Block Development Officer and ors. Vs. Narayan Nagorao Nege

Block Development Officer and ors. vs Narayan Nagorao Nege

Type Court Judgment Court Mumbai Decided Nov 01, 2004

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Citation: sooperkanoon.com/367204
Court: Mumbai High Court
Judge: Daga V.C., J.
Decided On: Nov 01, 2004
Case Number: Civil Revision Application No. 410 of 2000
Subject: Tenancy

Case Summary

AI-generated summary - not the official court judgment text.

- Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for...

Key legal issue: Tenancy
Acts & sections: Bombay Government Premises (Eviction) Act, 1955 - Sections 4, 5, 7 and 9

Parties & Advocates

Appellant / Petitioner

Block Development Officer and ors.

Advocate R.J. Kankale, Adv.

Respondent

Narayan Nagorao Nege

Legal References

Acts: Bombay Government Premises (Eviction) Act, 1955 - Sections 4, 5, 7 and 9
Reported In: 2005(2)ALLMR201; 2005(3)BomCR293

Excerpt

.....reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in..........in misc. civil appeal no. 274 of 99 whereby the order dated 4-2-1998 passed by the block development officer, panchayat samiti, kalmeshwar directing the respondent herein to pay an amount of rs. 68,264/- came to be quashed and set aside.2. the facts in nut-shell are that when the respondent was in the employment of panchayat samiti, kalmeshwar in 1991, he was allotted suit premises. in the year 1992, he was transferred to panchayat samiti, ramtek and subsequently, on his own request, he was re-transferred to kalmeshwar after a period of about 10. all along he was occupying the suit premises. in 1996, when the respondent was transferred to panchayat samiti, katol, the applicant issued him letter asking him to pay damages quantified in the sum of rs. 68,264/- for unauthorised use and occupation of the government premises. applicant no. 3 was asked to deduct rs. 1000/- per month from the salary of the respondent till the dues are recovered in full and final.3. being aggrieved by the said order, the respondent preferred an appeal under section 9 of the being misc. civil appeal no. 274 of 99. the learned district judge was pleased to allow the appeal partly and set aside the demand made by present applicant no. 1 in the sum of rs. 68,264/-. this order is subject-matter of challenge in this revision application.4. learned counsel for applicants contends that no appeal lies to the district judge under section 9 of the act. he contends that section 7 of the act provides for an appeal against the order of the competent authority passed under sections 4 and 5 of the act. he submits that the impugned action initiated by the block development officer vide his letter dated 4-2-1997 is not referable to the provisions of section 4 or section 5 of the act. he contends that the appeal lies only against the order of the competent authority. in his submission, the competent authority under the act is resident collector and not block development officer and, therefore, the order.....

Full Judgment

Daga V.C., J.

1. This revision application is directed against the order dated 15th January, 2000 passed by the District Judge, Nagpur in Misc. Civil Appeal No. 274 of 99 whereby the order dated 4-2-1998 passed by the Block Development Officer, Panchayat Samiti, Kalmeshwar directing the respondent herein to pay an amount of Rs. 68,264/- came to be quashed and set aside.

2. The facts in nut-shell are that when the respondent was in the employment of Panchayat Samiti, Kalmeshwar in 1991, he was allotted suit premises. In the year 1992, he was transferred to Panchayat Samiti, Ramtek and subsequently, on his own request, he was re-transferred to Kalmeshwar after a period of about 10. All along he was occupying the suit premises. In 1996, when the respondent was transferred to Panchayat Samiti, Katol, the applicant issued him letter asking him to pay damages quantified in the sum of Rs. 68,264/- for unauthorised use and occupation of the Government premises. Applicant No. 3 was asked to deduct Rs. 1000/- per month from the salary of the respondent till the dues are recovered in full and final.

3. Being aggrieved by the said order, the respondent preferred an appeal under Section 9 of the being Misc. Civil Appeal No. 274 of 99. The learned District Judge was pleased to allow the appeal partly and set aside the demand made by present applicant No. 1 in the sum of Rs. 68,264/-. This order is subject-matter of challenge in this revision application.

4. Learned Counsel for applicants contends that no appeal lies to the District Judge under Section 9 of the Act. He contends that Section 7 of the Act provides for an appeal against the order of the Competent Authority passed under Sections 4 and 5 of the Act. He submits that the impugned action initiated by the Block Development Officer vide his letter dated 4-2-1997 is not referable to the provisions of Section 4 or Section 5 of the Act. He contends that the appeal lies only against the order of the Competent Authority. In his submission, the Competent Authority under the Act is Resident Collector and not Block Development Officer and, therefore, the order passed by him could not have been impugned under the provisions of the Bombay Government Premises (Eviction) Act, 1955. He submits that the respondent may have remedy against the order passed by the Block Development Officer, but certainly not by way of appeal under Section 7 of the Act in question.

5. Having heard the learned Counsel for applicant and having examined the provisions of Section 7 of the Act in the light of the Notification dated 12th August, 1964, it is clear that the Resident Deputy Collector has been designated as Competent Authority and not the Block Development Officer. Thus, the submission made by the learned Counsel for applicants needs acceptance. The order dated 4-2-1998 passed by the Block Development Officer could not have been challenged in the appeal filed under Section 7 of the Act. In this view of this matter, impugned order is liable to be quashed and set aside it being without jurisdiction. However, it is made clear that this order shall not come in the way of respondent if he decides to challenge the order of the Block Development Officer dated 4-2-1998 in any other appropriate forum that may be available in law.

6. In the result, revision application is allowed with no order as to costs.

Same Court & Year Mumbai · 2004 Same Parties Block Development Officer and ors. vs Narayan Nagorao Nege Same Subject Tenancy Same Judge Daga V.C., J. Acts & Sections Bombay Government Premises (Eviction) Act, 1955 - Sections 4,...

Tenancy