Amy Ray vs Sobita Sur

M.S. Deshpande, J.—This is a reference by the Deputy Director of Land Records, Nagpur Division, Nagpur, with regard to the scope of section 20(2), 22 and 42 of the Maharashtra Land Revenue Code and the ambit of rule 6 of the Maharashtra Land Revenue (Village, Town and City Survey) Rules, 1969, purportedly u/s 113 of the Code of Civil Procedure, 1908.

Smt. Prativa Dutta wife of J. N. Dutta owned city survey No. 1816. On 303-1965 she gifted the eastern portion thereof to her daughter Smt. Amy Ray and that portion was allotted Municipal No. 172/3 and 172/4. By virtue of a codicil dated 6-9-1970 the remaining portion of the donor''s property was given to her another daughter Sobita Sur. Mutations were effected and thereafter Sobita applied for formation of subdivisions. The Maintenance Surveyor took up the measurements and on 16-10-1981 the City Survey Officer No. 3 of Nagpur, demarcated the sub-divisions. In first appeal preferred from that order by Smt. Amy Ray, the Superintendent of Land Records, Nagpur, cancelled the sub-divisions and Smt. Sobita preferred a second appeal to the Deputy Director of Land Records, Nagpur Region, Nagpur, from the order of the Superintendent of Land Records. The Deputy Director of Land Records took the view that u/s 237(1) of the Maharashtra Land Revenue Code, all the enquiries under the Maharashtra Land Revenue Code, whether formal or summary, are deemed to be judicial proceedings when dealing with sections 193, 219 and 218 of the Indian Penal Code and the Officer or the Authority holding a formal or summary enquiry, is deemed to be civil court for the purposes of such enquiry, and, therefore, he was competent to make a reference u/s 113 of the Civil Procedure Code, and made the reference.

When the matter came up before us for hearing the first question raised was about the maintainability of this reference u/s 113 of the Civil Procedure Code, 1908. Section 113 provides that subject to such conditions and limitation as may be prescribed, any Court may state a case and refer the names for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit. It is not necessary to refer to the proviso and explanation to section 113 for the purposes of this reference. Order 46 Rule 1 provides that where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court. Thus before a reference could be made u/s 143, the conditions laid down by Rule 1 of Order 46 have to be fulfilled and it is necessary that the matter should arise before the Court trying the suit or appeal or executing the decree. In the present case the proceeding arose out of an application to the authorities under the Maharashtra Land Revenue Code and not on the basis of a plaint and so the proceedings cannot be said to have arisen in a suit or an appeal from a decision in the suit or in execution of any decree. Since this requirement was not satisfied, without entering into the determination of the question whether the Deputy Director of Land Records, was a Court or not for the purposes of section 113 of the Civil Procedure Code, it is obvious that the Deputy Director of Land Records, could not have made a reference to the High Court by purporting to act u/s 113 and Order 46 Rule 1 of the Code of Civil Procedure.

The view that we are taking is supported by the view taken by a Division Bench of this Court in Dalpat Zopdoo Patil v. Mahadu Uka (14 Indian Cases 782), where it was held that a Collector hearing an application u/s 23 of the Bombay Mamlatdars'' Courts Act, is not a Court trying a suit or appeal or executing a decree and in view of order XLVI Rule 1, Civil Procedure Code, has no power to make a reference to the High Court u/s 113 of the Civil Procedure Code, 1908. In Ram Rakh v. Creditors (1970 RLW 309), it was held that though Debt Relief Court established under Relief of Agricultural Indebtedness Act (Rajasthan) is a Court, but because proceedings in such Court were initiated by an application and not by a plaint, that Court cannot make a reference to the High Court u/s 113 and Order 46 Rule 1 of the Civil Procedure Code. This is also the view taken by the Full Bench of Patna High Court in Banarsi Yadav Vs. Krishna Chandra Dass and Others, .

In the result, we find that the reference was not competent and the question passed by the Deputy Director, Land Records, Nagpur Region, Nagpur, shall have to be decided by him without recourse to the reference. There will be no order as to costs incurred in this Court.