High Court
Legal Reasoning
( 1 ) wp388.17IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 388 OF 2017Shivdas s/o. Vanji Mali,..PetitionersAge.54 years, Occ. Agriculture,[originalR/o. Mandal,Tq. Shirpur,appellants]Dist. Dhule.Deceased through L.R.s. A)Tulsabai Shivdas Mali,Age. 80 years, Occ. Nil,B)Laxman Shivdas Mali (Sonawane)Age. 45 years, Occ. Agriculture,C)Ramkrushna Shivdas Mali (Sonawane)Age. 42 years, Occ. Agriculture,R/o. At Post Mandal, Shirpur,Tq. Shirpur, District Dhule.VERSUS1.Sahebrao s/o. Vanji Mali..Respondents(Deceased)[1 to 9 originalopponents]2.Ranubai w/o. Dangal Mali(Deceased)3.Rambhau s/o. Dhanji MaliSince deceased through LRs.4.Durgabai Rambhau Mali,Aged. Major, Occ. Household,R/o. Mandal, Tq. Shirpur,Dist. Dhule.5.Tukaram s/o. Rambhau Mali, ( 2 ) wp388.17Aged. Major, Occ. Agriculture,R/o. Mandal, Tq. Shirpur,Dist. Dhule.6.Sambhaji s/o. Rambhau Mali,Aged. Major, Occ. Agriculture,R/o. Mandal, Tq. Shirpur,Dist. Dhule.7.Raghunath s/o. Dhanji MaliAged. Major, Occ. Agriculture,R/o. Mandal, Tq. Shirpur,Dist. Dhule.8.Suka s/o. Gava Mali,Aged. Major, Occ. Agriculture,R/o. Mandal, Tq. Shirpur,Dist. Dhule.9.Nhanibai Dhabu MaliSince deceased through LRs.10.Rajaram s/o. Dhabu Mali,Aged. Major, Occ. Agriculture,R/o. Mandal, Tq. Shirpur,Dist. Dhule.11.Gangabai w/o. Gulabrao Mali,Aged. Major, Occ. Agriculture,R/o. Mandal, Tq. Shirpur,Dist. Dhule.12.Kalpanabai w/o. Gulab Mali,Aged. Major, Occ. Household,R/o. Mandal, Tq. Shirpur,Dist. Dhule.13.Pravatibai Vitthal MaliAged. Major, Occ. Agriculture,R/o. Mandal, Tq. Shirpur,Dist. Dhule. ( 3 ) wp388.1714.The Tahsildar,Tahsil Office, Shirpur,Dist. Dhule.15.The Sub-Divisional Officer,Shirpur, Dist. Dhule.16.The Additional Collector,Dhule, Dist. Dhule.17.The Additional Commissioner,Dhule.Mr.D.S. Bagul, Advocate for the petitioners.Mr.S.N. Kendre, AGP for the respondent-State.Mr.Mahesh Deshmukh, Advocate for respondent Nos. 4,8, 10 to 12.CORAM:KISHORE C. SANT, J.RESERVED ON:22.10.2024PRONOUNCED ON:20.12.2024J U D G M E N T :-01.This writ petition is filed against an order dated 28.09.2016passed by the learned Divisional Commissioner, Nashik Division, Nashikin RTS/Revision/47/2014, thereby rejecting the revision application filedby the present petitioners confirming order passed by the learnedCollector. The learned Collector in appeal by respondent Nos. 1 to 13 byhis order had set aside an order passed by the learned SDO. RespondentNos. 1 to 13 are the original respondents in the appeal filed by thepetitioners before the Sub-Divisional Officer, Shirpur. Respondent Nos. ( 4 ) wp388.1714 to 17 are the Authorities of the Government of Maharashtra.02. The dispute is in respect of mutation entry No. 2056, 2057and 2058 on land Survey No. 4/1A, 4/2, 4/5, 4/10 and 4/11 taken in thename of the respondents over these lands in the year 1997. Theappellants claimed to be successors of one Vanji Mali. The lands wereoriginally belong to one Devchand Kamaji Mali. He had four sons,namely, Vanji, Dhanji, Gabha and Dema. During the lifetime ofDevchand, he gave the disputed land to his elder son Vanji in the year1942-43. Vanji was in possession since prior to 1942-43 and thereforehis name was recorded in the revenue record. The names of his childrencame to be recorded vide mutation entry No. 714 in 1968. It is the claimof Shivdas – husband of petitioner No.1 and father of petitioner Nos. 2and 3 that they are rightful owners of the property. Respondent No.1 isson of Dhanji. Respondent Nos. 2 to 13 are heirs of brothers of Vanji.Case of the petitioners is that without having any right over the suit-lands, the respondents got their names entered into revenue record videentries stated above in the year 1997. On realizing this mistake, thepetitioners filed an appeal before Sub-Divisional Officer, Shirpur by wayof appeal No. 32 of 2011. It is the case that those entries were approvedafter 10-15 years after death of Dhanji, Gabha and Dema. The entries ( 5 ) wp388.17were taken without any documentary evidence. This appeal was resistedby respondent Nos. 1 to `3. It is case of respondent Nos. 1 to 13 thatthe disputed lands are ancestral properties shared by the petitioners andrespondent Nos. 1 to 13. Being ancestral properties, their names wererightly taken in the revenue record.03.The learned SDO, Shirpur vide judgment and order dated22.01.2013 allowed the RTS appeal setting aside the mutation entries.Against this order the respondents approached the learned AdditionalCollector by filing Appeal bearing RTS Appeal No. 6 of 2013. The learnedAdditional Collector set aside the judgment passed by the learned Sub-Divisional Officer vide judgment and order dated 22.01.2013. Thus,there are two concurrent orders against these petitioners. Thepetitioners aggrieved by the order are before this Court. It is arguedthat the learned SDO had rightly passed the order holding that BhivsanKamaji had no successor. There was partition between Devchand Kamajiand Zipru Kamaji, which was entered in revenue record. During thelifetime of Zipru, Devchand Kamaji died. After death of Devchand, nameof Vanji Devchand was rightly entered in the revenue record being elderson. Vanji had four sons from his first wife and three sons and threedaughters from second wife. Out of them, Dangal and Sahebrao expired ( 6 ) wp388.17and there are no legal heirs to them. Dhanji also died leaving behindtwo sons, namely, Rajaram and Gulab. Gulab expired leaving behind hiswife Gamgabai and daughter Kalpanabai. Gabha Devchand also diedleaving behind his only son Suka and one daughter Parvatibai. It isfurther held that after the partition, the properties came to the share ofDevchand. After Devchand, name of Vanji is rightly taken in theproperty. In the said property, there is also undivided share of Dhanji,Gabha, Dhabu in the property and therefore their names are entered inthe properties, after death of Dhanji, Gabha and Dhabu. Since thenames of Dhanji, Gaba and Dhabu were not recorded in the property,entries could not be taken in the name of their successor. The entrieswere taken only on the basis of certificate by police patil. It is thus heldthat the entries were wrongly taken and were set aside.04.In the appeal by the respondents, the learned AdditionalCollector held that the property was never given to the exclusive share ofShivdas Vanji ro Vanji Devchand Mali. Other brothers, though theirnames were not entered in the revenue record, they were having sharein the property and allowed the appeal. In the revision, the learnedAdditional Commissioner held that the entries were rightly taken in theyear 1997 and were certified considering the heirship. The appeal before ( 7 ) wp388.17the SDO was filed after 15 years. He thus held that the judgment andorder passed by the learned SDO was not in accordance with law andrejected the revision.05.Learned Advocate Mr. Bagul for the petitioners vehementlyargued that the learned Additional Commissioner an committed error byconfirming order passed by the learned Deputy Collector. The learnedSDO had rightly passed an order cancelling mutation entries as theentries were taken illegally taken. It is clearly observed that at no pointof time, the names of other brothers were appearing in the revenuerecord. The entire properties were shown in the name of Vanji. Whiletaking entries, no procedure was followed as given in the MaharashtraLand Revenue Code. He, thus, prays for allowing the writ petition. Herelies upon following judgments :-(i)Santoshkumar Shivgonda Patil and Ors. Vs.Balasaheb Tukaram Shevale & Ors., (2009) 9 SCC352.(ii)Kamal Krishan Rastogi & Ors. Vs. State of Biharand Anr., (2008) 15 SCC 105.(iii)Ragho Singh Vs. Mohan Singh & Ors., (2001) 9SCC 717.(iv)Mohamad Kavi Mohamad Amin Vs. FatmabaiIbrahim, (1997) 6 SCC 71.(v)M/s. Magadh Sugar & Energy Ltd. Vs. The State ofBihar & Ors., Civil Appeal No. 5728 of 2021(Hon’ble Supreme Court).
Legal Reasoning
( 8 ) wp388.1706.The learned Advocate Mr. Mahesh Deshmukh appearing forthe respondents vehemently opposed the petition. He submits that thelearned SDO entertained the appeal after 15 years of taking the entries.The entries were taken by considering heirship. The name of Vanji wasalso appearing in the revenue record only because he happened to beelder son in the family. At no point of time, the lands were divided orpartitioned. The lands were always held to be a joint family properties.The learned Additional Collector and the learned Commissioner haverightly appreciated this aspect. From the affidavit in reply, it is statedthat the mutation entries were not challenged for more than 15 years.There was declaration deed executed between Rajaram Dhabu and GulabDhabu i.e. sons of deceased brother of Vanji on 21.11.1978, wherein hissons are shown as vendee and Vishwanath Daga, Kashinath Daga, NimbaDaga, Dangal Vanji and Shivdas Vanji as vendor in relation to landSurvey No. 4/1/A. The said deed is signed by Shivdas also. Now thepetitioners have no concern with the property Survey No. 4/1/A. Thelearned SDO did not consider this declaration deed and set aside themutation entries. The declaration deed is placed on record along withaffidavit in reply. He also argued that against the order passed by thelearned Commissioner, remedy is provided to approach the State ( 9 ) wp388.17Government, however, no revision is preferred to the State. He reliedupon following judgments:-(i)Godrej Sara Lee Ltd. Vs. Excise and TaxationOfficer-cum-Assessing Authority and Ors., 2023SCC OnLine SC 95.(ii)Gurudassing Nawoosing Panjwani Vs. State ofMaharashtra & Ors., 2015 AIR SCW 6277.07.In the case of Santoshkumar (supra) the Hon’ble ApexCourrt held that under section 257 of the Maharashtra Land RevenueCode, though no time limit is prescribed for exercising the powers oflimitation, however, the same needs to be exercised within reasonabletime, which would be ordinarily three years. In that view the revisionalorder was set aside by the Hon’ble Apex Court..In the case of Kamal Krishan Rastogi (supra), the Hon’bleApex Court held that when setting aside an illegal order would lead toanother illegal order, in such case the High Court should not exercise thejurisdiction..In the case of Ragho Singh (supra), the Hon’ble ApexCourt specifically considered section 5 of the Limitation Act. It is heldthat the delay cannot be condoned in absence of any such application.In that case appeal was filed before the Additional Collector beyondlimitation period with delay of 10 days. There was no application for ( 10 ) wp388.17condonation of delay and still the Authority entertained the appeal. Inthat view, the Hon’ble Apex Court set aside the order passed by theAppellate Authority in that appeal..In the case of Mohamad Kavi Mohamad Amin (supra),the case was under the Bombay Tenancy and Agricultural Lands Act. TheMamlatdar suo-motu had initiated an enquiry. It was held that thoughthere is no limitation period provided for exercise of such power, still itshould be exercised within a reasonable period i.e. three years. .In the case of M/s. Magadh Sugar (supra), the High Courthad declined to entertain the writ petition on the ground that the disputewas factual in nature requiring adjudication under the provisions of BiharElectricity Duty Act, 1948. In that case the appellant had approachedthe High Court challenging imposition of electricity duty and penalty onthe electricity supply by the Bihar State Electricity Board. The Hon’bleApex Court held that this was mere question of law and set aside theorder passed by the High Court and restored the petition for freshdisposal on remand. 08.In the case of Godrej Sara Lee (supra), the questions werewhether the High Court was justified in declining to entertain the writpetition on the ground of availability of alternative remedy of appeal, ( 11 ) wp388.17under section 33 of the Haryana Value Added Tax Act, 2003; secondly,whether it was necessary to remit the writ petition to the High Court forhearing it on merits or to examine the correctness or otherwise of theorders impugned before the High Court. The Hon’ble Apex Courtconsidered the orders passed by the revisional authority, which wereimpugned in proceeding before the High Court and set aside thoseorders. The Apex Court held that power of High Court to issueprerogative writes under Article 226 is plenary in nature. Article 226does not put, in fetter or impose any limitation or restraint on theexercise of power to issue writs. Though exercise of such power may notbe made routine matter in the given case, cannot mechanically beconstrued as ground for dismissal of the petition..In the case of Gurudassing (supra), the Hon’ble ApexCourt interpreted section 257 of the Maharashtra Land Revenue Codeand held that second revision is maintainable before the StateGovernment against the order passed in revision by the DivisionalCommissioner. 09.In view of the judgments cited and the arguments advanced,this Court first thinks it proper to consider the question of maintainabilityof this petition. In view of the submissions of the respondents that this ( 12 ) wp388.17writ petition is not maintainable for availability of alternative remedyunder section 257 in view of Gurudassing (supra), there is no doubtthat there is alternative remedy available. However, in view of GodrejSara Lee (supra), it is seen that the High Court has power to exercisejurisdiction even if there is alternative remedy available, ifcircumstances exist. At the same time, it is expected that such exercisedoes not become routine matter. In this case, this Court finds that sincethe petitioners are before this Court since 2017, now remanding thematter with direction to the parties to approach the Minister after sevenyears would only amount to one more exercise. The impugned orderitself can be examined by this Court. In view of this, this Court proceedsto consider the impugned order, passed by the learned AdditionalDivisional Commissioner.10.Before the learned Commissioner, the proceeding had arisenas regards mutation entries. The proceeding initially started before thelearned SDO. The learned SDO exercised the jurisdiction and passedorder in favour of the petitioners and the same is set aside by thelearned Additional Collector and confirmed by the Commissioner.11.On going through the order passed by the SDO, it appears ( 13 ) wp388.17that though it was pointed out that the Mutation Entries are challengedafter 14 years i.e. after delay of more than 13 years, still the SDOentertained the appeal filed by the petitioners. He entertained theappeal only on the ground that the names of successors of therespondents did not appear in 7/12 extract prior to the Mutation Entriesand allowed the appeal of the petitioners.12.The learned Additional Collector considered all these aspectsand also considered that the entries were taken on the basis of orders inthe heirship register. The respondents were the heirs of the originalowners of the land. There was no illegality in taking mutation entries.He turned down the objection that no procedure under section 150(1) ofthe MLRC was followed. It is observed that it is not believable thatthough the petitioners were residing in the same village, they would notget knowledge of the Mutation Entries for 15 years. The learnedCollector also considered the factum of possession of the land and setaside the order passed by the learned SDO. The learned AdditionalDivisional Commissioner observed that though sufficient opportunitieswere granted to the petitioner, he did not advance any arguments. Thelearned Commissioner, therefore, passed order on the basis of the sayand applications filed from time to time by the present petitioners and by
Decision
( 14 ) wp388.17going through the record. The learned Additional Commissioner furtherheld that there is dispute about the heirship as the owner Vanji DevchandMali had two wives. It would be, therefore, necessary for the parties toobtain succession certificate from the Court of competent jurisdiction andallowed the revision. Considering the judgments relied upon by theparties, no case is made out by the petitioners calling for interference atthe hands of this Court. The writ petition, therefore, deserves to bedismissed and the same is hereby dismissed with no order as to costs.[KISHORE C. SANT, J.] snk/2024/dec24/wp388.17