Bombay High Court
Saifan Hussain Nadaf Through Lrs Tolan ... vs The State Of Maharashtra And Others on 28 July, 2025
2025:BHC-AUG:19761
1 wp 4000.20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4000 OF 2020
1. Saifan Hussain Nadaf,
Since dead, Through Legal Heirs,
1-A Tolan Saifan Nadaf,
Age: 55 Years, Occu: Agriculture
R/o: Omerga (Chiwari)
Tq. Tuljapur, Dist. Osmanabad.
1-B Lalu Saifan Nadaf,
Age: 44 Years, Occu: Agriculture
R/o: Omerga (Chiwari)
Tq. Tuljapur, Dist. Osmanabad.
1-C Salim Ambir Nadaf,
Age: 27 Years, Occu: Agriculture
R/o: Sangmeshwar Nagar,
Akkalkot Road, Solapur,
Tq. & Dist. Solapur.
1-D Ghudumabi Ambi Nadaf,
Age: 60 Years, Occu: Household
R/o: Sangmeshwar Nagar,
Akkalkot Road, Solapur,
Tq. & Dist.Solapur.
1-E Rukyabee Bashumiya Nadaf,
Age: 55 Years, Occu: Household
R/o: Omerga (Chiwari)
Tq. Tuljapur, Dist. Osmanabad.
1-F Hussain Bashumiya Nadaf
Age: 28 Years, Occu: Agriculture
R/o: Omerga (Chiwari)
Tq. Tuljapur, Dist. Osmanabad.
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1-G Tajoddin Bashumiya Nadaf
Age : 27 years, Occu.Agriculture,
R/o. Omerga (Chiwari)
Tq. Tuljapur,Dist.Osmanabad.
1-H Fatimabee Yunus Nadaf,
Age: 29 Years, Occu: Household
R/o. Murum, Tq. Omerga,
Dist. Osmanabad.
1-I Ruksana Jainoddin Nadaf,
Age: 28 Years, Occu: Household
R/o. Arbali, Tq. Tuljapur, Dist. Osmanabad.
1-J Tasmin Bashumiya Nadaf,
Age: 23 Years, Occu: Household
R/o: Omerga (Chiwari) Tq. Tuljapur,
Dist. Osmanabad.
1-K Yasmin Paingambar Nadaf,
Age: 25 Years, Occu: Household
R/o. Keshegaon, Tq. Tuljapur,
Dist. Osmanabad.
1-L Husainamabee Maula Nadaf,
Age: 50 Years, Occu: Household
R/o: Omerga (Chiwari)
Tq. Tuljapur, Dist. Osmanabad. ... Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-32.
2. The District Collector, Osmanabad.
3. The Deputy Director of Land records,
Aurangabad.
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4. The Superintendent of Land Records,
Osmanabad.
5. Maheboob Fakru Nadaf,
Since dead, Through Legal Heirs,
5-A Nabilal Maheboob Nadaf,
Age: 60 Years, Occu: Agriculture,
R/o: Omerga (Chiwari),
Tq. Tuljapur, Dist. Osmanabad.
5-B Salim Maheboob Nadaf,
Age: 57 Years, Occu: Agriculture,
R/o: Omerga (Chiwari),
Tq. Tuljapur, Dist. Osmanabad. ... Respondents
Shri Milind Patil, Advocate for the Petitioners.
Shri B. A. Shinde, A.G.P. for the Respondent Nos. 1 to 4.
SHRI S. V. Deshmukh, Advocate for the Respondent Nos. 5A and
5B.
CORAM : SHAILESH P. BRAHME, J.
CLOSED FOR JUDGMENT ON : 01.07.2025
JUDGMENT PRONOUNCED ON : 28.07.2025
JUDGMENT :
-
. Rule. Rule is made returnable forthwith. Heard finally
with the consent of learned counsel for the parties.
2. This writ petition is directed against the order of the
learned Minister passed on 09.09.2019, setting aside order of
09.02.2011 passed by District Superintendent of Land Record,
and remitting the matter for fresh enquiry to the said authority.
Petitioner and the Respondent No.5 are litigating over ownership
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of eight acres which is wrongly shown in the record of right after
implementation of consolidation scheme.
3. Petitioner claims that he was owner of survey no.13/A
measuring 10 acres and 7 gunthas situated at Omerga (Chivri)
Tq. Tuljapur, District Osmanabad. After consolidation scheme,
the said land is numbered as gat no.17 measuring 76R thereby
reducing it's area by 8 acre. The Respondent No.5 was the owner
of Survey no.13/B total admeasuring 15 Acres which is given Gat
No. 19. It's a case of the petitioner that Gat no. 19 is formulated
by consolidating Survey nos. 8/2,8/3 and 8/9/3 and making it upto
23 Acres and 20 gunthas. Due to the mistake, area of 8
acres belonging to the petitioner which was part of gat No.
17 is wrongly added to the area of gat No. 19. Gut No. 17
is reduced to 76R from 10 acres and 7 gunthas (4 Hectare).
This was a cause of action for petitioner to approach civil
court.
4. Petitioner had filed R.C.S No. 105 of 1995 for declaration
and injunction in respect of disputed 8 acre which was part of his
gat no.17 and wrongly added to gat no.19 after consolidation.
After recording evidence of the contesting parties, suit was
decreed on 26.02.2001. Being aggrieved R.C.A No. 66 of 2001 was
preferred. It was allowed partly remanding the matter to the
trial court for referring issue to the competent authority under
'The Maharashtra Prevention of Fragmentation and
Consolidation of Holdings Act, 1947' (hereinafter referred to as
5 wp 4000.20
'Act' for the sake of brevity and convenience) vide judgment
dated 18.07.2003.
5. After remand, Learned Trial Judge referred following issue
to the competent authority as per Section 36(B) of the Act.
"Whether the plaintiff proves that this land has been converted
into block No. 17 and he is owner of the area of 10 acres
instead of area of 76R on the basis of old record of Survey
number ?
6. After referring the issue, Respondent No.4/Superintendent
of land record passed order dated 09.02.2011. Thereafter, trial
court again decreed R.C.S No.105 of 1995 on 30.04.2015 which
was assailed by the Respondent No.5 in R.C.A No.119 of 2015. It
was dismissed on 21.01.2019. Questioning the decrees passed by
the courts below, Respondent No.5 has preferred Second Appeal
No.303 of 2019 which is tagged alongwith the present petition.
7. The Respondent No.5 approached Learned Minister on
03.01.2019, taking exception to the order dated 09.02.2011
passed by District Superintendent of Land Record along with
application for condonation of delay. In pursuance of the notice,
petitioner appeared before learned Minister. Delay was condoned
and simultaneously order dated 09.02.2011 was recorded to be
passed without considering consolidation record and contrary to
the issue referred. Vide judgment and order dated 09.09.2019,
order dated 09.02.2011 passed by District Superintendent of
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Land Record was quashed and matter was relegated to the said
authority for deciding it afresh. Petitioner is assailing this
judgment by way of present petition under Article 226 and 227 of
the Constitution of India.
8. Learned counsel Mr. Milind Patil for the Petitioner has
taken me through various documents especially Exhibit-G to
bolster a submission that after following due procedure of law,
order dated 09.02.2011 was passed under Section 31A of the Act.
Despite due publication of the order which is in the form of
corrigendum, no objection was raised by the Respondent No.5 or
any interested party. It is submitted that mutation entry no.596
was effected in pursuance of order dated 09.02.2011 and
Respondent No.5 was aware of it. Neither the said order, nor the
mutation entry was ever challenged. It is submitted that
Respondent No.5 suffered decree in RCS No.105/1995 after
remand on 30.04.2015 and thereafter his appeal i.e. RCA
No.119/2015 was also dismissed on 21.01.2019. He approached
learned Minister with application for delay condonation on
03.01.2019 after inordinate delay. It is submitted that learned
Minister had no jurisdiction to entertain application of the
Respondent No.5 and that too when competent Civil Courts
decided against him.
9. Learned counsel further submits that there was delay of 7
years, 10 months and 23 days which was not explained in the
application. It was suppressed that R.C.S. No.105/1995 was
decreed against Respondent No.5 and the decree was confirmed
7 wp 4000.20
by the Appellate Court in R.C.A. No.119/2015. My attention is
adverted to affidavit filed before the Minister in support of
appeal to show that a false statement is made in its paragraph
no.3. It is further submitted that its an error of jurisdiction to
condone the delay and to decide matter on merits simultaneously
on 09.09.2019. No proper opportunity of hearing was given to the
Petitioner by the Minister. Appeal preferred by the Respondent
No.5 under Section 257 of the Maharashtra Land Revenue Code
(for the sake of brevity and convenience hereinafter referred as to
the "M. L. R. Code") was not tenable. It was suppressed that Writ
Petition was filed and it was dismissed.
10. It is submitted that judgment and order dated 09.09.2019
is perverse because no specific reasons are assigned for
interfering in the order dated 09.02.2011. It would amount to
exceeding of jurisdiction and usurption of powers. It is contended
that impugned judgment is arbitrary because it did not refer to
the finding recorded by the trial Court and the Appellate Court.
Learned Counsel has also raised objection to the documents filed
by the Respondent No.5 alongwith reply stating that those are
filed for the first time in the High Court.
11. Petitioner relied on following judgments of this Court :
I Judgment dated 13.06.2024 in Writ Petition No. 13677 of
2017 in the matter of Avantikabai Shankar Shinde and
others Vs. Pratap Gunderao Jadhav and others.
II Hanmant Jaisingh Ahirekar and others Vs. Baburao
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Raghunath Ahirekar and others reported in 2019 SCC
Online Bom. 1662.
III Shankar Ramrao Rangekar Vs. Narayan Sakharam
Sawant and others reported in 2013 (1) Mh.L.J. 706.
IV National Buildings Construction Corporation Ltd. and
another Vs. Regional Labour Commissioner (Central),
Nagpur reported in 2006(1) Mh.L.J. 669.
12. In reply to the submission of the Petitioner, learned
counsel Mr. S. V. Deshmukh appearing for the Respondent No.5
has referred to affidavit-in-reply. It is vehemently contended that
the documents annexed to the reply were part of the proceeding
before learned Minister and those are public documents born
from City Survey and Revenue Record. Learned Counsel would
submit that no recourse could have been taken to Section 31A of
the Act. After the consolidation proceedings were over, it is not
permissible to make any change in the record. Petitioner did not
file say to application for condonation of delay before the
Minister. Both the parties had conceded that delay as well as
merit would be considered at the same time. Therefore petitioner
is estopped from objecting impugned judgment. Learned counsel
adverted my attention to revenue record, form no.12, form no. 4,
to demonstrate that Survey No. 8/1 measuring 76R was in the
name of petitioner's father and Survey No. 8/2, 8/3 and 9/3 were
in the name of respondent No. 5 and his family members. Even
the mutation entry no.307 prior to consolidation was not
disputed, depicting the holding of the parties. It is further
pointed out from mutation ledger that Survey No. 13/1 was
9 wp 4000.20
recorded in the name of Tatya Kerba Sawant and Manik Bajarao
Sawant at Serial No. 38 which belies petitioner's case. My
attention is adverted to map which is at Exhibit-R5 to show
Survey No.13 is not adjoining to Survey Nos. 8, 9. Hence claim of
the petitioner that he is the owner of original Survey No. 13/A
which is measuring 10 acre, is false. It is submitted that after
conducting measurement and considering possession, the entries
were recorded which are undisputed.
13. Learned counsel further submits that after consolidation
proceedings, Survey Nos. 8/2, 8/3 and 9/3 were consolidated in
gut No. 19. Area of the respective Survey numbers before the
consolidation and after the consolidation, remained the same.
After consolidation, Survey No.8/1 belonging to Petitioner, is
converted into gut no.17 which was of only 76R. Hence it is
contended that there was no need of any rectification so as to
take recourse to Section 31A of the Act. The record of the
consolidation proceedings, have not been challenged by anybody.
The record of consolidation is totally overlooked by
Superintendent of Land Record, while passing order dated
09.02.2011. It is submitted that observations of para No. (13) of
the judgment dated 17.07.2003 of the Appellate Court are
overlooked. Though specific issue was framed and referred for
the scrutiny to the Consolidation Officer, no finding was recorded
as per the reference.
14. It is submitted that order dated 09.02.2011 is passed
10 wp 4000.20
without following due procedure of law. No steps were taken
against the parties who were dead namely Mehbub Faqru Nadaf
and Papala Faqru Nadaf. No objective scrutiny was made by
Superintendent of Land Record and issue was not answered by
him which was referred by Civil Court. It is submitted that it is
fraud and misrepresentation on the part of the Petitioner to
claim that he is owner of Survey No. 13/A and its 8 acres was
added to the gut no. 19. It is submitted that learned Minister had
jurisdiction under Section 35 of the Act. It is submitted that
order dated 09.02.2011 is vitiated by fraud and arbitrariness and
learned Minister is not precluded from entertaining appeal.
15. It is submitted by learned Assistant Government Pleader
that Minister is justified in partly allowing appeal and
remanding the matter to the Superintendent of Land Record to
conduct inquiry afresh.
16. Learned Counsel for the respondent No. 5 relied upon
following judgments of the Supreme Court :
A Collector Land Acquisition, Anantnag and another Vs. Mst.
Katiji and others reported in AIR 1987 SC 1353.
B Azgar Barid (D) by L.rs. and others Vs. Mazambi @
Pryaremabi and others reported in (2022) 5 SCC 334.
C S. P. Chengalvaraya Naidu (Dead) by L.Rs. Vs. Jagannath
(Dead) by L.Rs. and others reported in (1994) 1 SCC 1.
D Ashok Balaji Ratan Vs. Nagpur Improvement Trust
11 wp 4000.20
Nagpur reported in 2004(6) Bom.C.R. 861.
E Smt. Gulabrao Bhaurao Kakade since deceased Vs.
Nivrutti Krishna Bhilare and others reported in 2001(2)
All MR 518.
F Limbraj Waman Yede Vs. State of Maharashtra and others
reported in 2004(4) Bom.C.R. 945.
G Dattu Appa Patil and others Vs. State of Maharashtra and
others reported in 2006(6) Bom.C.R. 246
H Judgment dated __ October 2011 in Writ Petition No. 1783
of 1990 in the matter of Ganpati Dadu Mali since deceased
through L.Rs. Rakhmabai Ganpati Mali and another Vs.
The State of Maharashtra and others.
I Judgment dated 02.02.2018 in Writ Petition No. 11816 of
2016 in the matter of Jalindar Sadashiv Hirde and others
Vs. The State of Maharashtra and others.
J Judgment dated 13.02.2020 in Writ Petition No. 10200 of
2014 in the matter of Padmabai Narayan Chaudhary and
others Vs. The Deputy Director of Land Records,
Aurangabad and others.
K Order dated 13.10.2021 in Second Appeal No. 86 of 2012 in
the matter of Murlidhar Ramnarayan Chechani died
through L.Rs. Omprakash Chechani and others Vs.
Narayandas Raghunathdas Chechani died through L.Rs.
Ramprasad Chechani and others.
17. Having considered rival submissions of the parties, I
propose to formulate following points for determination :
12 wp 4000.20
(i) Whether learned Minister has jurisdiction to entertain
appeal of the Respondent No. 5?
(ii) Whether condonation of delay/latches by learned Minister
is legal and proper?
(iii) Whether order dated 09.02.2011 passed by Superintendent
of Land Record, is legal and proper?
(iv) Whether the impugned judgment and order dated
09.09.2019 passed by learned Minister is legal and proper?
(v) Whether any interference by High Court under Article 226
and 227 or under any other provisions is called for?
18. Before embarking on various submissions for addressing
above referred points, it is necessary to chalk down the admitted
facts as follows :
(a) R.C.S. No. 105/1995 was filed by the Petitioner and it was
decreed on 26.02.2001. Being aggrieved, R.C.S. No. 66/2001
was filed by which matter was relegated to trial Court to
refer issue to the authority under the Act. After receiving
order of Superintendent of Land Record dated 09.02.2011,
suit was again decreed. Being aggrieved, R.C.A. No.
119/2015 was preferred and it was dismissed. From those
proceedings, Second Appeal No. 303/2019 is filed which is
pending for admission.
(b) Petitioner claims to be owner of previous survey No.13/A
13 wp 4000.20
which is present gut no.17. Respondent No.5 claims
ownership of previous survey no.8/2, 8/3 and 9/3, which is
gut no. 19.
(c) City survey record, record of consolidation proceedings and
revenue record in respect of gut nos. 17 and 19 is available.
(d) Petitioner was heard by learned Minister before passing
impugned order.
(e) Grievance of the Petitioner is that area of 8 acres from his
gut no.17 is wrongly and illegally incorporated in area of
gut no.19 belonging to Respondent No.5 who is in
possession of the same.
19. Learned counsel Mr. Patil for the petitioner raised strong
objection for the document annexed to affidavit-in-reply. Those
are part of revenue and the consolidation record. There is no
rejoinder to reply challenging the existence or source of the
documents. Besides that learned Minister in the impugned
judgment has referred the record, which was before him.
Therefore the objection raised by the Petitioner is liable to be
overruled. This Court finds it fit to refer to the record which is
genuine, old and unchallenged.
20. Point No. (i) : Whether learned Minister has jurisdiction to
entertain appeal of the Respondent No. 5 ?
20-A. Respondent No. 5 approached learned Minister after
14 wp 4000.20
seven years and ten months. Respondent No. 5 challenged order
dated 09.02.2011 passed by Superintendent of Land Record
before Minister by filing appeal on 03.01.2019 along with
application for condonation of delay under Section 35 and 36 of
the Act. Impugned judgment of Minister refers to Section 257 of
M. L. R. Code for entertaining appeal. It is strongly contended by
the Petitioner that Minister had no jurisdiction either under
Section 35 or 36 of the Act or under Section 257 of the Code. It's a
matter of record that in pursuance of judgment and decree dated
18.07.2003, trial Court referred issue under Section 36B of the
Act for the decision vide communication dated 06.02.2007. Hence
inquiry was conducted by Superintendent of Land Record and
the decision was rendered vide order dated 09.02.2011. The
decision was recorded to be under Section 31A of the Act. Being
aggrieved, Respondent No. 5 preferred appeal under Section 35
of the Act.
21. Section 35 of the Maharashtra Prevention of
Fragmentation and Consolidation of Holdings Act, 1947 reads as
follows :
The Maharashtra Prevention of Fragmentation and Consolidation of
Holdings Act, 1947
1. ...
2 ...
35. Power of [State] Government [or Commissioner] to call for
proceedings :
The [State] Government [or the Commissioner] in respect of
such matters as the State Government may by general or special order
15 wp 4000.20
specify in this behalf may at any time for the purpose of satisfying
itself [or himself as the case may be,] as to the legality or prioriety of
any order passed by any officer under this Act call for and examine
the record of any case pending before or disposed of by such officer
and may pass such order in reference thereto as it or [he, as the case
may be,] thinks fit:
[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 or revision of the order.]
22. The State Government is empowered to examine any order
passed by the Sub-ordinate Officer. These powers are akin to
Superintending powers. No period of limitation is prescribed for
invoking the powers. The powers are exercisable in a disposed of
matter also. Mentioning of Section 257 of the MLR Code in the
impugned judgment is inconsequential because order did not
emanate from the proceedings under Land Revenue Code. It's
trite law that wrong mentioning of provision does not vitiate
order. I am of the considered view that learned Minister had
jurisdiction to receive and entertain appeal, albeit subject to
condonation of delay. Hence I answer point no.1 in affirmative.
23. Point No. (ii) : Whether condonation of delay/latches by
learned Minister is legal and proper ?
23-A. Impugned judgment passed by the learned Minister
shows that delay was condoned and matter was decided on
merits, simultaneously. A separate application was filed by
Respondent No. 5 along with appeal memo for condonation of
delay on 03.01.2019. Admittedly Petitioner did not file any
separate say to application for condonation of delay. Petitioner
16 wp 4000.20
was issued notice and had opportunity to contest application for
delay. Petitioner did not raise grounds in the petition that any
prejudice is caused to him for deciding application for
condonation of delay and merits of the appeal simultaneously in
the self same judgment. In the absence of specific challenge, it
has to be held that there was implied consent of the petitioner to
conduct such exercise simultaneously. The submissions of the
petitioner objecting the course undertaken by Minister cannot be
accepted.
24. No limitation is prescribed for invoking powers under
Section 35 of the Act. By separate application various grounds
were quoted by the Respondent No. 5 for condonation of delay.
Those were not controverted by the petitioner by filing any say.
Considering these facts, the condonation of the delay by the
Minister is justified, albeit more reasoned order should have
been passed. However it is not that the reasons are lacking.
Considering over all conspectus of the matter, learned Minister
appears to have preferred to condone delay and to go into the
merits of the matter.
25. It is submitted that when limitation is not prescribed,
reasonable period of three years is presumed for exercising
jurisdiction. Respondent No. 5 has shown the circumstances for
filing appeal belatedly. In the peculiar facts of the case, the
authority under Act was under obligation to conduct inquiry and
render findings to the issue referred so as to assist Civil Court to
decide R.C.S. No. 105/1995. In such a situation entertaining of
17 wp 4000.20
the appeal beyond three years cannot be said to be without
jurisdiction or exceeding of the jurisdiction. Ultimately Minister
is found to have rectified Superintendent of Land Record. In that
view of the matter, I find that learned Minister rightly
entertained appeal under Section 35 by condoning delay.
26. Point No. (iii) : Whether order dated 09.02.2011 passed by
Superintendent of Land Record, is legal and proper ?
26-A. In pursuance of the direction given by Lower
Appellate Court in judgment dated 18.07.2003 in RCA No.
119/2015, suit was relegated to the trial Court. Following are the
relevant observations :
"13. The defendants/appellants have produced on record the
certified copies of public documents along with list Ex.23 before
this Court. It is true that the documentary evidence produced on
record before Trial Court unmistakenly point out that the plaintiff
is the owner in possession of 10 acres of land before
consolidation and after the consolidation the land admeasuring 76
R. stands mutated in his name as gat no.17. The defendants have
produced on record the consolidation extract at Exh. 58. It
appears that the land sy. no.8/2 and 9/3 admeasuring 9 H. 50 R.
converted into gat no.19. The defendants/appellants in
continuation with that extract have produced on record certain
documents as stated above. On careful perusal of the Hissa Form-
4 at Ex.27 before this court and the certified copy of Hissa
Namuna-12 at Ex.28, I find that the defendants are the owners in
possession of the land sy.no.8/2, 8/3 and 9/3. The consolidation
extract before and after consolidation of gat no.19 clearly shows
that the defendants were in possession of the land admeasuring
9H. 50R. prior to the consolidation and accordingly gat no.19
came to be formed. I am just failed to understand on what basis
the inference could be drawn that 8 acres of the land belonging to
18 wp 4000.20
the plaintiff, incorrectly added in the area of the land gat no.19.
14. In order to resolve this controversy the civil court is not
supposed to sit on the chair of the consolidation officer, nor it can
be resolved on the basis of the letter issued by the T.I.L.R.
Tuljapur Ex.52. If the consolidation authority found the scheme
defective on account of the error, so far as the land owned and
possessed by the plaintiff is concerned certainly by taking
recourse of the provisions of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act, the scheme
could be amended and even the possession fo the person evicted
could be restored.
15. Apart from it, since the suit is instituted before the civil
court and the preliminary issue has been decided in favour of the
plaintiff, it would be just and proper to refer the consolidation
issue to the competent authority as provided u/s 36-B of the
Bombay Prevention of Fragmentation and Consolidation
Holdings Act. On receipt of the decision, it would be legal and
proper to dispose of the suit in accordance with the procedure
applicable thereto. Thus, in my considered opinion, the matter
deserves to be remanded to the Trial Court with directions to
refer the consolidation issue to the competent authority as
provided u/s36-B of the Act and dispose of the suit after receipt
of the decision. Accordingly, I answer the point no.6 in the
affirmative and remaining points as does not arise and proceed to
pass the following order."
26-B. In view of above observations, Appellate Court
remanded the matter by following order :
ORDER
A. Appeal is partly allowed.
B. The judgment and decree passed by the Civil Judge, JD,
Tuljapur dated 26.2.2001 in RCS no.105/95, is hereby set aside.
19 wp 4000.20
C. The matter is remanded with the following directions :
i) Re-admit the suit under its original number and the
evidence recorded during the original trial shall be the
evidence during the trial after remand.
ii) The Trial Court is hereby directed to refer the
consolidation issue to the competent authority, as
provided under section 36-B of The Bombay Prevention
of Fragmentation and Consolidation of Holdings Act, and
on receipt of the decision, shall dispose of the suit in
accordance with the procedure applicable thereto.
iii) Parties to the suit shall put their appearance before Trial
Court on 18.8.03.
D. Parties to bear their own costs.
27. Trial Court framed following issue and referred it under
Section 36(B) of the Act to Deputy Director Land Records :
"Whether the Plaintiff proves that his land has been
converted into block no.17 and his owner of area 10
acres instead of area 76R on the basis of old record
survey number?
27-A. The Deputy Director of Land Record referred matter
to Superintendent of Land Record, Osmanabad. It was
specifically directed that inquiry be conducted into old survey
number and gut number after verifying the record. Thereafter
Superintendent of Land Record conducted inquiry and passed
order dated 09.02.2011 which was treated to be corrigendum.
20 wp 4000.20
28. Respondent has produced on record along with affidavit-in-
reply notice issued by Taluka Inspector of Land Record to the
concerned parties including Petitioner and heirs of respondent
No.5. Out of five persons, two of them Mr. Mehbub and Papalal
were shown to be dead. It further appears from record that
Mehbub died on 04.10.2006. There is no record to show that heirs
of the deceased party were served. Order dated 09.02.2011 does
not indicate anything in that regard. Learned counsel for the
respondent No. 5 is right in contending that no care was taken to
extend opportunity of hearing to all heirs of respondent No. 5.
Prima facie, inquiry and the order passed by the Superintendent
of Land Record is against principles of natural justice.
29. Perusal of the order dated 09.02.2011 shows that only
because of the clerical and arithmetical error in the proforma of
consolidated lands rectification was made and it was publicized.
No reasons are assigned by the Superintendent. It is not clear as
to whether the old record before consolidation and after
consolidation in respect of the land of the parties was ever taken
into account or not. So much so learned Officer did not bother to
clarify as to what was actual mistake. The order is cryptic and
perverse. Learned Officer lost sight of the directions of the
Appellate Court mentioned in judgment dated 18.07.2003.
30. The issue referred by the trial Court for conducting inquiry
remained unanswered, obviously because no exercise was
undertaken for verification of the old record. Instead of that,
some correction is made. It was referred to be published on a
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notice board. Public notice was given on 01.04.2011. A
panchanama was conducted. No finding as such is recorded by
the Officer so as to enable the Civil Court to arrive at some
conclusion on the technical issues. The enquiry undertaken by
the Superintendent is thoroughly uncalled for and misconceived.
It reflects non-application of mind and it has led to complication.
31. There is fundamental flaw in the order dated 09.02.2011.
Trial Court referred issue for recording findings as the litigating
parties had rival claims for the constitution of their respective
lands gut nos. 17 and 19. It was neither directed by the Appellate
Court, nor trial Court to undertake any exercise under Section
31A of the Act. Revenue record and consolidation record was
available and after verification, Superintendent was expected to
record a finding as to whether after consolidation there was any
change in the area of gut no.17. Whole exercise of
Superintendent and resultantly order dated 09.02.2011 is
misconceived, arbitrary and patently illegal. I answered point
no.3 in the negative.
32. Point No. (iv) : Whether the impugned judgment and order
dated 09.09.2019 passed by learned Minister is legal and
proper ?
32-A. Learned Minister exercised jurisdiction U/Sec. 35 of
the Act. This is supervisory jurisdiction meant for examining
legality and propriety of the order dated 09.02.2011 passed by
the Superintendent. Impugned judgment was passed after
22 wp 4000.20
hearing the parties and considering revenue and city survey
record of consolidation. A very limited issue was referred to the
Superintendent to return findings after verifying old record.
Instead of that powers U/Sec. 31A were exercised and it was
recorded that some arithmetical or typographical mistake
occurred in the consolidation scheme and he proceeded to issue
corrigendum. A letter dated 15.11.2010 addressed by the Deputy
Director of land record delegating Superintendent of Land
Record to conduct inquiry and record finding itself is against the
purport for which the issue was referred. By the said letter
unnecessary scope was enhanced resulting into usurption of
jurisdiction. Those are misconceived directions. Learned
Minister has rightly recorded that when the matter was pending
before Civil Court so called corrigendum could not have been
issued by the Superintendent vide order dated 09.02.2011.
33. Learned minister is justified in holding that Deputy
Director totally overlooked the observations of the District Court
in the judgment dated 18.07.2003. As none of the authorities
under the Act properly understood the purport for which the
issue was referred, learned Minister relegated the matter for
fresh inquiry to the Superintendent of Land Record. Impugned
judgment is within four corners of law, because Superintendent
has committed dereliction of duties.
34. Learned counsel for the respondent Mr. Deshmukh
adverted my attention to the documents produced along with his
reply, which are part of revenue and city survey record. There is
23 wp 4000.20
overwhelming record to show that petitioner's land gut No. 17 is
constituted by Sy. No. 8/1 adm. 76R. It was never constituted by
Sy. No. 13/A having area 10 acres or 4H. Record further reveals
that respondent No. 5 is the owner of gut No. 19, which is
constituted by Sy. No. 8/2, 8/3 and 9/3. The village map clearly
shows that Sy. No. 13 was not adjoining Sy. No. 8 or 9.
Therefore, no part of Sy. No. 13 could be a constituent of gut No.
17. Sy. No. 13 is shown to be of Tatyaba Kerba Sawant. Hissa
form No. 12 and mutation entries corroborate the respondent No.
5. Mutation entry No. 307 also supports his claim. The said
record was never challenged. More clinching piece of evidence is
Exhibit R - 3 to show that prior and post position of lands of the
parties and their area. Gut No. 17 is only 76R and gut No. 19 is
9H 50R. A mutation entry No. 294 supports the respondent.
Prima facie there is strong evidence that there was no change in
the area of the lands belonging to parties after consolidation.
Prima facie, 7/12 extract of land Sy. No. 13/A on the basis of
which petitioner is relying his claim is not in consonance with
the city survey record and his claim is not corroborated.
35. The Superintendent of Land Record should have examined
Yojana patrak, mutation entries, shet pustak, Namuna Form No.
12 and Hissa Form No. 4 before passing order dated 09.02.2011.
I find substance in the submissions of Mr. Deshmukh. Learned
Minister by the impugned order only relegated matter to the
Superintendent of Land Record for looking into above referred
record. In find that impugned judgment is perfectly legal and
valid.
24 wp 4000.20
36. Point No. (v) : Whether any interference by High Court
under Article 226 and 227 or under any other provisions is
called for ?
36-A. It is submitted by petitioner that already Writ
Petition Stamp No. 13906 of 2013 was filed in the High Court by
the respondent No. 5 and it was rejected on 14.10.2013, which is
suppressed. This submission is repelled by the respondent in
para No. 21 of the reply. The registration of petition was refused
for not removal of objections. It was filed by the respondent No.
5B and other heirs and not by the respondent No. 5A Nabilal
Maheboob Nadaf. The writ petition was not dealt with on
merits. Filing of earlier petition would not be an impediment.
36-B. Even if, it is presumed that learned Minister has
committed error of jurisdiction in entertaining matter after more
than seven years, this Court while exercising powers under
Article 226 and 227 of the Constitution of India can very well
take cognizance of the order dated 09.02.2022 passed by the
Superintendent. Independently, I find that inquiry conducted by
the Superintendent is superfluous and extraneous. There is
dereliction of duties. There was no need to resort to section 31A
of the Act. The overwhelming record showing positions of the
lands of the parties before and after consolidation is overlooked.
The order of Superintendent is likely to mislead Civil Court.
Under these circumstances, this Court cannot be a silent
spectator and permit the illegalities to be perpetuated. This
25 wp 4000.20
Court would be failing in its duty, if the order dated 09.02.2011 is
not quashed and set aside, which is perverse and most arbitrary.
I, therefore, find that respondent has made out a case to interfere
in the order dated 09.02.2011.
37. There is another facet of the matter. The Second Appeal
No. 303 of 2019 has also been assigned to this Court only arising
out of R.C.S. No. 105 of 1995. It is within purview of High Court
while exercising jurisdiction U/Sec. 100 of the C. P. C. to resort to
powers U/Sec. 103 of the C. P. C. Therefore, the issue referred to
the Superintendent has bearing over the merits of the second
appeal. I am of the considered view that findings recorded by
the Superintendent on the issue referred to him would assist this
Court in dealing with second appeal also.
38. Learned counsel for the petitioner relies on the judgment
in the matter of Avantikabai Shankar Shinde and others Vs. Pratap Gunderao
Jadhav and others (supra). My attention is adverted to para Nos. 21
and 22. The principles laid down there in cannot be made
applicable because in the matter at hand the title and ownership
is to be ultimately decided by the Civil Court. Only issue
pertaining to consolidation scheme is referred. Further reliance
is placed on the judgment in the matter of Hanmant Jaisingh Ahirekar
and others Vs. Baburao Raghunath Ahirekar and others (supra). In that
case application for condonation of delay and the merits of the
matter were decided simultaneously by the Tribunal. The case
in hand shows that petitioner did not file any say to the
application for condonation of delay and impliedly consented for
26 wp 4000.20
deciding it along with merits. Hence this judgment is of no avail.
39. Further reliance is placed on the judgment in the matter of
Shankar Ramrao Rangekar Vs. Narayan Sakharam Sawant and others (supra).
It is also on the same line as referred above. Further reliance is
placed on the judgment in the matter of National Buildings
Construction Corporation Ltd. and another Vs. Regional Labour Commissioner
(Central), Nagpur (supra). The judgment of the coordinate bench is
distinguishable and would not enure to the benefit of the
petitioner.
40. Learned counsel for the respondent No. 5 relied on various
judgment in the matter of Smt. Gulabrao Bhaurao Kakade since deceased
Vs. Nivrutti Krishna Bhilare and others (supra). The judgment is
distinguishable on facts and ratio therein cannot be made
applicable. Another judgment relied on by the respondent No. 5
in the matter of Limbraj Waman Yede Vs. State of Maharashtra and others
(supra). It is pertaining to the power of the settlement
Commissioner if there is clerical or arithmetical mistake in the
consolidation scheme. In the case at hand Superintendent was
not called upon to exercise power U/Sec. 31A of the Act, hence
this judgment is not relevant.
41. The third judgment relied by the learned counsel for the
respondent No. 5 is in the matter of Dattu Appa Patil and others Vs.
State of Maharashtra and others (supra). It is in respect of exercise of
power by the Consolidation Officer after 27 years, which is held
to be impermissible. This judgment is also not applicable to the
27 wp 4000.20
present case. Reliance is also placed on the judgment of this
Court in the matter of Ganpati Dadu Mali since deceased through heirs and
another Vs. The State of Maharashtra and others (supra). This judgment is
regarding jurisdiction of the officer to pass order U/Sec. 32 of the
Act. This judgment is not relevant to the issue germain, because
in the case at hand powers were exercised by the Superintendent
due to the reference of issue by the Civil Court. Judgment in the
matter of Jalindar Sadashiv Hirde and others Vs. The State of Maharashtra and
others (supra) is also relied by the respondent No. 5. It pertains to
the power of the competent authority to entertain application
U/Sec. 31A of the Act beyond particular period that is not the
issue germain in the present petition. I have already recorded
that in present case Sec. 31A of the Act should have been
invoked.
42. Further reliance is placed on the judgment in the matter of
Padmabai Narayan Chaudhari and others Vs. The Deputy Director of Land
Records, Aurangabad Region and others (supra). It is on the point that if
the period of limitation is not prescribed, then what would be
construed to be reasonable period. This judgment has no
relevance on the merits of the matter. Judgment in the matter of
Murlidhar Ramnarayan Chechani Died through L.Rs. Omprakash Chechani and
others Vs. Narayandas Raghunathdas Chechani died thorugh L.Rs. Ramprasad
Chechani and others (supra) is also relied by the respondent No. 5.
This judgment is about powers U/Sec. 31A of the Act. It cannot
be made applicable to our case.
43. The respondent No. 5 has also placed reliance on the
28 wp 4000.20
judgment of the Supreme Court in the matter of S. P. Chengalvaraya
Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs. and others (supra). It is
on the point that judgment or decree obtained by fraud that
would be treated as nullity. It is not applicable to the case at
hand. Further reliance is also placed on the judgment of the
Supreme Court in the matter of Collector Land Acquisition, Anantnag
and another Vs. Mst. Katiji and others (supra). It is for condonation of
delay and has no application to the case at hand. Last judgment
relied by the respondent No. 5 is in the matter of Ashok Balaji Ratan
Vs. Nagpur Improvement Trust, Nagpur (supra). It is about approach of
the Court in dealing with delay condonation. It is not applicable
to our case.
44. Upshot of the above discussion is that :-
A. The writ petition is dismissed by upholding the order of
the Minister, with certain modification.
B. The Superintendent of Land Record shall conduct an
inquiry and return findings on modified issue, "what are
the constituents survey numbers of land gut Nos. 17 and
19 and what is their total area before and after the
implementation of the consolidation scheme ?"
C. Parties shall appear before the Superintendent of Land
Record, Dharashiv on 07.08.2025.
D. The exercise shall be completed within a period of three
months from today.
29 wp 4000.20
E. Opinion expressed in the judgment is prima facie in
nature.
F. Rule is discharged. There shall be no order as to costs.
[ SHAILESH P. BRAHME, J. ]
45. After pronouncement of the judgment, learned counsel for
the petitioners prays for continuation of interim relief. The
request is opposed by the learned counsel Mr. Deshmukh for the
respondents.
46. Interim relief was in operation till final disposal of the
matter. I have already directed the Superintendent of Land
Record to complete the enquiry for returning finding on a
particular issue within a period of three (03) months from today.
Interim relief continued till this day shall be extended for a
period of three (03) weeks from today only. On expiration of the
said period, interim relief shall stand vacated automatically
without reference to this Court.
47. However, litigating parties shall report the Superintendent
of Land Records, Dharashiv on 07.08.2025 and, they may pray
for time.
[ SHAILESH P. BRAHME, J. ]
bsb/July 25
