Gulabrao Bhaurao Kakade, Since ... vs Nivrutti Krishna Bhilare & Ors.
2001 Latest Caselaw 279 Bom

JUDGMENT

R. M. Lodha, J.

1. The order passed by the Settlement Commissioner on 2.1.1989 whereby he ordered variation of scheme finalised in the year 1973 under the Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947 (For short "the Act of 1947") is under challenge in this writ petition.

2. The case of the original petitioner set up in this writ petition is that land Survey No. 95/4 admeasuring 5 acres and 25 gunthas was originally owned by Raghunath Anandrao Pawar and the said land was being cultivated by the original petitioner's father as tenant and the respondent No. 2 - Bhausaheb Kushaba Kakade (since deceased) as well as the original respondent No. 1 - Nivrutti Krishna Bhilare (since deceased). The agreement of sale was entered into between the father of the original petitioner and original respondent No. 1 on 21.12.1956 for a consideration of Rs. 3,500/-. It is stated that the original petitioner and respondent No. 1 paid their share of amount. The land in question was governed by the Bombay Tenancy Act and the proceedings under section 32-G was initiated. A certificate under section 32-M was Issued to the original respondent No. 1 and his name was recorded in the record of rights. Subsequently, by second

agreement dated 26.10.1959, the original respondent No. 1 agreed to execute the necessary document in favour of the original petitioner's father as regards northern half of the land aforestated and the petitioner's father was put in physical possession of the northern portion of the said land. When the scheme for consolidation of holdings was introduced in the village Kikvi, possession of petitioner's father and the respondent No. 1 in respect of their share in respect of Survey No. 95/4 was recorded. It is stated that the petitioner's father died in the meanwhile and was survived by the petitioner and respondent No. 2 herein and accordingly in the scheme confirmed and finalised the name of the original petitioner and respondent No. 2 was recorded in respect of the northern portion of Survey No. 95/4A by giving new Gat No. 413 and the land in possession of respondent No. 1 was designated as Gat No. 412. However, after a period of about 16 years, the original petitioner received a notice informing him that the scheme earlier finalised has been varied under section 32(1) of the Act of 1947 and possession as per the varied scheme would be taken on 14.2.1989. Aggrieved by that the present writ petition has been filed by the original petitioner.

3. An Affidavit in reply has been filed by respondent Nos. 3 to 5 and defence has been set up therein that the earlier holding of Survey No. 95/4 was divided erroneously which was neither legal nor proper and, therefore, the said Scheme has been varied. It is staled that the variation proposal accepted by Settlement Commissioner and Director of Land Records was sent to Consolidation Officer, Pune for publication vide letter dated 26.9.1988 and was so informed to the original petitioner and all concerned. Objections were called for. The Consolidation Officer, Pune caused the publication of the scheme through the Talathi in the village by beat of drum on 14.10.1988 and at taluka notice board on 21.10.1988 and since no objections were received within a stipulated period of 30 days, the Settlement Commissioner confirmed the varied scheme on 2.1.1989 after following the entire procedure under Section 32.

4. After having heard the learned counsel for the petitioners and the learned counsel for the respondent Nos. 1 and 2 as well as the A.G.P., we are of the view that writ petition deserves to be allowed for the reasons which we indicate hereinafter.

5. There is no dispute that the scheme was finalised by following the procedure contemplated under the Act of 1947 way back in the year 1973 whereby the earlier Survey No. 95/4 was divided into different Gat numbers and the said scheme was enforced and remained in force without any demur or objection by any party for about 15 years. Section 32 gives power to the Settlement Commissioner to vary the scheme on the ground of error, irregularity for informality other than the errors referred to in Section 31A. Section 32 reads thus :

"32. (1) If after a scheme has come into force it appears to the Settlement Commissioner that the scheme is defective on account of an error other than that referred to in section 31A, irregularity or informality the Settlement Commissioner shall publish a draft of such variation in the prescribed manner. The draft variation shall state every amendment proposed to be made in the scheme.

(2) Within one month of the date of publication of the draft variation any person affected thereby communicate in writing any objection to such variation to the Settlement Commissioner.

(3) After receiving the objections under sub-section (2) the Settlement Commissioner may, after making such enquiry as he may think fit, make the variation with or without modification or may not make any variation.

(3A) If the scheme is varied under sub-section (3), a notification stating that the scheme has been varied shall be published in the Official Gazette, and the scheme so varied shall be published in the prescribed manner in the village or villages concerned.

(4) From the date of the notification stating that the Scheme has been varied the variation shall take effect as if it were incorporated in the scheme."

6. The power given to the Settlement Commissioner for variation of the scheme is on account of an error other than that referred to in section 31A, irregularity or informality after following the procedure prescribed. Though there is no time limit prescribed under Section 32(1) for the Settlement Commissioner to vary the scheme which has come into force, but obviously even in the absence of any period prescribed under section 32, the said power can only be exercised within reasonable period in any case. What would be the reasonable period for exercise of power under Section 32(1) by the Settlement Commissioner may depend on facts and circumstances of each case and we do not intend to lay down any specific period for exercise of that power by Settlement Commissioner but ordinarily exercise of such power after three years of finalisation of scheme under section 22 may not be Justified. In the facts and circumstances of the present case, the exercise of power by Settlement Commissioner for variation of scheme which has come into force in the year 1973, by initiating proceedings in the year 1988 cannot be said to be within reasonable time. The fact is and that is not disputed that the earlier scheme was finalised in the year 1973 under the Act of 1947 to the knowledge of all the parties concerned. Nobody was aggrieved by the said scheme finalised under the Act of 1947 and the scheme came into force under section 22. The said scheme which had been finalised in accordance with law and came into force and continued to be in force, could not have been unsettled by initiating the proceedings for variation under section 32 on the purported ground of error, irregularity or informality after a lapse of about 15 years. Thus, the exercise of power by Settlement Commissioner under section 32 for variation of the scheme in the facts and circumstances of the present case is grossly unjustified.

7. Even we find that the procedure contemplated for variation of scheme under Section 32(1) of the Act of 1947 and the Rules framed thereunder viz. The Bombay Prevention of Fragmentation & Consolidation of Holdings Rules. 1959 (for short "Rules of 1959") has also not been followed. The original petitioner in paragraph 7 of the writ petition set up the specific case that no notice of the proposed variation was given nor any opportunity of hearing was afforded before passing any order adverse to him and that the procedure as contemplated in law has not been followed. In response to the said averment made in the writ petition, in the affidavit in reply, the respondent Nos. 3 to 5 have stated that the variation proposal accepted by the Settlement Commissioner was sent to the Consolidation Officer for publication vide letter dated 26.9.1988 and was so informed to the original

petitioner and all concerned and objections were called for. The Consolidation Officer, Pune caused the publication of the scheme through the Talathi in the village by beat of drum on 14.10.1988 and on Taluka Notice Board on 21.10.1988 and since no objections were received within a stipulated period of 30 days. Settlement Commissioner confirmed and varied the scheme on 2.1.1989.

8. Rule 29 of the Rules of 1959 reads thus :-

"29. Publication of draft of variation under sub-section (1) of Section 32: The draft of variation of a scheme under sub-section (1) of Section 32, shall be published by affixing a copy of the same together with a notice in Form IX, for thirty days at the Chavdi and if there is no Chavdi, at the office of the Village Panchayat and if there is no Village Panchayat for such Village, then at any other conspicuous public place in each of the villages concerned in the regional language of such village.

It shall also be announced in each village by beat of drum, that the draft variation has been so published.

A copy of the notice in Form IX shall also be affixed for thirty days at the Taluka or Tahsil Kacheri of the Taluka or Tahsil concerned in the regional language of the Taluka or Tahsil."

9. We find that the procedure contemplated under Rule 29 has not been followed and as a result thereof, the petitioner was deprived of filing objections. Rule 29 mandates that a draft variation of scheme under subsection (1) of Section 32 shall be published by affixing a copy of the same together with notice in Form IX for 30 days at the Chavdi and if there is no Chavdi, at the office of the Village Panchayat and if there is no Village Panchayat for such village, then at any other conspicuous public place in each of the villages concerned in the regional language of such notice and it shall also be announced in each village by beat of drum that the draft variation has been so published and a copy of the notice in Form IX shall also be affixed for thirty days at the Taluka or Tahsil Kacheri of the Taluka or Tahsil concerned in the regional language of the Taluka or Tahsil. Since it is stated in the affidavit in reply that the draft notice was published through the Talathi in the village by beat of drum on 14.10.1988, and placed on Taluka Notice Board on 21.10.1988, we have no reason to disbelieve the said statement. However, mere publication of the varied scheme by beat of drum and Taluka Notice Board is not the compliance of Rule 29. It is mandatory for the Settlement Commissioner that the draft variation of the scheme under Section 32(1) is published by affixing a copy of the same together with notice in Form IX for 30 days at the Chavdi of Village and if there is no Chavdi, at the office of Village Panchayat and if there is no Village Panchayat then at any other conspicuous public place in the concerned village in the regional language of such village. In the affidavit in reply, it is not even stated nor any material is placed that the draft of variation of scheme under sub-section (1) of Section 32 was affixed together with notice in Form IX in the regional language of the said village at any of the requisite places. It is also not stated that since there is no Chavdi in the village and no Village Panchayat, it was published at any other conspicuous public place in the said Village. Publication of notice on Taluka/Tahsil Kacheri of the Taluka or Tahsil in the regional language is an additional mode to the mandatory mode of publication by affixing copy

of the scheme together with notice in Form IX at the Chavdi of the village and in its absence at the office of Village Panchayat and in that absence at the conspicuous public place of the concerned village. We find that mandatory procedure of publication of draft of variation of the scheme under sub-section (1) of Section 32 as required under rule 29 was not followed and that vitiates the order dated 2.1.1989.

10. We accordingly set aside the order dated 2.1.1989 passed by Settlement Commissioner (Exh. A) so far as it affects the original petitioner.

11. Rule is made absolute in the aforesaid terms.

12. No costs.

The parties may be provided ordinary copy of this order duly authenticated by the Court Sheristedar on payment of usual copying charges.