Divakar Trimbak Bhalerao vs State Of Maharashtra And Ors
2017 Latest Caselaw 3407 Bom

                                                                             WP No. 4809/04
                                                1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                         WRIT PETITION NO. 4809 OF 2004

          Divakar S/o Trimbak Bhalerao
          (Since died through L.Rs.)
          Nitin S/o Divakar Bhalerao
          Age: 35 Years, Ocuu: Private Service,
          R/o Vitthal Mandir Kasba, Juna
          Jalana, Dist Jalana.                                     ....Petitioner.


                  Versus


1.        The State of Maharashtra

2.        The Deputy Director of Land Records,
          Aurangabad Region, Aurangabad.

3.        The Regional Special Officer,
          Departmental Enquiries for Nagpur &
          Aurangabad Region, At Nagpur.                            ....Respondents


Mr. A.S. Kale h/f. Mr. S.B. Talekar, Advocate for Petitioner.
Mr. A.S. Shinde, AGP for Respondent/State.


                                   CORAM        :     T.V. NALAWADE AND
                                                      SANGITRAO S. PATIL, JJ.

                                   DATED    :         June 21, 2017.


ORAL JUDGMENT : [PER T.V. NALAWADE, J.]

.                 The proceeding is filed mainly to challenge the order of

compulsory           retirement      made           against   the      petitioner       by     his

Disciplinary Authority. The other reliefs are consequential reliefs.

Both the sides are heard.

2. The petitioner was working as Surveyor in the office of

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Consolidation II, Jalna district at Aurangabad. He was a member of

committee constituted for implementation of consolidation scheme

in respect of lands of village Mohol. Complaint applications were

received regarding illegal changes of the record from some persons.

One Shri. Ratanlal, owner of Survey No. 21 had contended that he

was owner of this land and there was record in his name also prior

to starting of consolidation scheme, but by using the consolidation

scheme, false record of ownership was created in favour of third

person like Motiram Punjaji. Similar complaints were received from

owners of Survey Nos. 31, 37 and 39. Preliminary enquiry was

made and it was noticed that the ownership was changed during the

implementation of consolidation scheme and false record of

ownership was created in the names of other persons like tenants.

There was no record to confer ownership and there was no order of

competent authority under the Maharashtra Land Revenue Code or

Tenancy Law on the basis of which the ownership record could have

been changed while giving different numbers to aforesaid survey

numbers during the implementation of consolidation scheme.

3. The other two members of the committee which were

implementing the scheme for this village were Nimtanadar - U.P.

Bagul and Assistant Consolidation Officer - Shri. B.H. Jasud. As per

the duties involved, the surveyor was to visit the field and make

enquiry with the persons in possession of lands and others, record

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the statements and prepare the record for implementation of

consolidation scheme. Nimtandar being the superior officer to

surveyor was expected to verify the things and Assistant

Consolidation Officer ('ACO' for short) was the head of the

committee and he was expected to approve the record prepared by

the surveyor. The record was to be ultimately finalised by Deputy

Directors of Land Records, but the petitioner/surveyor was a man,

who was to work in the field and he was to do the measurement and

make spot enquiry. There was specific allegation in the departmental

enquiry against the petitioner that when he or the committee had

no power to change the record of ownership, when only numbers

were to be changed, they changed the names of the owners in all

the aforesaid cases and they apparently, did it intentionally for

illegal gratification. The show cause notices were issued against the

three members of the committee and after considering the say

given by the present petitioner, Departmental Enquiry was started

against him. In the same DE, the other two members were shown

as co-delinquents. Only Nimtandar and present petitioner appeared

before the Enquiry Officer and contested the proceeding.

4. The petitioner took the defence that the tenants had

given statements that they were in possession of these lands for

about 18-20 years and as they had given applications, such change

was made. The petitioner blamed ACO by contending that ACO had

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given him instruction to make such change. He took defence that on

the record of consolidation prepared by him, Nimtandar and ACO

had put their signatures and it shows that they had practically

verified the things and so, he cannot be blamed for creation of such

record.

5. ACO did not contest the enquiry and ultimately, he came

to be dismissed from the service after accepting the report given by

Enquiry Officer. It is held against him that the act was intentional

and for illegal gratification, false record was created behind the back

of the owners. On Nimtandar penalty of stopping of two increments

permanently is imposed. Present petitioner is compulsorily retired

when the Enquiry Officer had given opinion that the case of the

present petitioner is fit for removal from service.

6. In the present matter, everything is a matter of record

and only after proof of the complaint and consideration of the

record, it is possible to infer that the record of ownership was

changed by the present petitioner and he had created record in

favour of the persons, who were not owners. There was the

grievance of the owners that notices were not given to them for

making this change. It is not disputed that there was no order of

Tenancy Court or revenue authority in favouor tenants confirming

ownership on the tenants.

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7. It is argued for the petitioner that as against Nimtandar,

there is penalty of stopping of only two increments and so, the

penalty imposed on the petitioner is not proportionate and principle

of parity is not observed. In view of this submission, it needs to be

observed that it is the petitioner, who was expected to take the

measurement, who was expected to make enquiry with the persons,

who were in possession and also adjacent owners and who was

expected to consider the revenue record like Khatabook. Admittedly,

in revenue record the complainant and others were shown as

owners before implementation of consolidation scheme and by

deleting their names, the names of persons, who were contending

that they are in possession, were entered in ownership column and

accordingly, certificate was issued. Only the possession of a person

cannot make him owner and if the record is to be changed, that

needs to be changed by competent authority after making due

enquiry. In view of the present facts, it can be said that there was

no room to change the record of ownership as only numbers were to

be changed. In view of these circumstances, it cannot be presumed

that the petitioner did not know that he had no power to make such

change in the record though the petitioner has contended that due

to influence of ACO he did it. But there is no material to support

such contention.

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8. Nimtandar is superior officer to the petitioner, but his

duty involves supervision over the things done by the petitioner. In

view of these circumstances, the probability that Nimtandar believed

and trusted the present petitioner and he had not carefully verified

the record cannot be ruled out. However, same thing cannot be said

against the petitioner and ACO. As against ACO, present petitioner

has made allegations of aforesaid nature and ACO was virtually

absconding when DE was started. Thus, the role of Nimtandar was

of supervising in nature and possibility of negligence was there. In

view of such possibility, the penalty of stopping two increments is

imposed on him. So, it cannot be said that the allegations and

material as against the present petitioner were of same nature. In

view of these circumstances, it cannot be said that the principle of

parity was not observed by the Disciplinary Authority.

9. The defence taken by the petitioner that the tenants

were in possession for about 18-20 years and as the applications

were made by the tenants, the record was changed, has no force. It

is already observed that only authority created under the tenancy

law can confer ownership on tenants if it is possible under tenancy

law. It can be said that the petitioner tried to take lame defence of

aforesaid nature.

10. On the basis of enquiry, the Enquiry Officer and

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Disciplinary Authority formed opinion that the matter involved

corrupt practice. In view of the aforesaid circumstances, there is no

room to infer any other thing. Even when as against the petitioner

penalty of removal from service was suggested by the Enquiry

Officer, lenient view is taken and he is compulsorily retired. Thus,

atleast to some extent, he will be getting the pension and lenient

view is already taken in his favour. The Enquiry Officer and the

Disciplinary Authority have formed the opinion that such record was

intentionally created. On this point also, there is no other probability

created.

11. It was submitted by the learned counsel for the

petitioner that the owners could have taken objections as the

proposed draft was published in newspaper and even in the

concerned village. This defence cannot be considered. If the owners

were not in possession and if the notices were not given to them,

they were not supposed to guess that such record was being

created against them. Even if such record was created due to

mistake, the owners would not have lost their rights and this aspect

cannot be ignored. However, due to the act of the petitioner, he

created complications against owners and owners were dragged in

legal battle and they must have spent on litigation for getting

corrected the entries. Considering the harassment, which the

owners are required to face due to such acts of the officers and as

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such tendency is increasing day by day, no lenient view can be

taken in favour of person like present petitioner. Only way to curb

such tendency is to remove such persons from service.

12. The learned counsel for the petitioner placed reliance on

some observations made in the case reported as (2013) 3 SCC 73

[Rajendra Yadav Vs. State of M.P.] in support of his contention

that the penalty is not proportionate. Peculiar facts of the present

matter are already quoted and they show that the case as against

Nimtandar - Shri. Bagul was not similar to the allegations made as

against the petitioner and the material available as against the

petitioner is different. Thus, the observations made in the case cited

supra are of no help to the petitioner. It is already observed that

lenient view is taken in favour of the petitioner and so, it is not

possible to interfere in the order of penalty made against the

petitioner. In the result, the petition stands dismissed. Rule stands

discharged.

  [SANGITRAO S. PATIL, J.]                [T.V. NALAWADE, J.]



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