GANPATI DADU MALI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioners by this petition under Article 227 of the Constitution of India challenges the orders contained in Letter dated 2nd February, 1990 as well as Notice dated 3rd March, 1990 issued by respondent no.3 and respondent no.2 respectively under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter for the sake of brevity referred to as "the Act").

(2.) The brief facts giving rise to the present petition are as follows:- The dispute is about the land, Survey No.349, Hissa No.7 admeasuring 18 gunthas of Village - Lengare, Taluka Khanapur, District : Sangli, now forms part of Gat No.1316 (hereinafter for the sake of brevity referred to as "the suit land"). In the Village Lengare, the Consolidation Scheme under the Act was made applicable in the year 1970. Notices to the parties under Section 15A of the Act were issued on 8th June, 1970. The Consolidation Officer recorded statements as agreed by concerned Khatedars on 10th November, 1970. The revised statements of six khatedars were also recorded on 2nd January, 1971. These statements are signed by the petitioners' father as well as respondent no.4. Under these statements, respondent no.4 who was the holder of the suit land agreed to transfer the same to the holdings of the petitioners' father. The suit land was accordingly merged in new Gat No.1316. In pursuance of these agreements, a draft Scheme was published on 24th January, 1971. Objections were invited within a period of 30 days. Since no objections were received, the Deputy Director of Land Records, Pune published Final Scheme on 24th February, 1971. The scheme was executed on 31st March, 1971. Possession receipts to that effect were obtained from the concerned khatedars. The revenue records were changed in accordance with the Final Scheme and lands were placed in the records of the respective holders. The suit land was recorded in the Khata of the petitioners' father. However, at the same time it remained to be deleted from the Khata of respondent no.4. Respondent No.4 taking advantage of this fact, preferred an application in the year 1973/74. After inquiry, it was directed that the suit land be removed from Khata of respondent no.4 and be retained in Khata of the petitioners' father. Respondent No.4 again applied to the Chief Minister with request to delete the suit land from the holdings of the petitioners' father and to continue the same in the name of respondent no.4. This application was inquired into by the Consolidation Officer and by Order dated 3rd May, 1982, respondent no.4's application was rejected. Respondent No.4 started disturbing the possession, and therefore, the petitioners' father was compelled to file a civil suit for injunction simpliciter. Interim injunction was granted in favour of the petitioners' father. However, subsequently the suit was dismissed. The petitioners preferred an appeal and the same is pending in the District Court. In this appeal, the interim injunction is granted in favour of the petitioners and against respondent no.4. The said injunction is in operation. Despite the above position, respondent no.4 made an application on 28th March, 1983 to the Deputy Director of Land Records making grievance that injustice was done to him in the said allotment . He also mentioned that his uncles- Krishna & Laxman, Khatedars of Khata No.276 did not sign the agreed statements, and hence, the same was not binding on him. The Settlement Commissioner without giving any notice to the petitioners in exercise of his powers under Section 32 of the Act concluded that deceased Khatedars viz. Krishna & Laxman had not given consent to the agreed statements, and therefore, directed that the suit land be allotted to respondent no.4 by removing it from the holdings of the petitioners. The Settlement Commissioner accordingly, directed the Consolidation Officer, Sangli to publish Variation Scheme in Village Lengare and Taluka Notice Board as per Rules. The petitioners were intimated about this. The petitioners thereafter gave their objection dated 17th January, 1989. It appears that the Settlement Commissioner finally confirmed the Variation Scheme on 12th December, 1989.

(3.) Mr. Rege, learned counsel for the petitioners submitted that respondent no.4 had signed the statements dated 10th November, 1970 and 2nd January, 1971. The authorities acted upon these statements, and therefore, the scheme was finalized and now it cannot be varied. He also submitted that respondent no. 4's uncles viz. Krishna Keru Mali and Laxman Keru Mali had already died 20 years and 16 years prior to recording of the above statements, and therefore, respondent no.4 could not have capitalized non-signing of these statements by his said uncles. Mr. Rege also submitted that respondent no.4's application making grievance about the scheme was rejected twice, and therefore, the Settlement Commissioner could not have entertained the same for the 3rd time. Mr. Rege lastly pointed out that the order of the Settlement Commissioner varying the scheme is not only in violation of the principles of natural justice but also barred by the Law of Limitation. In this regard, he has relied upon the decisions of a Division Bench in Gulabrao Bhaurao Kakade (Smt.) since deceased by his heirs and legal representatives Vs. Nivrutti Krishna Bhilare & Ors., 2001 Supp1 BCR 688 and Dattu Appa Patil & Ors. Vs. State of Maharashtra & Ors. reported in 2006(6) Bom.C.R.246.