LOYAKAT AHMED PATHAN Vs. DINKAR KONDI BORBANE

JUDGEMENT

(1.) BY this petition the Petitioner is challenging the legality and validity of order dated 31st August, 1988 passed by Officer on Special duty (Appeals and Revisions) under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, hereinafter referred to as 'the Act'. The petitioner was allotted gat No.923 admeasuring about 69 Ares situated at village Shelgaon, Tal. Indapur, Dist. Pune in the concolidation scheme is respect of the said village. Possession was handed over the petitioner on 22nd April, 1972 and since then the petitioner has been cultivating the said land. According to the petitioner, prior to consolidation scheme petitioner was owner of Survey No.110/30 admeasuring about 42 gunthas. Out of the said 42 gunthas, land admeasuring about 30 gunthas came to be allotted to respondent No.1, Dinkar Kondi Borbane and 53 gunthas of land owned by respondent No.1 came to be allotted to the petitioner. Similarly 4 gunthas of land out of survey No. 110/16 and 110/27 came to be allotted to the petitioner. The land allotted to respondent No.1 from out of the original holding of the petitioner was more fertile whereas the land which came in exchange was less fertile. The petitioner incurred expenses for development of a newly allotted land. Petitioner asserts that at the time of the first consolidation scheme not only nobody took objection but in fact the formation of gats was made by an agreement of which respondent No.1 was very much a party. The petitioner was given certificate under the provisions of Section 24 of the Act.

(2.) AFTER the finalisation of the draft scheme, as no objection was raised by anyone including the respondents within the stipulated period, the scheme became final and the same was sanctioned. Petitioner has asserted that Sarpanch of the village, Pandurang Manku Shingade, made an application to the Revenue Department of Mantralaya, Bombay on 16-5-1973 complaining that the petitioner was allotted more area of land than the land surrendered. Again notices were sent to the parties and statements were recorded. The Consolidation Officer submitted his report to the District Deputy Inspector of Land Records and suggested a variation of the finalised scheme. Thereafter proposed variation was published in the village on 6-10-1977 and at the Taluka on 3-10-1977. Petitioner objected to the proposed variation. The Settlement Commissioner rejected the application. Thereafter the scheme with variation was published by notification dated 19-9-1978. The petitioner initially filed Regular Civil Suit No.7 of 1979 in the Court of Vth Joint Civil Judge, Senior Division, Pune at Pune for declaration and injunction. However, the suit came to be dismissed on 20-1-1983 on the ground of jurisdiction. Thereafter petitioner filed revision application before the 4th Respondent. The revision application was heard by Officer on Special Duty and after hearing both the sides, the said revision application was dismissed by order dated 31st August, 1988.

(3.) SHRI Anturkar for the Respondent No.1 submitted that under Section 32 of the Act there is power in the Settlement Commissioner to vary the Scheme.