Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO. 28016 OF 2019
1. Sanjeev Babaram Vichare, Aged about 55 years, Occupation : Business, R/o. Khamgaon, Tal. Mhalsa, District : Raigad.
2. Kazi Mohammed Mazhar Fatagar, Aged about 60 years, Occupation : Business, R/o. Harkol, Tal. Mangaon, District : Raigad.
3. Liladhar Sadashiv Kelkar, Since deceased through his heir
& Legal representative :
Vijay Loladhar Kelkar, Since deceased through his heirs, & legal representatives :
3A Shilpa Vijay Kelkar, Aged about 58 years, Occupation : Service, 3B Kamlesh Vijay Kelkar, Aged about
32 years, Occupation : Service, Nos. 3A and 3B are Ro. Flat NO. 304, ‘E’ Wing, Sadguru Park, Khendad, Tal. Mangaon, District : Raigad
3C Girija Mahesh Karkare, Aged about 36 years, Occupation : Service, 3D Vikas Vijay Kelkar, Aged about 30 years, Occupation : Service, Both R/o. Parshuram Building, Shraddha Talekar, PS 1/30
J.K. Files, Miljule MIDC, Ratnagiri.
4 Dattatraya Balkrushna Shinde, Aged about 65 years, Occupation : Retired, R/o. Khandad, Tal. Mangaon, District : Raigad
5 Kutbuddin Kazi Mohammed
Mazhar Fatagar, Aged about 65 years, Occupation : Business, R/o. Harkol, Tal. Mangaon, District : Raigad
…. Petitioners
Revenue, Maharashtra State, Mantralaya, Mumbai
2. Deputy Director, Land Records-
Kokan Division, Mumbai
3. Superintendent of Land Records
Mangaon, District : Raigad
4. Taluka Inspector of Land Records, Mangaon, District : Raigad
5. Sanjay Maruti Hegadkar, Aged about 51 years, Occupation : Service, R/o. Behind Jalaram Saw Mill, Mumbai-Goa Highway, Mangaon, Tal. Mangaon, District : Raigad, 6. Sunil Shivram Khaire, Aged about 42 years, Occupation : Tailor, R/o. Matulya Apartment, ‘A’ Wing, 2nd foor Mangaon, Tal. Mangaon, District : Raigad.
7. Kailas Ramchandra Bhingare, Shraddha Talekar, PS 2/30
8. Vilas Gujani Chandorkar, Aged about 52 years, Occupation : Service, R/o. Balaji Complex, 8 Wing, 302, Mangaon, Tal. Mangaon, District : Raigad.
9. Prashant Sakharam Goregaonkar, Aged about 46 years, Occupation : Engineer, R/o. Goregaon, Tal. Mangaon, District : Raigad
10. Sou.Savita Namdeo Bhingare, Aged about 40 years, Occupation : Household, R/o.Ekta Nagar, Mangaon, Ta. Mangaon, District : Raigad
11. Ajit Ashok Pawar, Aged about 32 years, Occupation : Service, R/o. Dhruva Building, ‘A’ Wing, Flat No. 104, Vidya Nagar, Tal. Alibag, District Raigad.
12. Sou. Vaishali Sankeshwar Pawar, Aged about 35 years, Occupation : Service, R/o. Indapur, Tal. Mangaon, District : Raigad
13. Rajendra Anna Bhingare, Aged about 51 years, Occupation : Service, R/o.Room No. 206, Govind Sai, P.G.C.T. Mumbai Goa Highway, Mahad, District : Raigad
14. Dr. Jagdish Pravinbhai Patel, Aged about 58 years, Shraddha Talekar, PS 3/30
15. Dr. Shyam B. Dhavan, Aged about 54 years, Occupation : Business, R/o. Premiyash Chilk Fishs Pvt.
Ltd., at Tadvagale, Post Poynad, Tal. Alibag, District : Raigad
16. Vikas Govind Mohite, Aged about 55 years, Occupation : Service, R/o.AM-37, RIL Petro Chemicals
Township, Nagothane, District : Raigad
17. Dr. Varsha Sanjay Mali, Aged about 37 years, Occupation : Medical Practitioner, R/o. Dr. Mali Hospital, Nijampur
Road, Mangaon, Tal. Mangaon, District : Raigad
18. Santosh Kisan Nikam, Aged about 42 years, Occupation : Service, R/o. Ganga Building, Room No.11, Alibag, Tal. Alibag
District : Raigad
19. Sou. Shabira Mahamud Raut, Aged about 75 years, Occupation : Household,, R/o. Morba, Tal. Mangaon, District : Raigad
20. Sou. Vidya Devendra Shirke
Aged about 40 years, Occupation : Service, R/o. Lonashi Phata, Near Sai
Mandir, Mangaon, Tal. Mangaon, District : Raigad
Shraddha Talekar, PS 4/30
Aged about 49 years, Occupation : Agriculture, R/o. Manjavane (Vatyachiwali), Tal. Mangaon, District : Raigad
22. Mangesh Tukaram Mhaskar
Aged about 44 years, Occupation : Service, R/o. Lonashi Phata, Near Sai
Mandir, Mangaon, , Tal. Mangaon, District : Raigad
23. Inaytulla Mulla Abdul Sayyed Jalal
Since deceased through his heirs
& legal representatives :
23(a) Azhar Inaytulla Jalal
Age : 36 years, Occu. Farmer, 23(b) Mazhar Inayatullah Jalal
Age : 34 years, Occ:
23(c) Arif Inaytulla Jalal
Age : 30 years, Occu. Driver
23(d) Athar Inaytulla Jalal
Age : 28 years, Occu. Driver, 23(e) Rabiya Inaytulla Jalal
Age : 24 years, Occu. Student, 23(f) Khadija Inaytulla Jalal
Age : 58 years, Occu. Household
All Resp. No. 23(a) to 23(f) are resident Tol, Tal. Mahad, Dist. :
Raigad, 24. Smt. Ayesha A. Sattar Jalgaonkar
Aged about 65 years, Occupation : Household,, R/o. Sai, Tal. Mangaon, District : Raigad
25. Sou. Pragati Pradip More, Aged about 42 years, Occupation : Household, R/o. Golden Park Building, Shraddha Talekar, PS 5/30
26. Sayali Sanjay Kamble, Aged about 48 years, Occupation : Household,, R/o. Golden Park Building, Near Matoshri Service Centre, Mumbai-Goa High way, Khandad, Tal. Mangaon, District : Raigad
27. Kisan Tatayaba Bhingare, Aged about 55 years, Occupation : Service, R/o. Sainagar, Mangaon, Tal. Mangaon, District : Raigad
28. Ramdas Shankar Pawar
Aged about 45 years, Occupation : Business, R/o. Sai Nagar, Jangam Chawl, Mangaon East, Tal. Mangaon, District : Raigad
29. Mohan Bapu Gawade, Aged about 54 years,, Occupation : Business, R/o. Mangaon, Tal. Mangaon, District : Raigad.
30. Sou. Anisha Avinash Rajapurkar, Aged about 53 years, Occupation : Business, R/o. Ramchandra Plaza, Mangaon, Tal. Mangaon, District Raigad.
31. Jagdish Harishchandra Shirgudi, Aged about 50 years, Occupation : Business, C/o. Anisha Avinash Rajapurkar, R/o. Ramchandra Plaza, Mangaon, Tal. Mangaon, District Raigad.
… Respondents
Shraddha Talekar, PS 6/30
Mrs. M.S. Bane, AGP for respondent Nos.1 to 4.
Mr. Surel Shah i/b Mr. Sachin K. Hande for respondent Nos.5 to
22, 24, 27 and 28.
JUDGMENT
Judgment Pronounced on : 22nd October 2021.
1. Rule. Rule made returnable forthwith and, with the consent of the counsels for the parties, heard fnally.
2. This petition under Article 227 of the Constitution of India calls in question the legality, propriety and correctness of the orders dated 14th January 2019 and 29th July 2019, passed by the Minister (Revenue) in RTS-2818-P.K. 583/J-4A, whereby the Minister was persuaded to condone the delay in preferring the appeal, by the order dated 14th January 2019, and eventually allow the revision and set aside the orders passed by the Deputy Director, Land Records, Kokan Division, Mumbai-respondent No.2, ordering the modifcation of the scheme under section 32 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (‘the Consolidation Act, 1947’). Shraddha Talekar, PS 7/30
3. Shorn of unnecessary details, the background facts, can be stated as under: (a) Kamlini Liladhar Kelkar, the predecessorin-title of petitioner No.3-Liladhar Kelkar was the original holder of agriculture land bearing Gat No. 540, old survey No.51, admeasuring 4 H 58 R (‘the subject land’). Out of the said land, the deceased respondent No.23 - Inayutulla Jalal purchased an area admeasuring 2H 2 R from the original holder, in the year 1980. The petitioner No.2 purchased another parcel of land admeasuring 2 H, 2 R from the original holder on 21st September 1980. Still, 54R land remained with the original holder. (b) In the Consolidation Scheme, notifed in the year 1979, the old survey No.51 came to be divided into Gat Nos. 529, 530, 538, 540 and 561. Yet, the Tahasildar, Mangaon, by order dated 14th May 1987, granted Non- Shraddha Talekar, PS 8/30 Agricultural use permission (N.A. permission) in respect of Survey No. 51, upon certain conditions to be complied with, by the holders of the subject land, without verifying the Consolidation Scheme. On the basis of the said N.A. permission, the respondent Nos. 5 to 22 and 24 to 28 purchased the plots, carved out from the subject land.
(c) Since, it transpired that the 54R land which remained with the original holder had been encroached upon, and the said portion of land did not fnd mention in the map of the said survey number. The petitioner No.3 and others made the grievances before the competent authorities. Measurement of the subject land was sought. As it transpired that there were defects in the Consolidation Scheme, on 23rd August 2012, the petitioner No.2, respondent No.23 and the other land holders, (respondent Nos.29 to 31 in this petition) submitted an application before the Shraddha Talekar, PS 9/30 Deputy Director, Land Records-respondent No.2 seeking modifcation in the Consolidation Scheme, pointing out patent errors therein. The respondent No.2 invited objection. A draft notifcation of modifcation was published on 21st July 2014. Eventually, by the order dated 18th February 2015, the scheme was modifed.
(d) Being aggrieved by and dissatisfed with the order dated 18th February 2015, modifying the Consolidation Scheme, the respondent Nos.[5] to 22 and 24 to 28 herein preferred a proceeding, purported to be an appeal, before the State Government. Since there was delay in preferring the appeal, an application for condonation of delay was also preferred. The Minister (Revenue) construed the said proceeding to be a revision under section 257 of the Maharashtra Land Revenue Code, 1966 (‘the Code, 1966’) and allowed the same by quashing and setting aside draft notifcation of modifcation, dated 19th Shraddha Talekar, PS 10/30 December 2014, and the order dated 18th February 2015, whereby and whereunder, the Consolidation Scheme was modifed and the consequent orders of correction of the record of rights in respect of the subject land. Resultantly the N.A. permission dated 14th May 1987 and the map settled by the Deputy Superintendent, Mangaon, vide measurement register No. 264, came to be restored. (e) Being aggrieved, the petitioners have invoked the writ jurisdiction of this Court. (f) Initially, the principal challenge, inter-alia, was that the Minister committed a manifest error in law in entertaining the revision without frst condoning the delay in fling the said proceeding. The impugned order, thus, suffers from the vice of jurisdictional error. However, when it was pointed out that on 14th January 2018, the Minister had condoned the delay in preferring the said proceeding and posted the matter for hearing Shraddha Talekar, PS 11/30 on merits, the petitioners challenged the said order of condonation of delay by raising grounds of challenge thereto.
4. In the aforesaid fact-situation, I have heard Mr.Pradeep Dalvi, the learned counsel for the petitioners, Mrs. M.S. Bane, the learned AGP for respondent Nos.[1] to 4 and Mr. Surel Shah, the learned counsel for respondent Nos.[5] to 22, 24, 27 and 28, at length. With the assistance of the learned counsels for the parties, I have carefully perused the material on record, including the orders passed by the statutory authorities.
5. Mr. Dalvi, the learned counsel for the petitioners advanced a two-pronged submission. First, the Minister did not follow the fundamental principles of judicial process. The petitioners were not provided with the copy of the order whereby the delay in preferring the proceeding against the order passed by the Deputy Director, Land Records, modifying the Consolidation Scheme dated 18th February 2015, was sought to be assailed. Therefore, the petitioners proceeded on the premise that there was no order of condonation of delay, and, accordingly the grounds were raised Shraddha Talekar, PS 12/30 in the petition. Later on, the State Government made available a copy of the order (Exh.P[1], Page 132 A of the petition), whereby and whereunder, the Minister condoned the delay by a single line order. The order is bereft of reasons. Thus, according to Mr. Dalvi, the order of condonation of delay, sans reasons, vitiated the exercise of jurisdiction by the Minister.
6. Second, the very exercise of jurisdiction to interfere with a well reasoned order passed by the Deputy Director, Land Recordsrespondent No.2, is fawed. In fact, the order passed by the Deputy Director, Land Records was not susceptible to appeal. Consequently, neither the respondent Nos. 5 to 22 and 24 to 28 could have preferred the appeal against the said order. Nor the Minister was at liberty to construe the said appeal as a revision by invoking the provisions contained in section 257 of the Code,
1966. Thus, according to Mr. Dalvi, the impugned order is wholly unsustainable for having been passed in exercise of jurisdiction not vested in the State Government.
7. In opposition to this, Mrs. Bane, the learned AGP made an endeavour to support the impugned order. Laying emphasis on Shraddha Talekar, PS 13/30 the fact that the Deputy Director, Land Records had modifed the Consolidation Scheme after more than 30 years of its settlement, it was urged that the Minister was justifed in correcting the error which the lower authority had fallen into.
8. Mr.Surel Shah, the learned counsel for respondent Nos. 5 to 22, 24, 27 and 28 stoutly submitted that none of the grounds sought to be urged on behalf of the petitioners deserve countenance. The challenge to the impugned order on the premise that the Minister could not have entertained the proceeding without condoning the delay, is not well grounded in facts. The order dated 14th January 2019 explicitly indicates that delay was condoned. Since, the petitioners did not question the legality and correctness of the said order of condonation of delay, at this juncture, according to Mr. Shah, the petitioners cannot be permitted to question the validity thereof.
9. As regards, the jurisdiction of the State to interfere with the order passed by the Deputy Director, Land Records-respondent No.2 modifying the Consolidation Scheme, Mr. Shah strenuously submitted that the petitioners had not at all raised the issue of Shraddha Talekar, PS 14/30 jurisdiction before the Minister. In any event, according to Mr. Shah, misquoting of a provision of law, while entertaining the proceeding, is of no consequence. What is of paramount signifcance is the existence of authority. Once source of power is relatable to a provision of law, failure to mention the said provision or mentioning of a wrong provision does not denude the authority of the statutory power, urged Mr. Shah. Lastly, according to Mr. Shah, the illegality of the exercise of modifcation of the scheme, after a lapse of about 35 years, in the face of well neigh settled legal position that such modifcation is required to be made within a reasonable time, cannot be lost sight of. As a necessary corollary, the ultimate effect of interfering with the impugned order needs to be kept in view. This Court should refuse to exercise the extraordinary jurisdiction if the necessary corollary of interfering with the impugned order is revival of an illegal order., submitted Mr. Shah.
10. The aforesaid submissions now fall for consideration. To begin with, it is imperative to note that there is not much controversy over the fact that the Consolidation Scheme in respect of the subject land was settled in the year 1979. Nor is it in Shraddha Talekar, PS 15/30 dispute that non-agriculture use was authorised by the Tahasildar, Mangaon by an order dated 14th May 1987. The trigger for modifcation in the Consolidation Scheme was the application preferred by the petitioner No. 2-Mohammed Mazhar Kazi, respondent No.23-Inaytulla Mulla Jalal, respondent No.29-Rohan Bapu Gawde, respondent No.30-Avinash Ramchandra Rajapurkar, and Jagdish Harishchandra Shirgudi-respondent no.31 on 23rd August 2012. One of the principal grievance therein was that the area shown in the map annexed to the N.A. order did not correspond with the area at site and, thus, it was necessary to correct the Consolidation Scheme and the said map. Eventually, the Consolidation Scheme was corrected by the impugned order dated 18th February 2015.
11. It would be contextually relevant to note that the Minister was of the view that pursuant to the N.A. order, third party rights were created in favour of the persons who purchased the plots and thus non-compliance with the conditions incorporated in the said N.A. order, by the original holders, could not have furnished a justifcation for modifcation in the Consolidation Scheme after about 28 years of the settlement of the scheme. It was further Shraddha Talekar, PS 16/30 noted that the draft modifcation did not indicate any error in the area of the land before the settlement of the scheme and after implementation of the scheme.
12. Section 32 of the Consolidation Act, 1947 which empowers the Settlement Commissioner to vary and modify the scheme, reads as under:
13. Evidently, the Settlement Commissioner is empowered to vary the scheme, after notifying the draft of the variation, in the Shraddha Talekar, PS 17/30 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 the clerical and arithmetical mistake which he is otherwise empowered to correct under section 31(A)], irregularity or informality. Pertinently, no time limit is prescribed under section 32 for the Settlement Commissioner to vary the scheme. It, however, does not imply that the authority is free to vary the scheme at any point of time. The legal position has crystallized to the effect that even in the absence of any period prescribed under section 32, the said power can only be exercised within a reasonable period. Undoubtedly, the reasonability of the period for exercise of the power may depend upon the attendant facts of the case. However, where no period of limitation is stipulated, ordinarily, the reasonable time to exercise the power is construed to be of three years.
14. A proftable reference, in this context, can be made to a judgment of the Division Bench of this Court in the case of Gulabrao Bhaurao Kakade, (Smt..) since deceased by His Heirs and Legal Representatives deceased vs Nivrutti Krishna Bhilare & Shraddha Talekar, PS 18/30 Ors.1, wherein, after adverting to the provisions contained in section 32 of the Consolidation Act, 1947, the Division Bench enunciated the position, inter-alia, as under:-
15. A proftable reference can also be made to the judgment of the Supreme Court in the case of Santoshkumar Shivgonda Patil & Ors. Vs. Balasaheb Shevale & Ors. 2, wherein it was enunciated that when a statute does not prescribe a particular period of limitation, ordinarily a period of three years is required to be read into such a statute. The observations in Para Nos. 11 and 12 are instructive and hence, extracted below: “11It seems to be fairly settled that if a statue does not prescribe the time limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein.
12 Ordinarily, the reasonable period within which power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time. Invocation of revisional power by the Sub- Divisional Offcer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstances of the case assuming that the order of Tehsildar passed on March 30, 1976 is fawed and legally not correct.”
16. A Division Bench of this Court in the case of Suresh Bapu Sankanna & Ors. Vs. State of Maharashtra & Ors. 3, after adverting to the aforesaid pronouncements, expounded the legal position to the effect that even if there is no specifc period prescribed in Section 32 of the Consolidation Act, 1947, as regards limitation, an application for modifcation or correction of fnalised consolidation scheme can be made only within three years of such fnalisation of the scheme.
17. In the backdrop of the aforesaid enunciation of law, reverting to the facts of the case, it becomes evident that the petitioner No.2, respondent No. 23 and others had preferred the application seeking modifcation in the Consolidation Scheme well after 32 years of the settlement of the scheme in the year 1979. What accentuates the situation is the fact that that the foundational premise of the application was that the area indicated in the map annexed to the N.A. order was at variance with the actual area on the spot. In the circumstances, the Minister (Revenue) does not seem to have committed an error in holding that there was no patent error in the Consolidation Scheme which warranted 3 2018(4) Mh.L.J. 331 Shraddha Talekar, PS 21/30 rectifcation after a lapse of 35 years. It is a common ground that, post N.A. order, the subject land was sub-divided into numerous plots. The Consolidation Scheme was fully implemented and land changed hands. In this background, the exercise of the power after lapse of 35 years of the settlement of the scheme, entailed the consequence of unsettling the settled claims. The material on record does not indicate that resort to the power to vary the Consolidation Scheme was justifed.
18. This propels me to the consideration of submissions canvassed by Mr. Dalvi. Though, Mr.Dalvi, the learned counsel for the petitioners was justifed in advancing criticism against the order passed by the Minister condoning the delay, by a stroke of pen, yet the substance of the matter cannot be lost sight of. Indisputably, the record indicates that the delay was condoned by order dated 14th January 2018. The claim of the petitioners that the petitioners were unaware of the delay condonation order, is belied by the application (Exh. ‘R’, page 133 of the petition) preferred by the petitioner No.1 herein (Respondent No.4 before the Minister) seeking certifed copy of the order dated 14th January 2019, whereby the Minister condoned the delay. There might be Shraddha Talekar, PS 22/30 some substance in the grievance on behalf of the petitioners that the certifed copy of the said order condoning the delay was not furnished expeditiously. However, the fact remains that the petitioners were aware of the order condoning the delay, having been passed on 14th January 2019. Thus, at this stage, having regard to the core issue of the justifability of the modifcation of the Consolidation Scheme, after a period of 35 years, the fact that the delay was condoned by a non-speaking order pales in signifcance.
19. On the aspect of the exercise of the revisional jurisdiction by the Minister, Mr. Dalvi laid emphasis on the fact that an order passed by the Settlement Commissioner under section 32 of the Consolidation Act, 1947 is neither appealable nor revisable. Attention of the Court was invited to the provisions contained in sections 35 and 36 of the Consolidation Act, 1947. They read as under:
23. In view of the aforesaid exposition of law, in the face of clear and explicit empowerment in law to revise the order, passed by the authorities, under section 35 of the Consolidation Act, 1947, I fnd it rather diffcult to accede to the submission on behalf of the petitioners that the Minister fell in error in entertaining the
Shraddha Talekar, PS 25/30 revision and interfering with the orders passed by the Deputy Director, Land Records, in exercise of revisional jurisdiction.
24. The second limb of the submission of Mr.Shah that the consequences of exercising writ jurisdiction are required to be kept in view, and the Court would be justifed in declining to exercise the jurisdiction in a case where interference would revive an illegal order also appears to be well merited. As indicated above, the order passed by the Deputy Director, Land Records to modify the Consolidation Scheme, after a lapse of about 35 years, did not appear in consonance with law. If the order impugned herein is interfered with, it may revive the said order which is vulnerable for being in teeth of the law laid down by this Court.
25. Should the Court interfere with an order which, in effect, revives an illegal order ? The pronouncement of the Supreme Court in the case of Raj Kumar Soni & Anr. Vs. State of U.P. & Anr. 5 illuminates the path. In the said case, the order of the Sub- Divisional Offcer, upon which the whole claim of the appellants therein rested, being invalid and improper, could have been set
Shraddha Talekar, PS 26/30 aside by the High Court, and thus, it was held, even if there was any technical violation of the rules of natural justice, that was not a ground for interference, as such interference would result in resurrection of an illegal, nay, void order. While arriving at the said conclusion, the Supreme Court adverted to its previous pronouncements in the cases of Gadde Venkateswara Rao vs Government Of Andhra Pradesh 6 and M.C.Mehta v. Union of and observed as under: “16In Gadde Venkateswara Rao v. Government of A.P., a Primary Health Centre was formerly inaugurated at a particular village subject to certain conditions. Since those conditions are not satisfed, the Panchayat Samithi resolved to shift it to another village. The Government, in exercise of its review jurisdiction, interfered with the resolution so passed by the Panchayat Samithi without providing any opportunity whatsoever to the Panchayat Samithi. The government's order was challenged in a proceeding under Article 226 of the Constitution of India. The A.P. High Court held, the order passed by the Government on the review to be bad, but did not interfere on merits. The Supreme Court, while confrming the order of the High Court observed that: "if the High Court had quashed the said order, it would have restored an illegal order; it would have given the Health Centre to a village, contrary to the valid resolutions passed by the Panchayat Samithi." The Supreme Court opined that the High Court was right in refusing to exercise its extraordinary discretionary power under Article 226 of the
17 In M.C.Mehta v. Union of India, this Court, relying upon Venkateshwara Rao observed: (SCC p. 244, para 17) "The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 of Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law."
18 In our view, on the admitted and indisputable facts set out above, any interference with the impugned order of the District Collector would result in restoration of orders passed earlier in favour of the appellants which are otherwise not in accordance with law.”
26. On the aforesaid touchstone, re-adverting to the facts of the case, the situation which thus obtains is that the order passed by the Deputy Director, Land Records, being the outcome of an improper exercise of the power under section 32 of the Consolidation Act, 1947, is legally unsustainable. In the circumstances, interference with the impugned order on the premise that revisional jurisdiction was not properly exercised by the Minister, (which contention is otherwise not found to be well Shraddha Talekar, PS 28/30 merited) would inevitably lead to the restoration of the order passed by the Deputy Director, Land Records, which this Court fnds to be legally unsustainable. Thus, it may not be expedient to exercise the extra-ordinary writ jurisdiction.
27. The conspectus of the aforesaid discussion is that no interference is warranted in the impugned order passed by the Minister.
28. The material on record also indicates that a suit is subjudice at the instance of petitioner No.1, being RCS No. 95 of 2018 for removal of encroachment and the consequential reliefs. It would, thus, be suffce to observe that the contentions of all the parties as regards the encroachment and/or proprietary title on the particular parcels of subject land are kept open for agitation before the competent forums. However, it is imperative to clarify that this Court may not be understood to have delved into the disputed questions as regards the alleged encroachment over the portions of lands which form part of the original survey No. 51.
29. With the aforesaid clarifcation, the petition deserves to be Shraddha Talekar, PS 29/30 dismissed.
30. Hence, the following order: O R D E R The petition stands dismissed, subject to the clarifcation in paragraph no. 28. No costs. Rule discharged. (N. J. JAMADAR, J.) Shraddha Talekar, PS 30/30