Shamrao Rambhau Konde v. State of Maharashtra

8. Learned Counsel would also submit that Respondent No.2 has grossly erred in considering that there were no faults and/ or frauds in the documents even though the documents available on record are self-evident of the same, allegedly at the behest of Nathu Shiva Konde.

9. Learned Counsel for Petitioners would submit that Petitioners are in possession and the ancestor of Respondents No.5 to 7 was never in possession.

10. Learned Counsel reiterates that Petitioners’ ancestor, viz., Bhiva Arjun Konde Deshmukh was a protected tenant as on Tiller’s day and no such application preferred by the landlord, viz., Gopal Joshi under Sections 29 and 31 of the Tenancy Act and, therefore, on Tiller’s day the ancestor of the Petitioners is the original owner of the said land. Therefore, Petitioners being the legal heirs automatically become the owners of the said land under Section 40 of the Tenancy Act.

11. She would submit that fraud vitiates all action and therefore, Respondent No.2 ought not to have misdirected itself while rejecting the appeal by holding that Petitioners have preferred the same after a delay of 55 years.

12. On the other hand Mr. Manoj Patil on behalf of Respondents No.5 to 7 submits that Respondents No. 5 to 7 are the rightful claimants of the said lands in view of the proceedings conducted under Sections 32G and 32M. He would submit that the son of Bhiva Arjun Konde Deshmukh viz. Rambhau Bhiva Konde who is also the father of Petitioners did not take any steps to challenge the decision dated 2nd May, 1964 and cannot be permitted to agitate the same after 55 years. He also denies that Petitioners are in possession of the said land. Learned Counsel submits that such a claim cannot be sustained in law or in equity.

13. I have heard Ms. Sanjukta Dey, learned Counsel for Petitioners, Mr. A. B. Kadam, learned AGP for Respondents No.1, 3 and 4 and Mr. Manoj Patil, learned Counsel for Respondents No.5 to

7. I have also perused the impugned order dated 8th March, 2021 passed by Respondent No. 3-Maharashtra Revenue Tribunal, and given my thoughtful consideration to the rival contentions.

14. A perusal of the impugned order indicates that Petitioners being aggrieved by the judgement dated 10th December, 2020 by the Sub-Divisional Offcer, Haveli, in Appeal No.542 of 2019 had fled an appeal before the Maharashtra Revenue Tribunal. The SDO had rejected Petitioners’ appeal on the ground that Petitioners sought to challenge the decision dated 2nd May, 1964 in original case No.LLT/ Arvi/149/1918/196 after 55 years.

15. It is Petitioners’ case that petitioners’ grandfather Bhiva Arjun Konde Deshmukh was a protected tenant in respect of the said property which was evidenced by Mutation Entry No.958 and that Petitioners are in possession of the said land in their capacity as heirs of their grandfather. That even today, Petitioners predecessor’s name is entered in the other rights column as vahiwatdars in the 7/12 extract. That Respondents No. 5 to 7 or their predecessors even though having no connection of whatsoever nature with the said lands have in the year 1964 obtained order under Section 32 of the Tenancy Act in the name of Nathu Shiva Konde (predecessor of the said Respondents) on the basis of erroneous record and consequently obtained the Certifcate under Section 32M of the Tenancy Act. Therefore, Petitioners are desirous of setting aside the said order of 1964.

16. It is observed from the impugned order that on the deemed date of Tiller’s day i.e. on 1st April, 1957, the said lands bearing original survey number 99/1, 99/3 have been entered in the name of Nathu Shiva Deshmukh vide Rit No. 3. That the name of Bhiva Arjun Deshmukh was seen in the records only till the year 1942–43, which fact is not controverted. Petitioners have not given any explanation before any of the tribunal/authorities below as to why their vahiwat or entry is not seen in the records from the year 1953–54 up to the deemed date of Tiller’s day. It is settled law that while passing an order under Section 32G of the Tenancy Act, the entries appearing prior to the deemed date is considered as effective and valid and to raise a dispute by relying only upon the entry made prior thereto in the column of other rights in the 7/12 extract cannot be permitted. It is observed by the Revenue Tribunal that after the death of the original tenant Bhiva Arjun Deshmukh, his son i.e. the father of Petitioners herein viz. Rambhau Bhiva Konde has not claimed any tenancy rights in respect of the property in question during his lifetime. Petitioners have chosen to challenge the decision dated 2nd May, 1964 after 55 years merely on the basis of the other rights column in the 7/12 extract and on the basis of a claim that they have been in actual possession. It is also worth noting that in this period of 55 years, the 7/12 extract has also undergone consolidation but neither Petitioners nor their father viz. Rambhau Bhiva Konde, during his lifetime had raised any contention with respect to the vahivat of Nathu Shiva Deshmukh to the said land. A claim after 55 years cannot be sustained in law or in equity. The Tribunal order records that in the proceedings which were conducted under Sections 32G and 32M of the Tenancy Act it is mentioned that Nathu Shiva Konde Deshmukh is carrying out vahiwat. The Petitioners have not made any complaint regarding earlier vahiwat. Attempting to raise a dispute only on the basis of entries made in the other rights column would in my view not be suffcient for challenging the validity of the rights in this matter. Except bald allegations, no details or specifc particulars of the alleged fraud on the part of Respondents No. 5 to 7 or their ancestor Nathu Shiva Konde Deshmukh have been demonstrated. I therefore agree with the fndings of the Tribunal that the attempt by Petitioners to agitate this issue after 55 years does not merit any consideration. The tenancy rights have already been settled 55 years back in the year 1964. Admittedly, even after the 32M Certifcate was issued on 25th May, 1977 in the name of Nathu Shiva Konde Deshmukh, the ancestor of Respondents No.5 to 7, there is a delay of 42 years, which in my view cannot be countenanced. It would be unjust in my view to permit Petitioners to agitate the same after such an inordinate delay particularly in the absence of any proved fraud or illegality.

17. In this context, the decision of a Division Bench of this Court in the case of Dattu Appa Patil since deceased by LRs Ananda Dattu Patil and others Vs. State of Maharashtra and others, 2007 (1) Mh.L.J. 393 comes to mind where this court set aside the orders of the Consolidation Offcer on the ground of inordinate delay of 27 years. The Division Bench referred to the judgement of this court in the case of Gulabrao Bhaurao Kakade Vs. Nivrutti Krishna Bhilare and others, 2001(4) Mh..L.J. 31 where sixteen years after the scheme was fnalised, the original Petitioner received a notice informing him that the scheme earlier fnalised had been varied under Section 32 (1) of the Mumbai Consolidation of Holdings Act and possession as per the varied scheme would be taken on 14th February, 1989 which decision was set aside by this Court even though there was no time limit prescribed under the law to vary the scheme, observing that though no time limit has been prescribed the said power can be exercised within a reasonable period but initiating proceedings after sixteen years cannot be said to be within reasonable time. Paragraphs 17 to 20 of the said decision of this Court in the case of Dattu Appa Patil since deceased by LRs Ananda Dattu Patil and others Vs. State of Maharashtra and others (supra) are instructive and are quoted as under:- “17. In our opinion, the impugned orders are liable to be set aside on the ground of delay. In this connection, we may usefully refer to the judgment of this Court in Gulabrao's case (supra). In that case, 16 years after the Scheme was fnalised, the original petitioner received a notice informing him that the Scheme earlier fnalised had been varied under Section 32(1) of the said Act and possession as per the varied Scheme would be taken on 14-2-1989. Aggrieved by that order, the original petitioner fled a writ petition in this Court. This Court noted that there was no dispute that the Scheme was fnalised following the procedure contemplated under the said Act way back in the year 1973 whereby the earlier Survey No. 95/4 was divided into different Gat numbers and the said Scheme was enforced and it remained in force without any demur or objection by any party for about 15 years. This Court then referred to Sections 32 and 31A of the said Act and observed that Section 32 gives power to Settlement Commissioner to vary the Scheme on the ground of error, irregularity or informality other than the errors referred to in Section 31A. It was observed that though there is no time limit prescribed under Section 32(1) for the Settlement Commissioner to vary the Scheme, which has come into force, but obviously even in the absence of any period prescribed under Section 32, the said power can only be exercised within a reasonable period in any case. It was further observed that what would be the reasonable period for exercise of power under Section 32(1) by the Settlement Commissioner may depend on facts and circumstances of each case. It was observed that ordinarily exercise of such power after 3 years of fnalisation of the Scheme under Section 22 may not be justifed. This Court analysed the facts before it and held that the exercise of power by the Settlement Commissioner for variation of the Scheme which had come into force in the year 1973, by initiating proceedings in the year 1988 cannot be said to be within the reasonable time. It was further observed that the earlier Scheme was fnalized in the year 1973 under the said Act to the knowledge of all the parties concerned. Nobody was aggrieved by the said Scheme fnalised under the said Act and the Scheme came into force under Section 22. It was further observed that the said Scheme which had been fnalised in accordance with law and which came into force and continued to be in force, could not have been unsettled by initiating proceedings for variation under Section 32 on the purported ground of error, irregularity or informality after a lapse of about 15 years and thus the exercise of power by the Settlement Commissioner under Section 32 for variation of the Scheme in the facts and circumstances of the case was grossly unjustifed.

18. We feel that these observations are clearly attracted to the present case. We have already noted that the Consolidation Scheme came to be applied to the Village Asurle in the year 1962. The lands were exchanged by consent of the parties in the year 1962 after recording statements of the parties. Possession receipts were executed. Accordingly, changes were introduced in the village revenue records and parties continued to cultivate their respective allotted lands. This arrangement was accepted by the parties without any demur. The father of respondent 3 was alive till 1988. He made no complaints about any fraud having been committed. It is only in the year 1989 that respondent 3 for the frst time made an application for variation. The application for variation is made nearly after about 27 years. Therefore, the Settlement Commissioner erred in exercising his power under Section 32(1) of effecting variation in the Scheme. Period of 27 years can certainly not be called reasonable period. Besides, serious allegations of fraud could not have been decided by him in such a manner.

19. We fnd no substance in the submission advanced by the learned Counsel for the respondent that since Section 32(1) prescribes no period of limitation, it cannot be read into it. Answer to this submission is found in the judgment of the Supreme Court in Mohamad Kavi's case (supra) where the Supreme Court has reiterated its view in the earlier decisions that where no time limit is prescribed for exercise of power under a statute, it does not mean that it can be exercised at any time. Such power has to be exercised within a reasonable time. It is true that in Uttam Mahale's case (supra) three learned judges of the Supreme Court have held that where there is a statutory rule operating in the feld, the implied power of exercise of the right within reasonable limitation does not arise. It is also true that the judgment in Mohamad Kavi's case (supra) is delivered by two learned Judges of the Supreme Court. In our opinion, that would, however, not make any difference. In Javed Ahmed's case (supra) the Supreme Court has stated that the Supreme Court sits in divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three judges to purport to overrule the decision of a Division Bench of two judges and it may be otherwise where a Full Bench or Constitution Bench does so. Though the Supreme Court has clarifed that it was not embarking upon this question, the above observations of the Supreme Court cannot be glossed over.

20. We must also note that in Mohamad Kavi's case (supra) the Supreme Court was dealing with suo moto powers of Mamlatdar under Section 84C of the Bombay Tenancy and Agricultural Lands Act,

1976. In the present case, the impugned order of the Additional Chief Secretary, Government of Maharashtra is passed under Section 35 of the said Act. Section 35 of the said Act refers to the power of the State Government or the Commissioner to call for and examine the record of any case for the purpose of satisfying itself or himself as to the legality or propriety of any order passed by any offcer under the said Act. In Uttam Mahale's case (supra), however, the Supreme Court was dealing with execution proceedings initiated under Section 21 of the Mamlatdar's Courts Act, 1906. Section 21 makes statutory provision for execution of Mamlatdar's decision. In our opinion, in Mohamad Kavi's case (supra) the Supreme Court was dealing with a provision which is somewhat similar to the provision with which we are concerned and, therefore, we are of the opinion that the present case is covered by the ratio of that judgment. In the ultimate analysis, therefore, in view of the judgment of the Supreme Court in Mohamad Kavi's case (supra) and also the judgment of this Court in Gulabrao's case (supra), we feel that exercise of powers by the Consolidation Offcer after about 27 years, is totally unjustifed and on that ground alone the impugned orders need to be set aside. (emphasis supplied)

18. In view of the above discussion, I am not inclined to interfere with the decision of the Tribunal. The Tribunal was justifed in refusing to entertain the revision application on behalf of Petitioners challenging the order dated 2nd May, 1964 after 55 years. The Petition is dismissed. No costs. (ABHAY AHUJA, J.) MUGDHA M