High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.4898 OF 20221Tukaram Gundappa Darekar,Age 52 yrs., Occ. Agri.,R/o Arali (Kh), Tq. Tuljapur,Dist. Osmanabad. 2Mahesh Tukaram Darekar,Age 24 yrs., Occ. Agri.,R/o Arali (Kh), Tq. Tuljapur,Dist. Osmanabad. 3Mukesh Tukaram Darekar,Age 22 yrs., Occ. Agri.,R/o Arali (Kh), Tq. Tuljapur,Dist. Osmanabad. 4Pushpa w/o Tukaram Darekar,Age 47 yrs., Occ. Household,R/o Arali (Kh), Tq. Tuljapur,Dist. Osmanabad. … Petitioners… Versus … 1The State of MaharashtraThrough Secretary,Revenue and Forest Department,Mantralaya, Mumbai – 400 032. 2The Deputy Director of Land Records,Damdi Mahal, Near Panchayat Samiti,Ganesh Colony, Aurangabad. 3The District Superintendent of Land Records,Osmanabad, Tq. & Dist. Osmanabad. 2WP_4898_2022_Jd4Shivaji Tatya Darekar (Died)Since deceased through his legal representatives -4/1)Vishwanath Shivaji Darekar,Age 65 yrs., Occ. Agri.,R/o Arali (Kh), Tq. Tuljapur,Dist. Osmanabad. 4/2)Mainabai w/o Shivaji Darekar,Age 61 yrs., Occ. Agri.,R/o Arali (Kh), Tq. Tuljapur,Dist. Osmanabad. 5Gorakh Shivaji Darekar,Age 56 yrs., Occ. Agri.,R/o Arali (Kh), Tq. Tuljapur,Dist. Osmanabad. … Respondents...Mr. K.K. Kulkarni, Advocate for petitionersMr. A.S. Shinde, AGP for respondent Nos.1 to 3Mr. V.V. Ingale, Advocate for respondent Nos.4(1), 4(2) and 5...CORAM :S.G. CHAPALGAONKAR, J. RESERVED ON :20th JUNE, 2024PRONOUNCED ON :04th JULY, 2024JUDGMENT : 1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 3WP_4898_2022_Jd2The petitioners have approached this Court under Article 227 ofthe Constitution of India impugning order dated 28.03.2022 passed byDeputy Director of Land Records, Aurangabad inConsolidation/Appeal/SR.1330/18/2022. 3The private respondents i.e. respondent Nos.4 and 5 claims thatthey are owners of land situated at village Arali (Kh), Tq. Tuljapur, Dist.Osmanabad. Their forefather viz. Dhondiba Tatya Darekar had the land inSy.No.79/5. The consolidation scheme implemented at village Arali andfinally sanctioned on 03.04.1977. After implementation of the scheme themutation entry is effected. The land owned by Dhondiba was allotted GatNo.93, however, the area possessed by him has been reduced by 03 Acres 37Gunthas. Prior to implementation of the consolidation scheme Dhondiba hadexcess land in his ownership and possession that has been wrongly reduced.The private respondents approached District Superintendent of Land Records,Osmanabad in Appeal and challenged Mutation Entry No.412 recordedpursuance to consolidation scheme. An application seeking condonation ofdelay of almost 40 years was accompanied with the appeal. The DistrictSuperintendent of Land Records rejected the appeal/application of therespondents holding that the delay of more than 40 years cannot becondoned and any challenge to the consolidation scheme, finalized in the 4WP_4898_2022_Jdyear 1977 cannot be re-opened. 4It appears that the private respondents then approached DeputyDirector of Land Records, Aurangabad assailing order dated 06.11.2017passed by District Superintendent of Land Records, Osmanabad. In pursuantof directions by said authority petitioners were served with a notice ofmeasurement of land. The petitioners had raised objections for suchmeasurement and also challenged the notice before this Court in Writ PetitionNo.1703 of 2019, which came to be disposed of with direction to DeputyDirector of land Records to consider and decide the objection on its ownmerits. It appears that the appeal filed by the respondents as well as theobjection raised by the petitioners was considered by respondent No.2 andissued directions to respondent No.3 to hear and decide theAppeal/SR/79/2016 afresh. 5Mr. K.K. Kulkarni, learned Advocate appearing for the petitionersvehemently submits that the proceedings for correction in consolidationrecord has been initiated after 40 years. The District Superintendent of LandRecords had rightly refused to condone the delay of 40 years. However, theDeputy Director of Land Records, Aurangabad erroneously entertained theappeal and remanded the proceedings for re-hearing to the DistrictSuperintendent of Land Records, Osmanabad i.e. respondent No.3. He would
Legal Reasoning
6WP_4898_2022_Jd7Having considered submissions advanced and after goingthrough the record tendered into service, it can be gathered that theconsolidation scheme has been implemented at village Arali (Kh), Tq.Tuljapur, Dist. Osmanabad under Section 19(1) of the Consolidation Act andsame has been finally sanctioned on 03.04.1977. As observed by DeputyDirector of Land Records, Aurangabad, Sy.No.79/2, merged in part of GatNos.89 and 93. The statements of land holders were recorded beforefinalization of scheme and such statements are part of record. It is, therefore,apparent that the area in respective Gat numbers has been recorded afterobtaining consent of all concerned. It is not disputed before this Court thatthe scheme has attained the finality in the year 1977. 8In similar set of facts while considering matter pertaining tovariation of the scheme made after 27 years, Division Bench of this Courtobserved that settlement Commissioner can exercise his powers underSection 37(1) for effecting variation of the scheme, only when it is madewithin reasonable period. Relying upon earlier Judgment in the case ofGulabrao Bhaurao Kakade vs. Nivrutti Krishna Bhillare [2001 (4) Mh.L.J.,31] belated challenge was disapproved. The similar view is consistentlyreiterated by this Court in catena of Judgments, particularly referred above.Considering the aforesaid legal position, belated challenge raised by 7WP_4898_2022_Jdrespondents, invoking Section 32 of the Consolidation Act, 1947 cannot beentertained. 9So far as the objection of the respondents as to alternate remedyto raise challenge to the impugned order before the Hon’ble Minister, it canbe observed that the order impugned depicts the exceptional circumstances.The jurisdiction is sought to be exercised by consolidation authority ignoringinordinate delay of 40 years to unsettle scheme which has attained finality.Consequently, the writ petition deserves to be allowed. 10Hence, the writ petition is allowed in terms of prayer clause ‘C’. 11Rule is made absolute in the above terms. ( S.G. CHAPALGAONKAR ) JUDGEagd
Arguments
5WP_4898_2022_Jdsubmit that the respondent authorities have no jurisdiction to entertain anysuch challenge or application for variation in the scheme after inordinatedelay. In support of his contention he relies upon the Division BenchJudgments of this Court in cases of Dattu Appa Patil since deceased by LRsAnanda Dattu Patil and others vs. State of Maharashtra and others [2007 (1)Mh.L.J. 393], Suresh Bapu Sankanna and others vs. State of Maharashtra andothers [2018 (4) Mh.L.J. 331], Jalindar Sadashiv Hirde and others vs. Stateof Maharashtra and others [2018 (4) Mh.L.J. 200], Padmabai NarayanChaudhary and others vs. Deputy Director of Land Records, AurangabadRegion, Aurangabad and others [2020 (2) Mh.L.J., 861] and M/s. AluwidArchitectural Private Limited and others vs. Housabai Jagannath Gavhaneand others [Writ Petition No.12877 of 2022] decided on 04.10.2023. 6Per contra, Mr. V.V. Ingale, learned Advocate appearing forrespondent Nos.4(1), 4(2) and 5 raises preliminary objection that petitionershave alternate efficacious remedy to challenge impugned order before StateGovernment. Barring such alternate remedy the writ petition cannot beentertained. He would further submit that land standing in the name ofDhondiba Tatya Darekar has been reduced without any basis. Because ofilliteracy grievance could not be raised within limitation period of 30 days.The valuable rights of the respondents need adjudication on merits.