Writ Petition No. 10948 of 2018 · Bombaybench High Court
Case Details
2025:BHC-AUG:9196 1 10948-18-WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.10948 OF 2018WITH CIVIL APPLICATION NO.10135 OF 20241.Bhimabai w/o Baburao Waghmare.Age: 75 years, Occ. Household.R/o Digras. Tq. Rahuri,Dist. Ahmednagar2.Mirabai w/o Rakhmaji Gawade.Age:- 58 years, Occ. Houeshold.R/o Deolali Pravara, Tq. Rahuri,Dist. Ahmednagar3.Shantabai w/o Sudhakar Waghmare.Age:- 72 years. Occ. Household.R/o Digras, Tq. Rahuri,Dist. Ahmednagar4.Lilabai w/o Gorakshnath BhandAge:- 60 years, Occ. Household.R/o Digras. Tq. Rahuri.Dist. Ahmednagar5.Govind s/o Punjaji Tikkal.Age:- 58 years. Occ. Agril.,R/o Deolali Pravara, Tq. Rahuri.Dist. Ahmednagar6.Yamunabai w/o Sopan Datir,Age:- 70 years, Occ. Household.R/o Digras. Tq. Rahuri.Dist. Ahmednagar7.Sudhakar s/o Baburao Waghmare.Age:- 55 years, Occ. Agril.,R/o Digras, Tq. Rahuri,Dist. AhmednagarAt Present PTS, Latur… Petitioners (Orig. Opponents)Versus1.The Deputy Director Land RecordNashik Division, Nashik2.The District Superintendentof Land Record, AhmednagarDist. AhmednagarSVH 2 10948-18-WP.odt3. The Deputy Superintendentof Land Record, Rahuri,Tq. Rahuri. Dist. Ahmednagar4.Ramchandra s/o Dashrath Gawade,Age:- 55 years, Occ. Agril.R/o Digras. Tq. Rahuri.Dist. Ahmednagar5.Balasaheb s/o Dashrath GawadeAge:- 52 years, Occ. Agril..R/o Digras, Tq. Rahuri.Dist. Ahmednagar6.Kaushalyabai w/o Dashrath Gawade.Age:- 75 years, Occ.Household, R/o Digras, Tq. Rahuri,Dist. Ahmednagar7.Eknath s/o Savliram Khatekar,Age:- 65 years, Occ. Agril.,R/o Digras, Tq. Rahuri.Dist. AhmednagarOrig. Appellants8.Nanda w/o Changdeo Sawant,Age: 55 years, Occ. Household,R/o Near Rahata Police Station,Tq. Rahata, Dist. Ahmednagar9.Hira w/o Sudhakar Pansambal,Age:- 48 years, Occ. Agril.,R/o Karpe Estate, Rahuir (Bk),Tq. Rahuri, Dist. Ahmednagar10.Meenakshi w/o Shivajirao Bhingarde,Age: 50 years, Occ. Agril.,R/o Digras. Tq. Rahuri,Dist. Ahmednagar11.Shivaji s/o Laxman Bhingarde,Age: 55 years. Occ. Agril.,R/o Digras, Tq. Rahuri, Dist. Ahmednagar12.Satish s/o Dattatraya Todmal,Age: 38 years. Occ. Agril.,R/o Digras, Tq. Rahuri.Dist. Ahmednagar13.Radhabai w/o Kisan Gawade,Since deceased14.Nanasaheb s/o Sambhaji Gawade,Age:- 22 years, Occ. Agril.,SVH
Legal Reasoning
16 10948-18-WP.odtTherefore, there is no error as such in the consolidation scheme.Again report was called from respondent No.3 who has againsubmitted the report on 31/03/2016 along with his remarks. In spitetwo reports of respondent No.3 stating in unequivocal terms thatthere is no error in the scheme, respondent No.2 has advisedrespondent Nos.4 to 7 to file Appeal and accordingly Appeal hasbeen filed by respondent Nos.4 to 7.23.In spite of the fact that scheme has been sanctioned on06/04/1978, Appeal filed by respondent Nos.4 to 7 has beenentertained by respondent No.2, only on the ground that error hasoccurred while forming the sub-division. It is recorded that in orderto adhere to principles of natural justice, after condoning the delayAppeal has been allowed, giving directions to make corrections inthe record of Survey No.95, as per the actual possession of therespective parties.24.From perusal of order it appears that respondent No.14i.e. petitioner No.1 herein has not been heard before passing of theimpugned order. Even otherwise, directions to make correction asper Section 32(1) of the Maharashtra Prevention of Fragmentationand Consolidation of Holdings Act, is much beyond the permissibleperiod of limitation of three years, as has been held by this Court incatena of decisions.25.Section 32(1) of the Maharashtra Prevention ofFragmentation and Consolidation of Holdings Act, reads thus:-SVH 17 10948-18-WP.odt“32. Power to vary scheme on ground of error,irregularity, informality.—(1) If after a scheme has come into force it appears to the[Settlement Commissioner] that the scheme is defective onaccount of an error (other than that referred to in section31A), irregularity or informality the [SettlementCommissioner] shall publish a draft of such variation in theprescribed manner. The draft variation shall state everyamendment proposed to be made in the scheme.(2) Within one month of the date of publication of the draftvariation any person affected thereby may communicate inwriting any objection to such variation to the [SettlementCommissioner].(3) After receiving the objections under sub-section (2) the[Settlement Commissioner] may, after making such enquiryas [he may] think fit, make the variation with or withoutmodification or may not make any variation.[(3A) If the scheme is varied under sub-section (3), anotification stating that the scheme has been varied shall bepublished in the Official Gazette and the scheme so variedshall be published in the prescribed manner in the village orvillages concerned.](4) From the date of the notification [stating that the schemehas been varied] the variation shall take effect as if it wereincorporated in the scheme.”26.Though there is no limitation provided in Section 32 ofthe said Act, for correction in the scheme, however, according toauthoritative pronouncements governing the field, person aggrievedis expected to approach the authority for correction in the schemewithin a reasonable period and that reasonable period is held to bewithin three years. Though it is observed in various judgments thatSVH 18 10948-18-WP.odtreasonable period would vary from case to case depending on thefacts of each of the case, however, that reasonable period cannotbe stretched beyond particular limit. It is also observed that only indeserving and exceptional cases the period of three years can beextended.27.Upon going through the averments made in theapplication filed by respondent Nos.4 to 7 as well as findingsrecorded by respondent No.2, I do not find that delay has beensatisfactorily explained by respondent Nos.4 to 7. Respondent No.2while recording his findings on delay has merely observed that “inorder to adhere to principles of natural justice delay requires to becondoned”. The satisfactory reasons explaining delay are requiredto be recorded before condoning the delay. Undisputedly in presentcase since the scheme has been sanctioned in the year 1978 itself,application made by respondent No.4 on 29/08/2015 i.e. afteralmost delay of 35 years could not have been entertained byrespondent No.2.28.In the case of Gulabrao Bhaurao Kakade (Smt.) Vs.Nivrutti Krishna Bhilare and Others, reported in 2001(Supp.1) Bom.C.R. 688, this Court has already taken a view thatthough no period of limitation is prescribed under Section 32(1) ofthe said Act, for the Settlement Commissioner to vary the schemewhich has come into force, but such powers have to be exercisedwithin a reasonable period in any case. The Court has observed thatSVH 19 10948-18-WP.odtthey do not intend to lay down any specific period for exercising ofsuch powers by Settlement Commissioner, however, ordinarilyexercise of such power after three years of finalization of schemewould not be justified. It is further held that the scheme which hasbeen finalized in accordance with law and has came into force andcontinued to be in force, could not have been unsettled by initiatingproceedings for variation on the ground of error, irregularity after alapse of about 15 years. Therefore, the exercise of power bySettlement Commissioner under Section 32 was held to be grosslyunjustified. The view taken in this judgment has been furtheraffirmed in case of Dattu Appa Patil and Others Vs. State ofMaharashtra, reported in (2006) 6 Bom.C.R. 246 and JalindarSadashiv Hirde and Others Vs. State of Maharashtra andOthers, reported in 2018 (2) Bom.C.R. 320.29.In Writ Petition (St.) No.16719/2017 (Suresh BapuSankanna and Others Vs. State of Maharashtra and Others) decidedby the Division Bench of this Court (Coram: A. A. Sayed & ManishPitale, J.J.) on 09/10/2017, reliance has been placed on the case ofPundlik Jalam Patil (Dead) by L.Rs Vs. Executive Engineer,Jalgaon Medium Project and Another, reported in (2008) 17SCC 448, observing that law of limitation is a matter of publicpolicy, which lays down that stale claims cannot be agitated, andthere has to be time limit, within which an aggrieved person cansuccessfully raise his grievance. The Hon’ble Supreme Court in caseSVH 20 10948-18-WP.odtof Pundlik Jalam Patil (supra) has held thus:“26. Basically the laws of Limitation are founded on publicpolicy. In Halsbury's Laws of England, 4th Edn., Vol. 28, p.266, para 605, the policy of the Limitation Acts is laid downas follows:“605. Policy of the Limitation Acts.--The courts haveexpressed at least three differing reasons supporting theexistence of statutes of limitation, namely, (i) that longdormant claims have more of cruelty than justice in them, (ii)that a defendant might have lost the evidence to disprovethe stale claim, and (iii) that persons with good causes ofactions should pursue them with reasonable diligence.”27. Statutes of limitation are sometimes described as`statutes of peace'. An unlimited and perpetual threat oflimitation creates insecurity and uncertainty; some kind oflimitation is essential for public order. This court in RajenderSingh and Ors. v. Santa Singh and Ors. (1973) 2 SCC 705 hasobserved : (SCC p. 712, para 18)"18. The object of law of Limitation is to prevent disturbanceor deprivation of what may have been acquired in equity andjustice by long enjoyment or what may have been lost by aparty's own inaction, negligence or laches".28. In Tilokchand Motichand v. H. B. Munshi, AIR 1970 SC898, this court observed that this principle is based on themaxim "interest reipublicae ut sit finis litium", that is, theinterest of the State requires that there should be end tolitigation but at the same time laws of Limitation are ameans to ensure private justice suppressing fraud andperjury, quickening diligence and preventing oppression.29. It needs no restatement at our hands that the object forfixing time limit for litigation is based on public policy fixing alife span for legal remedy for the purpose of general welfare.They are meant to see that the parties do not resort todilatory tactics but avail their legal remedies promptly.Salmond in his jurisprudence states that the laws come tothe assistance of the vigilant and not of the sleepy.”It is held by this Court that when the entire proceedingswere without jurisdiction, this Court can very well exercise writjurisdiction to put an end to such proceedings. Therefore, contentionSVH 21 10948-18-WP.odtof respondent about availability of alternate remedy to petitionerswas also negatived by this Court.30.In the present case, in spite of huge delay of more than30 years the respondent No.2 has erroneously recorded hissatisfaction. It is stated in the reply affidavit of respondent Nos.4 to7 that, they have submitted application on 14/07/1998, so also on11/10/2005, prior to the application dated 29/08/2015. In theapplication seeking condonation of delay filed under Section 251 ofthe Maharashtra Land Revenue Code, delay has not been properlyexplained. Even assuming that if the first application of respondentNo.4 would have been entertained by the authorities in 1998, therewas an inordinate delay of 20 years which could not have beencondoned for entertaining the Appeal.31.In the report dated 29/01/2016, prepared by respondentNo.3, it is categorically mentioned that applicant has already filedthe application which was decided on 11/10/2005, itself andaccordingly entry to that effect has also been taken in records. Inabsence of satisfactory explanation given by applicant, huge delayhas been condoned by the authority. Only reason mentioned in theapplication for condonation of delay is that when he scrutinized oldrecord existing at the time of consolidation scheme, he has comeacross the error occurred at the time of measurement of subdivision.32.While passing the order dated 28/02/2017, respondentSVH 22 10948-18-WP.odtNo.2 has categorically observed that in exercise of powers underSection 255 (3) of the Maharashtra Land Record, he is passing theorder of cancellation of measurement of pot hissa, which wasapparently found to be defective. He has further directed tomeasure the land according to the possession of parties and submitthe proposal for correction under Section 32(1).33.After the order was passed by respondent No.2 on28/02/2017, directing to submit a proposal for correction in the areaafter conducting measurement of Survey No.95 under Section 32(1)of the said Act, notice was issued by respondent No.3 to theinterested parties for conducting measurement of Survey No.95.Accordingly, the measurement was conducted and proposedcorrection was prepared by respondent No.3 and notice forcorrection was issued to the interested parties on 02/04/2018thereby calling upon their objections, if any, to the proposedcorrection. In response to the notice of proposed correction,petitioner No.4 Lilabai had submitted her objection on 19/04/2018.In furtherance of her complaint, hearing was conducted on07/05/2018 and 10/05/2018. After hearing petitioner No.4 as well asrespondent Nos.4 to 7, respondent No.3 has allowed the objectionraised by petitioner No.4 holding that, according to the order passedin Appeal No.825/2016, measurement of the respective landaccording to the possession is carried out for preparation ofproposal for correction. After the measurement it was found thatSVH 23 10948-18-WP.odtrespondent No.4 Ramchandra Dashrath Gawade and respondentNo.7 Eknath Savaleram Khatekar were not in possession of the landwhich was claimed by them. Therefore, objection raised bypetitioner No.4 was allowed on 23/05/2018.34.Respondent No.4 again filed complaint contending thatthough there is an order directing to prepare corrected proposalunder Section 32(1), respondent No.3 has not prepared proposal forcorrection and has forwarded report without preparing necessaryproposal and has inserted certain fabricated documents in thereport. After receiving such application from respondent No.4 on24/05/2018, respondent No.2 has directed respondent No.3 toprepare and submit the proposal for correction as per the orderpassed in Appeal. It is further directed that in view of complaint filedby respondent No.4, notice should be issued to the respectiveparties and after granting opportunity of hearing to all theinterested persons, decision should be taken in Form-2, inaccordance with the rules and regulations. In pursuance to thecommunication dated 29/05/2018, respondent No.2 has passedorder dated 29/06/2018.35.In the order dated 29/06/2018, respondent No.2 hascorrected the earlier order dated 28/02/2017, passed in the Appeal,claiming it to be correction in the typographical mistake, therebydirecting to prepare and submit proposal for correction in the areaof Survey No.95 as per Section 32(1) after taking into considerationSVH 24 10948-18-WP.odtthe possession of appellant and respondents according to theirholdings in 7/12 extract, prior to the implementation ofconsolidation scheme, instead of earlier order which directed toprepare the proposal for correction after conducting measurementaccording to the possession of respective parties. Though it isclaimed by respondent No.2 that this order was passed forcorrecting the typographical mistake, upon going through the sameit is evident that it was not an typographical mistake, but the veryscope of the order has been changed by respondent No.2.36.In view of the fact that the measurement is alreadycarried out as per order dated 28/02/2017, the order dated29/06/2018, itself is passed without any powers. The powers forcorrection in the area are provided under Sections 31A to 33 of thesaid Act, and none of the provisions contemplate the correction ofthe order which is passed by the competent authority that is alreadyimplemented by claiming it to be typographical mistake. The verypurport of the order dated 28/02/2017 has been changed by thesubsequent order dated 29/06/2018, claiming it to be atypographical error.37.As stated above, the order dated 28/02/2017 waspassed by respondent No.2 directing to prepare the proposal forcorrection, under Section 32(1) of the said Act, according to thepossession of respective parties after conducting the measurement.In furtherance thereof measurement was conducted on 25/07/2017SVH 25 10948-18-WP.odtin the presence of respective parties and accordingly proposedcorrection was prepared which was objected by petitioner No.4 andafter upholding objections of petitioner No.4 on 23/05/2018, thenotice dated 02/04/2018 has been cancelled. Hence, after takingsteps in furtherance of order dated 28/02/2017 and taking the orderto it’s logical end, it was beyond the powers of respondent No.2 topass correctional order under the guise of typographical error. If atall respondent Nos.4 to 7 were aggrieved by the order passed byrespondent No.2, they had a remedy to approach the higherauthority provided under the Act. Respondent No.4 instead ofapproaching the higher authority has filed complaint which wasentertained by respondent No.2, which has resulted into theimpugned order. Even though the complaint was filed by respondentNo.4, respondent No.2 should not have entertained the same bymaking correction in the earlier order which was already actedupon. It was beyond the scope and powers of respondent No.2, toentertain the application and pass order claiming to be a correctionof typographical error. Upon going through the order dated29/06/2018, it is evident that by no stretch it can be held to be atypographical mistake. Hence, in my opinion, the order passed byrespondent No.2 is without any power and beyond it’s jurisdiction.38.In Writ Petition No.3815/1998 (Santosh PunjaramPakhare and Others Vs. Vinayak Sampatrao Wagh and Others),decided on 13/02/2020, issue before this Court was whether theSVH 26 10948-18-WP.odtpowers of Revision can be exercised under Section 257 of theMaharashtra Land Revenue Code, for seeking relief under Section31-A of the Bombay Prevention of Fragmentation and Consolidationof Holdings Act, which is part of the statutory scheme of of ChapterIV of the Bombay Prevention of Fragmentation and Consolidation ofHoldings Act. It was submitted before this Court that neither Appealnor Revision is maintainable against any order passed underChapter IV. This Court has taken a view that the order which is setaside in Revision is issued in exercise of powers under Section 31-A.A clerical error in the consolidation scheme is purportedly corrected.The said order was held to be not amenable to Revision in view ofunambiguous provisions of Section 36 of the Act. It is held that theRevisional authority has committed jurisdictional error, inpurportedly invoking provisions of Section 257 of the MaharashtraLand Revenue Code. Section 36 of the said Act, reads thus:-“36. Appeal and RevisionExcept as provided in this Act, no appeal or revisionapplication shall lie from any order passed under Chapter II,III or IV of this Act.”It is further held that the said Act is a special enactment and in viewof bar under Section 36 of the said Act, an order under the said Act,could not have been set aside in purported exercise of powersunder Section 257 of the Maharashtra Land Revenue Code.39.In my opinion, the present case stands fully covered bythe observations of this Court in the above judgments. In presentSVH 27 10948-18-WP.odtcase, the order is passed under Section 32(1) of the Chapter IV ofthe Act. Therefore, the bar as provided under Section 36 of the Actto the Appeal or Revision against any order passed under ChaptersII, III and IV of the Act will be applicable even to the present case,wherein Appeal has been entertained by respondent No.2. Hence, inview of the aforementioned position of law, the order passed byrespondent No.2 dated 28/02/2017 suffers from jurisdictional error.40.Though learned advocate for respondent Nos.4 to 7 hasclaimed that there is no prayer made by the petitioner, raisingchallenge to the order dated 28/02/2017, fact remains that theorder dated 29/06/2018 is passed for making correction in the orderdated 28/02/2017. Even the order dated 29/06/2018 suffers fromthe same jurisdictional error of delay. The order directing to submita proposal for correction in the scheme under Section 32(1) of thesaid Act, on the basis of holdings according to old 7/12 extract isalso beyond the period of limitation as has been held by this CourtCourt.41.Even otherwise, order dated 29/06/2018 is incontinuation of the earlier order dated 28/02/2017. Therefore, it isalso an order without jurisdiction and all the steps taken infurtherance of subsequent correctional order are not tenable, sincethe exercise of powers under Section 32 of the Act, was not withinthe reasonable period. Similarly they are also not Appealable, underthe provisions of Maharashtra Land Revenue Code, as held by thisSVH
Arguments
3 10948-18-WP.odtR/o Digras. Tq. Rahuri,Dist. Ahmednagar15. Swati d/o Sambhaji GawadeThrough Swati Kailash JamkarAge: 25 years, Occ. Household,R/o Kharwandi, Tq. Newasa,Dist. Ahmednagar16. Jyoti d/o Sambaji Gawade,Through Jyoti w/o Santosh BhandAge:- 27 years. Occ. Household,R/o Dhotre, Tq. Parner.Dist. Ahmednagar17. Bharti d/o Sambhaji Gawade,Through Archana Navnath Rashindkar,Age:- 29 years, Occ. Household,R/o Belapur (Kh). Tq. Shrirampur.Dist. Ahmednagar18.Rani d/o Sambhaji Gawade,Through Rani Pandurang Rashindkar,Age:- 30 years, Occ. Agril.,R/o Tilapur, Tq. Rahuri,Dist. Ahmednagar19.Shakuntala Sambhaji Gawade,Age: 57 years, Occ. Agril.,R/o Digras, Tq. Rahuri,Dist. Ahmednagar20. Shivaji s/o Kisan Gawade,Age:- 46 years, Occ. Agril.,R/o Digras, Tq. Rahuri.Dist. Ahmednagar21.Bhaskar s/o Nanabhau Todmal,Age:- 60 years, Occ. Agril.,R/o Digras, Tq. Rahuri.Dist. Ahmednagar22.Nanda w/o Dattatraya Todmal,Age:- 48 years. Occ. Agril.,R/o Digras, Tq. Rahuri.Dist. Ahmednagar23.Dattatraya s/o Nanabhau Todmal,Age:- 55 years, Occ. Agril.,R/o Digras. Tq. Rahuri, Dist. Ahmednagar24.Venunath s/o Yadav Girgune,SVH 4 10948-18-WP.odtAge:- 57 years, Occ. Agril.,R/o Digras, Tq. Rahuri.Dist. Ahmednagar25.Digambar s/o Yadav Girgune,Age:- 55 years, Occ. Agril.,R/o Digras, Tq. Rahuri.Dist. Ahmednagar26.Sushila w/o Bhaskar Todmal,Age:- 55 years, Occ. Household,R/o Digras, Tq. Rahuri,Dist. Ahmednagar27.Ashok s/o Ramji Matkar,Age:- 57 years, Occ. Agril.,R/o Digras, Tq. Rahuri,Dist. Ahmednagar ...Respondents (Resp. No.4 to 7 are the orig. Appellants and Resp. No.8 and 27 orig. opponents)…..Mr. Rahul R. Karpe, Advocate for PetitionersMs. A.S. Mantri, AGP for Respondents/StateMr. S.V. Natu, Advocate for Respondent Nos.4 to 7….. CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 21st FEBRUARY, 2025 PRONOUNCED ON : 28th MARCH, 2025JUDGMENT :1.Rule. Rule made returnable forthwith. Heard finally withthe consent of the parties.2.Petitioners are taking exception to the order dated29/06/2018, passed by respondent No.2 District Superintendent ofLand Records, Ahmednagar, in Consolidation Appeal No.825/2016,and the consequential notices issued by respondent No.3 DeputySuperintendent of Land Records. Vide order dated 29/06/2018. Theorder passed respondent No.2 on 28/02/2017 has been corrected toSVH 5 10948-18-WP.odtthe extent that measurement of sub-division done at the time ofconsolidation scheme in Survey No.95 at village Digras, TalukaRahuri, has been cancelled holding that the same is defective andrespondent No.2 Deputy Superintendent of Land Records, Rahuri,has been directed to submit amended proposal in view of Section32(1) of the Bombay Prevention of Fragmentation and Consolidationof Holdings Act, 1947 (for short ‘the said Act’), according to the 7/12extract existing prior to the coming into force of the consolidationscheme.3.According to petitioners, consolidation scheme wasmade applicable in the village Digras in the year 1978. By virtue ofapplication filed in the year 2015, amendment is sought in theconsolidation scheme after a huge delay of 37 years, which is notpermissible in the eyes of law as well as in view of variousauthoritative pronouncements of this Court. The reasonable periodfor seeking such relief is held to be 3 to 4 years from initiation ofscheme. Therefore, petitioners are challenging the order dated29/06/2018, on the ground of delay and latches.4.Brief case of the petitioners is that:-(I)Consolidation scheme is made applicable to the villageDigras by issuing notification on 06/04/1978. Petitioners are legalheirs of deceased Rakhmaji Gawade, respondent Nos.4 to 6 arelegal heirs of one Dasharath Gawade and respondent No.7 isSVH 6 10948-18-WP.odtpurchaser of the land from respondent Nos.4 to 6. Petitioners areconcerned with Gut No.153 which was Survey No.95/10, whereasrespondent Nos.4 to 7 are concerned with Gut No.162 which wasoriginally Survey No.95/2.(II)On 29/08/2015 respondent No.4 filed applicationaddressed to the respondent No.1 Deputy Director of Land Records,Nashik, seeking amendment in the record of Gut No.162 on theground that his holding in Gut No.162 has been reduced afterconsolidation. It was contended that prior to implementation ofconsolidation scheme in the year 1978, ‘Falani map’ was preparedas per the cultivation and possession of land by respective ownersand accordingly 7/12 extract was prepared. It was the contention ofrespondent No.4 that without taking any assistance from originalrecord, the scheme has been prepared. As a result, his holding hasbeen reduced in the revenue records. On receiving the applicationfiled by respondent No.4, respondent No.1 issued communication torespondent No.2 and respondent No.2 in turn has directed therespondent No.3 to conduct an inquiry.(III)Respondent No.3 has prepared report on 29/01/2016and sent it to respondent No.2 informing him that no mistake orillegality has occurred while preparation of the consolidationscheme, hence, there is no necessity to carry out any change. It isalso informed that the applicant had previously filed similarapplication to respondent No.1 and the same has been disposed ofSVH 7 10948-18-WP.odtvide communication dated 11/10/2005 and entry to that effect hasalready been taken in the complaint register. Hence, consideringthat there is no infirmity or error in the scheme and the earlierapplication filed by applicant has already been decided on11/10/2005, the complaint filed by respondent No.4 can be disposedof.(IV)In spite of report submitted by respondent No.3,respondent No.2 has again directed respondent No.3 to submit afresh report, accordingly respondent No.3 has again submittedreport on 31/03/2016. In spite of two reports, sent by respondentNo.3, respondent No.2 has issued communication to respondentNo.4, directing him to file Appeal before respondent No.2. AppealNo.825/2016 was filed by respondent Nos.4 to 7 invoking Section247 of Maharashtra Land Revenue Code which was decided byrespondent No.2 vide order dated 28/02/2017.(V)Pursuant to the order passed in Appeal No.825/2016,notices came to be issued to the interested parties for conductingmeasurement and accordingly measurement map was prepared on25/02/2017 and the proposal of corrected scheme under Section32(1) of the said Act, was prepared, which was published andinterested persons were called upon to raise objection to theproposed scheme within 15 days. Upon receiving notice ofcorrection in the scheme on 02/04/2018, petitioner No.4 LilabaiBhand raised objection, and also advanced oral and writtenSVH 8 10948-18-WP.odtsubmissions on 19/04/2018. The objection raised by petitioner No.4was accepted and consequently, the notice issued on 02/04/2018was cancelled vide communication dated 23/05/2018. Thereafter, inview of the complaint filed by respondent No.4, by communicationdated 29/05/2018 respondent No.3 was directed to conduct hearingby issuing notices and after taking decision in accordance with lawproposal was directed to be submitted.(VI)Thereafter, on 29/06/2018, respondent No.2 has passedan order thereby making correction in the order dated 28/02/2017and directing respondent No.3 to prepare and submit the proposalfor correction in the scheme as per Section 32(1) of the said Act,after considering the holdings of appellants and respondents inSurvey No.95 as per the record of 7/12 extract existing prior to theimplementation of consolidation scheme.5.It is the contention of petitioners that though it was notnecessary, in exercise of his advisory jurisdiction, respondent No.2has issued communication to respondent No.4 on 10/04/2016,thereby directing him to file Appeal which was maintainable beforerespondent No.2 himself, this itself speaks in volume. Therespondent Nos.4 to 7 have filed Consolidation Appeal No.825/2016under Section 247 of the Maharashtra Land Revenue Code. It iscontended that the petitioner was not given an opportunity of beingheard in the Appeal. The Appeal itself is not maintainable in view ofthe earlier report submitted by respondent No.2 on 29/01/2016.SVH 9 10948-18-WP.odt6.Though the Appeal was not maintainable, respondentNo.2 has allowed it, by condoning the delay in the very order whichis impugned herein. Vide order dated 28/02/2017, the Appeal isallowed thereby cancelling earlier mutation since it was found to bedefective and respondent No.3 was directed to submit correctedproposal under Section 32(1), for making corrections in the schemeon the basis of actual occupancy in Survey No.95.7.Learned advocate for petitioner contends that noopportunity of being heard was given to petitioners. Without takinginto consideration that there is a huge delay in filing the Appeal forwhich no satisfactory explanation has been given by respondentNo.4, the delay in filing Appeal has been condoned. In fact, as perthe order dated 28/02/2017, measurement of the land wasconducted on 25/07/2017. Thereafter, notices were issued topetitioners calling their objections, in response thereto thepetitioners have raised the objections. After appreciating the recordand extending opportunity of hearing respondent No.3 hassubmitted report on 23/05/2018, which supports the case ofpetitioners. According to petitioners, objections raised by them wereupheld and entry is made in Hissa form No.2. The steps taken inaccordance with the order dated 28/02/2017 have been intimated torespondent Nos.4 to 7 on 09/07/2018.8.Though the order passed by respondent No.2 has beentaken to it’s logical end by conducting measurement, respondentSVH 10 10948-18-WP.odtNos.4 to 7 have again filed application before respondent No.2.Thereafter, respondent No.2 has immediately issued intimationnotice to respondent No.3 on 29/05/2018, thereby directing to takenecessary action in view of the order dated 28/02/2017 and submitthe report to that effect.9.It is further contended that in furtherance of the orderdated 28/02/2017, for correction of scheme under Section 32(1) ofthe Act, the authorities have taken entry in the record according tothe possession of the parties. In view of the fact that there is adelay in filing Appeal, so also, the directions issued were alreadytaken to it’s logical end by conducting measurement and upholdingthe objections, the subsequent application as well as order passedtherein by the authorities is not at all maintainable.10.Per contra learned advocate for respondent Nos.4 to 7has raised objection about maintainability of writ petition in view ofalternate and efficacious remedy available to petitioner under theBombay Prevention of Fragmentation and Consolidation of HoldingsAct, along with the Maharashtra Land Revenue Code. It is hiscontention that the consolidation scheme was implemented invillage Digras in the year 1984. Father of respondent No.4 died on06/01/1982, when he was 14 years old and his younger brother was10 years old, therefore, there was no literate surviving male familymember to look after them or the affairs of their agricultural lands.The respondent No.4 started cultivating the land in the year 1990.SVH 11 10948-18-WP.odtWhen the dispute arose with the adjacent land owner NanasahebTodmal regarding exact area of land in his possession, respondentNo.4 came to know that revenue authorities have committedmistake in recording area of land Survey No.95/1B/2, i.e. Gut No.162and have reduced the area by 60 R. Therefore, respondent No.4approached the revenue authorities and verified the revenue recordcontained in 7/12 extract and came to know about the mistakecommitted by the authorities.11.According to him, he has filed application on14/07/1998, addressed to the Deputy Director, Land Records forcorrection in the consolidation record and thereafter follow upapplications have been filed on 11/10/2005 and 29/08/2015. Sincehe did not receive any response to his application, he filed anAppeal before respondent No.2.12.It is his contention that when the order was passed byrespondent No.2 on 28/02/2017, petitioners have accepted it andaccordingly measurement has been carried out in Survey No.95.Since petitioners have not challenged the order dated 28/02/2017, ithas attained finality. It is further contended that after passing of theorder on 28/02/2017, report was received from the concernedauthorities and thereafter he has brought to the notice of theauthorities that in fact in the Appeal he has claimed that thecorrection should be made as per the revenue record which wasexisting at the time of implementation of scheme and not as per theSVH 12 10948-18-WP.odtmeasurement as has been directed.13.It is only after considering the submissions of respectiveparties respondent No.2, has corrected the order dated 28/02/2017,and directed to make correction as per the revenue record.According to him, petitioner has challenged only order dated29/06/2018, without challenging the order dated 28/02/2017.According to the order dated 28/02/2017, consolidation authoritieshave already cancelled the consolidation record in respect of landSurvey No.95 and have prepared corrected consolidation record.14.Learned advocate for respondent Nos.4 to 7 is relyingon the reply affidavit to contend that a circular has been issued bythe Settlement Commissioner and Director, Land Records,Maharashtra State, Pune on 25/08/1993, issuing guidelines formaking corrections in the consolidation scheme for correction oferrors. Learned advocate for respondents places reliance on clause(2) of the circular dated 25/08/1993 wherein it is provided that whilepreparing the scheme, record existing prior to the implementationof scheme should be taken into consideration. It is further providedthat in any circumstances, while implementing the Scheme ortaking cognizance of complaint application, no power is vested inthe Consolidation Officer to reduce or increase the area regardinganewari, possession, other rights, inherent rights etc.15.He also relies on the circular dated 23/11/2010, whereinSVH 13 10948-18-WP.odtguidelines have been issued for resolving dispute in respect oferrors occurred during the consolidation scheme, which makes itmandatory for the Consolidation Officer to obtain statement oflandholders while making sub-division of the Gut numbers, if suchsub-division is prepared by obtaining consent of the respective landholders.16.It is the contention of learned advocate for respondentNos.4 to 7 that during the consolidation, Survey numbers areconverted into Gut numbers either by consent of the parties forconsolidating Gut numbers or by way of exchange of lands. Sincethe error has occurred when respondent No.4 was minor, he couldnot bring it to the notice of authorities within the prescribed time.However, fact remains that there is reduction in the area of landowned by father of respondent No.4 after implementation of theconsolidation scheme. Therefore, considering that there is reductionin area of holding of respondent No.4, appropriate order have beenpassed.17.Respondent No.4 relies on the judgment of this Court inWrit Petition No.8737/2021 (Tulsiram s/o Shivram Dhondkar andOthers Vs. The State of Maharashtra and Others) dated 12/10/2023,wherein it is observed that the date on which consolidation schemecomes into force would depend on the date on which possession ishanded over to the individual after following due process. If theSettlement Commissioner is of the view that further process asSVH 14 10948-18-WP.odtcontemplated under Section 21 in respect of deposit ofcompensation; eviction of the occupant; and transfer of possessionhas not taken place; only confirmation of the entire scheme hastaken place under Section 21(1), the Settlement Commissioner isentitled to exercise jurisdiction under Section 31A and 32 of the Act.Therefore, considering the facts and circumstances in the presentcase, writ petition deserves to be dismissed.18.Learned AGP appearing on behalf of respondent Nos.1to 3 relies on the reply affidavit filed by the authorities, wherein it iscontended that after passing of earlier order dated 28/02/2017,petitioners have accepted the findings therein and have notchallenged the same by which pot Hissa measurement is done.Therefore, it will have to be presumed that petitioners are satisfiedwith the directions issued vide order dated 28/02/2017 to carry outmeasurement as per the actual possession of the parties.19.During the implementation of order dated 28/02/2017, itwas realised by respondent No.3 that measurement on the basis ofactual possession cannot be done. Therefore, the order dated28/02/2017 was modified by the order dated 29/06/2018 and thewords “measurement according to actual possession” weresubstituted by “the actual holding as mentioned in the 7/12 extractprior to the consolidation scheme”. It is also submitted that orderdated 29/06/2018, has been passed after going through the reportdated 23/05/2018, wherein it is specifically stated that correction inSVH 15 10948-18-WP.odtthe consolidation scheme cannot be carried out on the basis ofactual possession as it is practically impossible.20.Reliance is placed on the circular dated 25/08/1993,which provides that correction can be done as per the record whichwas in existence prior to the implementation of consolidationscheme. Hence, order dated 29/06/2018 has been rightly passedtaking into consideration the defective pot hissa measurementcarried out at the time of consolidation scheme. Hence, there is noillegality in the order dated 29/06/2018 passed by respondent No.2.21.After hearing the respective parties and the documentsplaced on record it can be gathered that respondent Nos.4 to 7herein have filed application for correction in the consolidationscheme in respect of their holding in Survey No.95. Grievance ofrespondent No.4 is that his father’s land was part of Survey No.95Hissa No.1B/2 to the extent of 2 H 43 R. After implementation ofconsolidation scheme he was given only 1 H 83 R land in GutNo.162. As against that petitioners’ holding in Survey No.95 wasHiss No.3B to the extent of 3 H 54 R and petitioner was given HissaNo.10 by increasing his holding to the extent of 4 H 51 R.22.According to him, his holding has been reduced duringthe consolidation scheme and holding of the petitioners is increasedby 0.97 R. In the report submitted by respondent No.3 on29/01/2016, it is submitted that entries have been taken in the‘Shet Pustak’ according to the possession of respective parties.SVH
Decision
28 10948-18-WP.odtCourt in the judgment of Santosh Punjaram Pakhare (supra).42.Therefore, the Writ Petition is allowed. Order dated29/06/2018, passed by respondent No.2 District Superintendent ofLand Records, Ahmednagar, in Consolidation Appeal No.825/2016 isquashed and set aside and consequential notices issued by theDeputy Superintendent of Land Record, Rahuri, are also quashedand set aside. Rule is made absolute in the above terms.43.Accordingly, civil application also stands disposed of.44.At this stage, learned advocate for respondent Nos.4 to7 makes request that the order may be stayed for a period of twoweeks. Considering the request made by respondent Nos.4 to 7,there shall be stay to this order for a period of two weeks fromtoday. (MANJUSHA DESHPANDE, J.)SVH