Bombay High Court
Revaji Karbhari Walunj vs The Divisional Commissioner ... on 28 June, 2017
Bench: R.V. Ghuge
WP/1542/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1542 OF 2016
Revaji Karbhari Walunj
Age 65 years, Occ. Agriculture,
R/o Pimpalgaon, Tq. Parner,
District Ahmednagar. ..Petitioner
Versus
1. The Divisional Commissioner,
Nashik Division, Nashik.
2. The District Superintendent
of Land Records, Ahmednagar.
3. The Deputy Superintendent
of Land Records, Parner,
District Ahmednagar.
4. Sajjan Maroti Kharmale,
Age 61 years, Occ. Agriculture
5. Santosh Maroti Kharmale
Age 32 years, Occ. Agriculture
Respondents 4 and 5 both are
residents of Post Wadgaon Savtala,
Tq. Parner, Dist. Ahmednagar.
6. Deputy Director of Land Records,
Nashik Division, Nashik. ..Respondents
...
Advocate for Petitioner : Shri Gawali Amol K.
AGP for Respondents 1 to 3 and 6 : Shri Bhagat N.T.
Advocate for Respondents 4 & 5 : Shri Karpe Rahul R.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated : June 28, 2017
...
WP/1542/2016
ORAL JUDGMENT:-
1. Leave to add the Deputy Director of Land Records, Nashik as
respondent No.6. Addition be carried out forthwith.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition is
taken up for final disposal.
4. By this petition, the petitioner has putforth prayer clauses (A)
and (B), which read as under:-
"(A) The Honourable High Court may be pleased to quash and
set aside the order dated 23.7.2015 bearing No. Ekatri / SR-94/
Kavi-410/15, passed by the respondent No.1 i.e. the Deputy
director of Land Record, Nashik Division, Nashik, thereby
entertaining the application dated 17.7.2015, filed by the
respondent Nos.4 and 5 without considering the delay of 45
years in filing the said application and further directing the
respondent No.3 to conduct an enquiry and submit a final report
for amendment of consolidation scheme.
(B) The Honourable High Court may be pleased to quash and
set aside the proceeding undertaken by the respondent Nos.1
and 3 in furtherance of the order dated 23.7.2015 for
WP/1542/2016
amendment of consolidation scheme as per the Application dated
17.7.2015 by the respondent Nos.4 and 5."
5. I have considered the submissions of the learned Advocates for
the respective sides and have gone through the petition paper book with
their assistance.
6. Sections 32 and 33 under the Maharashtra Prevention of
Fragmentation and Consolidation of Holdings Act ("the said Act")
permits the competent authority to vary or revoke a scheme.
Respondents 4 and 5 have sought such revocation by moving an
application dated 17.7.2015. Respondent No.1 has forwarded the said
application to respondent No.3 with the direction to complete the
enquiry and submit the report, by his communication dated 23.7.2015.
It is informed that the copies of the reports dated 3.11.2015 and
27.11.2015 are the outcome of such an enquiry.
7. The petitioner has raised two issues, based on which, it is
contended that respondent No.1 could not have initiated the process of
enquiry. Firstly, that respondent No.1 cannot delegate the powers to
respondent No.3, which are to be exercised under Sections 32 and 33
of the said Act. Secondly, the original consolidation scheme, which has
been settled for about 45 years ago, cannot be upset by respondent
WP/1542/2016
Nos.1 or 3, by entertaining the applications of respondents 4 and 5,
without condonation of delay.
8. In the matter of Gulabrao Bhaurao Kakade Vs. Nivrutti Krishna
Bhillare [2001 (4) Mh.L.J. 31], the learned Division Bench of this Court
has concluded that the Settlement Commissioner, who can exercise the
powers for causing variation in the scheme, will be permitted to do so
within a reasonable period, though no limitation has been prescribed
under Section 32 of the said Act. It is held that what would be a
reasonable period for exercising such powers by the Settlement
Commissioner would depend upon the facts and circumstances of each
case. Ordinarily, the said power cannot be exercised after three years of
the finalization of the scheme.
9. The learned Division Bench in the matter of Dattu Appa Patil Vs.
State of Maharashtra [2007 (1) Mh.L.J. 393], has concluded that
variation of a consolidation scheme after 27 years is totally unjustified
and the Settlement Commissioner ought not to exercise it's powers
under Section 32 of the said Act.
10. This Court in the case of Ganpati Dadu Mali Vs. State of
Maharashtra [2012 (1) Mh.L.J. 341], has held that the powers to vary
the scheme cannot be exercised after the period of 18 years under
WP/1542/2016
Section 32 of the said Act.
11. Learned counsel for the petitioner submits that this Court by
order dated 20.6.2017 in Writ Petition No.7701 of 2016 [Eknath Vs.
Narayan], has remitted the proceedings to the Settlement Commissioner
with a direction that he shall decide the issue of condonation of delay in
the light of the three judgments referred to above.
12. Learned counsel for the respective sides submit that they are
willing to appear before respondent No.6 - Deputy Director of Land
Records, Nashik. who is the Settlement Commissioner under Section 32
of the said Act.
13. In the light of the above, this petition is partly allowed with the
following directions:-
(A) The litigating sides shall appear before respondent No.6
on 7.7.2017 at 3.00 PM.
(B) Respondent Nos.4 and 5 shall file an application seeking
condonation of delay with the date of reference being the date of
the filing of the application under Sections 32 and 33 of the said
Act, which is 23.7.2015.
(C) The petitioner shall, thereafter, file a reply within four
WP/1542/2016
weeks, with regard to the application for condonation of delay.
(D) Respondent No.6, while considering the said application
shall take into consideration the law laid down by this Court in
the judgments in the cases of Gulabrao, Dattu and Ganpati
(supra).
(E) Respondent No.6 shall pass a reasoned order on the
application for condonation of delay.
(F) Until then, the reports of respondent No.3 dated
3.11.2015 and 27.11.2015 shall be kept in abeyance.
(G) In the event the delay is allowed, this order of keeping the
two reports in abeyance shall continue for a period of six weeks
from the date of the passing of the order by respondent No.6, so
as to enable the petitioner or any other aggrieved party to take
recourse to any legal remedy.
(H) Needless to state, if respondent No.6 did not condone the
delay, the said two reports dated 3.11.2015 and 27.11.2015
shall stand rejected.
14. Rule is made partly absolute accordingly.
( RAVINDRA V. GHUGE, J. )
...
akl/d
