Writ Petition No. 13677 of 2017 · Of High Court
Case Details
2024:BHC-AUG:18342 IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 13677 OF 20171.Avantikabai Shankar Shinde,Age 55 years, occu. Household,R/o Kambalga Tq. Shirur Ananatpal,District Latur.2.Ramrao Shankar Shinde,Age 53 years, Occu. Agril.,R/o Kambalga Tq. Shirur Ananatpal,District Latur.3.Kishanrao Shankarrao Shinde,Age 51 years, occu. Agril.,R./o Kambalga Tq. Shirur Ananatpal,District Latur.4.Sumanbai Suresh Shinde,Age 49 years, Occu. Household,R/o Omerga (Manna) Tq. Udgir,District Latur.5.Sou. Jaishree Pratap Birajdar,Age 47 years, Occu. Household,R/o Daithana Tq. Shirur Ananatpal,District Latur.6.Kousabai Abhimanyu Bhosale,Age 45 years, Occu. Household,R/o Dadagwadi Tq. Ausa,District Latur....Petitioners(Original Plaintiffs)~ versus ~1.Pratap s/o Gunderao Jadhav,Age 71 years, Occu. Agril.,2.Raosaheb s/o Vishwanath Shinde,Age 49 years, Occu. Agril.,3.Deelip s/o Keroji Shinde,Age 50 years, Occu. Agril.,All R/o Kambalga Tq. Shirur Ananatpal,District Latur.4.Shamrao s/o Gunderao Jadhav,Page 1 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024.
Legal Reasoning
Writ Petition No. 13677 / 2017 JudgmentAge 77 years, occu. Agril.,Died Through L.Rs.4-1.Lopabai w/o Shamrao Jadhav,Age 75 years, Occu. Household,R/o Kambalga Tq. Shirur Anantpal,District Latur.4-2.Rantanbai w/o Baburao Bhadarge,Age 55 years, Occu. Household,R/o Shend (H.) Tq. Nilanga,District Latur.4-3.Gunderao s/o Shamrao Jadhav,Age 52 years, Occu. Agril.,R/o Kambalga Tq. Shirur Anantpal,District Latur.4-4.Kewathbai w/o Mohanrao Gaikwad,Age 50 years, Occu. Household,R/o Sugaon, Tq. Chakur, DistrictLatur.4-5.Ramdas s/o Shamrao Jadhav,Age 50 years, Occu. Agril.,R/o Kambalga Tq. Shirur Anantpal,District Latur.4-6.Sumanbai w/o Madhavrao Datal,Age 45 years, Occu. Household,R/o Bodangaon Tq. And Dist.Latur.5.State of Maharashtra,Through Collector At Latur.6.Tahsildar,Tahsil Office, Shirur Anantpal,Tq. Shirur Anantpal, Dist. Latur....Respondents(Original Defendants) ________________________________________Page 2 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentAPPEARANCE : Advocate for the Petitioners : Miss. Madhaveshwari S. Mhase h/f Lex AquilaAdvocate for Respondents No.1 to 3 : Mr. D. A. Mane h/f Mr. Milind Patil________________________________________CORAM :ARUN R. PEDNEKER, J.Reserved Date : 30/04/2024Pronouncement Date :13/06/2024JUDGMENT :1.Rule. Rule made returnable. With consent of the parties, heardfinally.2.By the present petition, the petitioners challenge the order dated13/08/2012, passed by the Joint Civil Judge, Senior Division, Nilanga,whereby the Court was pleased to decide the preliminary issue relating tothe jurisdiction of the Civil Court to entertain the suit and held that the CivilCourt has no jurisdiction to entertain the suit and returned the plaint forpresentation before proper forum, and also the order dated 19/09/2017was passed by the District Judge-1, Nilanga, in Misc. Civil AppealNo.25/2012 whereby the order of the Trial Court dated 13/08/2012 wasupheld by dismissing the appeal primarily holding that the suit amounts tochallenge to the consolidation and fragmentation scheme itself which theplaintiffs cannot do so by filing a civil suit.Page 3 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgment3.The question of law that arises for determination before this Court inthe present writ petition is as under : -“Whether the bar under Section 36(A) read with Section 36 (B)of the Prevention of Fragmentation and ConsolidationHoldings Act, 1947 is applicable to the suit filed by theplaintiffs/ petitioners ?” 4.For the above purpose, the brief facts as stated in the plaint arenecessary to be considered : -The plaintiffs have filed the Regular Civil Suit No.175/2011 fordeclaration of ownership and perpetual injunction in respect of suitproperty at Survey No.52/A which is converted into land Gut Nos.172 and146 admeasuring 9 Acres 9 Gunthas being the ancestral property of thepetitioners. It is contended in the plaint that the plaintiff Shankar Shinde isthe only successor and possessor of the suit property. The defendant No.1Prabat has his ancestral land in Survey No.66 situated on the Westerns sideof the suit land. It is further contended that on the Eastern side of the suitproperty, there was land of Mr. Yadav Shinde. On 29/05/1974 said YadavShinde sold his 3 Acres 5 Gunthas land in Survey No.52/D to defendantNo.1. In the said sale deed, the boundaries are wrongly mentioned and themistake is not rectified by the defendant No.1. Thereafter, again thedefendant No.1 purchased land at Survey No.52/D admeasuring 5 Acres 32Gunthas from Yadav Shinde and that the defendant No.1 has only these thePage 4 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmenttwo sale deeds as regards his ownership and possession to the extent ofSurvey No.52/D. It is further the case of the petitioner that Survey No.52/Ais absolute property of Venkoba Pandoba shinde and the defendant No.1purchased entire land of Yadav Shinde. 5.It is further the case of the plaintiff that the Fragmentation Officer,without visiting Survey No.52 in collusion with defendants No.1 to 4,prepared false record to the extent of 5 A 84 R and wrongly shown smallportion in the name of plaintiffs qua the suit property. The defendants arenot concern with the suit property, however they are denying theownership of the plaintiff and trying to dispossess the plaintiff from the suitproperty. There were earlier two suits also filed by the plaintiffs against thedefendants which were withdrawn with permission to file fresh suit andaccordingly the present suit is filed. The prayer in the civil suit are asunder : -“A)It be declare that, the plaintiff is exclusive owner of suitproperty more particular describe in para no.1 of the plaint.B)It be declare that, boundaries of west shown in the saledeed No.2770/74 as executed in favour of deft. No.1 is nulland void and not binding on plaintiff.C)Defendants may be permanently restrained for not tointerfere or obstruct b y any mode in peaceful and legalpossession of plaintiff on suit property more particulardescribed in para No.1 of the plaint.Page 5 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentD)Any other just and equitable relief in favour of plaintiffmay kindly be grant.”6.In the suit filed, the defendants No.1 to 4 filed application belowExhibit 34 under Section 9A of the Code of Civil Procedure for framingpreliminary issue. The petitioners filed their say to the application belowExhibit 34 stating that the relief of declaration of ownership and injunctionis purely within the jurisdiction of civil court. 7.The Trial Court thus framed preliminary issue as under : -“Whether this Court have jurisdiction to try the suit underSection 36 (A) of Prevention of Fragmentation andConsolidation Holdings Act ?”8.The Trial Court by order dated 13/08/2012, passed below Exhibit 37,in paragraphs No.11, 13, 14 and 15 observed as under : -“11.In this case plaintiff in para No.4 of the plaintspecifically pleaded that consolidation officer never verifiedactual possession of plaintiff over survey No.52. No anynotice from the measurement officer or from th State ofMaharashtra in respect of measurement of survey No.52 wasreceived to plaintiff. No any panchanama of measurementwas prepared by either of the officer in presence or inabsence of plaintiff. So, plaintiff have challenged the act ofthe defendants.12.…..Page 6 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgment13.Plaintiff further pleaded that defendant No.5 and 6 havenever visited survey No.52 and in collusion with defendantNo.1 and 4 prepared false record and wrongly shows thatdefendant No.1 to 4 are in possession of 5 H. 84 R. of landSurvey No.52. The record of the employees of defendant No.5and 6 having no foundation of law and facts. The employeesof defendant No.5 and 6 prepared false and fabricatedpanchnama and record of defendant No.5 and 6 is challengedby plaintiff.14.Plaintiff further pleaded that defendant No.5 and 6without verifying the title document had prepared 7/12extract in the name of defendant No.1 and 4 to the extent of 5H. 84 R. The revenue department did not obey the rules of theTransfer of Property Act and made false record in the 7/12extract name of defendant No.1 and 4.15.Thus, in short, plaintiff is challenging the entiremeasurement carried out in the implementation of scheme ofFragmentation and consolidation Act. On the contrary,defendant in his written statement particularly on page No.8specifically pleaded that Yadavrao was found in possession of6 H. 28 R. land of Survey No.52 at the time of measurement of1971-72. Hence, as defendant No.1 was found in morepossession of area in the scheme implemented byGovernment under the provisions of Prevention ofFragmentation and Consolidation on Holdings Act of 1947. Theact of consolidation officer cannot be challenged before CivilCourt. Civil Court have no jurisdiction to decide the act ofConsolidation officer under Section 36 (A) of the Prevention ofFragmentation and Consolidation on Holdings Act of 1947. ThePage 7 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentabove pleading clearly indicates that land was measured anddefendants were declared to be found in possession of excessland than that which were in their name of his vendor.Defendants were declared as owner by the consolidationofficer on the basis of finding of consolidation officer. Mutationwas carried out in the name of defendant No.1 and 4. Theauthority cited supra is squarely applicable in this case. So, forthe reasons stated above, I came to conclusion that this courthave no jurisdiction to entertain the dispute under Section 36(A) of the Prevention of Fragmentation and Consolidation onHoldings Act of 1947. Accordingly, I recorded my finding onpreliminary issue as this court have no jurisdiction to entertainthe dispute.”The Trial Court finally held that in view of bar contained in Section 36(A) of the Fragmentation Act, the Civil Court has no jurisdiction to entertainthe suit and the plaint is returned for presentation before proper forum. 9.The above order of the Trial Court was challenged before the DistrictCourt in Misc. Civil Appeal No.25/2012. The Appellate Court dismissed theappeal filed by the petitioners, against which the present writ petition isfiled.10.Challenging the order passed by the Courts below, the learnedAdvocate for the petitioners Miss. Madhaveshwari S. Mhase h/f Lex Aquilasubmits that the Trial Court has only seen Section 36 (A) of the Act and hasnot referred to Section 36 (B) at all wherein the jurisdiction of the CivilPage 8 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentCourt has to be understood in context of Section 36(A) and 36(B) of theAct. The learned Advocate for the petitioners also submits that adeclaration of the ownership is purely the function of the Civil Court and forthat purpose, she relies upon the Judgment of the Hon’ble Supreme Courtin the case of State of Tamil Nadu vs. Ramalinga Samigal Madam,reported in (1985) 4 Supreme Court Cases 10. The learned Advocatefor the petitioners further submits that in view of Section 36 (B) of the Act,in the event any issue is required to be decided by the ConsolidationOfficer, the issue has to be framed by the Trial Court and refer the same tothe Consolidation Officer and await the decision of Consolidation Officer,and as such, suit is not barred in view of Section 36 (B) of the Act butrather maintainable.11.The learned Advocate for the petitioners also submits that in anindependent proceedings after filing of the suit, the authorities under theAct has also rectified the errors in the consolidation scheme and this factalso becomes necessary for the purpose of deciding the present petition asthe suit for injunction against the respondents would also be maintainablein view of the subsequent correction in the consolidation scheme. The saidorder of the rectification of consolidation scheme has not been challenged.12.Per contra, the learned Advocate Mr. D. A. Mane h/f Mr. Milind Patil,appearing for the respondents submits that the Regular Civil SuitPage 9 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentNo.175/2011, more particularly in paragraph No.4, 6 and 8 seeks to nullifythe consolidation scheme which has attained finality. It is furthersubmitted that the suit is not maintainable in view of the specific stand ofthe petitioner in paragraph No.6 of the writ petition that the plaintiff in thesuit is not claiming any declaration regarding order of Consolidation Officerconfirming the title and possession of the defendants.13.The learned Advocate for the respondents also submits that sinceconsolidation scheme regarding the suit land has attained finality asadmitted in the Regular Civil Suit No.175/2011 and no reference ascontemplated under Section 36(B) of the Act can be made to theconsolidated officer. The learned Advocate further submits that Section 36(B) of the Act is for adjudication of undecided issue to be decided under thePrevention of Fragmentation and Consolidation Holdings Act, 1947 and notfor reopening concluded scheme. 14.The learned Advocate for respondents relies upon the Judgment ofYeshwant Ramchandra Dhumal Deceased By L.Rs. vs. ShriShankar Maruti Dhumal and Another, reported in 2001 AIRBom.384 = Mah L J (2) 576. He also relied upon the Judgment inNarayan S. Bite and Ors. vs. Mahadeo Shripati Pise and Ors.,reported in 2001 (2) All MR 414, and submits that in view of Section 36(A) of the Act, Civil Courts jurisdiction is barred where the question isPage 10 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentrelating to the putting owner in possession of the holding who is entitleunder the scheme.15.Considered the rival submissions, at the outset it is necessary tonote the relevant provisions of the Prevention of Fragmentation andConsolidation Holdings Act, Section 36(A) and 36(B) as under :-“36A.Bar of jurisdiction(1)No Civil Court or Mamlatdar's Court shall havejurisdiction to settle, decide or deal with any question which isby or under this Act required to be settled, decided or dealtwith by the State Government or any officer or authority.(2)No order of the State Government or any such officer orauthority made under this Act shall be questioned in any Civil,Criminal or Mamlatdar's Court.”“36B.Suits involving issues required to be decided under thisAct(1)If any suit instituted in any Civil Court or Mamlatdar'sCourt involves any issues which are required to be settled,decided or dealt with by any authority competent to settle,decide or deal with such issues under this Act (hereinafterreferred to as the 'competent authority') the Civil Court orMamlatdar's Court shall stay the suit and refer such issues tosuch competent authority for determination.(2)On receipt of such reference from the Civil Court orMamlatdar's Court, the competent authority shall deal withand decide such issues in accordance with the provisions ofthis Act and shall communicate its decision to the Civil CourtPage 11 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentor Mamlatdar's Court and such Court shall thereupon disposeof the suit in accordance with the procedure applicablethereto.”16.The prayer in the suit as quoted above in paragraph 5 is to declarethat the plaintiffs are exclusive owners of the suit property and forinjunction restraining the defendants not to interfere or obstruct by anymode the peaceful possession of plaintiff, over the suit property, moreparticularly described in paragraph 1 of the plaint.17.In the case of Prashant Singh and Others vs. Meena andothers, reported in 2024 SCC OnLine SC 834, the Hon’ble SupremeCourt while considering the U. P. Consolidation of Holdings Act, 1953, atparagraph No.12 has observed as under : -“12.The object of the 1953 Act is to prevent fragmentationof the land holdings and consolidate them in such a fair andequitable manner that each tenure holder gets nearlyequivalent land rights in the same revenue estate. The duty ofa Consolidation Officer under Section 49 of the 1953 Act is toprevent fragmentation and consolidate the different parcels ofland of a tenure holder. Such a power can be exercised only inrespect of those persons who are already the tenure holdersof the land. Conversely, the power under Section 49 of the1953 Act cannot be exercised to take away the vested title ofa tenure holder. No such jurisdiction is conferred upon aConsolidation Officer or any other Authority under the 1953Act. The power to declare the ownership in animmovable property can be exercised only by a CivilPage 12 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentCourt save and except when such jurisdiction is barredexpressly or by implication under a law. Section 49 of the1953 Act does not and cannot be construed as a bar on thejurisdiction of the Civil Court to determine the ownershiprights.”18.In the case of Prashant Singh and Others (Supra), the Hon’bleSupreme Court has held that the power to declare ownership of animmovable property can be exercised only by a Civil Court save and exceptwhen the jurisdiction is barred expressly or by implication under the law.The Hon’ble Supreme Court in case of Ramalinga Samigal Madan(Supra) considered the question whether the Civil Court’s jurisdiction todetermine the nature of land in respect whereof a ryot has sought aryotwari patta under Section 11 of the Tamil Nadu Estates (Abolition andConversion into Ryotwari) Act, 1948 is ousted or barred under Section 64-Cof that Act. The Supreme Court while considering provisions of Tamil NaduEstate (Abolition and Conversion into Ryotwari) Act, considered thejurisdiction question of principle of exclusion of Civil Court’s jurisdiction atparagraph No.8 as under : -“The principles bearing on the question as to when exclusionof the Civil Court's jurisdiction can be inferred have beenindicated in several judicial pronouncements but we needrefer to only two decisions. In Secretary of State v. Mask andCompany, the Privy Council at page 236 of the Report hasobserved thus:Page 13 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentIt is settled law that the exclusion of the jurisdiction ofthe Civil Courts is not to be readily inferred but thatsuch exclusion must either be explicitly expressed orclearly implied. It is also well settled that even ifjurisdiction is so excluded, the Civil Courts havejurisdiction to examine into cases where the provisionsof the Act have not been complied with or the statutorytribunal has not acted in conformity with thefundamental principles of judicial procedure.In Dhulabhai v. State of M.P. Hidayatullah, C. J., speaking forthe Court, on analysis of the various decisions cited before theCourt expressing diverse views, culled out as many as 7propositions; out of them the first two which are material forour purposes are these:(1) Where the statute gives a finality to the orders ofthe special tribunal the civil courts' jurisdiction must be heldto be excluded if there is adequate remedy to do what thecivil courts would normally do in a suit. Such provision,however, does not exclude those cases where the provisionsof the particular Act have not been complied with or thestatutory tribunal has not acted in conformity with thefundamental principles of judicial procedure.(2) Where there is an express bar of thejurisdiction of the court, an examination of the schemeof the particular Act to find the adequacy or thesufficiency of the remedies provided may be relevantbut is not decisive to sustain the jurisdiction of the civilcourt. Where there is no express exclusion the examination ofPage 14 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentthe remedies and the scheme of the particular Act to find outthe intendment becomes necessary and the result of theinquiry may be decisive. In the latter case it is necessary tosee if the statute creates a special right or a liability andprovides for the determination of the right or liability andfurther lays down that all questions about the said right andliability shall be determined by the tribunals so constituted,and whether remedies normally associated with actions in civilcourts are prescribed by the said statute or not.”19.Relying upon the principle laid down in Dhulabhai v. State ofM.P., the Supreme Court in case of Ramalinga Samigal Madam (Supra)considered various provisions of the Tamil Nadu Estates (Abolition andConversion into Ryotwari) Amendment Act, 1954 and held at paragraphsNo.12, 13 and 14 as under : -“12.Now turning to the question raised in these appeals forour determination, it is true that Section 64-C of the Act givesfinality to the orders passed by the Government or otherauthorities in respect of the matters to be determined bythem under the Act and sub-section (2) thereof provides thatno such orders shall be called in question in any court of law.Even so, such a provision by itself is not, having regard to thetwo propositions quoted above from Dhulabhai's case,decisive on the point of ouster of the Civil Court's jurisdictionand several other aspects like the scheme of the Act,adequacy and sufficiency of remedies provided by it etc., willhave to be considered to ascertain the precise intendment ofthe Legislature. Further, having regard to the vital differencePage 15 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentindicated above, in between the two sets of provisions dealingwith grant of ryotwari pattas to landholders on the one handand ryots on the other different considerations may arisewhile deciding the issue of the ouster of Civil Court'sjurisdiction to adjudicate upon the true nature of character ofthe concerned land. Approaching the question from this angleit will be seen in the first place that Section 64-C itself interms provides that the finality to the orders passed by theauthorities in respect of the matters to be determined bythem under the Act is "for the purposes of this Act" and notgenerally nor for any other purpose. As stated earlier themain object and purpose of the Act is to abolish all the estatesof the intermediaries like Zamindars, Inamdars, Jagirdars orunder-tenure holders etc. and to convert all land-holdings insuch estates into ryotwari settlements which operation inrevenue parlance means conversion of alienated lands intonon-alienated lands, that is to say, to deprive theintermediaries of their right to collect all the revenues inrespect of such lands and vesting the same back in theGovernment. The enactment and its several provisionsare thus intended to serve the revenue purposes of theGovernment, by way of securing to the Government itssovereign right to collect all the revenues from all thelands and to facilitate the recovery thereof by theGovernment and in that process, if necessary, to dealwith claims of occupants of lands, nature of the lands,etc. only incidentally in a summary manner and thattoo for identifying and registering persons in therevenue records from whom such recovery of revenuePage 16 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentis to be made. The object of granting a ryotwari pattais also to enable holder thereof to cultivate the landspecified therein directly under the Government onpayment to it of such assessment or cess that may belawfully imposed on the land. Section 16 is very clear inthis behalf which imposes the liability to pay such ryotwari orother assessment imposed upon the land to the Governmentby the patta-holder. The expression "for the purposes of thisAct" has been designedly used in the section which cannot beignored but must be given cogent meaning and on a plainreading of the section which uses such expression it is clearthat any order passed by the Settlement Officer eithergranting or refusing to grant a ryotwari patta to a ryot underSection 11 of the Act must be regarded as having beenpassed to achieve the purposes of the Act, namely, revenuepurposes, that is to say for fastening the liability on him topay the assessment or other dues and to facilitate therecovery of such revenue from him by the Government; andtherefore any decision impliedly rendered on the aspect ofnature or character of the land on that occasion will have tobe regarded as incidental to and merely for the purpose ofpassing the order of granting or refusing to grant the pattaand for no other purpose.” “13.Secondly, the principle indicated in the secondproposition enunciated in Dhulabhai case requires that thestatute, when it creates a special right or liability and providesfor its determination, should also lay down that all questionsabout the said right or liability shall be determined by thePage 17 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentTribunal or authority constituted by it, suggesting thereby thatif there is no such provision it will be difficult to infer ouster ofthe Civil Court's jurisdiction to adjudicate all other questionspertaining to such right or liability. Since from the notifieddate all the estate vests in the Government free fromencumbrances) it must be held that (all the lands lying in suchestate including private land of land-holder and ryoti landcultivated by a ryot would vest in the Government and the Actcould be said to be creating a new right in favour of a land-holder (re: his private lands) and a ryot (re: ryoti land) bygranting a ryotwari patta to them under Sections 12 to 15 andSection 11 respectively, and the Act provides fordetermination of such right by the Settlement Officer.Question is whether the Act also provides fordetermination of all questions about such right by theSettlement Officer ? On this aspect, as has been indicatedearlier (unlike in the case of an application for a ryotwari pattaby a land- holder under Section 12, 13 or 14 where an inquiryinto the nature or character of the land and the history thereofis expressly directed to be undertaken by virtue of Section 15in the case of an application for a ryotwari patta by a ryotunder Section 11 there is no express provision for any inquiryinto the nature or character of the land before granting orrefusing to grant such patta to the applicant. It is true thatsome inquiry is contemplated if Section 11 is read withproviso to clause (d) of Section 3 but even then there is noprovision directing inquiry for the ascertainment of the natureof the land, namely, whether it is a ryoti land or communalland but it is obvious that impliedly a decision on this aspectPage 18 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentof the matter must be arrived at the Settlement Officer beforehe passes his order on either granting or refusing to grantsuch patta. Obviously such decision rendered impliedly on thisaspect of the matter will be an incidental one and arrived at inthe summary manner only for the purpose of granting orrefusing to grant the patta. A summary decision of thistype in an inquiry conducted for revenue purposescannot be regarded as final or conclusive so as toconstitute a bar to a Civil Court's jurisdictionadjudicating upon the same issue arising in a suit forinjunction filed by a ryot on the basis of title and/orlong and uninterrupted possession. Since a full-fedgedinquiry on the nature or character of land is provided forunder s. 15 in the case of an application by a land-holder thecharacter of the Settlement Officer's decision on such issuemay be different but that question is not before us.” “14.Thirdly, having regard to the principle stated by thisCourt while enunciating the first proposition in Dhulabhai'scase it is clear that even where the statute has givenfinality to the orders of the special tribunal the civilcourt's jurisdiction can be regarded as having beenexcluded if there is adequate remedy to do what thecivil court would normally do in a suit. In other words,even where finality is accorded to the orders passed bythe special tribunal one will have to see whether suchspecial tribunal has powers to grant reliefs which CivilCourt would normally grant in a suit and if the answeris in the negative it would be difficult to imply or inferPage 19 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentexclusion of Civil Court's jurisdiction. Now take thecase of an applicant who has applied for a ryotwaripatta under Section 11 staking his claim thereto on thebasis of his long and uninterrupted possession of theryoti land but the Settlement Officer on materialsbefore him is not satisfied that the land in question isryoti land ; in that case he will refuse the patta to theapplicant. But can he, even after the refusal of thepatta, protect the applicant's long and uninterruptedpossession against the Government's interference ?Obviously, he cannot, for it lies within his power andjurisdiction merely to grant or refuse to grant the pattaon the basis of materials placed before him. But such aperson even after the refusal of the ryotwari pattawould be entitled to protect his possessory title andlong enjoyment of the land and seek an injunctionpreventing Government's interference otherwise thanin due course of law and surely before granting suchrelief the Civil Court may have to adjudicate upon thereal nature of character of the land if the same is putin issue. In other words since the Settlement Officerhas no power to do what Civil Court would normally doin a suit it is difficult to imply ouster of Civil Court'sjurisdiction simply because finality has been accordedto the Settlement Officer's order under Section 64-C ofthe Act.” 20.Thus, for applying the above principles of law for exclusion of thejurisdiction of Civil Court it is necessary for this Court to examine the plaintPage 20 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentand the prayers. It is necessary to analyze the scheme of theFragmentation Act to ascertain the bar of the jurisdiction of the Civil Courts,more particularly the issues that are required to be settled, decide or dealtwith under the Act by the State Government or any other officer orauthority under the Act. The Fragmentation Act is enacted to prevent thefragmentation of agricultural holdings and to provide for consolidation ofagricultural holdings for the purpose of better cultivation thereof. ChapterII of the Act deals with the determination of local and standard areas andtreatment of fragments. Under the said chapter, the State Governmentspecifies a village, mahal or taluka or tahsil or any part thereof as a localarea for the purposes of this Act and prescribes minimum areas. UnderSection 6 of the Act, every fragment in the local area shall be entered inthe Record of Rights. Section 7 of the Act provides for transfer and lease offragments in respect of which notice under sub-section (2) of Section (6) isgiven. Section 8 of the Act provides for prohibition of transfer or partitionso as to create a fragment. Section 8AA of the Act deals with restriction onpartition of land. Section 14 prohibits sale of fragment by the Court orders.Chapter III of the Act deals with preparation of scheme and compensation.Section 19 of the Act deals with publication of draft scheme and Section 20deals with confirmation of draft scheme. The scheme confirmed underSection 20 is implemented, under Section 21 of the Act. The schemecomes into force after person entitled for possession of holding under thePage 21 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentAct and is put into possession of the holding respectively allotted to them.Chapter IV deals with the effect of consolidation proceedings andconsolidation of holdings. Chapter IV-A deals with the powers andprocedure of Consolidation Officers with the general provisions.21.From the perusal of the Act it is apparent that the authoritiesconstituted under the Act are not entitled to grant declaration ofownership. It merely consolidates the fragments and preventfragmentation of the consolidation. However, if there is a dispute raised asregards title of the consolidated holding and a dispute is raised before theConsolidation officer or the or the authority under the Act, the same cannotbe decided by the authorities constituted under the Act. There is noprovision for deciding the title of the land. The Consolidation officer on asummary inquiry on the basis of material available before him,consolidates the holding and makes a entry in the record of rights asregards all the fragments in the local area and may also give possession ofthe holdings. If the ownership of the consolidated holding is disputed, thesame cannot be adjudicated by the authorities constituted under theFragmentation Act. The issue will have to be decided by the Civil Court.22.If on such issue being decided in favour of the plaintiffs and the titleof consolidated holding is held to be in favour of the plaintiffs, the same willhave to be rectified in the records on the basis of declaration of title by thePage 22 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 JudgmentCivil Court. This does not amount to changing the scheme of theconsolidation. If there is a declaration that the plaintiffs are part owner ofthe suit land and the land has to be partitioned, the same may partitionedfollowing the process under the Fragmentation Act. Such a partition canonly be made by following the process under the Fragmentation Act by theauthorities under the Act and the issue will have to be referred underSection 36B of the Act.23.Section 36A of the Act refers to any question which is required to besettled, decided or dealt with by the State Government or any officer orauthority under the Act. The issue of title cannot be decided by the StateGovernment or any officer or authority under the Act. However, ancillaryissue, in a given suit may be required to be determined under the Act, andif such an issue is involved in the suit which has to be decided by thecompetent authority under the Act, then the Civil Court has to formulatesuch an issue under Section 36B and shall stay the suit and refer suchissue to the competent authority for determination.24.Coming to the facts of the present case, the plaintiffs claim that theyare the owners of the suit property and the Consolidation officer withoutappreciating the ownership of the petitioners on the suit property, hasrecorded the lands in the name of the defendants and prepared a 7/12extract in the name of defendants No.1 to 4 to the extent of 5 H 84 Ralthough there was no such transfer in their favour. It is the contention ofPage 23 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024. Writ Petition No. 13677 / 2017 Judgmentthe plaintiffs that the suit land was considered to be of the defendants andthe same is recorded under the Consolidation Act in the name of thedefendants. The plaintiffs disputes the ownership of the consolidated landproperty, which is recorded in the name of the defendants. The ownershipissue can only be decided by the Civil Court, and in the event, the plaintiffsare found to be the owners, their names has to be brought on revenuerecords in terms of the declaration as may be granted by the Civil Court.There is also a prayer of injunction which has to be determined by the CivilCourt.25.In the instant case, in an independent proceedings under theConsolidation Act, necessary rectification is carried out by the authoritiesunder the Act and the corrections of the suit lands are also recordedconsolidation scheme. The rectification in the consolidation proceedings ispurely an action which can be initiated under the Maharashtra Preventionof Fragmentation and Consolidation of Holdings Act and the authoritiesconstituted thereunder has to determine the same.26.As regards title of the suit property / holding as consolidated underthe Consolidation Act, can only be determined by a Civil Court if there is adispute of the same. So also an order of injunction can only be passed by aCivil Court.27.Thus, the orders of the Courts below in returning the plaint is bad inPage 24 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024.
Decision
Writ Petition No. 13677 / 2017 Judgmentlaw. The suit is thus restored to the file in the Trial Court to formulateappropriate issues and decide the ownership issue of the suit land. Anyother issue that may arise as regards the Fragmentation Act be mayremitted to the authorities under Section 36 B of the Fragmentation Act. Assuch, the writ petition is disposed of in above terms.Rule made absolute in above terms. ( ARUN R. PEDNEKER, J. )vj gawade/-.Page 25 of 25 This Judgment is corrected in view of the order of ‘Speaking to the Minutes’ dated 07/08/2024.