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Shaikh Gulab Chandu Khatik Vs. the State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1141 of 1972
Judge
Reported inAIR1979Bom71; (1979)81BOMLR364; 1979MhLJ167
ActsBombay Land Revenue Code, 1966 - Sections 36(2), 36(3), 59, 247 and 256; Constitution of India - Article 226
AppellantShaikh Gulab Chandu Khatik
RespondentThe State of Maharashtra and ors.
Appellant AdvocateBhimrao N. Naik, Adv.
Respondent AdvocateA.M. Salik, Asst. Govt. Pleader
DispositionOrder accordingly
Excerpt:
.....ad hoc methods displayed by such administrative instructions but by (1) entrusting the trial to experienced senior officers, (2) ensuring speedy disposal by reserving them exclusively for this purpose, and by increasing their strength, if necessary, (3) reducing the number of appeals, (4) requiring the appellate authorities to dispose of the appeal summarily by exhaustive judgments at the stage of admission, when these do not disclose merits, and (5) extending free legal aid to them instead of eliminating lawyers from the scene, and (6) watching the progress of the case at every stage through their law officers......be sustained.5. we have come across several such orders of revenue officers arbitrarily refusing stay pending appeal or revision before them. the trend of passing such orders continues in spite of the law being indicated to be to the contrary either at the time of motion hearing or in judgments passed therein. even the supreme court has declared in several reported judgments that authorities discharging quasi-judicial functions, such as hearing appeals and miscellaneous matters arising out of them, as distinct from administrative functions, can ill afford to disregard the legislative mandate contained in the enactment concerned and yield to such administrative instructions, howsoever high the source of such instructions may happen to be. this is now too well settled to admit of any.....
Judgment:

Deshpande, J.

1. The petitioner is in possession of survey No. 40 situated at village Galothe Khurd, Akkalkuwa, District Dhulia. The petitioner claims to have purchased the same from respondent No. 5 who, according to the State, is au Adivasi, Action against the petitioner was taken under Section 59 of the Bombay Land Revenue Code of 1966, hereinafter referred to as 'the Code', with a view to dispossess him on the ground that the transaction of sale in his favour by the Adivasi without the prior permission of the Revenue Authority when the purchaser himself was not an Adivasi, was void. This had made his possession unlawful rendering him liable to be dispossessed. Order to this effect was passed by the Tahsildar of Akkalkuwa on 12-6-1972- The petitioner preferred an appeal to the District Deputy Collector, Nandur-bar. He also made an application for stay. His application for stay was rejected by him on the only ground of the claimant being an Adivasi. The Collector also refused to interfere with the same. The petitioner, therefore, preferred this Special Civil Application on 21-6-1973. His grievance in this petition is that the Appellate Authority was not justified in refusing stay when the appeal was still pending before him. At the time of admission, a Division Bench of this Court granted rule on 22-6-1972, and also stay 'till the disposal of this petition or the appeal before the District Deputy Collector.'

2. Mr. Bhimrao Naik, the learned Advocate for the petitioner, contends that authorities have acted arbitrarily in refusing stay during the pendency of the appeal and mere circumstance of the claimant being an Adivasi cannot be relevant for refusing stay. We find it difficult to resist the force of this contention. The impugned order is expressly passed under S. 59 of the Code. S. 247 thereof makes this order appealable while S. 256 enables the appellate authority to grant stay during thependency of the appeal with conditions if found necessary. Mr. Salik, the learned Assistant Government Pleader, is right in contending that, stay cannot be claimed as of right by any litigant, it being entirely within the discretion of the appellate authority. Even so, such a discretion has to be exercised judicially and reasonably by reference only to the relevant reasons.

3. We are unable to see how claimant's being an Adivasi by itself could be relevant under S. 256 or any other section. As backward and illiterate citizens, Adivasi undoubtedly are entitled to protection. The object of (1) subjecting the transfers of lands by Adivasi to prior permission under Section 36 (2) and (2) enabling the Collector to restore possession of lands to Adivasi on their transfer in breach of such restrictions under S. 36 (3) is laudable and unexceptionable. However, mere claim of being an Adivasi and a victim of such reach, cannot place him higher than any other claimant under the provisions of the Code seeking possession, or any other plaintiff in civil court, claiming title to any claim in litigation. No person can claim to be put in possession by dispossessing the other, without the proper trial and adjudication of the claims and the disputes. Authority of law for dispossession would be woefully lacking but for such adjudication. In other words, the maintenance of the status quo till such proper adjudication of the claim is simply indispensible. This indeed is a procedural safeguard against arbitrary dispossessions and false claims and indeed the essence of the rule of law. No Court or authority can afford to ignore it without eroding the fundamentals of the same.

4. Rights of appeal or revision pre-suppose the possibility of errors in such adjudications and the same are therefore treated as continuation of the trial involved in the process. Maintenance of status quo also is equally imperative during the pendency of such appellate proceedings and power to stay only is an adjunct of such appellate power. Grant of stay during such pendency, however, is invariably left to the discretion of the appellate authorities rather than made it a matter as of right for any litigant. Law under Section 256 of the Code is in no way different. Till the end of the trial, contesting litigants exhaust opportunities, to place ail the material in support of their claims and controversies also get crystallised. This enables the Appellate Court to judge the strength of the appeal and need of its admission or summary rejection as also the expediency of the stay, even when the appeal cannot be summarilyrejected for some reason. This would be all the mote so. as the matter goes to still higher authorities. But in case of refusal of stay in spite of the pendency of the appeal the authority owes a duty to the litigant and also to the still higher courts to whom the dispute is liable to be carried even at that stage, to give some indication of grounds for such refusal justifying departure from the normal rule. Refusal to stay without such indication of the relevant ground either in such order or otherwise may appear to be arbitrary and necessitate intervention by the superior court. Impugned order, therefore, cannot be sustained.

5. We have come across several such orders of Revenue Officers arbitrarily refusing stay pending appeal or revision before them. The trend of passing such orders continues in spite of the law being indicated to be to the contrary either at the time of motion hearing or in judgments passed therein. Even the Supreme Court has declared in several reported judgments that authorities discharging quasi-judicial functions, such as hearing appeals and miscellaneous matters arising out of them, as distinct from administrative functions, can ill afford to disregard the legislative mandate contained in the enactment concerned and yield to such administrative instructions, howsoever high the source of such instructions may happen to be. This is now too well settled to admit of any argument and Mr. Salik could not contest this legal position. It is suggested that existing binding administrative instructions restraining such Revenue Officers from granting stay in cases involving the claims of Adivasi and backward class, etc. render the Revenue Officers helpless and unresponsive to the law indicated by this Court and the Supreme Court.

6. It is extremely unfortunate that in spite of such authoritative pronouncements by the highest courts of the land, the administration as also the Revenue Officers should indicate such callous indifference to this legal position. The result is that number of writ petitions had to be admitted against such arbitrary refusal to stay pending appeals to extend the needed relief to the aggrieved litigants.

7. Now, it is undoubtedly true that the trial of the claims by the first and Appellate Authorities in terms of the existing procedure takes time. The process is time consuming and operates to the disadvantage of the intended beneficiaries of such legislations. Persons in possession more often than not manoeuvre to prolong the life of the litigation by twisting this process and in the absence ofany effective free legal aid, Intended beneficiaries become the victims of this abuse. All this, however, cannot justify disregard of the basic procedural guarantees afforded by the Constitution for the orderly development of the society. Any departure may result in the erosion of the basis of the rule of law. Such administrative instructions in respect of quasi-judicial functions in disregard of the statutory requirements, make the hearings to appear merely as farce and tend to destroy the faith of the litigants in the contemplated trials and appeals- Such attempted short cuts, including the elimination of lawyers in certain statutes, affecting, as these do, the vital procedural safeguards, make the order so passed vulnerable to the interference by the High Court under Art. 226 of the Constitution under which it owes obligations to the citizens, to ensure the compliance with the rule of law. It is doubtful if such an object could have been achieved by amending Section 256 and statutorily preventing the grant of stay in such manner, instead of resorting to administrative instructions as is claimed to have now been done. Outright indiscriminate injunction against granting stay pending appeals by reference to the claimant's class or community involved, without any reference to the merits may turn out to be violative of constitutional guarantees. Provisions eliminating lawyers are no doubt held to be valid. But such validity cannot make up for the deficiencies and infirmities to which the proceedings are exposed due to their elimination and which in turn render the proceedings so vulnerable to the ultimate disadvantage of the weaker section.

8. This very case is illustrative of how resorting to such short-cuts in disregard of the usual norms can defeat its very purpose. The stay was granted by this Court on 12-6-1972 till the decision of the Appellate Court, leaving it open to it to decide the appeal. The appeal, however, is still not decided and the Stay still continues. It is not 'knowing what prevented the Deputy Collector from proceeding with the appeal during these six years, when he did not consider it necessary to stay the operation of the order for a few days. It is also not knowing why the State Counsel or the respondent Adivasi with the available free legal aid, could not move this Court or the Deputy Collector for expeditious early hearing. All this makes a sordid reading.

9. Instances are not uncommon where disposals of long pending matters are obstructed by the want of affidavit from the officer concerned or the required relevant record or in which wholly indefensible cases ace allowedto remain pending for years. These are symptoms of the same malady i. e, utter indifference if not contempt for the legal process.

10. This indifference displayed by the Administration is pregnant with far-reaching fatal implications. Disregard of the law laid down by the higher Court amounting to disobedience by the Administration, display lack of faith in the Rule of law. It impairs efficacy of superintending powers of this Court over these Tribunals. It compels die litigants to rush to this Court, many of whom may have been driven to acquiesce by sheer inability to do so. It also impairs the confidence of the people in the inquiries conceived under the Act. It emboldens the authorities to afford to be arbitrary and unresponsive to the true requirements of the situation and breeds companion evils. It unnecessarily adds to the already piling explosive arrears of this Court. It also prolongs the life of the litigation to the detriment of the intended beneficiaries like Adivasis. Nobody doubts the concern of the administration towards growing explosive arrears in the Courts and need of the speedy disposal of the cases affecting social legislations and yet their contribution by such acts and omissions to the sorry plight of the litigants is too apparent to escape attention. It is indicative of the lack of the coordination between its different wings. The sooner it is remedied the better. It needs to be appreciated that effective implementation of the objectives of the every social legislation inevitably involves trial of the issues arising thereunder and there cannot be short-cut to the essential minimum procedural safeguards guaranteed by the Constitution. It can be speedily and effectively implemented not by arbitrary ad hoc methods displayed by such administrative instructions but by (1) entrusting the trial to experienced senior officers, (2) ensuring speedy disposal by reserving them exclusively for this purpose, and by increasing their strength, if necessary, (3) reducing the number of appeals, (4) requiring the Appellate Authorities to dispose of the appeal summarily by exhaustive judgments at the stage of admission, when these do not disclose merits, and (5) extending free legal aid to them instead of eliminating lawyers from the scene, and (6) watching the progress of the case at every stage through their law officers.

11. We have no other go than to make the rule absolute and direct the Deputy Collector to dispose of the appeal pending before him as expeditiously as possible.

12. Rule accordingly made absolute,

13. In the circumstances of this case, there will be no order as to costs.

14. Rule made absolute.


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