Bombay High Court
Shamrao Fulsing Rathod vs Divisional Commissioner, ... on 1 September, 2021
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3261/2021
(Shamrao Fulsing Rathod vrs. Divisional Commissioner and three
others)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. N.S.Warulkar, Advocate for petitioner
Ms. M. Barabde, AGP for respondent Nos. 1 to 3
CORAM : AVINASH G. GHAROTE, J.
DATE : 01/09/2021
1] Heard Mr. Warulkar, learned counsel for the petitioner.
The petition challenges, (i) the order dated 8.8.2012, passed by
Respondent No.3/SDO, Pusad, which challenges the mutation entry
No. 89, dated 2.4.1993 in respect of Field Khasra No. 54/79,
admeasuring 4.86 hectare, Class-II, deleting the name of the original
owner Sakhubai Sagnaji Dhanwe and in her place entering the name
of Shamrao Fulsingh Rathod/petitioner, whereby the Mutation Entry
No. 89, dated 2.4.1993, has been cancelled and the name of the legal
heirs of Sakhbai Sagnaji Dhanwe has been directed to be entered in
respect of the above land; (ii) so also the subsequent order dated
30.8.2013, passed in Appeal by the Respondent No. 2/Collector,
Yavatmal, dismissing the appeal, and (iii) the order of the Divisional
Commissioner, Amravati, dated 27.12.2019, dismissing the revision,
by the present petitioner.
2] Mr. Warulkar, learned counsel for the petitioner submits
that late Sakhubai during her lifetime had executed a permanent lease
deed on 2.2.1993, in favour of the present petitioner, whereby, upon
receipt of consideration of Rs. 25,000/-, the entire rights in the
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aforesaid property are claimed to have been transferred in favour of
the present petitioner forever, and the petitioner was also placed in
possession of the said land, in pursuance of which the name of the
petitioner came to be mutated in 7/12 extract, in respect of the above
property. The learned counsel submits that in view of the mutation
entry dated 2.4.1993, the petitioner has acquired the right of
ownership over the said property. He contends that during her
lifetime, Sakhubai did not raise any objection to such transfer of title
and possession in favour of the petitioner. After the demise of
Sakhubai, her son the Respondent No. 4, filed an application before
the SDO challenging the mutation entry No. 89, dated 2.4.1993. An
application for condonation of delay was also filed in case it was held
that there was any delay in preferring the application, as according to
Respondent No.4, since knowledge of the mutation entry was received
by him in January-2012 and the appeal was filed in February-2012,
there was no delay whatsoever. He contends that without deciding the
application for condonation of delay, the learned SDO/Respondent
No.3, proceeded to decide the application, which according to him,
was not permissible in law. He, therefore, submits that all the three
orders on this ground alone stand vitiated. Reliance is placed on S.V.
Matha prasad vrs. Lalchand Meghraj and others [(2007) 14 SCC 772].
3] Learned AGP who appears for Respondent Nos.1 to 3
justifies the order. She submits that the application by Respondent
No.3 was entertained, as there was no delay whatsoever in view of the
statement made by Respondent No.4 that he had acquired knowledge
about the mutation entry in January-2012 and therefore, the question
of deciding the delay application did not arise. She submits that even
otherwise since the application has been decided on the merits, it has
to be presumed that the delay has been condoned. She further submits
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that the mutation entry No. 89, was an out an out fraudulent entry as
the document dated 2.2.1993 could never be considered in law as a
document being capable of transferring title in favour of the petitioner,
as it was neither registered nor any stamp duty was paid thereupon
and as such could not have been acted upon by the Revenue Officer
making the said entry, whereby the name of Sakhubai stood deleted
from 7/12 extract and the name of the petitioner stood entered. She
therefore submits that the law does not prescribe any limitation to set
aside a fraud practiced in the manner as indicated above and
considering this aspect, the appeal has been rightly entertained by the
Respondent No.3/SDO. She therefore submits that the law should not
countenance any such fraudulent activity on part of the petitioner,
which he has undertaken in collusion with the concerned Revenue
Officer who has carried out the entry No. 89, dated 2.4.1993.
4] The learned SDO by the order dated 8.8.2012 found that
the land in question was given to Sagnaji Maroti Dhanwe by the
Government and was held by him in Class-II right. After his demise,
the same by inheritance came to his widow Sakhubai. Sakhubai is
said to have passed away on 22.6.2008. He further found that the
document dated 2.2.1993 on the basis of which the mutation entry
was taken, was not a registered document and therefore, the mutation
entry No. 89 was clearly contrary to the law and therefore, directed its
deletion and restoration of the name of the L.Rs of Sakhubai. The
Respondent No.2/Collector, Yavatmal, in appeal found that the
holding of the said land was in occupancy Class-II right and the same
was not transferable without the prior permission in that regard. He
further found that the document dated 2.2.1993 under which the title
was claimed by the present petitioner was not in consonance with law.
The further finding was recorded that the entry in 7/12 extract was
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taken when all transactions were prohibited in view of Section 36 and
36-A of the MLR Code, 1956 and therefore, dismissed the appeal. The
learned Commissioner/Respondent No.1 has concurred with the
decisions of the lower authorities by considering the factual position.
5] A perusal of the document dated 2.2.1993, placed on
record at page 15, indicates that it purports to transfer the right, title
and interest of Sakhubai in the land of Khasra No. 54/79, in favour of
the petitioner. Admittedly, the document is written on a stamp paper
of Rs.20/- and is not a registered document. This being the position, it
was impermissible for the Revenue Officer who recorded the mutation
entry No. 89, dated 2.4.1993, to do so. It is a settled position of law
that no person can be deprived of the right to immovable property,
unless the same is in consonance with the legal provisions applicable
thereto. The contention of Mr. Warulkar, the learned counsel for the
petitioner that the mutation entry No. 89 dated 2.4.1993 was taken
with the knowledge of late Sakhubai and the agreement dated
2.2.1993, at the consent of Respondent No.4, is clearly
inconsequential, as the Revenue Officer taking the entry has to act in
consonance with the law as applicable and not otherwise.
6] That apart, the land was held in Class-II category from the
Government and any transfer of the same clearly requires prior
permission, which also was absent, in view of which, the concerned
Revenue Officer was further prevented from recording the said
mutation entry. It is thus held that the recording of the mutation entry
No. 89, dated 2.4.1993 is clearly a fraudulent act on part of the
concerned Revenue Officer, which obviously was in collusion and at
the behest of the petitioner. The law does not countenance such action
which is fraudulent, nor does it prescribe any limitation for setting
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aside a fraudulent action. This being the position, though the appeal
to set aside the above mutation entry was filed in the year 2012, the
same being a fraudulent one, was clearly permissible in law, even
without an application for condonation of delay. The impugned
orders also records the above position that the entry was a fraudulent
one, there is therefore nothing wrong in the respondent No.3 having
entered into an enquiry in an appeal challenging the mutation entry
and upon finding it contrary to the law, in directing its deletion.
7] The judgment in S.V. Matha Prasad (supra) does not
consider a situation where a fraud had been practiced and therefore,
on this ground the same is clearly not attracted. The respondent Nos.
1 and 2 have duly noticed that the property was held in Class-II right
and therefore, was not transferable, nor did the document dated
2.2.1993 had the effect of divesting late Sakhubai of her rights in it, in
absence of the same being a registered document, which was
mandatory. This being the position, no fault can be found with the
reasoning of the authorities below in passing the orders deleting the
mutation entry and upholding its deletion. The petition therefore is
without any merits and is accordingly dismissed.
JUDGE
Rvjalit
