Bombay High Court
Shri. Sahebrao Dagadu Thorat vs Shri. Sanjay Sitaram Thorat And ... on 27 August, 2021
Bench: N. J. Jamadar
13.wpst.296.2021.odt
dik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
DHANAPPA
DHANAPPA ERAPPA
CIVIL APPELLATE JURISDICTION
ERAPPA KOSHTI
KOSHTI Date:
WRIT PETITION (ST) NO. 296 OF 2021
2021.08.27
16:46:29
+0530
Sahebrao Dagadu Thorat ... Petitioner
Vs
Sanjay Sitaram Thorat & Ors. ... Respondents
Mr. Drupad S. Patil a/w Mr. Dheeraj D. Patil for the Petitioner
Mr Vaibhav V. Ugale a/w Mr. Yogesh M. Birajdar for Respondent
No.1.
Mr. C.D.Mali, AGP for the respondent/State.
CORAM : N. J. JAMADAR, J.
DATE : 27th AUGUST, 2021
ORAL ORDER :
1. Rule. Rule made returnable forthwith and with the
consent of the counsel for the parties, heard fnally.
2. The challenge in this petition is to an order passed by
respondent No.5 District Superintendent of Land Records, Pune
dated 14th December, 2020 in BHUMAPAN/4627/2020/5926,
whereby respondent No.5 was pleased to condone the delay in
preferring an appeal purported to be against the measurement in
respect of Gat No. 1619 vide measurement register No. 739/2005
dated 3rd May, 2006.
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3. By the said measurement it was recorded that the
holder of Gat.No.1617 is in occupation of an area admeasuring 77
Are out of Gat.No.1619, of which the petitioner is the holder. It
appears that the said measurement was sought to be questioned
by seeking a Nimtana Measurement by the respondent by an
application dated 3rd October, 2019. The Deputy Superintendent
of Land Records, Ambegaon (Pune), vide an letter dated 16 th
October, 2019, intimated the respondents that a period of 14
years had elapsed since the said measurement, vide
measurement register No.739 of 2005, and in accordance with
the rules, Nimtana Measurement was required to be sought
within 90 days and, thus, the request was turned down. The
respondents preferred an appeal against the said intimation and
sought condonation of delay for about 14 years. By the impugned
order dated 14th December, 2020 the Superintendent of Land
Records Pune was pleased to condone the delay.
4 Learned advocate for the petitioner submits that the
proceedings before the Superintendent of Land Records were not
at all tenable. First and foremost, the communication by the
Deputy Superintendent of Land Records dated 16 th October, 2019
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is not an order which is susceptible to appeal. Secondly, in view of
the provisions contained in Section 138(5) of the Maharashtra
Land Revenue Code, no proceedings could have been entertained
by the Revenue Authorities as the respondents herein have
invoked the jurisdiction of the Civil Court by instituting Regular
Civil Suit No.126 of 2012 against the order passed by the
Tahasildar directing removal of encroachment over the subject
land, dated 21st August, 2012 .
5 Mr. Ugle, the learned counsel for respondent No.1
submitted that apart from the said suit, there were proceedings
before the Revenue Authorities. Eventually, Second Appeal
preferred by the respondent bearing R.T.S. Appeal No.
2/A/880/2019 came to be dismissed by the Additional Collector,
Pune by a Judgment and Order dated 27 th February, 2019. The
respondents have assailed the said order by way of revision
before the Divisional Commissioner, Pune and by an interim order
dated 24th August, 2021, parties have been directed to maintain
the 'status-quo'.
6. From the perusal of the material on record, it becomes
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13.wpst.296.2021.odt
clear that the genesis of all the proceedings is the measurement
vide M.R.No. 739 of 2005 and the settlement of the boundaries,
on 3rd May, 2006. It seems that after the Tahasildar passed an
order of removal of encroachment on 21 st August, 2012, the
respondent instituted the suit. In view of the provisions
contained in sub-section (5) of Section 138, further proceedings
before the Revenue Authorities are expressly barred, once a suit
is instituted challenging the legality and correctness of the
measurement and settlement of the boundaries.
7 In this view of the matter, the submission on behalf of
the petitioner that the Superintendent of Land Records, Pune
ought to have considered the question of tenability of the
proceedings against settlement of the boundaries on 3.5.2006,
appears well founded. The Superintendent of Land Records,
Pune, prima facie, appears to have misdirected himself in
condoning the delay as if the appeal was tenable, as a matter of
right. In the circumstances, the impugned order deserves to be
quashed and set aside. As the issue of tenability of the appeal has
not been determined by the Appellate Authority, the proceedings
stand remitted to the Superintendent of Land Records, Pune to
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frst adjudicate the issue of tenability of the proceedings. Hence
the following order.
ORDER
a) The Writ Petition stands allowed.
b) The impugned order dated 14th December, 2020
stands quashed and set aside.
(c) The proceedings of appeal No.
BHUMAPAN/4627/2020/5926 stands remitted to the Appellate
Authority to adjudicate the issue of tenability of the proceedings,
in the nature of appeal, against the settlement of the boundaries
vide M.R.No.739 of 2005 dated 3.5.2006, after providing an
opportunity of hearing to both the parties.
d) The parties shall appear before the Appellate
Authority on 20th September, 2021.
e) In these circumstances, no separate notice is
required to be issued to the parties.
f) The determination is confned to the justifability
of orders of condonation of delay and this Court may not be
construed to have expressed opinion on the merits of the matter.
g) All contentions of all parties are expressly kept
open for consideration.
13.wpst.296.2021.odt
h) The Writ Petition is disposed of accordingly. No
order as to costs.
Rule is made absolute in aforesaid terms.
( N. J. JAMADAR , J. )
