Bombay High Court
Mahadeo Pandurang Kambekar vs Sidhling Raghunath Sakhare on 6 January, 2025
2025:BHC-AS:387
WP No. 2112 of 1997 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2112 OF 1997
1. Shri Mahadeo Pandurang Kambekar, ]
Adult, of Mumbai, Indian inhabitant, residing ]
at Kambekar House, Bhandup Village, ]
Bhandup (East), Mumbai - 400 042. ]
since deceased through LRs: ]
1a. Narendra Mahadeo Kambekar ]
1b. Jayshree Mahadeo Kambekar ]
1c. Triveni Mahadeo Kambekar ]
1d. Kohinoor Mahadeo Kambekar ]
all of Mumbai Indian inhabitants, residing at ]
Kambekar Bhandup Village, Jagdish Bhoir ]
Marg, Bhandup (East), Mumbai - 400 042. ]
1e. Snehalata Madhukar Kini ]
of Mumbai Indian inhabitant, residing at D- ]
11, Saujanya Co-op. Hsg. Soc. Ltd., Near Post ]
Office, Bhandup (E), Mumbai - 400 042. ]
1f. Smt. Chhaya Arjun Mukadam, ]
adult, Indian inhabitant residing at BLS (13), ]
Building No.14, Flat No.2, Sector 10, Khanda ]
Colony, New Panvel. [Petitioner Nos.1a to 1f ]
are the Legal heirs of deceased Petitioner
No.1]
2. Smt. Shantabai Mahadeo Patil, ]
also adult, of Mumbai, Indian inhabitant, ]
residing at Patil House, Somwar Bazar, Malad ]
(W), Mumbai - 400 064. ]
3. Shri Kamlakar Sadashiv Kambekar ]
adult, of Mumbai, Indian inhabitant, residing ]
at Barrack No.5, 1937, Indira Nagar, ]
Ulhasnagar Camp No.5, District - Thane. ]
4. Smt. Motibai Motiram Patil, [deleted] ]
adult, of Mumbai, Indian inhabitant, residing ]
at Barrack No.5, 1937, Indira Nagar, ]
Ulhasnagar Camp No.5, District - Thane. ] ...Petitioners.
Versus
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1. Sidhling Raghunath Sakhare, ]
2. Smt. Champabai Ramling Sakhare ]
3. Dharmling Ramling Sakhare ]
4. Bhimappa Ramling Sakhare, ]
5. Ashok Ramling Sakhare, ]
6. Smt. Lata Prakash Ramling Sakhare ]
7. Kailas Ramling Sakhare, ]
8. Smt. Ranjana Sidheshwar Gatkul, ]
9. Smt. Pushpa Balbhim Karande, ]
10. Smt. Usha Baseshwar Lakade, ]
11. Smt. Jayashree Anil Sakate, ]
12. Miss. Shobha Ramling Sakhare, ]
13. Smt. Parvatibai Ramling Sakhare, ]
14. Ramling Mahaling Sakhare, ]
all adults, of Satara, Indian inhabitants ]
through their Constituted Attorney Shri B. d. ]
Kothari residing at Rezy Kayalo Chawl, Bazar ]
Peth, marol, Andheri (E), Mumbai - 400 059. ]
15. Extra Awal Karkun/Tahsildar, of Tal. Kurla, ]
Mumbai Suburban District, having his office ]
at S. N. Road, Topiwala College Bldg. Mulund ]
(West), Mumbai - 400 080. ]
16. Collector, Mumbai Suburban District having ]
his office at BMRDA Building, 2 nd floor, ]
Bandra (E), Mumbai - 400 051. ]
17. Taluka Inspector of Land Records ]
having his Office at 1 st floor, Old Custom ]
House, Mumbai. ]
18. Shri Jagdish Gupta, ]
Minister of State, Revenue and Forest ]
Department, having his office at R. No. 623, ]
Main Bldg. Mantralaya, Mumbai - 400 032. ]
19. Bhandup Estate Holder, residing at 28, Sun- ]
Beam, Peddar Road, Mumbai - 400 026. ]
20. State of Maharashtra, having office at ]
Mantralaya, Mumbai - 400 032. ]
21. Shri Ramkrishna Atmaram Sakhardande ]
(Intervenor), ]
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Adult, Indian Inhabitant, residing at 5 - ]
Parekh Apartment, N.S.S. Road, Ghatkopar, ]
Mumbai - 400 084. ]
22. Vasanti Kamlakar Bhoir ]
23. Bhushan Kamlakar Bhoir ]
24. Minakshi Upendra Bhoi ]
25. Sushil Kamlakar Bhoir ]
all adult, Indian inhabitants, residing at ]
Jeevan Vihar CHS Ltd., Dadu Koparkar Marg, ]
Near Nahur Railway Station, Bhandup (East), ]
Mumbai - 400042. ]
26. Nilesh Jayawant Vaity ]
27. Kadambari Jayawant Vaity ]
28. Nimita Anil Mokashi ]
all adult, Indian Inhabitant, residing at Nilesh ]
Kutir, Rajdeep Nagar, Village Road, Bhandup ]
(West), Mumbai - 400078 ]
So far as Respondent No.7 is concern, she is ]
residing at D-401, Amber Galaxy, Near Gopal ]
Krishna Apartment, Vitawa, Thane - 400 605. ]
29. Kailas Motiram Patil ]
Residing at Room No.1, Durga Pada, Near ]
Durga Mata Mandir, Ulhasnagar - 421005. ]
30. Vansati Makarand Bhoir ]
Residing at Mangal Niwas, Ost Atali J. k. Star ]
Vision, Ambivali West, Kalyan, Thane - ]
421102. ] ...Respondents.
------------
Mr. Sagar Rane i/b Mr. Suresh V. Rajeshwar for Petitioner.
Mr. S. G. Karandikar, Mr. J. Joshi i/b Mr. G. J. Bhat for Respondent Nos.1 to 14.
Mr. Vishwajeet Kapse and Mr. Kartavya Ostwal for Respondent No.19.
Mr. S. D. Rayrikar, AGP for Respondent-State.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 14th November, 2024.
Pronounced on : 06th January, 2025.
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Judgment:
1. The Petition was admitted by this Court vide order dated 29 th
September, 2005.
THE CHALLENGE:
2. The challenge is to the order dated 8th November, 1996 passed
by Hon'ble Minister for Revenue and Forest Department setting aside
the decision of Extra Awal Karkun, Kurla dated 15 th February, 1985
passed in RTS No.1084 which had directed the names of the Petitioners
to be entered as "Occupants" in respect of the land bearing Survey
No.50 (Part) corresponding to CTS No. 765, 767 and Survey No. 59
(Part) corresponding to CTS No. 739 by deleting the names of
Raghunath Sakhare-predecessor of Respondent Nos. 1 to 14 and one
Venubai Duming in an inquiry under Maharashtra Land Revenue Code
Record of Rights and Registers (Preparation and Maintenance) Rules,
1971 [for short, "Rules of 1971"] read with Section 5 of Bombay
Personal Inam Abolition Act, 1952 [for short, "Inam Abolition Act"].
THE ISSUE:
3. The issue to be considered is the validity and legality of second
inquiry under Section 5 of Inam Abolition Act by the Awal Karkun, in
view of similar inquiry conducted previously by the Commissioner
which had attained finality.
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FACTUAL MATRIX:
4. On 28th September, 1983, the Petitioners initiated proceedings
under Rules of 1971 read with Inam Abolition Act claiming to be in
possession of lands bearing Survey No. 50/2 admeasuring 25 gunthas
and land bearing Survey No. 59 (Part) admeasuring 25 gunthas as
inferior holders and seeking their names to be recorded as "Kabjedars"
in the Record of Rights. In these proceedings, Respondent No. 19, the
predecessor of Respondent Nos. 1 to 14 i.e. Raghunath Sakhare and
one Venubai Duming were arrayed as party.
5. The Petitioner's claim was accepted by the Awal Karkun vide
order dated 15th February, 1985, who directed entering of the
Petitioner's name as "Occupants" in respect of Survey Nos. 50 (Part)
and 59 (Part) and deleted the names of Venubai Duming and
Raghunath Sakhare. Resultantly, Mutation Entry No. 866 dated 10 th
April, 1985 came to be certified in favor of the Petitioners.
6. Against the order of the Awal Karkun, revisional jurisdiction was
invoked by the Respondents through their Constituted Attorney B.D.
Kothari before the State Government which was allowed by the
impugned order dated 8th November, 1996 giving rise of the previous
Petition.
PREVIOUS PROCEEDING OF THE YEAR 1959:
7. The Respondent No.19-Estate Holder had filed an application
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under Section 6 of the Bombay Land Tenure Abolition Laws
(Amendment) Act, 1958 [for short, "Land Tenure Abolition Act"]
before the Mamlatdar seeking declaration that the Opponents therein-
39 in number, which included the predecessor of the Petitioners,
should not be declared as inferior holder, permanent holders or
permanent tenants in respect of lands in their occupation. The
Mamlatdar, upon inquiry, held some opponents as occupants, some as
tenants, some as permanent tenants. In appeal, the District Deputy
Collector vide order dated 21st February, 1961 directed the Mamlatdar
to show all Opponents except those at Serial Nos. 10, 11, 13, 16, 23 and
39 as occupants and remanded the cases of those Opponents for
passing orders after rechecking areas in their possession. The
Petitioner's forefather was accepted as Occupant by the District
Deputy Collector.
8. The Respondent No. 19 filed 39 revision applications before the
Commissioner, which allowed the revision by order dated 21 st May,
1963 and set aside the order of Mamlatdar and District Deputy
Collector. In a challenge before the High Court, the order of
Commissioner was set aside and matter was remanded for fresh
consideration. After remand, the Commissioner vide order dated 2 nd
September, 1968 noted that the record of rights have been in existence
since last 70 years which showed the relationship between the
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Inamdars and his tenants. In absence of status of inferior holders on
part of the Opponents and their rights being of protected tenants, the
authorities cannot go beyond the record and conduct fresh inquiry into
their status as inferior holders or otherwise. The Village Nahur was
surveyed and settled one and record of rights was in existence before
abolition of Inam and none of the Opponents are shown as inferior
holder, which position continued till date of abolition of personal
Inams. The Commissioner by order dated 2nd September, 1968 rejected
the claim of the Opponents to be recognized as Occupants under
Section 5(2) of Inam Abolition Act. The order of Commissioner was
taken to the State Government and by order dated 10 th November,
1981, the challenge was rejected.
SUBMISSIONS:
9. Mr. Rane, learned counsel appearing for Petitioner would submit
that in the proceedings before the Awal Karkun, Venubai Duming gave
'No objection', Raghunath Sakhare was not present and the Estate
Holder though absent gave its 'No objection'. After conducting the site
inspection and panchanama and considering the assessment receipts
produced by the Petitioners, the Awal Karkun held the Petitioners to
be inferior holders and Occupants.
10. He submits that the order of Awal Karkun was neither
challenged by Raghunath Sakhare or Venubai Duming, but by the
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Constituted Attorney of Respondent Nos. 1 to 14, one B.D. Kothari,
who verified the application in his individual capacity, and that too
after lapse of 11 years. He submits that the application was Review
Application which was not maintainable and even if it was revision
application, the same could not be entertained in view of availability of
alternate remedy before the Sub-Divisional Officer. He submits that
the explanation for delay was lack of knowledge and that though
Raghunath Sakhare had died in the year 1938, he was made a party.
He submits that under Section 149 of Maharashtra Land Revenue Code,
1966 [for short, "MLRC"], it is the responsibility of legal heirs to take
steps for bringing their names on record and cannot be the reason for
condoning delay.
11. He submits that the Respondent Nos.1 to 14's claim is in respect
of property known as "Ambyachi Baug", which is Survey Nos. 36 and 46
by relying upon the Sood Book, which according to him, is obtained
after the passing of impugned order. Pointing out the land acquisition
orders, he submits that the Respondent Nos.1 to 14's predecessor
claimed compensation in respect of Survey Nos.36 and 46, whereas the
Petitioner's predecessors claimed compensation in respect of Survey
Nos.50 and 59 and the rival claim was by the Ex-Inamdar.
12. He submits that the impugned order suffers from perversity as it
holds that it is responsibility of revenue authorities to bring legal heirs
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on record and that it directs mutation of Respondent Nos. 1 to 14's
name in respect of Survey No. 59 (Part), even though the names did not
appear in other rights column of Survey No. 59 (Part). He submits that
the impugned order reappreciates the evidence including the Sale
Deeds of the respective parties to come to a finding that "Ambyachi
Baug" pertains to Survey Nos.50 (Part) and 59 (Part) and has thus,
concluded the issue of ownership of the subject land which was
impermissible in review proceedings. He further submits that the
Hon'ble Minister has interfered with the findings of fact as regards the
possession of Petitioner's predecessor in respect of Survey Nos.50
(Part) and 59(Part) which was based on Panchnama dated 2nd February,
1984 and Site Inspection Report dated 9th October, 1984.
13. He submits that in view of Inam Abolition Act, 1952, Respondent
No.19's rights have been extinguished. He submits that in the year
1995, the Constituted Attorney, Mr. B.D. Kothari had filed civil suits
before the City Civil Court against the Petitioner's predecessors
claiming property known as "Ambyachi Baug" wherein the parties were
directed to maintain status quo, which suits have been dismissed for
non-prosecution.
14. He submits that the Hon'ble Minister has not taken into
consideration the Aakarphod Patra annexed at Page 58 to 62 of
compilation, the receipts issued by Bhandup Estate Holders in lieu of
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payment of land revenue demanding the payment of land revenue, the
land acquisition proceedings resulting into the award dated 12 th
December, 1966 and the valuation note of Land Acquisition Officer on
19th July, 1965 which was not objected by the predecessor of the
Respondent Nos. 1 to 14, which conclusively established the
Petitioners as Occupants.
15. He submits that the Respondents were inactive for a period of
more than 52 years from the death of Raghunath Sakhare from the
year 1938 until 7th November, 1992 when the names of Respondents
were added in Mutation Entry No.937. In support, he relies upon the
following judgments:
(1) The State of Bombay vs. Chhaganlal Gangaram
Lavar'1
(2) Shri Santoshkumar Shivgonda Patil vs. Shri
Balasaheb Tukaram Shevale2
(3) Keshavrao Attamaramji Pardhi vs. State of
Maharashtra3
(4) Gulabrao Bhaurao Kakade vs. Nivrutti Krishna
Bhilare4
(5) Dattu Appa Patil vs. State of Maharashtra5
1 1954 SCC OnLine Bom 69.
2 2009 9 SCC 352.
3 2016 SCC OnLine Bom 10678.
4 2001 SCC OnLine Bom 282.
5 2006 SCC OnLine Bom 994.
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(6) Ganpati Dadu Mali vs. State of Maharashtra6
(7) Chattar Pal vs. Mandir Thakurji7
16. Per contra Mr. Karandikar, learned counsel appearing for the
Respondent Nos. 1 to 14 submits that the proceedings before the
Hon'ble Minister were not by way of review but revision. He has taken
this Court through the various mutation entries and would point out
that vide Mutation Entry Nos. 450 and 471, the names of Petitioner's
ancestors came to be deleted in respect of subject-lands by reason of
Commissioner's order. Pointing out the findings of the Commissioner's
Order dated 2nd September, 1968, he submits that the claim of
Petitioner's ancestors as occupants was rejected in the year 1968 itself.
He would submit that the Awal Karkun failed to notice that the
receipts produced do not contain any survey number and the same
receipts were referred in earlier proceedings before the Commissioner.
He submits that the Awal Karkun has held that the lands are
unsurveyed whereas the previous order of Commissioner clearly finds
that the lands are surveyed. He submits that the Respondent's
predecessor-Raghunath Sakhare expired in the year 1938 and no order
could be passed against dead person. He submits that the only
consequence for not reporting the information under Section 149 of
MLRC is imposition of fine under Section 152 of MLRC. He submits that
6 2011 SCC OnLine Bom 1325.
7 (2003) 10 SCC 360.
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the delay was properly explained as the Respondents were not aware
of the order of Awal Karkun and only when the possession was sought
to be interfered in 1995, the revision and the suits came to be filed. He
submits that the land acquisition claims were lodged in 1961 after the
Mutation Entry certified in 1959 by order of Mamlatdar which was set
aside by Commissioner. He submits that the Awal Karkun did not have
jurisdiction to decide the application filed under Rules of 1971 read
with Inam Abolition Act. He submits that in view of the earlier order of
Commissioner, no fresh inquiry could be conducted and there was
gross misuse of powers, which justified invocation of revisionary
powers. He submits that the impugned order sets aside the order of
Awal Karkun in view of the Commissioner's order and it is not
necessary to go in the merits of the matter.
17. Mr. Kapse, learned counsel for Respondent No.19, the Ex-
Inamdar has taken this Court through the provisions of Inam Abolition
Act and Land Tenure Abolition Act. He submits that the order of Awal
Karkun recording the statement of manager of Estate Holder has no
meaning in view of the earlier order of Commissioner.
18. In rejoinder, Mr. Rane would submit that the Petitioners had filed
the application by reason of change of circumstances as 'No Objection
Certificate' was issued by Respondent No. 19. He submits the
documents submitted by the Respondent No. 19 cannot be considered
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as Respondent No. 19 had not challenged the order, and for first time,
cannot produce documents in this Court.
REASONS AND ANALYSIS:
19. The Petition invokes the powers under Article 227 of
Constitution of India. In Shalini Shyam Shetty vs. Rajendra Shankar
Patil8, the Apex Court has held that in exercise of its power of
superintendence, the High Court cannot interfere to correct mere
errors of law or fact or just because another view than the one taken
by the tribunals or Courts subordinate to it, is a possible view. In other
words, the jurisdiction has to be very sparingly exercised. It is trite that
the power exercised under Article 227 is not akin to that of an
Appellate Court and this Court is not expected to reappreciate the
findings of fact. It was necessary to strike a note of caution at the
outset as the learned counsels for the respective parties have placed
additional material for consideration of this Court and have advanced
submissions on the findings of the authorities, as if in Appeal.
20. Coming to the merits, in proceedings initiated in the year 1983,
the Awal Karkun held the Petitioners to be inferior holders and
recognized them as Occupants in respect of subject lands. Way back in
the year 1959, the Respondent No. 19-Estate Holder had invoked
Section 6 of the Land Tenure Abolition Act to contest the right of
8 2010 (7) SCALE 428.
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several cultivators including the Petitioner's predecessor to have their
names entered in the record of rights as inferior holders. Section 6 of
Land Tenure Abolition Act, reads thus:
"6. Tenure holder contesting the entry in record of rights to apply
for declaration and disposal of such application.
(1) The rights of an inferior holder, permanent holder or
permanent tenant under sections 4 and 5 shall be entered in the
record of rights unless the tenure holder applies in writing to the
Mamlatdar within six months from the date of the
commencement of this Act for a declaration that any holder or
tenant under him is not an inferior holder, a permanent holder
or, as the case may be, a permanent tenant.
(2) Any such application shall be disposed of as if it were an
application in respect of a disputed case under section 135D of
the Bombay Land Revenue Code, 1879."
21. The inquiry before the Awal Karkun seeking recording of names
as Occupants was under Section 5 of Inam Abolition Act, which reads
thus:
"5. Liability of inam village or inam land to payment of land
revenue and Inamdar and permanent holder to be occupant.--
(1) All inam villages or inam lands are and shall be liable to the
payment of land revenue in accordance with the provisions of
the Code and the rules made thereunder and the provisions of
the Code and the rules relating to unalienated land shall apply to
such lands.
(2) (a) An inamdar in respect of the inam land in his actual
possession or in possession of a person holding from him other
than an inferior holder, referred to in clause (b) below, or
(b) an inferior holder holding inam land on payment of annual
assessment only, shall primarily be liable to the State
Government for the payment of land revenue due in respect of
such land held by him and shall be entitled to all the rights and
shall be liable to all obligations in respect of such land as an
occupant under the Code or the rules made thereunder or any
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other law for the time being in force."
As Section 5(2) makes a reference to 'inferior holder', it will be apposite
to consider Section 3 of Land Tenure Abolition Act, which defines
'inferior holder' and reads thus:
"3. Persons entered in record of rights, etc., as inferior holders,
permanent holders or permanent tenants to be deemed to be so
for purposes of certain Act and rules.
A person shall, within the meaning of the relevant Land Tenure
Abolition law, be deemed to be an inferior holder a permanent
holder or, as the case may be, a permanent tenant, on the date
of the abolition of the relevant land tenure, if his name has been
recorded in the record of rights or other public or revenue record
as an inferior holder, permanent holder or permanent tenant in
respect of any tenure-land-
(a) on the date of the abolition of the relevant land tenure, or
(b) in pursuance of orders issued during the course of any
proceedings under the relevant Land Tenure Abolition law or as
the case may be, the Bombay Land Revenue Code, 1879-
(i)before the commencement of this Act, or
(ii)after the commencement of this Act in cases in which inquiries
were pending at the commencement of this Act, or
(c) in pursuance of an order issued by the Mamlatdar in respect
of an entry under section 6 of this Act. "
22. For being recognized as Occupants, Section 5(2)(b) of Inam
Abolition Act seeks satisfaction of three requirements:-
(a) of being an inferior holder;
(b) of being in actual possession of the inam land; and
(c) paying of annual assessment.
The requirements are conjunctive requirements and the fulfillment of
each of the requirements confers recognition as 'Occupants'. The
effect of the Commissioner's order under Section 6 negating the right
of the Petitioners predecessors to have their name entered in the
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record of rights as inferior holder is to destroy the foundation of the
claim as Occupants, which right could not be revived by the Awal
Karkun in the subsequent proceedings. The finality attached to the
Commissioner's order barred the Awal Karkun from going into the
issue of status of the Petitioners as inferior holders and consequently,
occupants of the subject-land. The Awal Karkun not only conducted an
inquiry into the status of Petitioner as inferior holder but rendered
findings which are diametrically contrary to the findings of the
Commissioner and are tabulated hereunder for ease of reference:
Order of Commissioner Order of Awal Karkun
Village Nahur was surveyed and The village was unsurveyed in the
settled on date of coming into year 1952 when Salsette Estate
force of Inam Abolition Act. All Land Revenue Act, 1951 came into
survey numbers have been shown force.
in Record of Rights in name of
Inamdars and other cultivators
have been recorded as tenants.
Payment made even if comparable Payment made was amount equal
with amount of land revenue is not to assessment supports case of
relevant. being inferior holder.
Khatevahi extracts and receipts Receipts produced describes
produced does not show payment payment as assessment.
under authority of law and cannot
be termed as assessment though
so described in the Receipt.
Absence of status of inferior Suit lands were held as Inferior
holder and are merely protected holders.
tenants.
Not entitled to be recognised as Suit lands were held as inferior
Occupants under Section 5(2)(b) of holders by payment of sum equal
Inam Abolition Act to assessment and had status of
inferior holders and entitled to be
recognised as Occupants.
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23. The Inam Abolition Act does not confer any special rights, but
merely declares the inferior holders as direct occupants of land as they
were occupants prior to grant of inam and entitled them to be
recognized as such. The Commissioner had in the year 1968 arrived at a
finding that the village was surveyed and the record of rights was
already introduced prior to the abolition of the inam and rights of all
persons have been recorded. The names of the Petitioner's
predecessor did not appear as inferior holder in Record of Rights.
24. The Awal Karkun conducted an independent inquiry into the
aspect of possession of Petitioners and payment of land revenue on
the basis that the village was unsurveyed. As the land was already
surveyed and record of rights were in existence, there was no necessity
to hold fresh inquiry as to the actual holders. After arriving at a finding
that the Petitioners are in actual possession of the subject lands and
were paying a sum equal to the land assessment, the Awal karkun held
the Petitioners to be inferior holders without noticing that the record
of rights were in existence and the name of the Petitioners were not
recorded as inferior holders as held in the Commissioner's order.
Perusal of the Awal Karkun's order discloses no reference to the
previous proceedings of the year 1959 initiated before the Mamlatdar
and the order of Commissioner of the year 1968, leading to the logical
conclusion that the orders passed in the previous proceedings were
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not brought to the notice of Awal Karkun. The Petitioner's
predecessors had participated in the earlier proceedings, and it is not
even remotely suggested that the Petitioners were not aware of the
earlier order. The Petitioner's invoked the Awal Karkun's jurisdiction
seeking declaration as Occupants under Inam Abolition Act despite
clearly being in know of the said relief having being negated in the
earlier proceedings. It cannot be doubted that the orders passed in the
earlier inquiry was a material fact having direct bearing on the second
inquiry and by not divulging the previous orders, the Petitioners are
guilty of suppressio veri; suggestio falsi.
25. The application by the Petitioners in the year 1983 before the
Awal Karkun was second bite of the cherry seeking the same
declaration which was declined in the year 1968 and was legally
impermissible. Though a feeble attempt was made to justify the
second round of inquiry citing change of circumstances, no provision to
demonstrate the permissibility of fresh inquiry has been brought to the
notice of this Court.
26. The impugned order of the Hon'ble Minister rightly takes into
account the Commissioner's order of the year 1968 and holds that in
view of the order of the Commissioner being in force, the Awal Karkun
has misused the powers and has resulted in wrong and illegal decision
which needs to be corrected. Though Mr. Rane would assail the very
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maintainability of the proceedings before the Hon'ble Minister on the
ground that Review under Section 258 of MLRC was not maintainable
and that the alternate remedy of approaching the Sub-Divisional
Officer was not exhausted, perusal of the application by the
Respondents discloses that the same invoked the powers under
Section 257 and/or Section 258 of MLRC. It cannot be denied that the
State Government is vested with revisionary powers under Section 257
of Maharashtra Land Revenue Code. As far as availability of alternate
remedy is concerned, there was no such objection raised before the
Hon'ble Minister and the Petitioners acquiesced in the proceedings
before the Hon'ble Minister and it is too late in the day to object on the
ground of availability of alternate remedy.
27. The impugned order notes that the entire Nahur Village was
declared Inam Village and therefore the subject land is not governed
by the Salsette Estate (Abolition of Land Revenue) Act, 1951. The
Village was surveyed in the year 1929, whereby the name of the
Inamdar and actual holders were entered in the record of rights and
thus, there was no reason to hold an inquiry into the rights of the
Inamdars and actual holders under the record of rights. The Hon'ble
Minister held that Awal Karkun did not have jurisdiction and had
misused his powers making it necessary to re-examine such wrong and
illegal decision and declined to accept the plea of limitation.
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28. The impugned order notes that as per the Record of Rights, the
name of Inamdars have been entered in respect of subject-lands and
the name of Raghunath Sakhare as 'protected tenant'. In the earlier
proceedings which were initiated by the Estate Holder, Shivling
Sakhare was one of the Opponents whose claim as Occupants was
rejected in respect of Survey Nos. 36 and 46. The impugned order holds
that Shivling Sakhare and Raghunath Sakhare belong to different
branches of one family. The Hon'ble Minister examined the ledger
account of the former Inamdar to come to a conclusion that the
property known as "Ambyachi Baug" was shown in the name of
Raghunath Sakhare, whereas the property known as "Sabaravati
Bandhan" and "Haricha Baug" is shown in name of Petitioner's
ancestors. As the Awal Karkun had relied upon the receipts to come to
a finding that land assessment was paid in respect of subject-lands, the
receipts were examined by the Hon'ble Minister to come to a finding
that there is no mention of Survey Number on the receipts. Before the
Hon'ble Minister, the Petitioners claimed in paragraph 15 of their reply
that the property "Ambaychi Baug" forms part of Survey Nos. 36 and 46
and in the context of the contention raised, the Hon'ble Minister
examined the Khot's Register and held that the same showed the
Petitioners predecessors as "Sutidars" of lands known as "Bandhan"
and that the property known as "Ambyachi Baug" was shown in the
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Khot's register in name of Raghunath Sakhare and accordingly, entries
were made in the record of rights as mentioned in the Commissioner's
order.
29. As far as the aspect of delay of 11 years is concerned, Section
257 of MLRC does not prescribe any period of limitation but judicial
pronouncements have held that revisionary power must be invoked
within a reasonable time, which is ordinarily construed to be period of
three years. Mr. Rane has tendered compilation of decisions on the said
issue about which there is no quarrel. (See The State of Maharashtra
vs Chhaganlal Gangaram Lavar, Santoshkumar Shigonda Patil & Ors
vs Balasaheb Tukaram Shevale, Keshavrao Attamramji Pardhi vs
State of Maharashtra, Gulabrao Bhaurao Kakade and Ors Vs Nivrutti
Krishna Bhilare and Ors, Dattu Appa Patil and Ors vs State of
Maharashtra, Ganpati Dadu Mali and ors vs State of Maharashtra
and Ors). At the same time, the rigour of period of three years is not
rigid and would depend on facts and circumstances of each and in
appropriate exceptional cases, in spite of delay, the revisionary powers
can be exercised.
30. Whether the present case warrants the exercise of revisionary
powers despite the delay is to be seen. The plea of limitation has not
been accepted by the Hon'ble Minister by rightly holding that although
the decision was given in the year 1968 by Commissioner and was still
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subsisting, the Awal Karkun superseded the decision after 20 years and
gave new decision and thereby misused his powers and has done
injustice to the Respondents. Mr. Rane has not been able to justify the
exercise of power by the Awal Karkun despite the Commissioner's
order holding the field. The rejection of plea of limitation does not
suffer from any infirmity for one another reason that admittedly, in the
proceedings before the Awal Karkun in the year 1985, Raghunath
Sakhare was arrayed as Opponent though he had expired in the year
1938. Thus, there was no effective notice to the Respondent Nos. 1 to
14, who were the legal heirs. Considering that specific case of absence
of knowledge till the year 1995 was put forth by the Respondents
which has not been demonstrated to be factually erroneous by the
Petitioners, the explanation for delay is perfectly acceptable,
irrespective of the debate as to the responsibility to notify the
information under Section 149 of MLRC. The circumstances of the case,
thus, justified the exercise of revisionary powers in spite of the delay as
the order of Awal Karkun was result of flagrant misuse of powers.
31. Though Mr. Rane would submit that in exercise of revisional
jurisdiction there cannot be re-appreciation of evidence, at the same
time, he would submit that there is non consideration of material
documentary evidence such as the Aarkarphod patrak, letters and
receipts issued by Estate Holder, extracts of land acquisition
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proceedings and Sood Book. He would also submit that the property
"Ambyachi Baug" claimed by the Respondent Nos. 1 to 14 pertains to
Survey Nos. 36 and 46. The question is whether in light of the earlier
findings of the Commissioner, it is necessary to examine the claim of
the Petitioners as upheld by the Awal Karkun in the present
proceedings. The right of the Petitioner's predecessors to have their
names entered as Occupants in Record of Rights was declined by the
Commissioner's Order and the documentary evidence emphasized by
Mr. Rane to support the Awal Karkun's order would mean ignoring the
Commissioner's order and reappreciating the evidence in respect of
the Petitioner's right as Occupants, which cannot be countenanced. As
rightly held by the Commissioner, the proper forum is the Civil Court to
establish the rights which are contrary to the rights so recorded in
Record of Rights.
32. The impugned order is not vitiated by the reason that in addition
to the finding that the order of Awal Karkun suffers from jurisdictional
error, it proceeds to examine whether the findings are sustainable vis-
a-vis, the Commissioner's order. The impugned order is sustainable in
view of the finding of Awal Karkun exceeding its jurisdiction. It is also
well settled that the findings of possession or ownership, even if any,
of the revenue authorities will not bind the Civil Courts and the title
dispute will have to be adjudicated by the Civil Courts.
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33. The other objection of Mr. Rane to the impugned order is the
direction qua the Survey No. 59 (Part), as the Respondent Nos. 1 to 14's
names were entered in record of rights only in respect of Survey No. 50
(Part). The order of Awal Karkun directs deletion of name of Venubai
Duming in respect of Survey No. 59 (Part) and Raghunath Sakhare's
name in respect of Survey No. 50 (Part) and to add the names of the
Petitioner's predecessors in respect of those survey numbers. As by
the Commissioner's order of the year 1968, the Petitioner's
predecessors were not held to be inferior holders in respect of either
of the Survey numbers, grievance about inclusion of the names of
Respondent Nos. 1 to 14 in respect of Survey No. 59(Part), if any, can
be raised only by the heirs of Venubai Duming.
34. It is the case of the petitioners that the properties were
purchased in the year 1899, 1903 and 1919 by their forefathers under
three Registered Conveyance Deeds dated 23 rd November, 1899, 25th
November, 1903 and 16th June, 1917. The Respondent Nos.1 to 14
claimed the same properties under the Registered Deed of Conveyance
dated 16th February, 1918 and 24th April, 1919. The proceedings before
the Awal Karkun were for the purpose of being recognized as
Occupants of the subject lands i.e. Survey Nos. 50 (Part) and 59 (Part)
by reason of being inferior holders, and not ownership. It is, therefore,
not necessary to consider any submission based on the rival
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conveyance deeds which can be adjudicated only in competent forum.
For the same reason, the Sood Book produced by the Petitioners
before this Court for the first time cannot be considered in order to
identify the survey number of the property known as "Ambyachi Baug".
35. As far as the proceedings being initiated by the Constituted
Attorney of the Respondents is concerned, allegation of mala fide is
made on the ground of Hon'ble Minister and Mr. B.D. Kothari being
from the same political party. In the absence of Hon'ble Minister being
impleaded as party in his personal capacity, no allegation of mala fide
can be accepted. The proceedings before the Hon'ble Minister were
instituted by the Respondent Nos.1 to 14 through the same Power of
Attorney without any objection and in any event, by Deed of
Conveyance dated 28th August, 1995, the constituted Attorney of
Respondent Nos.1 to 14 i.e. B.D. Kothari purchased the subject-lands
and had acquired an interest in the subject lands. The filing of the
revision proceedings by the Constituted Attorney has no material
bearing on the merits of the matter.
CONCLUSION:
36. The order of Extra Awal Karkun dated 15 th February, 1985 under
Section 5(2)(b) of Inam Abolition Act, suffered from jurisdictional error
in view of the finding in the Commissioner's order dated 2nd September,
1968, that the Petitioner's predecessors did not have the status as
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inferior holders recorded in record of rights and would not be entitled
to be recognized as Occupants under Section 5(2)(b) of Inam Abolition
Act. The order of Commissioner was suppressed by the Petitioners in
the second round of inquiry before the Awal Karkun. The finding of the
Commissioner negated the Petitioner's status of inferior holder and
consequently, the recognition of Petitioner as Occupant of the subject-
lands and no fresh inquiry could be conducted by the Awal Karkun. The
impugned order rightly holds the Awal Karkun's decision as illegal in
view of the earlier order of the Commissioner. The impugned order is
sustainable on this finding alone and is not vitiated by reason of the
Hon'ble Minister examining the validity of the Awal Karkun's order. The
plea of limitation by reason of delay of 11 years to challenge the order
of Awal Karkun is not acceptable in view of the exceptional
circumstances existing in the present case which also justifies the
invocation of revisionary jurisdiction under Section 257 of Maharashtra
Land Revenue Code.
37. Resultantly, the Petition stands dismissed. Rule is discharged. In
view of the dismissal of the Petition, the Interim Applications do not
survive for consideration and stand dismissed.
[Sharmila U. Deshmukh, J.]
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38. At this stage, request is made to extend the interim relief, which
was operating in favor of the petitioners for further period of eight
weeks. Interim relief granted earlier, to continue for a period of eight
weeks, from the date of uploading of this Judgment.
[Sharmila U. Deshmukh, J.]
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