Ganpati Dadu Mali vs The State Of Maharashtra on 21 October, 2011

Bombay High Court
Ganpati Dadu Mali vs The State Of Maharashtra on 21 October, 2011
Bench: R. V. More
    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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     SSK/                                 2                                   WP/1783.90

    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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