Mumbai High Court says Every District Collector should Circular like Nashik Collector on Lis Pendense issue Click to download

1. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2640 OF 2010
   Ibrahimsahib Burhansaheb Kokni................Petitioner.
   The State of Maharashtra & Another.............Respondents.
   Mr.A.V. Anturkar with Mr.S.B. Deshmukh for the petitioner.
   Mrs.M.P. Thakur, AGP for respondent Nos.1 to 3.
   Mr.S.M. Gorwadkar for respondent Nos.5A & 5B.
   CORAM : B.H. Marlapalle, & U.D. Salvi, JJ.
   DATE : 20th October 2010.
   We have heard Mr.Anturkar with Mr.Deshmukh, the learned counsel for the petitioner and the learned AGP We have perused the . affidavit­in­reply filed by the Deputy Collector (Administration) from the Collectorate at Nashik.
   The petitioner has brought in question the legality of the circular dated 12th November 2005 issued by the Collector, Nashik and purportedly invoking his powers under Section 148(c) of the Maharashtra Land Revenue Code, 1966. Special Civil Suit No.115 of 2004 came to be filed in the Court of learned Civil Judge Senior Division at Nashik along with an application (Exhibit 5) for temporary injunction. The present petitioner was defendant
   No.1 in the said Suit and the application for temporary injunction was rejected on 21st April 2004. Challenge to the said order also failed in A.O. No.764 of 2005, which was dismissed by this Court on 17th October 2005. In short, the prayer of the plaintiff seeking temporary injunction against the defendant so as not to create any third party interest in the suit property, thus, failed right up to the High Court and the order has attained finality.
   As per Mr.Anturkar, what the plaintiff could not achieve, despite the application for temporary injunction was rejected, has been achieved by the plaintiff by relying upon the impugned circular dated 12th November 2005. It was submitted by Mr.Anturkar that the said circular puts unreasonable restrictions and causes prejudice to the rights of the petitioner to dispose off the suit property and more particularly when there is no legal bar in creating such rights during the pendency of the Suit and when the application for temporary injunction was rejected. Mr.Anturkar also questioned the authority of the Collector to invoke the powers under Section 148(c) of the Maharashtra Land Revenue Code, 1966 and issue such
   We have gone through the said circular dated 12th November 2005 and it is an advisory circular to all the officers under the Nashik Collectorate. It is intended to ensure that the pendency of the suit in respect of the properties sought to be transferred by any means is brought on record, while effecting an entry in the 7/12 and other rights extracts. The circular does not put any restriction on transfer of property or for creating any third party interest and it is intended only to alert the revenue officers and particularly those who are responsible for mutating the revenue entries regarding the rights of the parties. In our opinion, it does not cause any prejudice to the rights of the petitioner and, therefore, we do not find any
   merit in the challenge raised before us to the said circular.
   
2. Section 148(c) of the Maharashtra Land Revenue Code, 1966 does refer to the nature and extent of the respective interests and the conditions and liabilities, if any attached to the suit property and of various persons like mortgage, hypothecation, cultivation, occupation / possession and so on and so forth. We are, therefore, satisfied that the impugned clarificatory circular is issued under Section 148(c) of the Maharashtra Land Revenue Code, 1966 and it cannot be said that it is issued without any authority of law. We suggest that all the District Collectors in Maharashtra issue such circulars.
   Hence, the petition is rejected.
   (U.D. Salvi, J.)
   (B.H. Marlapalle, J.)