Bombay High Court
Sanjeev Babaram Vichare And Ors vs The Honorable State Minister For ... on 22 October, 2021
Bench: N. J. Jamadar
WPST-28016-2019-J-SB.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
signed by WRIT PETITION (ST.) NO. 28016 OF 2019
SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
TALEKAR Date: 1. Sanjeev Babaram Vichare,
2021.10.22
13:44:55 Aged about 55 years,
+0530
Occupation : Business,
R/o. Khamgaon, Tal. Mhalsa,
District : Raigad.
2. Kazi Mohammed Mazhar Fatagar,
Aged about 60 years,
Occupation : Business,
R/o. Harkol, Tal. Mangaon,
District : Raigad.
3. Liladhar Sadashiv Kelkar,
Since deceased through his heir
& Legal representative :
Vijay Loladhar Kelkar,
Since deceased through his heirs,
& legal representatives :
3A Shilpa Vijay Kelkar,
Aged about 58 years,
Occupation : Service,
3B Kamlesh Vijay Kelkar, Aged about
32 years,
Occupation : Service,
Nos. 3A and 3B are Ro. Flat No.
304,
'E' Wing, Sadguru Park,
Khendad, Tal. Mangaon,
District : Raigad
3C Girija Mahesh Karkare,
Aged about 36 years,
Occupation : Service,
3D Vikas Vijay Kelkar,
Aged about 30 years,
Occupation : Service,
Both R/o. Parshuram Building,
Shraddha Talekar, PS 1/30
WPST-28016-2019-J-SB.doc
J.K. Files, Miljule MIDC,
Ratnagiri.
4 Dattatraya Balkrushna Shinde,
Aged about 65 years,
Occupation : Retired,
R/o. Khandad, Tal. Mangaon,
District : Raigad
5 Kutbuddin Kazi Mohammed
Mazhar Fatagar,
Aged about 65 years,
Occupation : Business,
R/o. Harkol, Tal. Mangaon, .... Petitioners
District : Raigad
Versus
1. The Hon'ble State Minister for
Revenue, Maharashtra State,
Mantralaya, Mumbai
2. Deputy Director, Land Records-
Kokan Division, Mumbai
3. Superintendent of Land Records
Mangaon, District : Raigad
4. Taluka Inspector of Land Records,
Mangaon, District : Raigad
5. Sanjay Maruti Hegadkar,
Aged about 51 years,
Occupation : Service,
R/o. Behind Jalaram Saw Mill,
Mumbai-Goa Highway, Mangaon,
Tal. Mangaon, District : Raigad,
6. Sunil Shivram Khaire,
Aged about 42 years,
Occupation : Tailor,
R/o. Matulya Apartment, 'A' Wing,
2nd foor Mangaon, Tal. Mangaon,
District : Raigad.
7. Kailas Ramchandra Bhingare,
Shraddha Talekar, PS 2/30
WPST-28016-2019-J-SB.doc
Aged about 40 years,
Occupation : Business,
R/o. Ekta Nagar, Mangaon,
Tal. Mangaon, District Raigad
8. Vilas Gujani Chandorkar,
Aged about 52 years,
Occupation : Service,
R/o. Balaji Complex, 8 Wing, 302,
Mangaon, Tal. Mangaon,
District : Raigad.
9. Prashant Sakharam Goregaonkar,
Aged about 46 years,
Occupation : Engineer,
R/o. Goregaon, Tal. Mangaon,
District : Raigad
10. Sou.Savita Namdeo Bhingare,
Aged about 40 years,
Occupation : Household,
R/o.Ekta Nagar, Mangaon,
Ta. Mangaon, District : Raigad
11. Ajit Ashok Pawar,
Aged about 32 years,
Occupation : Service,
R/o. Dhruva Building, 'A' Wing,
Flat No. 104, Vidya Nagar,
Tal. Alibag, District Raigad.
12. Sou. Vaishali Sankeshwar Pawar,
Aged about 35 years,
Occupation : Service,
R/o. Indapur, Tal. Mangaon,
District : Raigad
13. Rajendra Anna Bhingare,
Aged about 51 years,
Occupation : Service,
R/o.Room No. 206, Govind Sai,
P.G.C.T. Mumbai Goa Highway,
Mahad, District : Raigad
14. Dr. Jagdish Pravinbhai Patel,
Aged about 58 years,
Shraddha Talekar, PS 3/30
WPST-28016-2019-J-SB.doc
Occupation : Medical Practitioner ,
R/o. 104, Dhanse Residency,
Morba Road, Mangaon,
Tal. Mangaon, District : Raigad
15. Dr. Shyam B. Dhavan,
Aged about 54 years,
Occupation : Business,
R/o. Premiyash Chilk Fishs Pvt.
Ltd., at Tadvagale, Post Poynad,
Tal. Alibag, District : Raigad
16. Vikas Govind Mohite,
Aged about 55 years,
Occupation : Service,
R/o.AM-37, RIL Petro Chemicals
Township, Nagothane,
District : Raigad
17. Dr. Varsha Sanjay Mali,
Aged about 37 years,
Occupation : Medical Practitioner,
R/o. Dr. Mali Hospital, Nijampur
Road, Mangaon, Tal. Mangaon,
District : Raigad
18. Santosh Kisan Nikam,
Aged about 42 years,
Occupation : Service,
R/o. Ganga Building, Room No.11,
Alibag, Tal. Alibag
District : Raigad
19. Sou. Shabira Mahamud Raut,
Aged about 75 years,
Occupation : Household,,
R/o. Morba, Tal. Mangaon,
District : Raigad
20. Sou. Vidya Devendra Shirke
Aged about 40 years,
Occupation : Service,
R/o. Lonashi Phata, Near Sai
Mandir, Mangaon, Tal. Mangaon,
District : Raigad
Shraddha Talekar, PS 4/30
WPST-28016-2019-J-SB.doc
21. Suresh Pandurang Natkare
Aged about 49 years,
Occupation : Agriculture,
R/o. Manjavane (Vatyachiwali),
Tal. Mangaon, District : Raigad
22. Mangesh Tukaram Mhaskar
Aged about 44 years,
Occupation : Service,
R/o. Lonashi Phata, Near Sai
Mandir, Mangaon, , Tal. Mangaon,
District : Raigad
23. Inaytulla Mulla Abdul Sayyed Jalal
Since deceased through his heirs
& legal representatives :
23(a) Azhar Inaytulla Jalal
Age : 36 years, Occu. Farmer,
23(b) Mazhar Inayatullah Jalal
Age : 34 years, Occ:
23(c) Arif Inaytulla Jalal
Age : 30 years, Occu. Driver
23(d) Athar Inaytulla Jalal
Age : 28 years, Occu. Driver,
23(e) Rabiya Inaytulla Jalal
Age : 24 years, Occu. Student,
23(f) Khadija Inaytulla Jalal
Age : 58 years, Occu. Household
All Resp. No. 23(a) to 23(f) are
resident Tol, Tal. Mahad, Dist. :
Raigad,
24. Smt. Ayesha A. Sattar Jalgaonkar
Aged about 65 years,
Occupation : Household,,
R/o. Sai, Tal. Mangaon,
District : Raigad
25. Sou. Pragati Pradip More,
Aged about 42 years,
Occupation : Household,
R/o. Golden Park Building,
Shraddha Talekar, PS 5/30
WPST-28016-2019-J-SB.doc
Near Matoshri Service Centre,
Mumbai-Goa High way, Khandad,
Tal. Mangaon, District : Raigad
26. Sayali Sanjay Kamble,
Aged about 48 years,
Occupation : Household,,
R/o. Golden Park Building,
Near Matoshri Service Centre,
Mumbai-Goa High way, Khandad,
Tal. Mangaon, District : Raigad
27. Kisan Tatayaba Bhingare,
Aged about 55 years,
Occupation : Service,
R/o. Sainagar, Mangaon,
Tal. Mangaon, District : Raigad
28. Ramdas Shankar Pawar
Aged about 45 years,
Occupation : Business,
R/o. Sai Nagar, Jangam Chawl,
Mangaon East, Tal. Mangaon,
District : Raigad
29. Mohan Bapu Gawade,
Aged about 54 years,,
Occupation : Business,
R/o. Mangaon, Tal. Mangaon,
District : Raigad.
30. Sou. Anisha Avinash Rajapurkar,
Aged about 53 years,
Occupation : Business,
R/o. Ramchandra Plaza,
Mangaon, Tal. Mangaon,
District Raigad.
31. Jagdish Harishchandra Shirgudi,
Aged about 50 years,
Occupation : Business,
C/o. Anisha Avinash Rajapurkar,
R/o. Ramchandra Plaza,
Mangaon, Tal. Mangaon, ... Respondents
District Raigad.
Shraddha Talekar, PS 6/30
WPST-28016-2019-J-SB.doc
Mr.Pradeep D. Dalvi i/b Mr. Ramdas Hake Patil for petitioners.
Mrs. M.S. Bane, AGP for respondent Nos.1 to 4.
Mr. Surel Shah i/b Mr. Sachin K. Hande for respondent Nos.5 to
22, 24, 27 and 28.
CORAM : N. J. JAMADAR, JJ.
Reserved for Judgment on : 31st AUGUST 2021.
Judgment Pronounced on : 22nd October 2021.
JUDGMENT :
1. Rule. Rule made returnable forthwith and, with the consent
of the counsels for the parties, heard fnally.
2. This petition under Article 227 of the Constitution of India
calls in question the legality, propriety and correctness of the
orders dated 14th January 2019 and 29th July 2019, passed by the
Minister (Revenue) in RTS-2818-P.K. 583/J-4A, whereby the
Minister was persuaded to condone the delay in preferring the
appeal, by the order dated 14 th January 2019, and eventually
allow the revision and set aside the orders passed by the Deputy
Director, Land Records, Kokan Division, Mumbai-respondent
No.2, ordering the modifcation of the scheme under section 32 of
the Maharashtra Prevention of Fragmentation and Consolidation
of Holdings Act, 1947 ('the Consolidation Act, 1947').
Shraddha Talekar, PS 7/30
WPST-28016-2019-J-SB.doc
3. Shorn of unnecessary details, the background facts, can be
stated as under :
(a) Kamlini Liladhar Kelkar, the predecessor-
in-title of petitioner No.3-Liladhar Kelkar was
the original holder of agriculture land bearing
H 58 R ('the subject land'). Out of the said
land, the deceased respondent No.23 -
Inayutulla Jalal purchased an area
admeasuring 2H 2 R from the original holder,
in the year 1980. The petitioner No.2
purchased another parcel of land admeasuring
2 H, 2 R from the original holder on 21 st
September 1980. Still, 54R land remained with
the original holder.
(b) In the Consolidation Scheme, notifed
in the year 1979, the old survey No.51 came to
and 561. Yet, the Tahasildar, Mangaon, by
order dated 14th May 1987, granted Non-
Shraddha Talekar, PS 8/30
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Agricultural use permission (N.A. permission)
in respect of Survey No. 51, upon certain
conditions to be complied with, by the holders
of the subject land, without verifying the
Consolidation Scheme. On the basis of the
said N.A. permission, the respondent Nos. 5 to
22 and 24 to 28 purchased the plots, carved
out from the subject land.
(c) Since, it transpired that the 54R land
which remained with the original holder had
been encroached upon, and the said portion of
land did not fnd mention in the map of the
said survey number. The petitioner No.3 and
others made the grievances before the
competent authorities. Measurement of the
subject land was sought. As it transpired that
there were defects in the Consolidation
Scheme, on 23rd August 2012, the petitioner
No.2, respondent No.23 and the other land
holders, (respondent Nos.29 to 31 in this
petition) submitted an application before the
Shraddha Talekar, PS 9/30
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Deputy Director, Land Records-respondent
No.2 seeking modifcation in the Consolidation
Scheme, pointing out patent errors therein.
The respondent No.2 invited objection. A draft
notifcation of modifcation was published on
21st July 2014. Eventually, by the order dated
18th February 2015, the scheme was modifed.
(d) Being aggrieved by and dissatisfed
with the order dated 18th February 2015,
modifying the Consolidation Scheme, the
respondent Nos.5 to 22 and 24 to 28 herein
preferred a proceeding, purported to be an
appeal, before the State Government. Since
there was delay in preferring the appeal, an
application for condonation of delay was also
preferred. The Minister (Revenue) construed
the said proceeding to be a revision under
section 257 of the Maharashtra Land Revenue
Code, 1966 ('the Code, 1966') and allowed the
same by quashing and setting aside draft
notifcation of modifcation, dated 19th
Shraddha Talekar, PS 10/30
WPST-28016-2019-J-SB.doc
December 2014, and the order dated 18th
February 2015, whereby and whereunder, the
Consolidation Scheme was modifed and the
consequent orders of correction of the record
of rights in respect of the subject land.
Resultantly the N.A. permission dated 14th May
1987 and the map settled by the Deputy
Superintendent, Mangaon, vide measurement
register No. 264, came to be restored.
(e) Being aggrieved, the petitioners have
invoked the writ jurisdiction of this Court.
(f) Initially, the principal challenge,
inter-alia, was that the Minister committed a
manifest error in law in entertaining the
revision without frst condoning the delay in
fling the said proceeding. The impugned order,
thus, suffers from the vice of jurisdictional
error. However, when it was pointed out that
on 14th January 2018, the Minister had
condoned the delay in preferring the said
proceeding and posted the matter for hearing
Shraddha Talekar, PS 11/30
WPST-28016-2019-J-SB.doc
on merits, the petitioners challenged the said
order of condonation of delay by raising
grounds of challenge thereto.
4. In the aforesaid fact-situation, I have heard Mr.Pradeep
Dalvi, the learned counsel for the petitioners, Mrs. M.S. Bane, the
learned AGP for respondent Nos.1 to 4 and Mr. Surel Shah, the
learned counsel for respondent Nos.5 to 22, 24, 27 and 28, at
length. With the assistance of the learned counsels for the parties,
I have carefully perused the material on record, including the
orders passed by the statutory authorities.
5. Mr. Dalvi, the learned counsel for the petitioners advanced a
two-pronged submission. First, the Minister did not follow the
fundamental principles of judicial process. The petitioners were
not provided with the copy of the order whereby the delay in
preferring the proceeding against the order passed by the Deputy
Director, Land Records, modifying the Consolidation Scheme
dated 18th February 2015, was sought to be assailed. Therefore,
the petitioners proceeded on the premise that there was no order
of condonation of delay, and, accordingly the grounds were raised
Shraddha Talekar, PS 12/30
WPST-28016-2019-J-SB.doc
in the petition. Later on, the State Government made available a
copy of the order (Exh.P1, Page 132 A of the petition), whereby and
whereunder, the Minister condoned the delay by a single line
order. The order is bereft of reasons. Thus, according to Mr. Dalvi,
the order of condonation of delay, sans reasons, vitiated the
exercise of jurisdiction by the Minister.
6. Second, the very exercise of jurisdiction to interfere with a
well reasoned order passed by the Deputy Director, Land Records-
respondent No.2, is fawed. In fact, the order passed by the
Deputy Director, Land Records was not susceptible to appeal.
Consequently, neither the respondent Nos. 5 to 22 and 24 to 28
could have preferred the appeal against the said order. Nor the
Minister was at liberty to construe the said appeal as a revision by
invoking the provisions contained in section 257 of the Code,
1966. Thus, according to Mr. Dalvi, the impugned order is wholly
unsustainable for having been passed in exercise of jurisdiction
not vested in the State Government.
7. In opposition to this, Mrs. Bane, the learned AGP made an
endeavour to support the impugned order. Laying emphasis on
Shraddha Talekar, PS 13/30
WPST-28016-2019-J-SB.doc
the fact that the Deputy Director, Land Records had modifed the
Consolidation Scheme after more than 30 years of its settlement,
it was urged that the Minister was justifed in correcting the error
which the lower authority had fallen into.
8. Mr.Surel Shah, the learned counsel for respondent Nos. 5 to
22, 24, 27 and 28 stoutly submitted that none of the grounds
sought to be urged on behalf of the petitioners deserve
countenance. The challenge to the impugned order on the premise
that the Minister could not have entertained the proceeding
without condoning the delay, is not well grounded in facts. The
order dated 14th January 2019 explicitly indicates that delay was
condoned. Since, the petitioners did not question the legality and
correctness of the said order of condonation of delay, at this
juncture, according to Mr. Shah, the petitioners cannot be
permitted to question the validity thereof.
9. As regards, the jurisdiction of the State to interfere with the
order passed by the Deputy Director, Land Records-respondent
No.2 modifying the Consolidation Scheme, Mr. Shah strenuously
submitted that the petitioners had not at all raised the issue of
Shraddha Talekar, PS 14/30
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jurisdiction before the Minister. In any event, according to Mr.
Shah, misquoting of a provision of law, while entertaining the
proceeding, is of no consequence. What is of paramount
signifcance is the existence of authority. Once source of power is
relatable to a provision of law, failure to mention the said
provision or mentioning of a wrong provision does not denude the
authority of the statutory power, urged Mr. Shah. Lastly,
according to Mr. Shah, the illegality of the exercise of modifcation
of the scheme, after a lapse of about 35 years, in the face of well
neigh settled legal position that such modifcation is required to
be made within a reasonable time, cannot be lost sight of. As a
necessary corollary, the ultimate effect of interfering with the
impugned order needs to be kept in view. This Court should refuse
to exercise the extraordinary jurisdiction if the necessary corollary
of interfering with the impugned order is revival of an illegal
order., submitted Mr. Shah.
10. The aforesaid submissions now fall for consideration. To
begin with, it is imperative to note that there is not much
controversy over the fact that the Consolidation Scheme in respect
of the subject land was settled in the year 1979. Nor is it in
Shraddha Talekar, PS 15/30
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dispute that non-agriculture use was authorised by the
Tahasildar, Mangaon by an order dated 14 th May 1987. The trigger
for modifcation in the Consolidation Scheme was the application
preferred by the petitioner No. 2-Mohammed Mazhar Kazi,
respondent No.23-Inaytulla Mulla Jalal, respondent No.29-Rohan
Bapu Gawde, respondent No.30-Avinash Ramchandra Rajapurkar,
and Jagdish Harishchandra Shirgudi-respondent no.31 on 23 rd
August 2012. One of the principal grievance therein was that the
area shown in the map annexed to the N.A. order did not
correspond with the area at site and, thus, it was necessary to
correct the Consolidation Scheme and the said map. Eventually,
the Consolidation Scheme was corrected by the impugned order
dated 18th February 2015.
11. It would be contextually relevant to note that the Minister
was of the view that pursuant to the N.A. order, third party rights
were created in favour of the persons who purchased the plots and
thus non-compliance with the conditions incorporated in the said
N.A. order, by the original holders, could not have furnished a
justifcation for modifcation in the Consolidation Scheme after
about 28 years of the settlement of the scheme. It was further
Shraddha Talekar, PS 16/30
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noted that the draft modifcation did not indicate any error in the
area of the land before the settlement of the scheme and after
implementation of the scheme.
12. Section 32 of the Consolidation Act, 1947 which empowers
the Settlement Commissioner to vary and modify the scheme,
reads as under :
"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 may 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 ft, 7* * * *
make the variation with or without modifcation or may
not make any variation.
[(3A) If the scheme is varied under sub-section
(3), a notifcation stating that the scheme has been
varied shall be published in the Offcial 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 notifcation [stating
that the scheme has been varied] the variation shall
take effect as if it were incorporated in the scheme."
13. Evidently, the Settlement Commissioner is empowered to
vary the scheme, after notifying the draft of the variation, in the
Shraddha Talekar, PS 17/30
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prescribed manner, receiving objections thereto and making an
appropriate enquiry in that regard, if it appears to the Settlement
Commissioner that the scheme is defective on account of an error
[other than the clerical and arithmetical mistake which he is
otherwise empowered to correct under section 31(A)], irregularity
or informality. Pertinently, no time limit is prescribed under
section 32 for the Settlement Commissioner to vary the scheme.
It, however, does not imply that the authority is free to vary the
scheme at any point of time. The legal position has crystallized to
the effect that even in the absence of any period prescribed under
section 32, the said power can only be exercised within a
reasonable period. Undoubtedly, the reasonability of the period for
exercise of the power may depend upon the attendant facts of the
case. However, where no period of limitation is stipulated,
ordinarily, the reasonable time to exercise the power is construed
to be of three years.
14. A proftable reference, in this context, can be made to a
judgment of the Division Bench of this Court in the case of
Gulabrao Bhaurao Kakade, (Smt..) since deceased by His Heirs
and Legal Representatives deceased vs Nivrutti Krishna Bhilare &
Shraddha Talekar, PS 18/30
WPST-28016-2019-J-SB.doc
Ors.1, wherein, after adverting to the provisions contained in
section 32 of the Consolidation Act, 1947, the Division Bench
enunciated the position, inter-alia, as under :-
"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
specifc period for exercise of that power by Settlement
Commissioner but ordinarily exercise of such power
after three years of fnalisation of scheme under
section 22 may not be Justifed. 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 fnalised in the
year 1973 under the Act of 1947 to the knowledge of all
the parties concerned. Nobody was aggrieved by the
said scheme fnalised under the Act of 1947 and the
scheme came into force under section 22. The said
scheme which had been fnalised 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
1 (2001) 4 Mh.L.J. 31
Shraddha Talekar, PS 19/30
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unjustifed."
15. A proftable reference can also be made to the judgment of
the Supreme Court in the case of Santoshkumar Shivgonda Patil
& Ors. Vs. Balasaheb Shevale & Ors. 2, wherein it was enunciated
that when a statute does not prescribe a particular period of
limitation, ordinarily a period of three years is required to be read
into such a statute. The observations in Para Nos. 11 and 12 are
instructive and hence, extracted below :
"11 It seems to be fairly settled that if a statue does
not prescribe the time limit for exercise of revisional
power, it does not mean that such power can be
exercised at any time; rather it should be exercised
within a reasonable time. It is so because the law
does not expect a settled thing to be unsettled after a
long lapse of time. Where the legislature does not
provide for any length of time within which the power
of revision is to be exercised by the authority, suo
motu or otherwise, it is plain that exercise of such
power within reasonable time is inherent therein.
12 Ordinarily, the reasonable period within which
power of revision may be exercised would be three
years under Section 257 of the Maharashtra Land
Revenue Code subject, of course, to the exceptional
circumstances in a given case, but surely exercise of
revisional power after a lapse of 17 years is not a
reasonable time. Invocation of revisional power by the
Sub- Divisional Offcer under Section 257 of the
Maharashtra Land Revenue Code is plainly an abuse
of process in the facts and circumstances of the case
assuming that the order of Tehsildar passed on
March 30, 1976 is fawed and legally not correct."
2 (2009) 9 SCC 352
Shraddha Talekar, PS 20/30
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16. A Division Bench of this Court in the case of Suresh Bapu
Sankanna & Ors. Vs. State of Maharashtra & Ors. 3
, after
adverting to the aforesaid pronouncements, expounded the legal
position to the effect that even if there is no specifc period
prescribed in Section 32 of the Consolidation Act, 1947, as regards
limitation, an application for modifcation or correction of fnalised
consolidation scheme can be made only within three years of such
fnalisation of the scheme.
17. In the backdrop of the aforesaid enunciation of law, reverting
to the facts of the case, it becomes evident that the petitioner
No.2, respondent No. 23 and others had preferred the application
seeking modifcation in the Consolidation Scheme well after 32
years of the settlement of the scheme in the year 1979. What
accentuates the situation is the fact that that the foundational
premise of the application was that the area indicated in the map
annexed to the N.A. order was at variance with the actual area on
the spot. In the circumstances, the Minister (Revenue) does not
seem to have committed an error in holding that there was no
patent error in the Consolidation Scheme which warranted
3 2018(4) Mh.L.J. 331
Shraddha Talekar, PS 21/30
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rectifcation after a lapse of 35 years. It is a common ground that,
post N.A. order, the subject land was sub-divided into numerous
plots. The Consolidation Scheme was fully implemented and land
changed hands. In this background, the exercise of the power
after lapse of 35 years of the settlement of the scheme, entailed
the consequence of unsettling the settled claims. The material on
record does not indicate that resort to the power to vary the
Consolidation Scheme was justifed.
18. This propels me to the consideration of submissions
canvassed by Mr. Dalvi. Though, Mr.Dalvi, the learned counsel for
the petitioners was justifed in advancing criticism against the
order passed by the Minister condoning the delay, by a stroke of
pen, yet the substance of the matter cannot be lost sight of.
Indisputably, the record indicates that the delay was condoned by
order dated 14th January 2018. The claim of the petitioners that
the petitioners were unaware of the delay condonation order, is
belied by the application (Exh. 'R', page 133 of the petition)
preferred by the petitioner No.1 herein (Respondent No.4 before
the Minister) seeking certifed copy of the order dated 14 th January
2019, whereby the Minister condoned the delay. There might be
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some substance in the grievance on behalf of the petitioners that
the certifed copy of the said order condoning the delay was not
furnished expeditiously. However, the fact remains that the
petitioners were aware of the order condoning the delay, having
been passed on 14th January 2019. Thus, at this stage, having
regard to the core issue of the justifability of the modifcation of
the Consolidation Scheme, after a period of 35 years, the fact that
the delay was condoned by a non-speaking order pales in
signifcance.
19. On the aspect of the exercise of the revisional jurisdiction by
the Minister, Mr. Dalvi laid emphasis on the fact that an order
passed by the Settlement Commissioner under section 32 of the
Consolidation Act, 1947 is neither appealable nor revisable.
Attention of the Court was invited to the provisions contained in
sections 35 and 36 of the Consolidation Act, 1947. They read as
under :
"35 The [State] Government [*or the
Commissioner in respect of such matters as the
State Government may be general or special order
specify in this behalf] may at any time for the
purpose of satisfying itself 103[or himself as the
case may be] as to the legality or propriety of any
order passed by any offcer under this Act call for
and examine the record of any case pending
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before or disposed of by such offcer and may pass
such order in reference thereto as it 103[ or he, as
the case may be, ] think ft : [Provided that no
order shall be varied or revised until the parties
interested have been given a reasonable
opportunity of showing cause against the proposed
variation of revision of the order. ]
36. Except as provided in this Act, no appeal or
revision application shall lie from any order passed
under Chapter II, III or IV of this Act.
20. Mr. Dalvi would urge that though the State Government is
vested with the power to examine the legality and propriety of any
order passed under the Consolidation Act, 1947, under section 35
of the Act, yet, in the instant case, the Minister did not resort to
the said power. Instead, the Minister misdirected himself in
exercising the power under section 257 of the Code, 1966.
21. The aforesaid submission appears alluring at the frst blush.
However, on a close scrutiny, it does not advance the cause of the
petitioners. It is not the case that the State Government is not
vested with the power to call for and examine the proceeding
pending before or decided by the authority under the
Consolidation Act, 1947. Evidently, the power under section 35
can be exercised either on an application or sou-moto. Thus, the
existence of the power to revise an order can hardly be questioned.
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22. From aforesaid standpoint, I fnd considerable substance in
the submission of Mr. Shah that non-mention of section 35 in the
impugned order, is of no consequence. In the light of the
provisions contained in section 35 of the Consolidation Act, 1947,
the source of power to revise the order can hardly be gainsaid.
Reliance placed by Mr. Shah on the judgment of the Supreme
Court in the case of J. Kumaradasan Nair and Anr. Vs. Iric Sohan
& Ors. 4
appears well founded. In the said case, in the context of
exercise of the powers to condone the delay, the Supreme Court
observed as under :
"18 It is also now a well-settled principle of
law that mentioning of a wrong provision or non-
mentioning of any provision of law would, by itself,
be not suffcient to take away the jurisdiction of a
court if it is otherwise vested in it in law. Wile
exercising its power, the court will merely consider
whether it has the source to exercise such power or
not. .................."
(emphasis supplied)
23. In view of the aforesaid exposition of law, in the face of clear
and explicit empowerment in law to revise the order, passed by the
authorities, under section 35 of the Consolidation Act, 1947, I fnd
it rather diffcult to accede to the submission on behalf of the
petitioners that the Minister fell in error in entertaining the
4 (2009) 12 SCC 175
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revision and interfering with the orders passed by the Deputy
Director, Land Records, in exercise of revisional jurisdiction.
24. The second limb of the submission of Mr.Shah that the
consequences of exercising writ jurisdiction are required to be
kept in view, and the Court would be justifed in declining to
exercise the jurisdiction in a case where interference would revive
an illegal order also appears to be well merited. As indicated
above, the order passed by the Deputy Director, Land Records to
modify the Consolidation Scheme, after a lapse of about 35 years,
did not appear in consonance with law. If the order impugned
herein is interfered with, it may revive the said order which is
vulnerable for being in teeth of the law laid down by this Court.
25. Should the Court interfere with an order which, in effect,
revives an illegal order ? The pronouncement of the Supreme
Court in the case of Raj Kumar Soni & Anr. Vs. State of U.P. &
Anr. 5
illuminates the path. In the said case, the order of the Sub-
Divisional Offcer, upon which the whole claim of the appellants
therein rested, being invalid and improper, could have been set
5 (2007) 10 SCC 635
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aside by the High Court, and thus, it was held, even if there was
any technical violation of the rules of natural justice, that was not
a ground for interference, as such interference would result in
resurrection of an illegal, nay, void order. While arriving at the
said conclusion, the Supreme Court adverted to its previous
pronouncements in the cases of Gadde Venkateswara Rao vs
and M.C.Mehta v. Union of
India 7 and observed as under :
"16In Gadde Venkateswara Rao v. Government of
A.P., a Primary Health Centre was formerly
inaugurated at a particular village subject to certain
conditions. Since those conditions are not satisfed,
the Panchayat Samithi resolved to shift it to another
village. The Government, in exercise of its review
jurisdiction, interfered with the resolution so passed
by the Panchayat Samithi without providing any
opportunity whatsoever to the Panchayat Samithi.
The government's order was challenged in a
proceeding under Article 226 of the Constitution of
India. The A.P. High Court held, the order passed by
the Government on the review to be bad, but did not
interfere on merits. The Supreme Court, while
confrming the order of the High Court observed that:
"if the High Court had quashed the
said order, it would have restored an
illegal order; it would have given the
Health Centre to a village, contrary to
the valid resolutions passed by the
Panchayat Samithi."
The Supreme Court opined that the High Court was
right in refusing to exercise its extraordinary
discretionary power under Article 226 of the
6 AIR 1966 SC 828
7 (1999) 6 SCC 237
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Constitution of India.
17 In M.C.Mehta v. Union of India , this Court,
relying upon Venkateshwara Rao observed : (SCC p.
244, para 17)
"The above case is clear authority for the
proposition that it is not always necessary
for the Court to strike down an order
merely because the order has been passed
against the petitioner in breach of natural
justice. The Court can under Article 32 of
Article 226 refuse to exercise its discretion
of striking down the order if such striking
down will result in restoration of another
order passed earlier in favour of the
petitioner and against the opposite party,
in violation of principles of natural justice
or is otherwise not in accordance with
law."
18 In our view, on the admitted and indisputable
facts set out above, any interference with the impugned
order of the District Collector would result in
restoration of orders passed earlier in favour of the
appellants which are otherwise not in accordance with
law."
26. On the aforesaid touchstone, re-adverting to the facts of the
case, the situation which thus obtains is that the order passed by
the Deputy Director, Land Records, being the outcome of an
improper exercise of the power under section 32 of the
Consolidation Act, 1947, is legally unsustainable. In the
circumstances, interference with the impugned order on the
premise that revisional jurisdiction was not properly exercised by
the Minister, (which contention is otherwise not found to be well
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merited) would inevitably lead to the restoration of the order
passed by the Deputy Director, Land Records, which this Court
fnds to be legally unsustainable. Thus, it may not be expedient to
exercise the extra-ordinary writ jurisdiction.
27. The conspectus of the aforesaid discussion is that no
interference is warranted in the impugned order passed by the
Minister.
28. The material on record also indicates that a suit is subjudice
at the instance of petitioner No.1, being RCS No. 95 of 2018 for
removal of encroachment and the consequential reliefs. It would,
thus, be suffce to observe that the contentions of all the parties
as regards the encroachment and/or proprietary title on the
particular parcels of subject land are kept open for agitation
before the competent forums. However, it is imperative to clarify
that this Court may not be understood to have delved into the
disputed questions as regards the alleged encroachment over the
portions of lands which form part of the original survey No. 51.
29. With the aforesaid clarifcation, the petition deserves to be
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dismissed.
30. Hence, the following order :
ORDER
The petition stands dismissed, subject to the
clarifcation in paragraph no. 28.
No costs.
Rule discharged.
(N. J. JAMADAR, J.)
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