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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12414 OF 2017
1. Krishanabai Bhausaheb Gore
Age: 66 years, Occ: Agriculture
2. Baban Alias Baba Bhausaheb Gore
Age: 50 years, Occ: Agriculture
3. Sopan Bhausaheb Gore, Age: 52 Years, Occ: Agriculture
4. Vasant Bhausaheb Gore, Age: 45 years, Occ: Agriculture
5. Ganesh Bhausaheb Gore, Age: 42 years, Occ: Agriculture
6. Santosh Bhausaheb Gore, Age: 40 years, Occ: Agriculture
All R/o. Gore Vasti, Wagholi, Tal- Haveli, Dist. Pune. ..Petitioners
The Secretary, Revenue and Rehabilitation Dept
Mantralaya, Mumbai 400 032.
2. The Deputy Director, Land Records, New Administrative
Building, Opp. Council Hall, Pune 411 001.
3. The District Superintendent, Land Records, Pune Collectors’ Office Campus, Pune 411 001.
4. The Tahsildar, Haveli, Dist Pune, 5. Taluka Inspector of Land Records, Haveli, Having Office at Pune
Collector’s Office Campus, Pune – 411 001.
6. Baban Babu Gore
(Since deceased through his legal heirs)
6(a) Pandurang Baban Gore, Age: Adult, Occ: Agriculture
6(b) Vilas Baban Gore, 6(c) Sudam Baban Gore, 6(d) Sharad Baban Gore, 6(e) Balu Baban Gore, 7. Vinayak Babu Gore
(Since deceased through his legal legal heirs)
[7(a) Tarabai Vinayak Gore, Age: Adult, Occ: Agriculture]
7(b) Chandrakant Vinayak Gore, R/o. Gore Vasti, Wagholi, Tal – Haveli, Dist – Pune.
7(c) Kalpana Vishnu Borade
R/o Sonsangvi, Tal – Shirur, Dist – Pune.
R/o Arangaon, Tal – Dound, Dist Pune.
…Respondents
Mr. Rajaram V Bansode, for the Petitioners.
Ms. Kavita N. Solunke, AGP
, for Respondent Nos. 1 to 5.
Mr. Sanjay Kshirsagar, for Respondent Nos. 6(a) to 6(e) and 7(a) and
7(b).
JUDGMENT
1. Rule. Rule made returnable forthwith, and, with the consent of the learned Counsel for the parties, heard finally.
2. The challenge in this Petition is to an order dated 30th November 2011 passed by the Minister (Revenue) in Revision Application NO. 3407/830, whereby the Revision Application preferred by the Petitioners against an order passed by the Superintendent, Land Records, Pune on 19th May 2003, correcting the Consolidation Scheme in exercise of the power under Section 31A of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (“the Act, 1947”) came to be dismissed affirming the order passed by the Deputy Superintendent, Land Records and a further order dated 10th October 2016, whereby the Review Application preferred by the Petitioners being,d=h&3414@318@iz-dza-175@t&5, came to be dismissed.
3. The background facts leading to this Petition can be stated in brief as under: 3.[1] Ganpati Gyanba Gore, the common ancester of the Petitioners and Respondent Nos. 6 and 7(d), was the original holder of the agricultural land bearing Survey No. 334 situated at Mouje Wagholi, District Pune. Survey No. 334 was divided into two parts, i.e., Survey No. 334/1A admeasuring 1H and 95.[8] R (4 Acres and 33.[5] Gunthas), and survey No. 334/1B admeasuring 1H 95.[8] R (4 Acres 33.[5] Gunthas). 3.[2] In the Consolidation Scheme which was implemented at Mouje Wagholi in the year 1973, as per the measurement phalani Bara was prepared and the land bearing original Survey No. 334 was trifurcated into three Survey Number, i.e., i) Survey NO. 334/1A+334/1B/1 which was converted into Gat No. 2518 admeasuring 76 R, ii) Survey No. 334/1A+334/1B/2 which was converted into Gat No. 2519 admeasuring 2H 33R and, iii) Survey No. 334/1A+334/1B/3 which was converted into Gat NO. 2517 admeasuring 82 R. 3.[3] Land bearing Survey No. 334/1A+334/1B/1, Gat NO. 2518 admeasuring 76 R was mutated in the name of Vinayak Babu Gore, the deceased-Respondent No. 7 and the predecessorin-title of Respondent Nos. 7(a) to 7(d). Land bearing Survey NO. 334/1A+334/1B/2, Gat No. 2519 admeasuring 2 H 33 R was mutated in the name of Tukaram Ganpati Gore, the predecessorin-title of the Petitioners. And land bearing Survey NO. 334/1A+334/1B/3, Gat No. 2517, was mutated in the name of Baban Babu Gore, the deceased Respondent No. 6 and predecessor-in-title of the Respondent Nos. 6(a) to 6(e). 3.[4] The Petitioners claim the Petitioners and the Respondents have been cultivating their respective portions of the subject land in accordance with the settlement of the Consolidation Scheme. The Respondent Nos. 6 and 7 or any of their respective successorin-interest had never raised any objection regarding the area of their respective lands as shown in the Consolidation Scheme. In fact Baban Gore had sold the land bearing Gat No. 2517 admeasuring 82 R under a registered Sale Deed in the year 1986 to Badluram Ramnath Agarwal.
3.5. The Petitioners claim after a lapse of more than 27 years of the settlement of the Consolidation Scheme, Baban Gore filed an Application on 22nd August 2000 for the correction of the area in the above-referred Survey Numbers before the Tahsildar, Haveli. The latter directed the deceased-Respondent No. 6, Baban Gore, to approach the authorities, under the Act, 1947. 3.[6] Thereupon Pandurang Gore (R6(a)) filed an Application before the District Superintendent, Land Records (R[3]) purportedly under Section 31A of the Act of 1947 seeking correction in the area of the land settled under Consolidation Scheme. 3.[7] The Petitioners allege, without providing an effective opportunity of hearing the Respondent No. 3 professed to correct the area and by an order dated 19th May 2003 published a draft of the correction. 3.[8] On account of the said unlawful correction in the area of the respective Survey Numbers, sans any lawful authority, the area of the land bearing Survey No. 334/1A+334/1B/2 which was mutated in the name of Tukaram Gore, the predecessor-intitle of the Petitioners under the Consolidation Scheme, came to be reduced to 82 R from 2 H 33 R and correspondingly the area of Survey No. 334/1A+334/1B/3 settled under the Consolidation Scheme was increased from from 82 R to 2 H 33 R. Eventually, the order dated 19th May 2003 passed by the Respondent No. 3 approving the corrections in the area of the lands settled under the Consolidation Scheme was given effect to vide Mutation Entry No. 769 certified on 5th July 2003. 3.[9] Being aggrieved the Petitioners preferred a Revision Application before the State Government. From the record, it transpired that the Revision Application was heard by the then Minister (Revenue) and closed for orders. Though, the Revenue Minister had passed the judgment on 25th August 2009, the same was not released. Thereupon, the successor Minister (Revenue) again heard the Revision Application afresh, after providing an opportunity of hearing to the parties and by the impugned order dismissed the Revision Application opining inter alia that the defect in the Consolidation Scheme was on account of a clerical error in mentioning the incorrect area in the Gunakar Book while, settling the Consolidation Scheme. Thus, the Superintendent, Land Records was within his right in correcting the inadvertent error in mentioning the area qua the respective Survey Numbers.
3.10 The Petitioners preferred an Application to review the aforesaid order. By the impugned order dated 10th October 2016, the Review Application also came to be dismissed.
4. Being aggrieved, the Petitioners have invoked the writ jurisdiction.
5. I have heard Mr. Rajaram Bansode, the learned Counsel for the Petitioners, Mr. Sanjay Kshirsagar, the learned Counsel for Respondent Nos. 6(a) to 6(e) and 7(a) and 7(b) and Ms. Kavita N. Solunke, the learned AGP, for Respondent Nos. 1 to 5. With the assistance of the learned Counsel for the parties, I have also perused the material on record.
6. Mr. Bansode, the learned Counsel for the Petitioners, would urge that the orders impugned in this Petition suffer from manifest infirmity. The correction in the Consolidation Scheme was clearly beyond the scope of the provisions contained in Section 31A of the Act of 1947. The order dated 19th May 2003, by which the Respondent No.3 professed to correct the area of the subject lands, did not fall within the ambit of clerical or arithmetical mistake or accidental error.
7. By the impugned order the Consolidation Scheme has been substantially altered. Such a power neither vests in the Respondent NO. 3 nor the Respondent No. 3 could have resorted to exercise the said power after a lapse of more than 30 years of the coming into force of the Consolidation Scheme. Mr. Bandose, would thus urge that the impugned order suffers from the vice of the flagrant transgression of the limits of the jurisdiction.
8. Mr. Bansode would further urge that even otherwise the requisite procedure for carrying out the corrections in the Consolidation Scheme was not followed. The Petitioners were not given an effective opportunity of hearing. The documents were completely misconstrued. A statement giving consent to the correction was falsely attributed to
9. Mr. Bansode would further urge that, the Respondents have, in fact, sold the lands which were shown against their names in the Consolidation Scheme. The Respondents have no subsisting right, title and interest in the subject land. Yet, the Respondents contested the proceeding before the Minister (Revenue). The latter was also in error in dismissing the Revision Application though the order passed by the Respondent No. 3 was clearly in excess of latter’s power.
10. To buttress the submission that a Consolidation Scheme cannot be corrected after a lapse of more than 30 years, Mr Bansode placed reliance on a judgment of the Division Bench in the case of Dattu Appa Patil Since Deceased by LRs Ananda Dattu Patil and Ors Vs State of Maharashtra and Ors,[1] and the judgments of learned Single Judges of this Court, in the cases of Ganpati Dadu Mali since deceased through LRs Rakhmabai Ganpati Mali and Ors Vs State of Maharashtra and Ors[2] and Bapu Gunda Mirje & Ors Vs State of Maharashtra & Ors[3] 1 2007(1) Mh.L.J. 393. 2 2012(1) Mh.L.J. 341.
11. In opposition to this, Mr. Kshirsagar, the learned Counsel for Respondent Nos. 6(a) to 6(e) and 7(a) and 7(b), supported the impugned orders. It was urged that the Superintendent, Land Records was fully justified in exercising the powers under Section 31A of the Act of 1947, as the area shown in the Consolidation Scheme against Survey No. 334/1A+334/1B/2 and 334/1A+334/1B/3 was on account of a clerical error. The Superintendent, Land Records had followed the procedure prescribed under the Act and the Rules before correcting the clerical error in the Scheme.
12. Mr. Kshirsagar further submitted that there is no material to indicate that the original Scheme, under which a larger area was allotted to Tukaram Ganpati Gore, the predecessor-in-title of the Petitioners, was enforced in the manner ordained by Section 21 of the Act of 1947. Neither a certificate of transfer of the additional land was issued nor any compensation was paid to the persons whose lands came to be transferred to Tukaram Ganpati Gore nor those persons were evicted from the area of land which was allegedly allotted to Tukaram Ganpati Gore. In the absence of the documents to evidence the enforcement of the Scheme qua the area which was allegedly allotted to Tukaram Ganpati Gore, mere entry of an incorrect area in the Record of Rights pursuant to the Consolidation Scheme is of no avail.. In a situation of this nature, the recourse to the provisions contained in Section 31A of the Act 1947 is perfectly in order, submitted Mr. Kshirsagar. To bolster up this submission, Mr. Kshirsagar placed reliance on a judgment of a learned Single Judge of this Court in the case of Tulsiram S/o Shivram Dhondkar & Ors Vs The State of Maharashtra & Ors[4]
13. Mr. Kshirsagar would further urge that the contention of the Petitioners that the Respondents filed Application for correction in the Consolidation Scheme after 27 years is factually incorrect since in the year 1985 itself the deceased-Respondent No. 6 had moved the Authorities for correction in the area of the Survey No. 334/1A+1B/3 corresponding to Gat No. 2517.
14. Attention of the Court was invited to a notice dated 10th December 1991 (Annexure-4 to the Affidavit in Reply on behalf of Pandurang Baban Gore (R6(a)) issued by the Assistant Consolidation Officer, Pune for hearing of the complaint regarding the discrepancy in the area. Attention of the Court was also invited to the statements of the Petitioners and the Respondents recorded during the course of the enquiry into the said complaint which demonstrate that even the Petitioners had conceded that the area was incorrectly recorded.
15. In these circumstances, and especially having regard to the clear inadvertent clerical error in mentioning the area of the respective
4 Writ Petition No. 8737 of 2021 decided on 12th October 2023 (Aurangabad Bench) portions of land under the Consolidation Scheme, the impugned order does not warrant any interference in exercise of the supervisory jurisdiction, urged Mr. Kshirsagar.
16. Ms. Solunke, the learned AGP, also supported the impugned order. It was submitted that the District Superintendent of Land Records has correctly exercised the jurisdiction under Section 31A of the Act of
1947. The Revisional Authority was justified in declining to interfere with the exercise of the powers by the Superintendent, Land Records.
17. To start with it may be apposite to have a brief resume of the relevant provisions of the Act of 1947.
18. Under Section 2(2) of the Act of 1947, “Consolidation of holdings” means the amalgamation and where necessary the redistribution of holdings or portions of holdings in any village, mahal or taluka or any part thereof so as to reduce the number of plots in holdings.
19. Chapter III of the Act of 1947 contains a fasciculus of provisions under the heading, “ Procedure for Consolidation”. Section 15 and 15A deal with declaration of intention to make a Scheme for Consolidation of holdings, preparation of the Scheme and the principles to be followed in its preparation. Under Section 16, if under the Scheme a holder is allotted a holding of less market value than that of his original holding, he is entitled to compensation. Conversely, the holder, to whom a holding of greater market value than that of his original holding, is allotted, is liable to pay compensation. Section 19 provides for publication of draft scheme and amended draft scheme in the prescribed manner with the object of providing an opportunity to the affected persons to raise objections in relation to the draft scheme.
20. Section 20 provides for confirmation of draft scheme or amended draft scheme of consolidation by the Settlement Commissioner. Section 21 provides for enforcement of scheme. Under Section 22 as soon as the persons entitled to possession of holdings under the Act of 1947, have entered into possession of the holdings respectively allotted to them, the scheme shall be deemed to have come into force. Section 24 obligates the Consolidation Officer to issue certificate to every owner to whom a holding is allotted under Sub-section (6) of Section 21. The Consolidation Officer is further enjoined to cause to be prepared a new Record of Rights in respect of holding so transferred.
21. Under Section 31A of the Act of 1947, with which we are primarily concerned, the Settlement Officer has the authority to correct the clerical or arithmetical mistakes or error arising in the Consolidation Scheme from any accidental slip or omission. No Authority except the Settlement Commissioner has the power to remove the defect arising on account of clerical or arithmetical mistakes or error on account of any accidental slip or omission.
22. Under Section 32, the Settlement Commissioner is empowered to vary the scheme after publishing the draft of variation, in the prescribed manner, receiving objections thereto and making an appropriate enquiry in that regard, if it appears to the Settlement Commissioner that the Scheme is defective on account of an error other than clerical or arithmetical mistakes, which he is otherwise empowered to correct under Section 31A, the irregularity or informality.
23. Evidently neither under Section 31A nor Section 32, any time limit is prescribed for the Settlement Commissioner to vary the scheme. Nonetheless, it does not imply that the Settlement Commissioner has unfettered authority to correct or vary the scheme. It is well-recognized that even in the absence of statutory prescription of time-limit, the power can only be exercised within a reasonable period. In the very nature of things, the reasonability of the period for exercise of the power would hinge upon the attendant facts and circumstances of the case.
24. A distinction is also required to be drawn in the cases where the Settlement Commissioner exercises the power under Section 31A; which is essentially to correct the record, and the cases under Section 32 of the Act of 1947. With regard to the exercise of power under Section 32 of the Act of 1947, this Court has consistently held that the Settlement Commissioner has no unbridled authority to vary the scheme at any time. This Court has repetitively ruled that such power, ordinarily, ought to be exercised within a period of three years. In the absence of any special or compelling circumstances the exercise of the power under Section 32 of the Act of 1947, after an inordinately long period cannot be countenanced as it entails the undesirable consequences of unsettling of the settled claims.
25. The judgments on which reliance was placed by the Mr. Bansode deal with the exercise of the power by the Settlement Commissioner under Section 32 of the Act of 1947. In the case of Dattu Appa Patil (Supra), the Division Bench of this Court after following an earlier judgment in the case of Gulabrao Bhaurao Kakade since deceased by L.Rs and Ors Vs Nivrutti Krishna Bhilare & Ors[5] enunciated that when the Consolidation Scheme was settled in the year 1962, the lands were exchanged by the consent of the parties, the possession receipts were executed and the changes were entered in the Revenue Records, and the parties continued to cultivate their respective allotted lands, the Settlement Commissioner were clearly in error in exercising his power under Section 32(1) of the Act of 1947 of effecting variations in the Scheme. The Application for variation was made nearly 27 years after the settlement of the Scheme. The period of 27 years can certainly not be called reasonable period. 5 2001 (4) Mh.L.J. 31.
26. In the case of Gulabrao Bhaurao Kakade(Supra), the Division Bench of this Court had enunciated the position in law, inter alia, as under.
35. The aforesaid enunciation of law appears to be of all four with the facts of the case at hand. Viewed through the aforesaid prism, this Court is of the considered view that, in the instant case the exercise of the power by the Superintendent, Land Records, was indeed for correction of the defect in the Scheme which arose on account of the clerical error in mentioning the area of the respective lands. The Superintendent of Land Records was, therefore, justified in correcting the clerical error. The exercise of power is supported by objective material which justified such corrections. As the original Scheme was not enforced in the manner envisaged by the Act of 1947 and the area mentioned in the Gunakar Book and under the Consolidation Scheme remained a paper entry, the correction thereof cannot be faulted at on the premise that it was done after a number of years.
36. For the forgoing reasons, in exercise of supervisory jurisdiction, this Court does not find any justifiable reason to interfere with the impugned orders. The Petition, therefore, deserves to be dismissed.
37. Hence the following order:: O R D E R:
(i) The Petition stands dismissed.
(ii) Rule discharged.
(iii) No costs.