High Court
Legal Reasoning
{1} wp5355-20.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5355 OF 20201.Appasaheb Pandharinath Shinde PETITIONERSAge – 57 years, Occ – AgricultureR/o Varudi Taluka – BadnapurDistrict – Jalna2.Kakasaheb Pandharinath ShindeAge – 42 years, Occ – AgrcultureR/o Varudi Taluka – Badnapur,District – Jalna3.Nivrutti Abarao ShindeAge – 77 years, Occ – Retired TeacherR/o Varudi, Taluka – BadnapurDistrict – JalnaVERSUS1.The State of Maharashtra RESPONDENTSThrough Secretary to the Revenue and Forest DepartmentMantralaya, Mumbai2.The Additional Divisional CommissionerAt Aurangabad3.The Collector at Jalna4.The Superintendent of Land RecordJalna5.Chandrakala Damodhar JadhavAge – 62 years, Occ – HouseholdR/o Varudi, Taluka – BadnapurDistrict - Jalna.......Mr. S. G. Dodya, Advocate for the PetitionersMrs. A. S. Mantri, AGP for Respondent - State Mr. C. R. Thorat, Advocate for Respondent No.5....... {2} wp5355-20.doc [CORAM : MANJUSHA DESHPANDE, J.] DATE : 14 th JANUARY, 2025 JUDGMENT :1.Rule. Rule made returnable forthwith. Heard finally with theconsent of the learned Advocates for the parties. 2.By this Petition, filed under Articles 226 and 227 of theConstitution of India, the Petitioners have assailed order dated2nd February, 2018 passed by Respondent No. 3 - Collector, Jalnain Application No. Gut No. 273 (S. No. 113)/Area Correction/P.K. -5/2016, as well as order dated 21st February, 2020 passed byRespondent No.2 - Additional Divisional Commissioner,Aurangabad in Revision No. 2018/ROR/REV/152.3.Facts, in nutshell, are that, present Respondent No. 5 hadfiled an application before the Collector, Jalna under section 106of the Maharashtra Land Revenue Code, for correction in his landholding which is reduced while implementing the consolidationscheme. According to Respondent No.5, a mistake has occurredwhile implementing the consolidation scheme, as a result, thoughher actual land holding is 23 Acre and 1 Guntha, afterimplementation of the consolidation scheme, the same has beenreduced to 15 Acre 9 Guntha. Respondent No.5, therefore, filedan application before Collector, Jalna on 21st April, 2012 seeking
Legal Reasoning
{3} wp5355-20.doccorrection in revenue record and seven twelve extract. It isspecifically contended by Respondent No.5 that an error wascommitted while taking entry in revenue record in respect of landGut No. 273, therefore, a request was made to conductmeasurement of the land and take correct entries to the extentof 23 Acre and 1 guntha land in the revenue record. 4.The Petitioners opposed the application and filed theirobjection to the application filed by Respondent No.5, on 14thNovember, 2017. Relying on section 31A of the BombayPrevention of Fragmentation and Consolidation of Holdings Act,the Petitioners have objected to the maintainability of theapplication before Collector. It was contended that the power tocorrect mistakes occurred while implementing consolidationscheme lies with the Settlement Commissioner and not withCollector. It was, therefore, contended by the Petitioners that,Collector does not have the powers to decide the saidapplication. Section 31A of the said Act, reads thus-“31A If, after a scheme has come into force, it appears to theSettlement Commissioner that the scheme is defective on account ofany clerical or arithmetical mistake or error arising therein from anyaccidental slip or omission and he is satisfied that the correction ofsuch mistake or error would not vary the scheme in any materialparticular, he may by order in writing correct such mistake or errorand publish his order in his prescribed manner.” {4} wp5355-20.doc5.Upon hearing the respective parties on the objectionapplication filed by the Petitioners, the matter was closed fororders on 19th December, 2017. Petitioners rely on the extract ofRoznama annexed to the Writ Petition at page 49 and contendthat the Roznama indicates that on 19th December, 2017, thematter was closed for orders on the objection application filed bythe petitioners about maintainability of the application filed byRespondent No.5 before the Collector. 6.Referring to Civil Suit No. 386 of 2000 and the order passedtherein, the Collector, Jalna allowed the application filed byRespondent No.5, observing that since the name of the plaintiffdid not appear in the seven twelve extract, the suit filed by theplaintiff in respect of Survey No. 113 i.e. Gut No. 273 has beendismissed by the Civil Court and while dismissing the suit, theCivil Court had observed that the plaintiff has come with a casethat area of Gut No. 273 is more than actually shown in seventwelve extract, however, the mistake committed by theConsolidation Officer cannot be entertained in the suit forcorrecting entries. Therefore, relying on the said observations,the Collector has allowed the application filed by RespondentNo.5.7.Being aggrieved by the said order, the Petitioners had {5} wp5355-20.docpreferred Revision before the Additional Commissioner,Aurangabad. The Additional Commissioner, Aurangabaddismissed the Revision on 21st February, 2020 without passingreasoned order. Only observing that he is of the opinion that theorder passed by the Collector does not deserve any interference.8.Being aggrieved by the order dated 2nd February, 2018,passed by Respondent No. 3 - Collector Jalna in Application No.Gut No. 273 (S. No. 113)/Area Correction/P.K. - 5/2016, as well asthe order dated 21st February, 2020 passed by Respondent No.2 -Additional Divisional Commissioner, Aurangabad in Revision No.2018/ROR/REV/152, the Petitioners have approached this Court,challenging both the orders.9.It is the contention of the Petitioners that, though theapplication raising objection to the jurisdiction of the Collectorwas filed by the Petitioners and it was heard and closed fororders, which is also reflected from the record, however, withoutmaking any observation in respect of the same, merely relying onthe observations of the Civil Court in the suit filed by RespondentNo.5, the Collector, Jalna has proceeded to pass the order,purportedly under section 106 of the Maharashtra Land RevenueCode. Hence, the said order is challenged by the Petitioners inthis Writ Petition. It is further contended that though the said {6} wp5355-20.docorder was assailed before the Additional Commissioner,Aurangabad, the Additional Commissioner, Aurangabad withoutassigning any reason, has rejected the Revision filed by thePetitioners. Therefore, even the order passed by the AdditionalCommissioner, Aurangabad has been challenged by thePetitioners, on the ground that no reasoned order is passed whilerejecting the Revision.10.Respondent No.5 has filed reply affidavit contending thatold Survey No. 113 was having land ad measuring 9 Hectare 67R, however, in consolidation scheme, the said Survey No. 113was converted into Gut No. 273 and in seven twelve extract ofthe property land ad measuring only 6 Hectare and 16 R isshown. In fact agricultural land to the extent of 9 Hectare 67 Rought to have been recorded instead of 6 Hectare and 16 R.Hence, this is an apparent mistake committed whileimplementing the consolidation scheme, it was very much withinthe powers of the Collector to correct the said mistake in exerciseof his powers under section 106 of the MLR Code. Therefore, theCollector has exercised his powers and passed an order to thateffect. It is further submitted that in fact, the Petitioners have analternate remedy of filing Revision before the State Government.Though the Petitioners have alternate remedy, the Petitionershave not availed the same and, therefore, on the ground of {7} wp5355-20.docavailability of alternate remedy, under section 258 of the MLRCode, the Writ Petition may be dismissed. It is contended thatSection 106 of the MLR Code confers powers on the DistrictCollector at any time, during the term of settlement, after givingnotice to the holders, to correct any error in the area orassessment of his holding due to mistake of survey orarithmetical miscalculation. Hence, the impugned judgment andorder of the District Collector, Jalna, dated 2nd February, 2018 islegal and proper and in view of availability of alternate remedy aswell as powers conferred on the Collector under section 106 ofthe MLR Code, it is prayed that the Writ Petition be dismissed.11.The stand of Respondent No.5 is also supported by learnedAGP appearing for Respondents No.1 to 4. Learned AGP relies onthe affidavit filed by one Prakash Vasant Gamne, working asDeputy Superintendent of Land Records, Badnapur, District –Jalna. According to learned AGP, upon receipt of the applicationunder section 106 of the MLR Code, Respondent No.3 – Collectorissued notice to all the concerned parties and after givingopportunity of hearing to the concerned parties, allowed theapplication by order dated 2nd February, 2018 and directed tocorrect the arithmetical error in the area of Gut No. 273 originalSurvey No. 113. While considering the application filed byRespondent No.5, the Collector, Jalna has also considered {8} wp5355-20.docobjection raised by the Petitioners. However, in view of thepowers conferred upon the Collector under section 106 of theMLR Code, the Collector passed a reasoned order, which is legaland proper. Similarly, the learned AGP has also contended thatthe order passed by the Divisional Commissioner under section257 of the MLR Code is also legal and proper and hence, the WritPetition deserves to be dismissed.12.After hearing the learned Advocates for the respectiveparties and after going through the documents annexed to theWrit Petition, it appears that the Petitioners have raised anobjection to the powers of the Collector to entertain applicationfor correction in the error committed during implementation ofthe consolidation scheme resulting into reduction in the area ofland held by Respondent No.5 and also seeking measurement ofthe land, in order to carry out the correction. Since RespondentNo.5 has claimed correction after implementation of theconsolidation scheme, admittedly, the powers to make anycorrection in the area under section 31A of the BombayPrevention of Fragmentation and Consolidation of Holdings Act,lies with the Settlement Commissioner.13.Though objection application regarding jurisdiction wasfiled by the Petitioners on 14th November, 2017, and the matter {9} wp5355-20.docwas closed for orders after hearing the parties, however, noorders were passed on the said application and directly theimpugned order dated 2nd February, 2018 was passed by theCollector, Jalna on merits of the matter thereby allowing theapplication filed by Respondent No.5, purportedly under section106 of the MLR Code. Section 106 of the MLR Code reads thus,106. Power of Collector to correct errors.- The Collector may, at any time during the term of settlement after givingnotice to the holder, correct any error in the area or assessment of hisholding due to mistake of survey or arithmetical miscalculation:Providedthat, no arrears of land revenue shall become payable by reason of suchcorrection; but excess payment as land revenue made, if any, shall beadjusted against the payment of land revenue which may become due.14.The word “Settlement” has been defined in section 90 (e)of the MLR Code, which reads thus -(e) "settlement" means the result of the operations conducted ina zone to determine the land revenue assessment therein;15.On bare perusal of section 106 of the MLR Code, it is clearthat it confers powers on the Collector to correct the clericalmistake or error in the area of assessment of holding due tomistake of survey or arithmetical calculation refers to theassessment for land revenue and nothing else. Section 94 of theMLR Code clearly provides for assessment of land Revenue.Therefore, considering the relief sought in the application, it is {10} wp5355-20.docdefinitely not seeking relief of correction in the mistake or erroroccurred while assessing the land Revenue. Therefore, the orderof Collector, claiming to be passed under section 106 of the MLRCode is not tenable. The Collector has corrected an error bypassing an order directing correction of area of holding. The reliefsought by the applicant can only be granted under section 31A ofthe Bombay Prevention of Fragmentation and Consolidation ofHoldings Act. 16.Merely relying on the observations of the Civil Court whiledismissing the suit filed by Respondent No.5, the Collector, Jalnahas entertained application of Respondent No.5 and has passedthe order directing to correct the entries after carrying outmeasurement. Though the objection filed by the Petitioners wasentertained and heard by the Collector, Jalna, there is no findingrecorded by the Collector, Jalna regarding objection raised by thePetitioners to the maintainability of the application filed byRespondent No.5. Similarly, the order passed by the AdditionalCommissioner, Aurangabad is not a reasoned order and hencethe order passed by the Additional Commissioner, Aurangabadalso cannot be sustained.17.Learned Advocate for Respondent No.5 has placed relianceon the judgment in the case of “Gurudassing Nawoosing {11} wp5355-20.docPanjwani V/s State of Maharashtra and Others” 2015 AIR SCW6277, in support of his contention that the Petitioners havealternate remedy of second Revision before the StateGovernment, and hence, according to him the Petitioners oughtto have filed Revision before the State Government challengingthe order passed by the Additional Commissioner, Aurangabadand not the Writ Petition. Though Respondent No.5 has objectedtenability of the present Writ Petition, however the fact remainsthat the Collector has passed order in exercise of powers, whichare not conferred upon him and, therefore, the order passed bythe Collector is nullity and since the said order is nullity, thesame need not be challenged in Revision before the StateGovernment. Similarly, the challenge is to the maintanability ofapplication under Maharashtra Land Revenue Code, whenremedy lies under the Bombay Prevention of Fragmentation andConsolidation of Holdings Act. Therefore, the objection regardingavailablity of alternate remedy under the MLR Code would not betenable. Hence, the objection raised by Respondent No.5 to themaintainability of this Writ Petition is not sustainable. Hence, inview of the fact that the order passed by the Collector, Jalna waswithout any jurisdiction, the same deserves to be quashed andset aside resultantly, the order passed by the AdditionalCommissioner, Aurangabad also deserves to be quashed and set
Decision
{12} wp5355-20.docaside.18.In the result, the Writ Petition is allowed. Order dated 2ndFebruary, 2018 passed by Respondent No.3 - Collector, Jalna inApplication No. Gut No. 273 (S. No. 113)/Area Correction/P.K. -5/2016 is quashed and set aside. Resultantly, the order dated21st February, 2020 passed by Respondent No.2 - AdditionalDivisional Commissioner, Aurangabad in Revision No.2018/ROR/REV/152 refusing to interfere in the order passed bythe Collector, Aurangabad is also quashed and set aside. Rule ismade absolute in above terms. 19.It is however, made clear that Respondent No.5 is at libertyto approach appropriate forum or authority seeking the reliefclaimed by her. 20.In view of disposal of the Writ Petition, pending CivilApplication is also disposed of. [ MANJUSHA DESHPANDE ] JUDGE drp/wp5355-20.doc