceedings of suchofficer.
(2) A Tahsildar, a Naib Tahsildar, and aDistrict Inspector of Land Records may inthe same manner call for an examine theproceedings of any officer subordinate tothem in any matter in which neither a formalnor a summary inquiry has been held.
(3) If in any case, it shall appear to theState Government, or to any officer referredto in sub-section (1) or sub-section (2)that any decision or order or proceedings socalled for should be modified, annulled orreversed, it or he may pass such orderthereon as it or he deems fit:'
It is the case of the opponent that though he was inpossession of l hectare and 54 Ares the name ofBandappa was recorded as an occupant. Thisapplication was enquired into as per Section 149. Onenquiry the Tahsildar found that :
'The record further shows that the pot Hissaof the land S.No.86/1/C measuring 10/13gunthas was in the name of Sambappa andthereafter it was sold to RamchandraVithalrao and others. The real reliefclaimed by the applicant. The correction ofthe entries in the pot Hissa Survey record.This court is not competent to correct theentries of the record preferred by the potHissa Survey Officer. The proper remedy tothe parties in the present matter is to getthe Pot hissa re measured and correct therecord by the said authority.'
With these observation the Tahsildar held that he beingincompetent to give any relief and accordingly, theapplication came to be rejected. The rejection by theTahsildar was challenged by filing appeal U/s 247 of theCode.
Dt.18.12.2002
14. The opponent then approached theSub-Divisional Officer Udgir by filing appeal. Thelearned Deputy Collector, heard the parties atlength, considered the evidence on record and foundthat the entries which are made in the revenue recordare contrary to the factual position. Consideringthis aspect the learned S.D.O. allowed these appearsand set aside the order dated 9.9.1981. The learnedDeputy Collector i.e. S.D.O. while allowing theappeal recorded the following finding :
'The facts discussed above and thedocumentary evidence on record left to theconclusion that the present entries in therevenue record are contrary to the factualposition. It is clear that the appellant isowner in possession of 15 acres 17 gunthasof land. No land is left with therespondent so far. No 86. The disputedportion of 3 Acres 32 gunthas is held andpossessed by the appellant. The revenuerecord needs to be corrected accordingly.The Lower Court has erred in holding thatthe appellant claims the relief to correctthe Pot Hissa record. In fact, the reliefclaimed by the appellant is correction ofrecord of rights for which the lower courtwas quite competent.'
15. Being aggrieved by the order passed by theS.D.O. Udgir, on 15.7.1985 the Revisionalpetitioners preferred Second Appeal U/s 247 of theCode before the Additional Collector, Latur. TheAddl. Collector on considering the evidence producedbefore the parties held that the evidence which isproduced on record goes in favour of the opponent.This observation has been made by the Addl. Collectoron scrutiny of the available documents produced bythe parties. With these observations the appeal cameto be dismissed and the order passed by the S.D.O.came to be confirmed. Accordingly, theAddl. Collector, Latur by his judgment and order dated28.6.1988 dismissed the appeal and confirmed theorder passed by the S.D.O. Udgir.
16. Feeling aggrieved by the judgment andorder dated l5.7.1985 passed by the S.D.O. Udgir andorder dated 28.6.1988 passed by the Addl. Collector,Latur revision petitioners preferred revision beforethe Addl. Commissioner, Aurangabad Division,Aurangabad US 257 of the Code. The learnedAdditional Commissioner on proper analysis of theevidence on record found that the order of theAddl. Collector the first appellate Court being validand correct, dismissed the revision applicationconfirming the orders which were challenged beforethe Additional Commissioner Aurangabad Division,Aurangabad.
17. Feeling aggrieved by the judgment andorder dated 20.2.1991 by the Revisional authority,the revision petitioners approached the StateGovernment invoking the jurisdiction U/s 257 byfiling Second revision. The second revision washeard by the Officer on Special Duty and he allowedthe revision by the order dated 20th October 1991.While reversing the order passed by the threeauthorities below, he found fault with theAddl. Collector and Addl. Commissioner by observingthat they have unnecessarily based their judgments onthe affidavit filed by the parties. He also recordeda finding that the partition deed is not a partitiondeed at all. With these observations he allowed therevision application by recording the followingfinding :
'I have gone through the record of the caseand find that the order passed by theAddl. Collector land Additional Commissionerare very cryptic. They have unnecessarilybased their judgment on this affidavit ofthe revision applicants. The partition deedis not a partition deed at all. It does notstate the shares of each brother. Secondly,this so called partition on fertility basishas already been rejected by tahsildar in1964, and tahsildars order becomes final asit had not been challenged by other party.The sub Divisional Officer has gone beyondthis jurisdiction to delete the name of theapplicant from Kabjedar column and to recordthe name of the present opponent in hisplace. The overwhelming documentaryevidence is in favour of revisionapplicants. The order passed by the lowerauthorities are not based on soundjudgment.'
18. As I disposed of the last submission oflearned counsel Shri Patil, now it will beappropriate for me to consider the submissions of thelearned advocate Shri R.D. Deshpande, he made agrievance that the second revisional authority hadinterfered in the finding of fact recorded by threeauthorities by considering the evidence on record.He submitted that in a second revision the revisionalauthority i.e. State Government can not reappreciatethe evidence and interfere in the finding sorecorded. Interfering in the finding of fact bysecond revisional Court itself is a ground tointerfere with in this writ petition. It is truethat Sub-Divisional Officer, Addl. Collector and theAddl. Commissioner have concurrently recorded afinding in favour of the present petitioner byobserving that the revenue record is not inconsonance with the factual aspect and they havedirected to correct the revenue entries. Therefore,in my judgment the second revisional authority assuch exceeded its jurisdiction in entertaining thesaid application and interfering with the finding offact. By close scrutiny of Section 257 it is clearthat a revisional authority has to consider thelegality propriety of decision or order impugned.From the order of Officer on Special Duty it is clearthat there is no satisfaction recorded by the O.S.D.about legality or propriety of the order. The tenorof the order shows that the O.S.D. has treated theproceedings before him as an appeal, which is not thescope of Section 257. On this aspect the grievanceof the learned advocate Shri Deshpande, is requiredto be accepted.
19. Coming to the much debated question raisedby both the learned advocates regarding tenability ofthe second revision U/s 257 and the question whetherthe Officer on Special Duty can decide revisionapplication U/s 257. So far as the hearing of therevision filed before the State Government by theOfficer on Special Duty is concerned, in my judgmentthe question is concluded by the judgment of thisCourt in Vinaykumar Kachrulal Abad v. HonourableMinister, Revenue and Forest Department, Mantralaya,Mumbai reported in 2002 (1) MLJ 854. The question which is raised in this petitionhas squarely fell for consideration before this Courtwhile considering the said issue. The learned singleJudge (Khandeparkar, J.) posed the following questionfor his consideration :
'Who is the competent authority undersection 257 of the Maharashtra Land Revenue Code,1966to hear and decide the revision application when thesame is filed before the State Government.'
The case of Vinaykumar can be summarisedas follows :
'4. Some times in the year, 1996 thepetitioner claiming to be owner andpossessor of part of the property bearingSurvey No.555, situated at Jalna obtainedorder for conversion of land to NonAgriculture use., In fact, the order to thateffect was passed by the Collector, Jalna on1.7.1996. The said order of conversion ofland for Non Agriculture use was sought tobe challenged by predecessors of therespondents No.3 to 15 by filing anapplication before the Collector, Jalna butthe same was dismissed by the Collector on10th April, 2000. Thereafter, on 11thApril, 2000, the respondent Nos.2 to 15filed an application for cancellation of thepermission granted to the petitioner forconversion of the land for Non Agriculturepurposes to the extent of the part of theland claiming the same to be belonging tothe said respondents. The Collector allowedthe said application by order dated 14thSeptember, 2000. The same was sought to bechallenged by the petitioner by filing writpetition No.4975/2000, which was allowed bythis Court and the order dated 14thSeptember, 2000 was quashed and set asidewhile permitting the respondents No.2 to 15to withdraw the proceedings before theCollector, making it clear that thewithdrawal would not affect the legal rightsof the respondent No.2 herein in theproceedings pending in the Civil Court, inCivil Suit No.168/98 as well as before therevenue authorities and the withdrawal waspermitted without prejudice to the rightsand contention of the respective parties.The respondents No.2 to 15 thereafter, on17th January, 2001 filed appeal before theAdditional Commissioner - respondent No.17herein challenging the permission grantedfor the Non Agriculture use of the land bythe petitioner alongwith the application forcondonation of delay in filing the appeal.The application for condonation of delay wasobjected to by the petitioner. However, therespondent No.17 by his order dated13.3.2001 condoned the delay of four andhalf years in filing the appeal. Beingaggrieved, the petitioner filed the revisionapplication under Section 257 of the Code.The same came to be heard by the Minister ofState (Revenue and Forest Department) on23rd March, 2001 and on the very day, theorder admitting the revision application andgranting order of status quo for fifteendays came to be passed. The matter wasfixed for hearing on 11th April, 2001.Meanwhile, on 29.3.2001, the Desk Officer inthe Revenue and Forest Department, placedthe matter before the Cabinet Minister(Revenue) with a note inviting the order ofthe Cabinet Minister on the point as to theprocedure to be followed in the matter,particularly, in relation to the hearing ofthe matter, i.e. whether it should be heardby the Cabinet Minister or by the Ministerof State and in relation to continuation ordiscontinuation of order of status quo. TheCabinet Minister thereupon, on 13th April2001, vacated the order of status quo passedby the Minister of State and furtherobserved that till the decision of theAdditional Commissioner, the concernedauthorities should take precaution againstthe alienation or sale of the property inquestion. The said order was alsocommunicated to the petitioner by letterdated 19th April, 2001 by the Desk Officeror Revenue and Forest Department.Consequent thereto, the matter before theappellate authority was taken up by theDeputy Commissioner, Aurangabad for hearingon 24th April, 2001 but, was adjourned atthe request of the petitioner; however,simultaneously, the order to maintain statusquo was granted. The further hearing wasfixed in the matter on 25th June, 2001.Meanwhile, the present petition came to befiled on 24th April, 2001. Since the orderof 24th April, 2001 before the lowerAppellate Authority was passed subsequent tothe filing of the petition, the same wassought to be brought to the notice of thisCourt by filing Civil Application No. 3750 of2001.
5.The first ground of challenge in thematter relates to the jurisdiction of theCabinet Minister to hear and decide therevision application under section 257 ofthe Code. According to the petitioner, thejurisdiction to hear and decide the revisionapplication under Section 257 of the Codevests in the Minister of State and not inthe Cabinet Minister and, therefore, theorder the dated 13th April, 2001 passed bythe Cabinet Minister is ab initio bad in lawand therefore, the said order and thecommunication dated 19th April, 2001 by theDesk Officer are to be quashed and setaside. Attention is drawn in that regard tothe various provisions of the MaharashtraGovernment Rules of Business, andInstructions issued thereunder. Reliance isalso placed in the decision of the DivisionBench of this Court in the matter ofGaneshrao Kishanrao Deshmukh Vs.Devisingh Venkatasingh and others reported in : AIR1972Bom369 . Onthe other hand, it is sought to be contendedon behalf of the respondent No. l as well asthe other respondents that the Rules ofBusiness duly empower the Cabinet Ministerwho is the Minister in-charge, of thedepartment concerned, to hear and decide therevision application filed under the saidCode and, therefore, no fault can be foundwith the impugned order or communicationthereof.'
On the above said facts this Court has considered therules of business framed under Article 166 of theConstitution of India and considering the rules ofbusiness this Court came to the conclusion that theOfficer on Special Duty has no jurisdiction to hearand decide the appeal. This Court observed thus :
'6.Section 257 of the Code empowers theState Government and certain other revenueofficers to call for and examine the recordsand proceedings before the subordinateofficers and to pass appropriate order insuch matters. In exercise of powersconferred by clauses (2) and (3) of Article166 of the Constitution of India, theGovernment of Maharashtra has framed theMaharashtra Government Rules of Business byorder dated 26th June, 1975. Rule 15thereof provides that those rules may tosuch extent as necessary be supplemented byinstructions to be issued by the Governor onthe advice of the Chief Minister.Accordingly, the necessary instructions wereissued by order dated 7th May, 1964. Interms of those instructions under clausel(v), 'Minister-in-charge' means theMinister appointed by the Governor to be incharge of the department of Government towhich a case belongs. Clause 4 thereinprovides that except as otherwise providedin those instructions, cases shallordinarily be disposed of by, or under theauthority, of the Minister-in-charge, whomay by means of standing orders give suchdirection as he thinks fit for the disposalof cases in the Department. Further, thestanding orders issued on 10th January, 2000in accordance with the Rule 15 of theBusiness Rules, read with Clause 4 of theInstructions dated 7th May, 1964, providefor distribution of work between the CabinetMinister and Minister of State.Accordingly, the matters listed in ScheduleI are required to be dealt with exclusivelyby the Cabinet Minister. The mattersenlisted in Schedule III are in Schedule IIare to be disposed of by the CabinetMinister through the Minister of State.Item No. 12 of the Schedule III is aresiduary clause, which provides for all thematters excluding the appeals and revisionswhich are specifically reserved by theCabinet Minister for disposal by himself andall other matters which are specificallyallotted to the Secretary, Joint Secretaryor an Officer on Special Duty for theirdisposal and in relation to the mattersconcerning revenue and forest department.
7. On perusal of the Rules of Businessframed on 26th June, 1975, the instructionsissued thereunder on 7th May, 1964 and theStanding Order dated 10th January, 2000, itis apparent that the revision applicationsfiled under section 257 of the Code, unlessthey are specifically reserved for beinghearing by the Cabinet Minister, or they arebeing allotted to be heard by the Secretary,Joint Secretary or Officer on Special Dutyin accordance with Clause 12 of the ScheduleIII of the Standing Order dated 10thJanuary,2000, are required to be heard anddecided by the Minister of State. In thisconnection, it was sought to be contended bythe learned A.G.P. that by letter dated13th July, 2001, it was clarified that thepetitioner in the case in hand, was requiredto forward the revision application beforethe Cabinet Minister and having not done so,nothing prevented the Cabinet Minister fromcalling the file for his consideration andpassing the impugned order. As alreadystated above, the Rules of Business readwith Instructions and the Standing Orderreferred to above, nowhere provide that therevision applications filed under the Codeare invariably to be heard by the CabinetMinister.(underline is mine) The respondentshave not been able to point out any rulehaving been framed making it obligatory forthe revision applicants to present therevision application before the CabinetMinister alone, when such revisionapplications are addressed to the StateGovernment. On the contrary, Clause 12 ofthe Schedule III of the Standing orderspecifically requires an order by theCabinet Minister to hear the revisionapplication either by himself or anallotment of the matter for hearing by theSecretary, Joint Secretary or an Officer onSpecial Duty. No such specific order of theCabinet Minister is required for the purposeof hearing of the matter by the Minister ofState as the Clause 12 of Schedule IIIitself empowers the Minister of State tohear all such matters except those areexcluded by the specific order by theCabinet Minister. There is no dispute thatthe matter in question was not allotted forbeing heard either by the Secretary or theJoint Secretary or Officer on Special Duty.The records nowhere discloses any order bythe Cabinet Minister reserving the matter inquestion to be heard by himself. Besides,the letter dated 13th July, 2001 by the DeskOfficer addressed to the GovernmentAdvocate, copy of which is placed on record,nowhere refers to any order by the cabinetMinister for reserving the matter forhearing by himself. Such an order isnecessarily to be by the Cabinet Ministerand mere explanation in that regard by theDesk Officer can be of no assistance.'
At this juncture it will also be appropriate to referto the Full Bench decision of this Court in case ofShaikh Mohammed Fatemohamed and etc. Vs . RaisuddinAzimuddin Katil and others reported in : AIR2000Bom353 . The Full Bench of this Court was dealingwith the situation where the appeal which was filedU/s 2-A of the Hyderabad Abolition of Inams and CashGrants Act was required to be heard by the StateGovernment meaning thereby the Minister incharge butthe said appeal was heard by the Officer on SpecialDuty. The Full Bench after considering theprovisions of Section 2-A of the Hyderabad Abolitionof Inams and Cash Grants Act and also rules ofbusiness framed under Article 166 held thus :
'That the quasi judicial functions wouldbe out of the purview of Art.166 much less that wouldnot be covered by the Rules of business under Rule15.'
By observing this the Full Bench approvedthe view taken by the Division Bench of this Court inthe case of Ganeshrao Kishanrao Deshmukh Vs.Devisingh Venkata Singh reported in : AIR1972Bom369 . Considering the above judgment of thisCourt dealing with the subject I am of the view thatthe Officer on Special Duty has no jurisdiction tohear and decide the revision filed U/s 257 of theCode. On the judgments by this Court (supra) it willhave to be declared that the judgment delivered bythe Officer on Special Duty is thus withoutjurisdiction.
20. Turning now to the question whether SecondRevision is maintainable U/s 257 of the Code. It isnot disputed before me that the proceedings initiatedon an application filed by the petitioner complainingabout the entries in the revenue record. InitiallyTahsildar conducted enquiry and rejected theapplication, that rejection gave rise to therespondents to invoke the jurisdiction of theauthorities by filing appeal as provided U/s 247.Accordingly, First Appeal was filed before the S.D.O.Udgir. Aggrieved by the decision of the S.D.O.Second Appeal came to be filed before the AdditionalCollector, Latur. Section 247 provides for twoappeals. This remedy is fully exhausted by theRevision Petitioner. After decision ofAddl. Collector, Latur the revision petitionersinvolved the jurisdiction of the Commissioner byfiling a revision application U/s 257. TheAdditional Commissioner, Aurangabad Division,Aurangabad disposed of the revision and then secondrevision was filed under the same provision. I haveto find out from the Code whether it is permissiblefor a party to file two revisions or successiverevisions as contended by Shri Patil, the learnedadvocate for the respondent. As a matter of fact, inmy judgment the issue stands concluded in view of theunreported judgment of the learned Single Judge ofthis Court in W.P. No. 4168/98. The unreportedjudgment relied on by Shri Deshpande, rendered by theSingle Judge on 18.2.1999 squarely answers thecontention raised by Shri Patil. The learned SingleJudge on considering the provisions of Section 257held that there is no provision for second revisionU/s 257 of the Code. The said unreported judgmentagain came for consideration before another learnedSingle Judge in case of Ramesh T. Gopalani v. JanataSahakari Bank Ltd., Kalyan and another reported in2000 (3) MLJ 115. The learnedSingle Judge (J.A. Patil, J.) was considering aquestion of second revision filed before theGovernment of Maharashtra U/s 154 of the MaharashtraCooperative Societies Act. While considering theissue the judgment rendered by Lodha, J. (supra) wasconsidered. In case of Ramesh the judgment inW.P. No. 2084/1999 delivered by Gokhale, J. was alsoconsidered. On considering these two judgments andconsidering the provisions of Section 154 of theMaharashtra Cooperative Societies Act, the learnedSingle Judge held that no second revision lies U/s154. These judgments are relied on by Shri Patil,regarding his contention that the question ofjurisdiction was not raised before the Officer onSpecial Duty when the second revision was heard. Herelied on the observation made by the learned SingleJudge in Ramesh's case in para 6 of the report. Ihave given my anxious consideration to theobservation made in para 6. The said observationsare not useful or helpful to substantiate thecontention of Shri Patil, that the point regardingmaintainability of Second Revision was not raisedbefore the Officer on Special Duty. It is nodoubttrue that the learned Single Judge has relied on ajudgment of the Apex Court in Rukmini Amma SaradammaVs. Kallyani Sulochana and others : AIR1993SC1616 . On perusing the fact of theApex Court judgment Rukmini's case it can bedistinguished on the facts. In the present case whatwas contended by Shri Deshpande, that the Officer onSpecial Duty has no jurisdiction at all to entertainthe Second Revision for the above said two groundswhich are referred to earlier. Therefore, questiongoes to the root of the jurisdiction of therevisional authority and it is well-known that theparties by consent cannot confer the jurisdiction ona Court or authority which has no inherentjurisdiction to deal with the case. In the presentcase in view of the above said judgments of thisCourt where, this Court has held that U/s 257 (a)second revision is not permissible; (b) that theOfficer on Special Duty has no jurisdiction to decidethe revision application (even if it is firstrevision). Therefore, the question is of thejurisdiction of the Officer on Special Duty that ischallenged in this petition. Therefore, if the partyhas not taken the objection before the S.D.O. thatdoes not mean and said that the Officer on SpecialDuty has a jurisdiction to decide the SecondRevision. Merely because the point is not raisedbefore the authority, one cannot say that the saidparty is precluded from raising the question or pointafter ultimate result of the proceedings. In view ofthis aspect, I am not impressed by the submissionmade by Shri Patil, that the point regardingjurisdiction was not raised shall not be allowed tobe raised in this writ petition. As the questiongoes to the root of the matter. When it pertains tothe question of jurisdiction, this Court in a writpetition filed under Article 226 and 227 has toconsider whether the authority which decided a matterhas in fact has jurisdiction or not, on readingof Section 257 it is clear that there is no provisionfor 2nd revision empowering the State Government tohear and consider the judgment of a revisionalauthority rendered U/s 257, in my judgment the StateGovernment has no jurisdiction to hear and decide arevision against an order or judgment passed by arevisional authority though that authority may beinferior to the State Government. As such the pointraised in this writ petition will have to beconsidered which accordingly I considered and heldthat no second revision lies U/s 257 before the StateGovernment.
21. Shri Patil, invited my attention to theDivision Bench of this Court in case of ParmeshwarSihoratan Bohara and another v. State ofMaharashtra and another 1997 [2] ML J 252. Shri Patil, contended that inParmeshwars case Division Bench of this Court wascalled upon to consider the question whether underMaharashtra Scheduled Commodities (Regulation ofDistribution) Order 1975 clause 24 - second appeal istenable. This Court after considering two judgmentsof the Apex Court in Rukmini's case (supra) and : [1987]1SCR485 Anudal Ammals caseconsidering the issue the Division Bench proceeded toconsider the provisions of Rule 24.
'6.Now, it becomes necessary to refer toclause 24 of the Regulation.
'24. Power to call for and examine recordsof proceedings and revise orders - If anyperson is aggrieved by an order passed bythe Collector, the Commissioner, and if anyperson is aggrieved by an order passed bythe Commissioner, the State Government, may,on an application made to him, or it by theaggrieved person, within thirty days fromthe date of receipt of such order, stay theenforcement of such order. The Commissioneror the State Government, as the case may be,may also call for and examine the record ofany inquiry or proceedings of the concernedOfficer exercising or failing to exercisethe powers under this order to add to,amend, vary, suspend or cancel anyauthorisation issued or deemed to be issuedunder clause 3 or any supply card issued ordeemed to be issued under clause 6 or toforfeit the deposit (or any part deemedthereof) paid or deemed to be paid by a fairprice shop or authorised agent as securityor to take any other action under theprovisions prescribed by or under thisorder, for the purpose of satisfying himselfor itself as to the legality or propriety ofthe order passed by such officer, and as tothe regularity of the proceedings of suchofficer and may pass such order thereon ashe or it, as the case may be, thinks fit:Provided that State Government may atany time, during the tendency of any inquiryor proceedings or within one year from thedate of any order passed by any officerunder the provisions prescribed by or underthis order, suo motu stay any pendinginquiry or proceedings or the enforcement ofsuch order if considered necessary and maycall for and examine the record of any suchinquiry or proceedings, and pass such orderthereon as it thinks fit:
Provided further that the Commissioneror the State Government, as the case may beshall not pass any order under this clausewhich adversely affects any person unlesssuch person has been given a reasonableopportunity of being heard' (emphasissupplied). A plain reading of the said clause showsthat if a person is aggrieved by the orderpassed by the Collector, revision will liebefore the Commissioner; and if one isaggrieved by the order passed by theCommissioner a revision will lie before theState Government. We may at this juncture,advert to the argument advanced by ShriDeshpande, learned counsel to the effectthat a revision can lie only against theorders passed under clauses 3 and 6 of theRegulation. Clause 3 deals with issue ofauthorisation to fair price shops to obtainand supply scheduled commodities; and clause6 deals with power to issue of supply cardto a person or class of persons. Clause 3enjoins that such authorisation can beissued by State Government or Collector, andclause 6 says, the State Government or theCollector may issue or cause to issue supplycard. According to the learned counsel,since authorisation under clause 3 can beissued either by the Collector or the StateGovernment, and in this case the order wasby the Sub-Divisional Officer, revision canbe entertained by the Commissioner. Thefurther contention appears to be, since theCommissioner is not an authority mentionedin clause 3 or 6 an order passed by him isnot revisable under clause 24 as accordingto the learned counsel clause 24 speaks ofrevision only with respect to orders underclauses 3 and 6. The implication appears tobe, the order of the Commissioner, if atall, can be corrected only under the lstproviso to clause 24. And since accordingto the petitioner, there was no material toexercise the suo motu power under the saidproviso, the order rendered by theCommissioner is not amenable to the power inthe said lst proviso also.
7. We are unable to accept the saidinterpretation placed by the learned counselfor more than one reason. First of all,clause 24 specifically mentions that fromthe order of the Collector, a revision shalllie to the Commissioner; and from the orderof the Commissioner the aggrieved party canmaintain a revision before the StateGovernment.(underline is mine) It may bethat the Commissioner is not mentioned inclause 3, but clause 24, which provides forrevision, specifically mentions theCommissioner as a revisional authority. Theassumption that the revisional power of theState Government does not take in orderpassed by the Commissioner is notsustainable in view of the language ofclause 24. It should not be forgotten thatonce the revisional authority after hearingthe party confirms the order, that orderalone will be the effective order because ofthe doctrine of merger. Once the revisionalauthority confirms the order, the order ofthe lower authority merges with the order ofthe revisional authority; even otherwise theorder of the Commissioner in revision has tobe treated as an order under clause 3 of theRegulation. What is significant is thatthis aspect is taken care of in clause 24itself because, as noted, clause 24 says theappropriate authority can suspend or cancelany authorisation issued or 'deemed to beissued under clause 3'. This, in our view,in effect makes the order passed by theCommissioner as one passed under clause 3;and this can be attained even by theoperation of the theory of merger once thecontested matter is disposed of by theCommissioner on a proper revision filedbefore him. Here, as noted, clause 24itself makes the order by the Commissionerdeemed to be one under clause 3 of theRegulation.
8. Inasmuch as clause 24 does not containany statement as is obtained undersub-section (5) of section 18 of Kerala RentControl Act making the order of theCollector or Commissioner as final; on thebasis of the decision in : [1987]1SCR485 ;cited supra, it cannot be contended thatsecond revision cannot be maintained.Clause 24, as noted, does not employ anyword so as to restrict its operation only toone revision. This has to be understood inthe context of the fact that this orderitself was issued under sub-sections (1) and(2) of section 3 of the EssentialCommodities Act, 1955. The preamble part ofthe said Act states that the same is an Actto provide, in the interest of the generalpublic, for the control of the production,supply and distribution of, and trade andcommerce in, certain commodities. Thecommodities that would fall within the ambitof the Act are essential commodities andessential commodities are defined underclause (a) of section 2 of the Act. Thewhole scope of the clauses in the Regulationhave to be understood in the context of theaforesaid object of enacting the said Actand also the promulgation of the Regulation.It is pertinent in this context to note thatthere is absolutely no challenge against thevalidity of any of the provisions of thesaid Act or regulation. We do not consider,a restricted meaning can be assigned to thepower of revision under clause 24 firstlybecause the language of the said clause doesnot permit it, and secondly, the object ofthe Act and Regulation also does not allowsuch restricted interpretation. Neither thewords employed in clause 24 nor the contextsupport the interpretation sought to beplaced by the learned counsel for thepetitioners. It must be noted that one ofthe objects of the Act and Regulation is tocontrol the distribution of essentialcommodities. Distribution is as muchimportant as production. Properdistribution with supervision by theauthority concerned is a must in securingthe object of the Act as well as Regulation.Incidentally, it has to be noted thatArticle 39(b) of the Constitution of Indiaalso directs that the State shall, inparticular direct its policy towardsownership and control of the materialresources of the community are sodistributed as best to subserve the commongood. In interpreting the provision in theAct as well as in the Regulation one shouldnot miss the spirit underlining the saidprovision under Article 39. The Regulation,since is framed as per the provision in theAct, is a subordinate legislation. Thelegislative wisdom in enacting a provisionas clause 24 cannot be called in question.The provision of further revision to the lstrespondent is thus competent and the onlyquestion is, whether as per the languageused in clause 24, such revision ispossible. As has already noted, revisionalpower is expressly conferred on the State,there is no restriction in the clause whichwould lead to a conclusion that furtherrevision to the State is any waybarred.'(underline is mine)
It is to be noted that this Court was consideringclause 24 of the Regulation. This Court in para 7 ofthe report has quoted in extenso Clause 24.Comparing the provisions of Rule 24 it will be clearthat plain reading of Section 257 of the Code, thereis no scope to come to the conclusion that there isprovision for second revision. Shri Deshpande, onthe other hand, placed strong reliance on theConstitution Bench judgment of the Apex Court in RoopChand Vs . State of Punjab and another : AIR1963SC1503 . In Roop Chands case the ApexCourt was considering certain provisions of EastPunjab Holdings (Consolidation and Prevention ofFragmentation) Act (Punjab 50 of 1948).
22. Shri Deshpande, learned advocate broughtto my notice the majority view whereby the Apex Courtwhile interpreting Section 42 of that Act held thatunless the statute specifically provides for arevision, one cannot assume jurisdiction andentertain the proceedings. The Apex Court thus held:
'7. It is now necessary to set out S.42 onthe interpretation of which this petitiondepends. That section was amended by ActXXVII of 1960 with retrospective effect andit is the amended section that has to beconsidered by us. The amended section is inthese terms :
Section 42.'The State Governmentmay at any time for the purpose ofsatisfying itself as to the legality orpropriety of any order passed, schemeprepared or confirmed or repartition made byany officer under this Act call for andexamine the records of any case pendingbefore or disposed of by such officer andmay pass such order in reference thereto asit thinks fit.' 8. The petitioners contention is that anorder which can be interfered with underS.42 is an order passed under the Act by anyofficer in his own right and not an ordermade by the Government itself or by anyofficer exercising powers of the Governmentupon delegation under S.41(1).
9. The question really is as to themeaning of the words 'any order passed...by any officer under this Act' in S. 42.Do these words include an order passed by anofficer in exercise of powers delegated tohim by the Government under S.41(1)? We donot think, they do.
10. Now, there cannot be much doubt that S.42 makes a distinction between theGovernment and an officer, because under itthe Government is given power to interferewith an order passed by an officer and,therefore, it does not authorise theGovernment to interfere with an order madeby itself. As we understood the learnedAdvocate General of Punjab, who appeared forthe respondent State of Punjab, he concededthat position. He said that the Governmentcould no doubt have itself heard an appealpreferred under S.21(4) instead of gettingit heard by an officer to whom it delegatedits power, and if it did so, then it couldnot under S.42 interfere with the orderwhich itself passed in the appeal. We thinkthat this is the correct position, and wewish to make it clear that we are not basingourselves on the concession made by thelearned Advocate General. We feel no doubtthat an order passed by an officer of theGovernment cannot be an order passed by theGovernment itself.'
11. The question then arises, when theGovernment delegates its power, for example,to entertain and decide an appeal underS.21(4), to an officer and the officerpursuant to such delegation hears the appealand makes an order, is the order an order ofthe officer or of the Government? We thinkit must be the order of the Government., Theorder is made under a statutory power. Itis the statute which creates that power.The power can, therefore, be exercised onlyin terms of the statute and not otherwise.In this case the power is created byS.21(4). That section gives a power to theGovernment. It would follow that an ordermade in exercise of that power will be theorder of the Government for no one else hasthe right under the statute to exercise thepower. No doubt the Act enables theGovernment to delegate its power but such apower when delegated remains the power ofthe Government, for the Government can onlydelegate the power given to it by thestatute and cannot create an independentpower in the officer. When the delegateexercises the power, he does so for theGovernment. It is of interest to observehere that Wills J. said in Huth V., Clarke(1890) 25 Q.B.D. 391 that ' the worddelegate means little more than an agent' Anagent of course exercises no powers of hisown but only the powers of his principal.Therefore, an order passed by an officer ondelegation to him under S.41(1) of the powerof the Government under S.21(4), is for thepurposes of the Act, an order of theGovernment. If it were not so and were tobe held that the order had been made by theofficer himself and was not an order of theGovernment and of course it had to be one orthe other then we would have an order madeby a person on whom the Act did not conferany power to make it. That would be animpossible situation. There can be no orderexcept as authorised by the Act. What istrue of S. 21(4) would be true of all otherprovisions in the Act conferring powers onthe Government which can be delegated to anofficer under S.41(1). If we are wrong inthe view that we have taken, then in thecase of an order made by an officer asdelegate of the Governments power underS.21(4) we would have an appeal entertainedand decided by one who had no power himselfunder the Act to do either. Plainly, noneof these things could be done.'
Considering the ratio of the Roop Chands case, it isnot disputed that appeal and or revision is alwayscreation of statute. The statute which provides forremedy of appeal, the proceedings will be governed bythe said statute. On plain reading of Section 257 Iam of the view that there is no scope to hold thatsecond revision is provided under the said Section.In my judgment therefore, the judgment of theDivision Bench of Ramesh's case is not applicable onthe facts of this case as I am construing theprovisions of Section 257 of the Code which is notpara materia with Rule 24 of the Regulation 1975. Inview of this aspect, it is not possible for me toaccept the contention of Shri Patil and I reject thecontentions of Shri Patil.
23. To conclude I hold that Officer on SpecialDuty has committed an error in interfering with thefinding of fact recorded by three authorities below;
(ii) The Officer on Special Duty has no jurisdictionto hear and decide the revision applications filedU/s 257.
(iii) The second revision is not tenable. In view ofthis, the petition succeeds. The order passed by theOfficer on Special Duty on 2nd November 1993 isquashed and set aside by issuing writ of certiorari.Rule made absolute in terms of prayer clause (B).
24. Taking into consideration the closerelations of the parties, there will be no order asto costs. It is informed at the bar that the partieshave already approached to the Civil Court to gettheir rights decided. It is made clear that anyobservation made by this Court or the authoritiesbelow shall not mean and construe to decide therights of the parties. These proceedings are inrespect of taking entries in the revenue record. TheCivil Court is free to decide the suit on its ownmerits without being influenced by the result of thispetition or by the proceedings taken by the partiesbefore the revenue authorities.