MARAZBAN JEHANGIRJI PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition under Article 227 of the constitution of India takes exception to the judgment and order dated May 10, 1989, passed by the then Minister of State for Revenue, government of Maharashtra (Respondent No. 2), in revision No. RTS-2789/1/cr-39/l/6. The lands in question are Survey Nos. 62 and 66 respectively situated at village Ashagad, Taluka Dahanu, district Thane. The said lands being inam lands were governed by the Bombay Merged Territories and Area (Jagir Abolition) Act. 1953. as well as the Bombay Merged Territories Miscellaneous alienations Abolition Act, 1955. The revenue record mentions that Shri Yeshwantrao Mukne, the ex-Ruler of the then Jawhar State, was Watandar in respect of the said lands. On October 8, 1976, an application was filed by the Petitioner, which was jointly signed by the said Watandar mukne, addressed to the Tahsildar, Dahanu, for recording the status of the Petitioner as a tenant and also for granting permission to sell the said lands. The said application was obviously a composite application praying for recording the name of the Petitioner in the revenue record as tenant and also for granting permission to sell the said lands in favour of the Petitioner. As far as the former relief is concerned, the same is referable to the intimation sent by the parties within the meaning of section 149 of the Maharashtra Land Revenue code, 1966 (hereinafter referred to as "the said code"), which requires that any person acquiring any right, such as, occupant, lessee or otherwise, shall report orally or in writing about his acquisition of such right to the talathi within three months from the date of such acquisition. On receipt of such application, the talathi is required to give written acknowledgement of the receipt of such report to the person making it or the applicant. Before the Talathi records the proposed change in the register of Mutation, having regard to section 150 (2) of the said Code, he is obliged to follow the prescribed procedure. The said provision requires display of written intimation of such change in a conspicuous place in Chawdi and further give written intimation to all persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation and to any other person whom the Talathi has reason to believe to be interested therein. It is the case of the Petitioner that in the present case, after following necessary procedure, the concerned Talathi effected change in the mutation on the basis of his order dated May 22, 1977, as no abjection was received from any person. As is seen earlier, the Watandar himself had jointly signed the subject application. This fact is recorded in the Mutation Entry No. 74b while effecting the proposed change in terms of the application made by the Petitioner and the watandar. The said Mutation entry No. 748 came to be confirmed on June 12, 1977, and also certified by the appropriate authority, which was allowed to attain finality. Suffice it to mention that after the said Mutation Entry was effected, an agreement was executed between the petitioner and the said Watandar on May 26, 1978 to transfer the said lands. For the purpose of present proceedings, it is not necessary for us to dwell upon the issue as to whether the transfer actually materialised or not, for we are concerned only with the correctness and propriety of the change effected in the Mutation Entry by recording the name of the Petitioner as a tenant (occupant) in terms of the application filed by the Petitioner and the said Watandar. It is relevant to note that the said Watandar died on june 4, 1976. After the death of the original watandar, his son (Respondent No. 3), being the legal heir, claimed to have succeeded to the said property by virtue of probate issued in his favour. Accordingly, Respondent No. 3 made an application to the concerned authority for recording his name in the revenue record on July 24, 1978. In terms of the said application, mutation Entry was effected in favour of respondent No. 3, who had purportedly succeeded to the property held by the original Watandar on october 12, 1980. The record indicates that after the death of the original Watandar, respondent No. 3 entered into correspondence with the authorities, the tenor of which would reveal that the Respondent No. 3 was fully aware about the effectuation of the Mutation Entry No. 748 as came to be certified on June 12, 1977. Interestingly, however, Respondent No. 3 failed to challenge the said Mutation Entry prevailing in favour of the Petitioner at the earliest opportunity, but chose to file appeal against the same only on December 28, 1983. In the said appeal, the principal contention raised on behalf of Respondent No. 3 was that his father had no notice about the proposed change. It was then contended that the authorities did not furnish the copy of the necessary documents including the relevant judgment to him. It was also contended that the Petitioner was appointed as general manager by the original Watandar, father of respondent No. 3, so as to look after the properties in question; and taking advantage of that position, the Petitioner managed to enter his name in the revenue record. It was also contended that the agreement executed in favour of the Petitioner by the original Watandar Was not out of legal necessity and the said property could be disposed only for that purpose, being ancestral property. In fact, it was suggested that the original Watandar had never executed the said agreement in favour of the Petitioner. On such contentions, Respondent No. 3 assailed the mutation Entry, which was prevailing in favour of the Petitioner. The Sub-Divisional Officer, upon examining the relevant records, was pleased to dismiss the appeal preferred by Respondent No. 3 by rejecting the stand taken on behalf of respondent No. 3. The appellate authority found that the appeal was hopelessly time barred and no sufficient cause was made out. It further observed that the purpose of mutation entry has limited efficacy and only relevant for the purpose of payment and collection of revenue. The appellate authority observed that all other issues regarding tenancy right in favour of the petitioner or valid transfer of the said lands could be considered in appropriate proceedings by the competent forum in that behalf. Respondent no. 3 questioned the said decision of the appellate authority before the Resident Deputy collector by way of appeal under section 247 of the said Code. Evan the second appellate authority upheld the view taken by the first appellate authority and rejected the appeal preferred by the Respondent No. 3. Against these concurrent decisions, Respondent No. 3 carried the matter in revision before the additional Commissioner. The first revisional authority was pleased to allow the revision preferred by the Respondent No. 3. While reversing the findings and conclusions reached by the lower authorities, it found that the procedure under section 36 of the said Code was not complied with by the authorities below. In other words, according to the first revisional authority, the lower authorities glossed over a crucial fact that the original Watandar was a tribal and if it was so, no transfer in favour of a non tribal was permissible. The first revisional authority also found that there was no prior compliance of Rule 32 of the Maharashtra land Revenue Record of Rights (Preparation and maintenance) Rules, 1971. As far as the question regarding the challenge to the said mutation entry being barred by limitation is concerned, the first revisional authority found that since the rights of tribal were infracted, the said technical plea of limitation will be of no avail, on the above reasoning, the concurrent judgments and orders passed by the authorities below came to be set aside. The Petitioner naturally carried the matter in revision before the State government. The concerned Minister of State for revenue by the impugned judgment and order has affirmed the view taken by the first revisional authority. It further found that the authorities, who recorded said mutation entry, had acted irresponsibly. In the words of the said authority, the Tahsildar who allowed the impugned mutation entry to enter the record of rights has been guilty of a serious misdemeanour, namely, of abdication of responsibilities. It was of the firm view that the Tahsildar should have not only declined to certify the mutation, but should also have initiated steps to ensure that the lands were restored to tribal transferor. Insofar as the plea of limitation is concerned, it observed that the transfer being void, the technical plea of limitation would be of no avail, as no estoppel against statutory provision can be pleaded. It has further held that, in any case, any claim of tenancy could only have been determined by the Tahsildar under section 70 (b) of the Bombay Tenancy and agricultural Lands Act, 1948, and the mutation could have been recorded only after such finding was reached. It further observed that the petitioner's entire case was founded upon a series of falsehoods and for which reason, the petitioner has rendered himself liable to criminal prosecution under section 540 of the code of Criminal Procedure, 1973. On the above reasoning, the Minister (second revisional authority) directed that the matter be enquired into by the State Bureau of Anti-Corruption with the assistance of State Examiner of Documents. The present petition accordingly takes exception to the view expressed by the aforesaid two revisional authorities.

(2.) UPON perusing the record and pleadings of the case and considering the arguments advanced on behalf of both sides, to my mind, the present petition will have to be confined to the core issue as to whether the subject mutation entry recorded by the first authority can be said to be illegal or otherwise. In my opinion, the question as to whether the Respondent No. 3 or the original Watandar was tribal or non-tribal is of no relevance at all for examining the point in issue. This is so because the purport of the provisions of the said Code in relation to the preparation and maintenance of the revenue record is very limited. I shall presently advert to the relevant statutory provisions of the said Code and the Rules of 1971 framed thereunder. In my opinion, if substantial compliance of the procedure required for effecting the change in the mutation entry is made, then, all other questions would recede in the background. It is not necessary nor it is open for this Court, which is called upon to examine the correctness and propriety of the mutation entry effected by the Talathi, to answer any other aspects. As mentioned earlier, the purpose of maintenance of revenue record is for limited purpose of payment and collection of land revenue from the concerned person. Chapter X of the said Code deals with the provision relating to land records. Section 148 provides that the record of rights shall be maintained for every village and such record shall include details, such as, names of all persons (other than tenants), who are holders, occupants, owners or mortgagees of the land or assignees of the rent or revenue thereof, etc. In the present case, the record discloses that joint application was filed by the Petitioner, which was countersigned by the original Watandar, wherein it is stated that the Petitioner was occupying the said lands as tenant thereof. The record also discloses that enquiry as was required to be conducted by virtue of section 149 of the Code was undertaken and only thereafter the subject mutation entry came to be recorded. Besides, the said mutation entry has been duly certified and confirmed by the appropriate authority as is required by section 150 of the said Code. Indeed, the application as filed mentions that the name of the Petitioner be recorded as tenant and permission for sale be granted; And upon granting such prayer, the name of the Petitioner ought to have been recorded in the Register of Tenancies as is required to be maintained by virtue of section 150 (7) of the said Code. However, in the present case, the mutation entry has been effected only in the revenue record (7/12 extract ). The concerned revenue record is maintained in terms of provisions of Rules of 1971 framed under the provisions of the said Code. Chapter B thereof provides for maintenance of record of rights and register of mutation in areas other than those surveyed under section 160 of the said Code. In the present case, the intimation sent by the petitioner under section 149 was required to be acknowledged in Form No. 7 as per Rule 9. By virtue of Rule 11, after such intimation is received by the Talathi, he is obliged to make such entry in the register of mutations upon following necessary procedure. In the present case, as no objection was received from any person, the authority proceeded to record mutation Entry No. 748. It is apposite to advert to Rule 12 of the said Rules, which provides that recording of mutation should indicate whether previous permission of the collector is required for transfer of the land, as, in the present case, undisputedly, the lands were inam lands covered by the Hereditary officers Act, which obligates seeking prior permission of the Collector before effecting any transfer. Be that as it may, merely because no prior permission has been obtained, that cannot be the basis far refusing to record the mutation entry, which is required to be recorded as soon as the person acquires the right in respect of the property and occupies the same. This obligation flows from the mandate of section 149 of the said Code. The above stated view is reinforced by the later part of Rule 12 of the 1971 Rules, which provides that if such permission is not obtained, the Talathi shall record this fact. It presupposes that even in absence of requisite prior permission. the talathi is obliged to record the change with an endorsement that no prior permission has been obtained. In the present case, it is seen that the application was a composite application, not only for recording the entry indicating that the petitioner was occupying the said lands as a tenant, but also for according permission to effect transfer of the said lands in his favour. Taking overall view of the matter, the Mutation entry No. 748 as recorded after complying with the necessary formalities and which came to be subsequently certified and confirmed by the appropriate authority, the same cannot be taken exception to. The authorities while recording the said entry have taken into account the relevant materials on record and have also noted as of fact that necessary notice was duly issued and was received by Respondent No. 3's father, whose name appeared in the record as interested person. At no point of time, the said Original watandar has disputed his signature on the application or the service of the notice on him during his lifetime. Having regard to the purport of section 157 of the said Code, legal presumption is attracted about such entry effected in the record of rights and certified entry in the register of mutation to be true, until the contrary is proved, or, new entry is lawfully substituted therefor. Besides, in law, there is presumption that the authorities, who have recorded the entry, have followed necessary procedure as required by the rules, unless proved to the contrary. The appellate authority, in the present case, has recorded as of fact that the materials on record clearly indicate that recording of statement, etc. , was duly complied with by the authorities before registering the subject mutation entry. Taking overall view of the matter, there is no reason to doubt the correctness of the subject mutation entry.

(3.) HOWEVER, Respondent No. 3 contends that the Petitioner, taking undue advantage of his position, got the lands transferred in his favour. Even this aspect has been carefully considered by the appellate authority and it has been found as of fact that the record clearly establishes that the Respondent No. 3 was fully aware of the effectuation of the entry recorded on June 12, 1977. The said entry was effected during the lifetime of the original Watandar who did not object to the same at all. However, respondent No. 3 for the first time challenged the said entry as late as in December 1983 on the stated grounds, which obviously can be said to be afterthought. The appellate authority has, therefore, negatived the claim of the Respondent no. 3 and has found that the appeal as filed by the Respondent No. 3 was hopelessly time barred and no sufficient cause for the delay was forthcoming. Moreover, the appellate authority was cognisant of the fact that the scope of the present proceedings was limited to examine the correctness of the mutation entry and whether it has been effected after following due procedure. The appellate authority has recorded its satisfaction that necessary procedure has been complied with by the authority before effecting the subject mutation entry. Understood thus, there is no substance in the grievance made that the Petitioner taking advantage of his position succeeded in effecting the change in the mutation entry.