NAGPUR BENCH, NAGPUR v. Additional Commissioner, Amravati Division, Amravati & Ors.

The respondent Nos.4 to 7 had challenged the mutation entries recorded in favour of the petitioners in the year 1993 by filing an appeal before the Sub-Divisional Officer on 17/08/2010. The Sub-Divisional Officer rejected the appeal on the ground that sufficient cause was not made out for condoning the delay in filing the same. Aggrieved by the said order, the respondent Nos.4 to 7 preferred an appeal before the Additional Collector. The Additional Collector held that there were sufficient grounds for condonation of delay. The Additional Collector, however, did not remand the matter to the Sub-Divisional Officer and decided the appeal and held that the entries recorded in favour of the petitioners in the wp2815.12-Order year 1993 were bad in law as before recording the said entries, a notice was not issued to the respondent Nos.4 to 7. The order of the Additional Collector was challenged by the petitioners in a revision before the Additional Commissioner. The Additional Commissioner upheld the finding of the Additional Collector that sufficient cause was made out by the respondent Nos.4 to 7 for belatedly filing the appeal. The Additional Commissioner upheld the finding of the Additional Collector that the mutation entries of the year 1993 were liable to be set aside and the entries prior to 1993 were liable to be retained. The petitioners have impugned the orders of the Additional Collector and the Additional Commissioner in this petition. It is submitted on behalf of the petitioners that the Additional Collector ought to have remanded the matter to the Sub-Divisional Officer for deciding the matter on merits and the Collector could not have decided the same on merits. It is submitted that there was no ground made out for condoning the huge and inordinate delay. The learned counsel relied on the decision reported in (2009) 9 SCC 352 (Santoshkumar Shivgonda Patil and others vs. Balasaheb Tukaram Shevale and others) in this regard. It is submitted on behalf of the petitioners that the respondent Nos.4 to 7 could not have instituted the suit and approached the authorities at the same time. According to the learned counsel, after the institution of the suit, the proceedings under the Maharashtra Land Revenue Code are barred. The learned counsel relied on the decision reported in 2008(4) Mh.L.J. 467 Jaglal s/o Premlal Jayaswal and another vs. Waman s/o Shyamraoji Dhobale and another) in this regard. Shri Ghare, the learned counsel for the respondent Nos.4 to 7, submitted that since the respondent Nos.4 to 7 were wp2815.12-Order totally unaware of the illegal change in the entries, in the year 1993 made behind the back of the petitioners, the authority rightly held that there was sufficient cause for condoning the delay in filing the appeal. It is submitted that if the entries are changed behind the back of a party, the party would not be able to challenge the entry unless the party becomes aware of the change. According to the learned counsel, neither the predecessor of the respondent Nos.4 to 7, nor the respondent Nos.4 to 7 were aware of the changed entries till the appeal was filed before the Sub-Divisional Officer. The learned counsel submitted that the authorities have set aside the entries mainly on the ground that no notice was issued to the respondent Nos.4 to 7 before changing the entries in the year

1993. Since the order is just and proper, according to the learned counsel, the writ petition is liable to be dismissed. On hearing the learned counsel for the parties and on a perusal of the impugned orders, it appears that the Additional Collector and the Additional Commissioner were justified in holding that the entries were liable to be set aside as they were recorded behind the back of the respondent Nos.4 to 7 and without issuing notice to the respondent Nos.4 to 7. There was nothing on record to show that the respondent Nos.4 to 7 were aware of the entries recorded in favour of the petitioners in the year 1993 immediately thereafter or within a reasonable time. In this background, both the authorities rightly relied on the statement made on behalf of the respondent Nos.4 to 7 that they became aware of the entries just before filing of the appeal before the Sub-Divisional Officer. It was not necessary for the Additional Collector to remand the matter to the Sub-Divisional Officer after condoning the delay as the entries were recorded in favour of the petitioners behind the back of the respondent Nos.4 to 7 and without issuing notice to them. wp2815.12-Order Hence, the Additional Collector decided the appeal in favour of the respondent Nos.4 to 7 and the Additional Commissioner upheld the order of the Additional Collector in appeal and dismissed the revision filed by the petitioners. The judgment reported in 2008(4) Mh.L.J.467 (Jaglal s/o Premlal Jayaswal and another vs. Waman s/o Shyamraoji Dhobale and another) and relied on by the counsel for the petitioners cannot be made applicable to the facts of this case as it has been laid down by this Court in the said judgment that in a pending suit the order of the Tahsildar under Section 143(1) of the Maharashtra Land Revenue Code cannot be assailed. So also the judgment reported in (2009) 9 SCC 352 (Santoshkumar Shivgonda Patil and others vs. Balasaheb Tukaram Shevale and others) cannot be made applicable to the facts of this case. In the present case the respondent Nos.4 to 7 were totally unaware about the change in the mutation entries in favour of the petitioners in the year 1993 till they filed the appeal before the Sub-Divisional Officer. If the entries are changed behind the back of a person, it is unlikely that the person would be aware of the change in the entries till he approaches the revenue authorities to check the same. It is not normally expected of a person to check the mutation entries every now and then and see whether somebody has surreptitiously changed the entries. Since there is no merit in the writ petition, the same is dismissed with no order as to costs. JUDGE KHUNTE