SSK/ 1 WP/1783.90
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1783 OF 1990
1. Ganpati Dadu Mali )
Since deceased through heirs )
1A.Rakhmabai Ganpati Mali, )
1B.Shahaji Ganpati Mali, )
1C.Lalaso Ganpati Mali, )
1D.Shashikant Ganpati Mali, )
1E.Dilip Ganpati Mali, )
1F.Pralhad Ganpati Mali )
2. Damodar Dadu Mali, )
All R/o. Madhalmuthi, )
Lengre, Taluka Khanapur,
ig )
District Sangli. ) ....Petitioners
Versus
1. The State of Maharashtra, )
2. Assistant Consolidation Officer No.I, )
Vita, District Sangli. )
3. Commissioner for Consolidation and )
Director of Land Records, Maharashtra State. )
4. Dagdu Rama Mali )
(Since deceased through heirs) )
4A) Shilabai Dagdu Mali, )
4B) Popat Dagdu Mali, )
4C) Vishnu Dagdu Mali, )
4D) Ashok Dagdu Mali, )
Respondent Nos. 4A to 4D )
R/o. Madhalmuthi, Post - Lengre, )
Taluka-Khanapur, Dist.- Sangli. )
4E) Sharadabai Ashok Mali, )
R/o at and Post Taluka Kadegaon, )
Dist - Sangli. )
4F.Sushila Atmaram Mali, )
R/o at & Post Devikhindi )
Tal. Khanapur, Dist-Sangli. )
4G.Akkabai Rajaram Mali, )
R/o at & Post Wadiye Raibaug, )
Taluka- Kadegaon, District - Sangli. ) ....Respondents
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Shri G. R. Rege with Mr. S. M. Railkar, Advocate for the petitioners.
Shri A. I. Patel, AGP for respondent nos. 1 to 3.
Shri S. B. Deshmukh, Advocate for respondent nos. 4A to 4D.
CORAM : RANJIT MORE, J.
DATE OF RESERVATION : 4TH OCTOBER, 2011.
DATE OF PRONOUNCEMENT: OCTOBER, 2011.
(ORAL JUDGMENT) :
The petitioners by this petition under Article 227 of the
Constitution of India challenges the orders contained in Letter dated
2nd February, 1990 as well as Notice dated 3rd March, 1990 issued
by respondent no.3 and respondent no.2 respectively under the
provisions of the Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947 (hereinafter for the sake of
brevity referred to as “the Act”).
2. The brief facts giving rise to the present petition are as
follows:-
The dispute is about the land, Survey No.349, Hissa No.7
admeasuring 18 gunthas of Village – Lengare, Taluka Khanapur,
District : Sangli, now forms part of Gat No.1316 (hereinafter for the
sake of brevity referred to as “the suit land”). In the Village
Lengare, the Consolidation Scheme under the Act was made
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applicable in the year 1970. Notices to the parties under Section
15A of the Act were issued on 8th June, 1970. The Consolidation
Officer recorded statements as agreed by concerned Khatedars on
10th November, 1970. The revised statements of six khatedars
were also recorded on 2nd January, 1971. These statements are
signed by the petitioners’ father as well as respondent no.4. Under
these statements, respondent no.4 who was the holder of the suit
land agreed to transfer the same to the holdings of the petitioners’
father. The suit land was accordingly merged in new Gat No.1316.
In pursuance of these agreements, a draft Scheme was published
on 24th January, 1971. Objections were invited within a period of
30 days. Since no objections were received, the Deputy Director of
Land Records, Pune published Final Scheme on 24th February,
1971. The scheme was executed on 31st March, 1971. Possession
receipts to that effect were obtained from the concerned khatedars.
The revenue records were changed in accordance with
the Final Scheme and lands were placed in the records of the
respective holders. The suit land was recorded in the Khata of the
petitioners’ father. However, at the same time it remained to be
deleted from the Khata of respondent no.4. Respondent No.4
taking advantage of this fact, preferred an application in the year
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1973/74. After inquiry, it was directed that the suit land be
removed from Khata of respondent no.4 and be retained in Khata of
the petitioners’ father. Respondent No.4 again applied to the Chief
Minister with request to delete the suit land from the holdings of the
petitioners’ father and to continue the same in the name of
respondent no.4. This application was inquired into by the
Consolidation Officer and by Order dated 3rd May, 1982, respondent
no.4’s application was rejected. Respondent No.4 started
disturbing the possession, and therefore, the petitioners’ father was
compelled to file a civil suit for injunction simpliciter. Interim
injunction was granted in favour of the petitioners’ father. However,
subsequently the suit was dismissed. The petitioners preferred an
appeal and the same is pending in the District Court. In this appeal,
the interim injunction is granted in favour of the petitioners and
against respondent no.4. The said injunction is in operation.
Despite the above position, respondent no.4 made an
application on 28th March, 1983 to the Deputy Director of Land
Records making grievance that injustice was done to him in the said
allotment . He also mentioned that his uncles- Krishna & Laxman,
Khatedars of Khata No.276 did not sign the agreed statements, and
hence, the same was not binding on him. The Settlement
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Commissioner without giving any notice to the petitioners in
exercise of his powers under Section 32 of the Act concluded that
deceased Khatedars viz. Krishna & Laxman had not given consent
to the agreed statements, and therefore, directed that the suit land
be allotted to respondent no.4 by removing it from the holdings of
the petitioners. The Settlement Commissioner accordingly, directed
the Consolidation Officer, Sangli to publish Variation Scheme in
Village Lengare and Taluka Notice Board as per Rules. The
petitioners were intimated about this. The petitioners thereafter
gave their objection dated 17th January, 1989. It appears that the
Settlement Commissioner finally confirmed the Variation Scheme
on 12th December, 1989.
3. Mr. Rege, learned counsel for the petitioners submitted
that respondent no.4 had signed the statements dated
10th November, 1970 and 2nd January, 1971. The authorities acted
upon these statements, and therefore, the scheme was finalized
and now it cannot be varied. He also submitted that respondent no.
4’s uncles viz. Krishna Keru Mali and Laxman Keru Mali had
already died 20 years and 16 years prior to recording of the above
statements, and therefore, respondent no.4 could not have
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capitalized non-signing of these statements by his said uncles. Mr.
Rege also submitted that respondent no.4’s application making
grievance about the scheme was rejected twice, and therefore, the
Settlement Commissioner could not have entertained the same for
the 3rd time. Mr. Rege lastly pointed out that the order of the
Settlement Commissioner varying the scheme is not only in
violation of the principles of natural justice but also barred by the
Law of Limitation. In this regard, he has relied upon the decisions
of a Division Bench in Gulabrao Bhaurao Kakade (Smt.) since
deceased by his heirs and legal representatives Vs. Nivrutti
Krishna Bhilare & Ors. reported in 2001 (Supp.) Bom. C.R.688
and Dattu Appa Patil & Ors. Vs. State of Maharashtra & Ors.
reported in 2006(6) Bom.C.R.246.
4. Mr. Deshmukh, learned counsel appearing for respondent
no.4A to 4D contested the writ petition by supporting the order
impugned in the petition. He submitted that the original scheme
was defective for the following reasons :
i) The exchange of lands was made without the consent of
the joint owners of Khata No.276.
ii) The original Consolidation Scheme was not executed in
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accordance with Rules under the Act, inasmuch as, the
petitioners’ father have not signed the Kabja receipts.
iii) The suit land was retained in the Khatas of the
petitioners’ father as well as respondent no.4, and lastly
iv) The petitioners’ father did not raise any objection to the
Variation Scheme published in the Village-Lengare and
Taluka Notice Board.
On the basis of the above submissions, he asserted that
this Court should not exercise its jurisdiction under Article 227 of the
Constitution of India, and the petition deserves to be dismissed.
5. Mr. Patel, learned AGP appearing for respondent nos. 1
to 3 supported the impugned order by relying upon the affidavit filed
by R. A. Kutkar, Assistant Settlement Commissioner
(Consolidation), Pune. Mr. Patel raised objections somewhat
similar to the one raised by Mr. Deshmukh.
6. Having gone through the compilation of the writ petition
including the impugned orders and having considered the
submissions of the respective counsel, I find merit in the writ
petition. There is no dispute that in the Year 1970 consolidation
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proceedings were started in Village Lengare by Assistant
Consolidation Officer No.I, Vita, District-Sangli by giving notices
under Section 15A of the Act. There is also no dispute that the
statements of the concerned Khatedars were recorded by the
Consolidated Officer on 10th November, 1970 and 2nd January,
1971. Initial statement dated 10th November, 1970 is annexed at
Exhibit -1 to the written submission tendered on behalf of the
petitioners. Statement dated 2nd January, 1971 is annexed at
Exhibit “A” to the petition. Both the statements are signed by the
petitioners’ father as well as respondent no.4. Khata No.278
belongs to the petitioners’ father and so far as respondent no.4 is
concerned, he holds two khatas viz. Katha No.61 which he holds
independently and Khata No.276 which he holds along with his two
uncles viz. Krishna & Laxman. The suit land prior to the
introduction of the scheme was shown in Khata No.276 belonging to
joint family of respondent no.4 and his two uncles. Perusal of the
statements makes it abundantly clear that respondent no.4 agreed
to transfer the suit land as well as lands shown in Khata No.276 to
the petitioners’ father and others and in lieu thereof agreed take
land admeasuring about 27 gunthas from Survey Nos. 346/1, 4, 5, 6
& 7 as the same was irrigated land. There is no question of the
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consent of respondent no.4’s uncles as both of them expired much
prior to the recording of these statements. Laxman Keru Mali
expired 16 years prior to 1974 and Krishna Keru Mali expired 20
years prior to 1974. Mutation Entry Nos. 120 and 121 are effected
in that regard. The statement as signed by respondent no.4 makes
it unequivocally clear that exchange was made and lands were
consolidated in gat nos. by mutual consent of the concerned
Khatedars.
The
draft scheme thereafter was published on
24th January, 1971 and since no objections were received, the same
was finalized on 24th February, 1972. The revenue records were
also changed. However, one mistake remained i.e. the suit land
was shown in Khata of the petitioners’ father as well as respondent
no.4. The suit land ought to have been deleted from the Khata of
respondent no.4. However, inadvertently, the same remained in
respondent no.4’s Khata. Respondent no.4 took advantage of this
fact and preferred an application in the year 1973/74 which was
inquired by the Assistant Consolidated Officer. The Assistant
Consolidated Officer, Vita, District Sangli after verifying the
statements came to the conclusion that the suit land should not
have been retained in Joint Khata No.276 belonging to respondent
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no.4 and his two uncles. In order to rectify the scheme, he
proposed variation under Section 31A of the Act. The Deputy
Director of the Land Records sanctioned the variation. Accordingly,
the suit land was deleted from the Joint Khata No.276 of respondent
no.4. Respondent no.4 again made an application to the Chief
Minister on 12th June, 1977. This application was sent to the
Consolidation Officer through Collector. The Consolidation Officer
submitted report to the Deputy Director of Land Records that
variation approved under 31A of the Act will have to be cancelled
and the suit land will have to be retained in Joint Khata No.276
belonging to respondent no.4 and his uncles. This report, however,
was not accepted by the Deputy Director of Land Records and
respondent no.4’s application was rejected on 3rd May, 1982.
Respondent no.4 again made an attempt to change the
record by giving an application on 28th March, 1983 to the Deputy
Director of Land Records. The grievance was the same. The
Deputy Director of Land Records sent this application to the
Consolidated Officer. The Consolidated Officer opined that the
suit land should be retained in Khata of respondent no.4. The
Settlement Commissioner relied upon this opinion. The Settlement
Commissioner on the basis of this opinion passed an Order under
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Section 32 of the Act for variation. It is worth to note that this order
under Section 32 of the Act was passed by the Settlement
Commissioner without giving any notice to the petitioners and
behind their back. The Settlement Commissioner failed to consider
that earlier on two occasions, respondent no.4 made similar
attempts, however, he could not succeed. The Settlement
Commissioner varied the scheme. The Settlement Commissioner
exercised the jurisdiction under Section 32 of the Act in the year
1989 i.e.
18 years after finalization of the earlier scheme. The
scheme was varied on the following grounds :
i) The initial exchange of the land under the original
scheme was without the consent of the joint owners of
Khata No.276.
ii) Signature of the petitioners’ father is not there on the
kabja receipt.
Both the grounds on which the scheme is varied are not
sustainable.
7. As stated above, though Khata No.276 is Joint Khata of
respondent no.4 along with his uncles viz. Krishna & Laxman, both
of his uncles expired much prior to the introduction of the
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Consolidation Scheme to the village land. Therefore, there is no
question of consent of these Khatedars for exchange of the suit
land. Respondent no.4 was aware of these facts as the intimation
of his uncles death was given by respondent no.4 himself to the
Village Officers, and thereafter, mutation entries were effected on
record. Respondent no.4 with malafide motive made repeated
attempts to grab the suit land. His first two attempts failed.
However, he succeeded in his 3rd attempt. The Deputy Director of
Land Records /Settlement Commissioner failed to verify whether
respondent no.4’s uncles were alive when the original statements
were recorded and exchange of the land was made. They blindly
relied upon the statement of respondent no.4 and passed the order
under Section 32 of the Act.
Another ground of which support is taken by the Deputy
Director of the Land Records and Settlement Commissioner is that
the petitioners’ father has not signed the kabja receipt. This
ground, according to me, is frivolous. The statements where under
the concerned Khatedars agreed to exchange lands are signed by
petitioners’ father and respondent no.4. The draft scheme
thereafter was published and the same was finalized in year 1971
only. Thereafter, possession of the land was handed over by
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executing the kabza receipt. The said receipt is signed by
respondent no.4. In these circumstances, non-signing of the said
receipt by the petitioners’ father does not make any difference as
the suit land shown in Khata No.276 originally belongs to
respondent no.4.
8. Mr. Deshmukh, learned counsel appearing on behalf of
respondent no.4A to 4B contested the petition on the ground that
the petitioners have not raised any objection to the proposed
variation under Section 32 of the Act published in the Village-
Lengare and Taluka Notice Board on 8th August, 1989. This
submission is without any merits. This variation was in pursuance
of 3rd application made by respondent no.4 in the year 1983. There
is nothing on record and respondent no.4 also could not point out
that the petitioners or their father were heard while disposing of this
application of respondent no.4. The order came to be passed
behind their back. The only basis as stated above is that
respondent no.4’s uncles did not consent to the exchange of the
lands. When petitioners came to know about the proposed
variation, they preferred an application before the Settlement Officer
on 17th January, 1989. However, they were informed that the
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variation scheme is finalized. The Consolidation Officer thereafter
gave notice to the petitioner on 3rd March, 1993 for implementation
of the variation scheme. The petitioners immediately thereafter
came to this Court. In these facts and circumstances, I find that the
submission of Mr. Deshmukh, learned counsel for respondent no.4A
to 4D is without any merit.
9. This takes me to consider the issue of jurisdiction of
respondent no.3 to pass order under Section 32 of the Act for
variation of the said scheme. The Consolidation Scheme was
introduced in Village Lengre in the year 1970. The draft scheme
was published on 24th January, 1971 and since no objections were
received the final scheme was published on 24th February, 1971.
Respondent No.4 filed an application on 28th March, 1983 invoking
provisions of Section 32 of the Act. Respondent No.3 by invoking
powers conferred to him, varied the scheme and thereby the suit
land was directed to be deleted from Khata of the petitioners and
was retained in Joint Khata No.276 belonging to respondent no.4.
Thus, respondent no.3 accepted the variation of the scheme after a
period of 18 years. The Act does not prescribe any limitation for
variation of the scheme. The question whether there is limitation for
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variation of scheme fell for consideration before the Division Bench
in Gulabrao Bhaurao Kakade’s case (supra). Paragraph No.6 of
the said judgment makes it clear that no limitation for variation of
the scheme is prescribed under the Act and the same is to be done
within reasonable time. What is the reasonable time, would depend
upon the facts and circumstances of each case. The Division
Bench held that ordinarily exercise of such powers after three years
of finalization of scheme under Section 22 may not be justified. In
this case, the scheme was varied after a period of 15 years.
Therefore, the variation was set-aside. Another Division Bench has
taken a similar view in Dattu Appa Patil’s case (supra). In this
case, the consolidation scheme was varied after 27 years. The
Division Bench held that the exercise of powers by Consolidation
Officer after 27 years is totally unjustified and on that ground alone
the impugned order therein came to be set-aside. In the light of the
ratio of the above judgments of the Division Bench, the respondent
no.3 was grossly unjustified in exercising powers under Section 32
of the Act after a period of 18 years. The variation of the scheme,
therefore, is required to be quashed and set-aside.
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9. Before parting with the judgment, it must be mentioned
that the petitioners had filed a suit in the Lower Court for permanent
injunction restraining respondent no.4 from disturbing their
possession in the suit land. In this suit, interim injunction was
prayed and the same was granted by the Trial Court. The suit
ultimately was dismissed on 31st January, 1987, and thereafter,
petitioners filed an appeal and interim injunctions was granted by
the District Court in the year 1987, which is in operation. Thus,
petitioners’ father’s possession is also protected by the Civil Court.
Respondent No.3, in view of the order of the Civil Court could not
have directed the petitioners to handover possession.
10. In the facts and circumstances of the case, the
petition succeeds, and the same is allowed in terms of prayer
clause (b) and (d). However, there shall be no order as to costs.
11. Mr. Deshmukh, learned counsel for respondent nos. 4 A
to 4D at this stage seeks stay of the present order for a period of
six weeks in order to enable his clients to approach the Higher
Court. Mr. Railkar, learned counsel for the petitioners, opposes the
grant of such stay. However, in the interest of justice and in order
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to enable the respondents to approach the Higher Court this Order
is stayed for a period of six weeks.
(RANJIT MORE, J.)
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