Bombay High Court
M/S. Aluwind Architectural ... vs Housabai Jagannath Gavhane And ... on 4 October, 2023
Bench: N. J. Jamadar
2023:BHC-AS:29106
50-WP-12877-22-.DOC
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.- 12877 OF 2022
M/s. Aluwid Architectural Private Ltd and ...Petitioners
Others
Vs.
Housabai Jagannath Gavhane and Others ...Respondents
Mr. Vivek V. Salunke, for Petitioners.
Mr. V. S. Kapse i/b Mr. Shailesh Chavan, for Respondent
Nos. 1 to 7.
Mr. P.P. Pujari, AGP for State/Respondent Nos.8, 9 and 10.
CORAM:- N. J. JAMADAR, J.
RESERVED ON : 20th JULY, 2023.
PRONOUNCED ON:- 4th OCTOBER, 2023
JUDGMENT:-
1) Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
2) This Petition under Articles 226 and 227 of the
Constitution of India assails the legality, propriety and
correctness of an order dated 6 th September, 2022, passed by the
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District Superintendent of Land Records, Pune on an application
for condonation of delay in preferring an Appeal, purportedly
under Section 247 of Maharashtra Land Revenue Code, 1966
("the Code, 1966"), whereby the Superintendent of Land Records
was persuaded to condone the delay of more than 50 years in
preferring the Appeal.
3) Shorn of superfluities, the background facts can be stated
in brief as under:-
(a) Hausabai Gavhane, respondent No. 1, is the owner of
agricultural land bearing Gat No.369 situated at Mauje
Koregaon Bhima, Tal. Shirur, Dist. Pune, admeasuring 58 R. The
petitioner Nos. 1 to 3 and respondent Nos. 2a to 2e and 3 to 5
are the co-holders of the land bearing Gat No. 374 admeasuring
86 R. The respondent Nos.6 and 7 are the owners of the land
bearing Gat No. 373 admeasuring 58 R.
(b) Respondent No. 1 claims that Gat No. 369, 373 and 374
were originally numbered as Survey Nos. 124/4A, 124/4B and
124/4C. Each of the above survey numbers was admeasuring 1
acre and 24 Gunthas. However, when the Consolidation Scheme
was implemented in the village Koregaon Bhima, area of the land
bearing survey No. 124/4A was incorrectly shown as 87R and
that of 124/4B and 124/4C was reduced to 57R only. In fact,
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there was a mistake on the part of the revenue authorities in
carving out the Gat numbers out of the survey numbers on the
basis of the Falnibara. Mutation Entry Nos 4584 and 4579 were
wrongly certified on account of the arithmetical mistake in the
conversion of the land from acre and gunthas into hectare and
R. No area was added to or subtracted from any of the survey
numbers in the Consolidation Scheme.
(c) Respondent No. 1 continued to occupy and cultivate 68
R land throughout. It was only in the year 2012, respondent No.
1 realised that the incorrect area of the land was shown in the
record of rights of Gat No. 369. Thereupon respondent No. 1
filed an application before the Deputy Director of Land Records,
Pune to correct the record. By a communication dated 7th
November, 2012, the District Superintendent Land Recordss
informed the respondent No. 1 that the Consolidation Scheme
had been fully implemented and, if desired, the respondent No. 1
can resort to the remedy of Appeal under Section 247 of the
Code, 1966.
(d) Respondent No. 1 preferred an application on 11 th June,
2016 before the Settlement Commissioner, seeking rectification
of the arithmetical mistake in the area of the land bearing Gat
No. 369 (old Survey No.124/4C) under Section 31A of the
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Maharashtra Prevention of Fragmentation and Consolidation of
Holdings Act, 1947 ("the Consolidation Act, 1947").
(e) Vide communication dated 7th April, 2017, respondent No.
1 was informed that there was no defect in the Consolidation
Scheme and third-party interests have been created in the land
in the nature of non-agricultural use, sale, transfer and
succession and, therefore, the application was disposed.
(f) Respondent No. 1 preferred an Appeal under Section 247
of the Code, 1966, assailing the legality and correctness of ME
No. 4584 dated 21st December, 1969. Since there was delay in
preferring the Appeal, the respondent No. 1 preferred an
application for condonation of delay.
(g) In the application for condonation of delay, after adverting
to the circumstances in which, according to respondent No. 1,
an incorrect area was shown in the record of rights of Gat No.
369 by unjustifiably and unlawfully adding 10 R area each from
Gat Nos. 369 and 373 to Gat No. 374, Respondent No. 1 asserted
that she learnt about the mistake in mutating the area qua
survey No. 369 in the year 2012 only. However, since the
respondent No. 1 is an illiterate and rustic lady and had no
knowledge about the procedure to be adopted to get the mistake
rectified, there was delay in preferring the Appeal.
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(h) The petitioner Nos. 2 and 3 and respondent Nos. 6 and 7
contested the application by filing written submissions.
Petitioner Nos. 1A to 1C also resisted the application.
(i) By the impugned order, the Deputy Superintendent of
Land Records was persuaded to allow the application holding,
inter alia, that documents on record indicated that re-
examination of the issue was warranted and the reasons
ascribed by respondent No. 1 for condonation of delay merited
acceptance and, therefore, the delay was condoned in conformity
with the principles of natural justice.
4) Being aggrieved the petitioners - original respondent Nos.
1A to 1C and 5 and 9 have preferred this Petition.
5) I have heard Mr. Vivek Salunkhe, the learned Counsel for
the petitioner, and Mr. V. S. Kapse, the learned Counsel for
respondent No. 1 and the learned AGP for Respondent Nos. 8, 9
and 10. The learned Counsel took the Court through the
pleadings, documents on record and the various
communications issued and orders passed by the authorities
after respondent No. 1 raised a grievance about the mutation of
an incorrect area.
6) Mr. Salunke would submit that the impugned order suffers
from the vice of blatant disregard to the settled position of law.
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The Superintendent of Land Records has condoned the delay of
more than 50 years without adverting to the aspect of power to
vary the scheme settled under the Consolidation Act, 1947. The
resultant effect of condonation of delay in entertaining a
purported Appeal is the process of embarking upon an enquiry
to vary the scheme settled under the Act, 1947. By a catena of
decisions, Mr. Salunke would urge, it has been settled that such
power to vary the scheme cannot be exercised after an
inordinately long period and in the absence of the period of
limitation having been prescribed for the same, such power must
be exercised within a period of three years.
7) In the case at hand, according to Mr. Salunke, what
accentuates the situation is the fact that initially respondent No.
1 - Hausabai sought the correction of clerical or arithmetical
mistake in the scheme under Section 31A of the Act, 1947.
However, the averments in the application and the Appeal Memo
indicate that respondent No. 1 is seeking the variation of the
scheme under Section 32 of the Act, 1947 on substantive
grounds and that is legally impermissible after half a century of
the settlement of the scheme. To buttress the aforesaid
submissions, Mr. Salunke placed reliance on the Division Bench
judgments of this Court in the cases of Gulabrao Bhaurao
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kakade Vs. Nivrutti Krishna Bhilare and Others 1, Dattu Appa
Patil Vs. State of Maharashtra and Others2, Suresh Bapu
Sankanna and Others Vs. State of Maharashtra and Others 3.
Reliance was also placed on a judgment of this Court in the case
of Sanjeev Babaram Vichare and Others Vs. Hon'ble State
Minister for Revenue and Others4.
8) Mr. Salunke would further urge that even if the application
for correction in the Consolidation Scheme is construed to be
one under Section 31A of the Act, 1947, it could not have been
entertained after 50 years of the settlement of the scheme and
the principles which govern the variation of the scheme under
Section 32 also apply to the correction of the scheme under
Section 31A of the Act, 1947 with equal force. To this end,
attention of the Court was invited to the judgments of the
learned Single Judges of this Court in the cases of Martand
Sopan Jagadale and Others Vs. Vishnu Maruti Vidhate and
Others5 and Jalindar Sadashiv Hirde and Others Vs. State of
Maharashtra and Others6.
1 2001 (4) Mh. L. J 31
2 2007 (1) Mh. L.J. 393
3 2018 (4) Mh. L. J. 331
4 (2022) 1 AIR Bom R 262
5 2014 SCC Online Bom 3012
6 2018 (4) Mh. L.J. 200.
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9) Mr. Kapse, the learned Counsel for respondent No.1
controverted the submissions on behalf of the petitioners by
submitting that the legal position as regards the period within
which power to vary the scheme settled under the Consolidation
Act, 1947, can be resorted to under Section 32 of the Act, 1947,
cannot be disputed. However, the substance of the matter, Mr.
Kapse would urge, cannot be lost sight of. It has been the
consistent stand of respondent No. 1 Hausabai that there was
an arithmetical mistake in converting the area in Acres and
Gunthas into Hectare and R and resultantly sans any addition
and/or subtraction of the area in the Consolidation Scheme,
10R area from Gat Nos.369 and 373 each came to be added to
Gat No. 374.
10) In the application which preceded the Appeal in question
as well as in the Appeal Memo, respondent No. 1 had adverted to
this principal fact and, in addition, referred to the substance of
the matter. Therefore, the corrections in the scheme sought by
respondent No. 1 can only be said to be on account of clerical or
arithmetical mistake; for the correction of which, no period of
limitation has been designedly prescribed by the legislature as it
is the duty of the authorities to correct their own clerical or
arithmetical mistake. Thus, the prayer of respondent No. 1 all
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along retains the character of an application under Section 31A
of the Act, 1947.
11) As a Second limb of the submission, Mr. Kapse would urge
that, by the impugned order, the Superintendent of Land
Records has merely condoned the delay in preferring the Appeal.
The petitioners would have an efficacious opportunity in the
Appeal to put forth all the contentions including the grounds
which are sought to be urged before this Court. Therefore, this
Court may not interfere with the exercise of discretion to
condone the delay, especially when the condonation of delay
advances the object of decision on merit.
12) The aforesaid submissions now fall for consideration.
13) To start with it, may be necessary to note that if the matter
is construed to fall in the realm of testing the legality and
propriety of the order condoning the delay, enquiry would be
rather limited. However, if the Court finds that the impugned
order of condonation of delay in preferring the Appeal also
touches upon the jurisdiction of the authorities under the
Consolidation Act, 1947 to correct or vary the Consolidation
Scheme settled under the Consolidation Act, 1947, the scope of
this Petition gets enlarged.
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14) On first principles, if it is a matter of justifiability of
exercise of discretion to condone the delay, where the Court of
first instance has leaned in favour of condonation of delay, this
Court, in exercise of supervisory jurisdiction, may not interfere
with the said finding unless it is perverse. There is a subtle yet
significant difference in the approach of the Superior Court in
the matter of condonation of delay where the Court of first
instance condones the delay and where it declines to exercise
the discretion to condone the delay. In the former case, the
supervisory Court would not be justified in interfering with the
exercise of discretion to condone the delay lightly, as the Courts
lean in favour of condonation of delay to advance the cause of
substantive justice and decide the matter on merit rather than
on technicalities. In the latter case, where the Court of first
instance refuses to condone the delay, the entire matter is open
before the Court exercising the supervisory/revisional
jurisdiction and such Court can independently assess the
justifiability of the reason and sufficiency of cause ascribed for
the condonation of delay. A profitable reference in the context
can be made to the judgment of the Supreme Court in the case
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of N. Balakrishnan Vs. M. Krishnamurthy7. The observations in
paragraph No. 9 read as under:-
"9. It is axiomatic that condonation of delay is a
matter of discretion of the court. Section 5 of the
Limitation Act does not say that such discretion
can be exercised only if the delay is within a
certain limit. Length of delay is no matter,
acceptability of the explanation is the only
criterion. Sometimes delay of the shortest range
may be uncondonable due to want of acceptable
explanation whereas in certain other cases, delay
of very long range can be condoned as the
explanation thereof is satisfactory. Once the court
accepts the explanation as sufficient, it is the
result of positive exercise of discretion and
normally the superior court should not disturb
such finding, much less in revisional jurisdiction,
unless the exercise of discretion was on wholly
untenable grounds or arbitrary or perverse. But it
is a different matter when the first court refuses to
condone the delay. In such cases, the superior
court would be free to consider the cause shown
for the delay afresh and it is open to such superior
court to come to its own finding even untrammeled
by the conclusion of the lower court."
15) The primary question which thus crops up for
consideration is whether the impugned order can be construed
as one of mere condonation of delay in preferring the Appeal or
one that has the implication on the exercise of jurisdiction by
the authorities under the Consolidation Act,1947 to correct or
vary the Scheme settled under the Consolidation Act, 1947. To this
7 (1998) 7 SCC 123
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end, it may be necessary to have a brief resume of the relevant
provisions of the Act, 1947.
16) Under Section 2 (2) of the Act, 1947, "consolidation of
holdings" means the amalgamation and where necessary the re-
distribution of holdings or portions of holdings in any village,
mahal or taluka or any part thereof so as to reduce the number
of plots in holdings. Chapter-III of the Act, 1947 contains a
fasciculus of provisions under the heading, "Procedure for
Consolidation". Sub Section (3) of Section 20 provides for
confirmation of draft scheme or amended draft scheme of
consolidation by the Settlement Commissioner. Section 21
provides for enforcement of scheme. Under Section 22 as soon as
the persons entitled to possession of holdings under this Act
have entered into possession of the holdings respectively allotted
to them, the scheme shall be deemed to have come into force.
Under Section 24, the Consolidation Officer is required to issue
certificate to every owner to whom a holding has been allotted
and every person to whom a right is allotted under Sub Section
(6) of Section 21. The Consolidation Officer is further enjoined to
prepare a new record of rights in respect of the holdings so
transferred.
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17) As the controversy revolves around the correction or
variation of the Scheme settled under the Act, 1947, it may be
expedient to extract the provisions contained in Section 31 A and
32 of the Act, 1947:-
31A. Correction of clerical and arithmetical
mistakes in scheme. - If, after a scheme has come
into force, it appears to the Settlement
Commissioner that the scheme is defective on
account of any clerical or arithmetical mistake or
error arising therein from any accidental slip or
omission, and he is satisfied that the correction of
such mistake or error would not vary the scheme
in any material particular, he may by order in
writing correct such mistake or error and publish
his order in the prescribed manner.]
32. Power to vary scheme on ground of error,
irregularity, informality. -
(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 fit, [*
* * *] make the variation with or without
modification or may not make any variation.
[(3A) If the scheme is varied under sub-section (3),
a notification stating that the scheme has been
varied shall be published in the Official Gazette
and the scheme so varied shall be published in the
prescribed manner in the village or villages
concerned.]
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(4) From the date of the notification [stating that
the scheme has been varied] the variation shall
take effect as if it were incorporated in the scheme.
18) Under section 31A, the Settlement Commissioner has the
authority to correct the clerical or arithmetical mistake or error
arising in the Consolidation Scheme, from any accidental slip or
omission. No authority except the Settlement Commissioner has
the power to remove the defect arising on account of any clerical
or arithmetical mistake or error on account of my accidental slip
or omission.
19) Under Section 32, the Settlement Commissioner is
empowered to vary the scheme, after notifying the draft of
variation, in the 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 31A], irregularity or informality.
20) Evidently, neither under Section 31A nor Section 32 any
time limit is prescribed for the Settlement Commissioner to vary
the scheme. Nonetheless, it does not imply that the Settlement
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Commissioner has unfettered authority to correct or vary the
scheme at any point of time.
21) It is trite, even in the absence of a statutory prescription of
time limit, the power can only be exercised within a reasonable
period. In the very nature of things, the reasonability of the
period for exercise of the power would hinge upon the attendant
facts and circumstances 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.
22) A profitable reference, in this context, can be made to a
judgment of the Division Bench of this Court in the case of
Gulabrao Kakade, (supra), 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
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circumstances of each case and we do not intend
to lay down any specific period for exercise of that
power by Settlement Commissioner but ordinarily
exercise of such power after three years of
finalisation 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 finalised in
the year 1973 under the Act of 1947 to the
knowledge of all the parties concerned. Nobody
was aggrieved by the said scheme finalised under
the Act of 1947 and the scheme came into force
under section 22. The said scheme which had
been finalised 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
unjustified."
23) A profitable reference can also be made to the judgment
of the Supreme Court in the case of Santoshkumar Shivgonda
Patil & Ors. Vs. Balasaheb Tukaram Shevale & Ors. 8, 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 :
8 2009 (9) SCC 352
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"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 flawed and legally
not correct."
24) A Division Bench of this Court in the case of Suresh
Sankanna (supra), after adverting to the aforesaid
pronouncements, expounded the legal position to the effect that
even if there is no specific period prescribed in Section 32 of the
Consolidation Act, 1947, as regards limitation, an application for
modification or correction of finalised Consolidation Scheme can
be made only within three years of such finalisation of the
scheme.
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25) On the aforesaid touchstone, reverting to the facts of the
case, it is pertinent to note that, initially, vide application dated
7th September, 2012, the respondent No. 1 sought correction in
the area of the land bearing Gat No. 369. The said application
was filed by the District Superintendent of Land Records vide
communication dated 7th November, 2012, holding that the
scheme which came to be settled on 11 th February, 1970 had
been fully implemented.
26) In an application dated 11th June, 2016, the respondent
No.1 sought correction in the scheme specifically under Section
31A of the Consolidation Act, 1947 asserting that an incorrect
area was mentioned in the record of rights of Gat No. 369 on
account of clerical and arithmetical mistake. The said
application was not entertained on the ground that there was no
clerical or arithmetical mistake in the scheme settled under the
Consolidation Act, 1947. The communication dated 17th April,
2017 addressed to respondent No. 1 in terms records that there
was no such arithmetical or clerical error and there was no
error, as such, in the Consolidation Scheme and, in the
intervening period, the third party rights have been created and,
therefore, the application of respondent No. 1 dated 16 th June,
2016 was filed without any action thereon.
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27) In contrast, if the grounds in the Appeal Memo and the
application for condonation of delay in preferring the Appeal,
purportedly under Section 247 of the Code, 1966, are
considered, it becomes abundantly clear that respondent No. 1
has now assailed the legality and validity of the Consolidation
Scheme qua the subject lands by asserting that while settling
the scheme, no opportunity of hearing was given to respondent
No. 1 or her predecessor in title; neither notice was served on
them nor they were otherwise informed. The entries in the
record of rights pursuant to the settlement of the scheme were
thus made in violation of the principles of natural justice. The
area of land which came to be mutated to Gat Nos.369, 373 and
374 was on the basis of incorrect Falnibara without carrying out
actual measurements.
28) The grounds in the Appeal Memo and the application for
condonation of delay, if compared and contrasted with the
application for correction of the scheme dated 11th June, 2016
purportedly under Section 31A of the Act, 1947, lead to an
inescapable inference that the challenge now sought to be raised
by the respondent No. 1 falls under Section 32 of the Act, 1947.
Respondent No. 1 is assailing the legality and validity of the
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scheme on the grounds of substantive errors, other than clerical
or arithmetical mistake, and irregularity of the procedure aswell.
29) In this view of the matter, I am impelled to hold that the
remit of this Petition is not restricted to testing the legality,
propriety and correctness of the order of condonation of delay
simpliciter. The impugned order, in my considered view, touches
upon the jurisdiction of the authorities under the Consolidation
Act, 1947, to vary the scheme under Section 32 of the Act, 1947.
30) As noted above, the said exercise to vary the scheme can
only be carried out within a reasonable period of the settlement
of the scheme. This Court has consistently held that the
Settlement Commissioner has no unbridled power to vary the
scheme at any time. This Court has repetively ruled that such
power, ordinarily, ought to be exercised within a period of three
years. In the absence of any special or compelling
circumstances, the exercise of the power after an inordinately
long period cannot be countenanced as it entails unsettling of
the settled claims.
31) There can be no duality of opinion that with the passage of
time, third-party rights are created and equities intervene. Like
in other walks of life, the proprietary and possessory title to the
properties do not remain constant forever. If the settled claims
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are unsettled after half a century, it has the propensity to affect
the rights and interests of the persons, who enter into the
transactions on the faith of the claims settled under the
Consolidation Act, 1947.
32) It is imperative to note that in the communication dated
17th April, 2017, the Superintendent of Land Records expressly
adverted to those factors and noted that the scheme was
finalised long back and, in the intervening period, third party
rights have been created in the nature of non-agricultural use,
sale, transfer and succession.
33) The situation which thus emerges is that the
Consolidation Scheme was fully implemented prior to half a
century, and the lands changed hands. In this backdrop, the
exercise of the power to embark upon an inquiry to vary the
scheme after lapse of 50 years of the settlement of the scheme,
inevitably entails the consequence of unsettling the settled
claims.
34) The matter can be looked at from another perspective. The
course resorted to by the Superintendent of Land Records to
entertain an Appeal against the certification of ME No. 4584 as
regards the area mutated qua Gat Nos. 369, 373 and 374 is
nothing but an indirect way of varying the scheme settled under
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the Consolidation Act, 1947. The source of power to vary the
scheme can only be traced to Section 32 of the Act, 1947.
Though an Appeal is sought to be entertained under Section 247
of the Code, 1966 against certification of ME No. 4584, the said
exercise cannot be said to be justifiable as the very certification
of ME No. 4584 draws support and sustenance from the
settlement of the scheme under the Consolidation Act, 1947. Any
other view would lead to an undesirable consequence of the
scheme settled under the Act, 1947 being varied in an indirect
manner by entertaining an Appeal against the Mutation Entry in
the record of rights of the land, which was made to give effect to
and implement the scheme under the Consolidation Act, 1947. If
this core issue is kept in view, the impugned order becomes
legally unsustainable, de hors the justifiability of the reasons
ascribed for the condonation of delay.
35) The submission of Mr. Kapse that the prayer of
respondent No. 1 still retains the character of an application
under Section 31A of the Consolidation Act, 1947 does not
advance the cause of respondent No. 1. It would be suffice to
note that even for correction of an arithmetical or clerical error
amenable to correction under Section 31A of the Consolidation
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Act, 1947, the principle of reasonability of time governs with
equal force.
36) In the cases of Martand Jagadale (supra) and Jalindar
Hirde (supra), this Court had held that even where no limitation
is prescribed under Section 31A, the said power could only be
exercised within a resonable time. The decision of this Court in
the case of Jalindar Hirde (supra) appears to be on all four with
the facts of the case at hand. The observations in paragraph
Nos. 5 and 6 are material and, hence, extracted below:-
"5. It is, therefore, obvious that besides the
Settlement Commissioner, the proceedings under
Section 31-A cannot be entertained by any other
Revenue Officer. In the instant case, the
consolidation scheme has been settled in 1970.
Respondent No.5 has moved the Deputy Director of
Land Recordss, Nasik Division, Nasik by making an
application on 9.2.2013, which is after 43 years.
Though he has invoked Section 247 of the
Maharashtra Land Revenue Code 1966, it is
apparent that the said authority cannot usurp the
powers of the Settlement Commissioner under the
1947 Act for interfering with or correcting or
modifying a Consolidation Scheme under Section
31A. The said proceedings were entertained by the
authority, which was legally incompetent to do so.
As such, on the first issue, the petitioners succeed.
6. In so far as the second issue pertaining to
limitation is concerned, it requires no debate that
Section 31-A does not prescribe any limitation.
However, the learned Division Bench of this Court
in the matter of Gulabrao Bhaurao Kakade Vs.
Nivrutti Krishna Bhilare and others [2001 (4) Mah.
L.J. 31], has concluded that after taking into
account the various provisions of the 1947 Act, a
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prayer for correction in the scheme only to be done
by the Settlement Commissioner, can be permitted
within a reasonable period. While dealing with the
facts in the Gulabrao's case (supra), it was
concluded that when the consolidation scheme was
finalized in 1973, ordinarily, exercising the power
under Section 31-A, after three years, may not be
permissible and justified under Section 32. It was,
therefore, held, on the facts, that the Settlement
Scheme of 1973 cannot be disturbed in 1988,
notwithstanding whether it suffers any clerical or
arithmetical errors."
(emphasis supplied)
37) This Court has held in no uncertain terms that the
Superintendent of Land Records cannot invoke the provisions
contained in Section 247 of the Code, 1966 so as to usurp the
power of the Settlement Commissioner under Section 31A of the
Act, 1947. Likewise, even if a resort to Section 31A was to be
made by the Settlement Commissioner, it must be made within a
reasonable time.
38) The conspectus of aforesaid consideration is that the
impugned order is legally unsustainable as by resorting to power
under Section 247 of the code, 1966, the Superintendent of Land
Records professes to vary the scheme under Section 32, or for
that matter under Section 31A of the Consolidation Act, 1947,
which is clearly without jurisdiction. Resultantly, the petition
deserves to be allowed.
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39) Hence, the following order.
ORDER
i) The Petition stands allowed.
ii) The impugned order passed by Superintendent
of Land Records stands quashed and set aside.
iii) Rule made absolute in the aforesaid terms.
iv) In the circumstances of the case, there shall be
no order as to costs.
[N. J. JAMADAR, J.]
