Bombay High Court
Chandrabhan Balwant Jamkar And Ors vs Balu Gajiram Kholambe And Ors on 22 January, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:3128
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SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6318 OF 2022
SHABNOOR
AYUB
PATHAN Chandrabhan Balwant Jamkar & Ors ... Petitioners
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2023.08.17
18:53:52 +0530
V/s.
Balu Gajiram Kholambe & Ors ... Respondents
Mr. Girish R. Agrawal a/w Mr. Shubham Jangam, for
Petitioners.
Mr. Ramesh Dube Patil a/w Mr. Ashish Gabhale i/by
MS Jay & Co., for Respondent Nos.1 & 2.
Mr. I. A. Patel, Mr. Abdul, GP a/w Mrs. V. S. Nimbalkar,
AGP, for Sate/Respondent.
CORAM : AMIT BORKAR, J.
DATED : JANUARY 22, 2024
P.C.:
1. Rule.
2. Rule is made returnable forthwith.
3. The petitioners are challenging the order passed by the
Minister for State (Revenue) dated 25 February 2022 thereby
directing modification of consolidation scheme in exercise power
under Section 32(1) of the Bombay Prevention of Fragmentation
and Consolidation of Holdings Act, 1947.
4. The consolidation scheme in relation to properties in dispute
32-wp-6318-2022.doc
i.e. Gat Nos.268, 269 and 270 at Ramnagar, Taluk Niphad, District
Nashik was effected in the year 1970.
5. In the year 2020, respondent Nos.1 and 2 filed an
application under Section 32(1) of the said Act contending that
while effecting consolidation scheme, there is mistake occurred
which needs to be corrected.
6. The Deputy Director, Land Record, Nashik Division by order
dated 9 February 2021 rejected respondent Nos.1 and 2's
application on the ground that such application was filed after 46
years.
7. Aggrieved thereby respondent Nos.1 and 2 approached
respondent No.6 by revision application. Respondent No.6 by the
impugned order dated 9 February 2021 allowed the revision
application and directed consolidation authority to exercise power
under Section 32(1) of the said Act for modification of
consolidation scheme.
8. Learned Advocate for the petitioners relying on the judgment
of this Court in the case of Bapu Gunda Mirje and Ors Vs. State of
Maharashtra and Ors, reported in 2015 (1) of All MR 697,
contended that the power under Section 32 in relation to variation
of scheme needs to be exercised within reasonable time. The
reasonable time has been interpreted to mean a period not
extending three years depending on the facts and circumstances of
each case. The petitioners, therefore, contended that in the
absence justification for approaching the authority after 46 years,
respondent No.6 could not have directed modification of
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consolidation scheme after 46 years.
9. Learned Advocate for respondent Nos.1 and 2 contended
that the consolidation scheme was effected without giving
opportunity to the respondent No.1. Statements of petitioners
were recorded. The statements of respondent Nos.1 and 2 were
not recorded, which has effect of practicing fraud on the authority
and, therefore, the respondent No.6 was justified in directing
authorities under the said Act to modify the consolidation scheme.
10. Having heard learned Advocate for the parties, I am of the
opinion that power exercised by respondent No.6 entertaining
application under Section 32A of the said Act needs to be termed
as perverse. On perusal of the impugned order, it is evident that
the respondent No.6 has not even referred to the ground on which
the authority under the said Act rejected the application. The
Minister considered merits of the matter and recorded a finding
that the record of consolidation was not signed by the predecessors
of respondent Nos.1 and 2. In view of judgment of this Court, in
the case of Bapu Gunda Mirje (Supra) and Ganpati Dadu Mali And
Anr. Vs. State of Maharashtra & Ors 2012 (7) of All MR 174, it is
well settled that the variation of scheme after reasonable period
has been consistently deprecated by this Court. Despite the
respondent No.6 being aware of such settled position, the
impugned order is passed without even referring to the
justification for approaching the authority after 46 years.
11. On perusal of the revision application, it appears that there is
no ground of fraud raised by respondent Nos.1 and 2 in the
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revision application. No reason is mentioned in the revision
application for approaching the authority after 46 years. Only
reason referred in the revision application is absence of
opportunity of hearing to predecessors of respondent Nos.1 and 2.
It is well settled that after the consolidation scheme is
implemented corresponding entries in revenue record are effected.
Therefore, it does not lie in the mouth of litigant approaching the
authorities under the said Act with variation of concluded scheme
after the reasonable period. Therefore, in my opinion, respondent
No.6 was not justified in passing the impugned order directing the
exercise of power under Section 32 of the said Act. Therefore, the
impugned order cannot be sustained. Hence, following order:
i) The impugned order dated 25 February 2022 passed by the
respondent No.6 in Revision Application No.123/J-6 annexed to
this writ petition at Exhibit (G) is quashed and set aside.
12. Rule is made absolute in above terms.
13. The writ petition stands disposed of. No costs.
(AMIT BORKAR, J.)
