Dismissed

Shri Ananda Mahadeo Mali v. Shri Shankar Appa Mali and Anr.

Bombay HC9 Jun 2000WP/2697/1996

Case brief

AI extract

What is this about?

This writ petition challenged an order dismissing a revision regarding a mutation correction in a land consolidation scheme. The High Court held that objections raised after 13 years exceeded the statutory limitation under Section 19. The petition was dismissed on limitation grounds without deciding the merits of the clerical error claim.

What did the court decide?

The writ petition was dismissed; the petitioners' claim was barred by limitation.

Shri Ananda Mahadeo Mali Vs Shri Shankar Appa Mali and Anr. — Land Acquisition | Bombay HC (1993)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.2697 OF 1996

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 Shri.Ananda Mahadeo Mali ]
 resident of Erandoli, ]
 Tal. Miraj, Dist.Sangli ]..Petitioner
 Vs.

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 1. Shri.Shankar Appa Mali ]
 r/o Erandoli, Tal.Miraj ]
 Dist. Sangli ]
 ]
 2. State of Maharashtra ]..Respondents

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 Mr.R.S.Apte, Advocate for petitioner
 Mr.V.B.Rajure Advocate for respondent 1.
 Ms.P.S.Cardozo AGP for respondent 2.

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CORAM: SMT.RANJANA DESAI &
 SMT.V.K.TAHILRAMANI,JJ.

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 DATE : SEPTEMBER 15, 2006

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ORAL JUDGMENT [PER SMT.RANJANA DESAI,J.]:

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 1. The case of the petitioner is that in the year
 1964, there was a partition between the petitioner
 and respondent 1 and survey no.99/1 situate at
 village Erandoli, Taluka Miraj, Dist.Sangli
 admeasuring 6 acres and 14 gunthas plus 6 gunthas

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 pot-kharab came to the share of the petitioner.
 Accordingly, an application came to be made for
 mutation in the record of rights on 20th November,
 1964 and on 14th May, 1986, mutation entry No.4947
 was effected. Admittedly, on 19th February, 1968
 consolidation scheme was made applicable to the said
 area under the Bombay Prevention of Fragmentation
 and Consolidation of Holdings Act, 1947 ("the said
 Act" for short). The scheme was gazetted on 19th
 March, 1968. It is the case of the petitioner that
 in the said scheme, he was shown as having been
 allotted 5 acres 35 gunthas. According to the
 petitioner, 19 gunthas plus 6 gunthas pot-kharab was
 shown less in his holding. The petitioner,
 therefore, applied under Section 31A of the said Act
 for variation of the scheme stating that there was a
 clerical and arithmetical mistake and the same may
 be corrected. The Assistant Consolidation Officer
 came to a conclusion that there was a mistake. On
 28th May, 1984 he corrected the said mistake by
 order of the same date.

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 2. Being aggrieved by the said order, the
 respondent preferred an appeal before the Settlement
 Commissioner. The Settlement Commissioner by his

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 order dated 9th March, 1994 set aside the order
 passed by the Assistant Consolidation Officer.
 Being aggrieved by this judgment and order, the
 petitioner approached the Additional Chief Secretary
 by way of revision under Section 35 of the said Act.
 By the impugned order, the Additional Chief
 Secretary dismissed the said revision and hence,
 this writ petition.

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 3. We have heard Mr.Apte, the learned counsel for
 the petitioner. Mr.Apte urged that the Settlement
 Commissioner as well as the Additional Chief
 Secretary erred in setting aside the order of the
 Assistant Consolidation Officer. He submitted that
 in a family partition, 6 acres 14 gunthas plus 6
 gunthas land was allotted to the petitioner. By the
 scheme framed under the said Act, the petitioner
 could not have been divested of his title to the
 said land. Therefore, record showing such incorrect
 allotment had to be corrected. Mr.Apte submitted
 that there is infact a mistake and therefore, it
 requires to be corrected. Mr.Apte prayed that this
 Court may quash the impugned orders and restore the
 Consolidation Officer’s order dated 28th May, 1984.

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 4. The learned counsel for respondent 1 on the
 other hand, contended that the petitioner has
 approached the authorities after a lapse of about 13
 years. The application filed by the petitioner was
 barred by limitation. He further submitted that the
 correct remedy for the petitioner is to file a suit
 and infact, he has filed a suit and therefore, this
 Court should not interfere with the impugned order.

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 5. The objection to the consolidation scheme has to
 be raised within 30 days as per Section 19 of the
 said Act. In this connection, we may refer to the
 judgment of this Court in Gunda Tuka Shinde since
deceased by his heir Bajirao Tukaram Shinde Vs.
Pandharinath Ramrao Shinde and another, 1991 Mh.L.J.

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669, where this Court has held that "under Section
 19(1) of the said Act, when a scheme of
 consolidation is ready for publication, the
 Consolidation Officer shall publish a draft thereof
 in prescribed manner in the village concerned and
 objection to the draft scheme has to be raised
 within 30 days of the date of publication." In the
 present case, no objection was raised by the
 petitioner in respect of draft consolidation scheme
 after it was published, within the prescribed

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 period. He raised objections about final
 consolidation scheme after 13 years. Objections
 raised are therefore beyond the period of
 limitation.

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 6. Mr.Apte contended that section 19(1) has no
 application in this case because the petitioner’s
 application is under Section 31A of the said Act
 which can be made only after a scheme is enforced
 under section 31 and it is found that there is a
 clerical or arithmetical error. Even if it is
 accepted that section 19 has no application, the
 correction of alleged clerical and arithmetical
 error cannot be done after 13 years in the manner in
 which it is done in this case. It can be done
 within reasonable time and not after 13 years.
 Moreover, we are of the opinion that the
 petitioner’s case is not covered by section 31A of
 the said Act. On this aspect, we concur with the
 authorities below. The petition will have to be
 therefore dismissed.

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 7. We are informed that the petitioner has filed a
 suit being R.C.S.No. 230 of 1999 for declaration
 and for other consequential reliefs in respect of

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 the land in question. Our attention is drawn to the

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 judgment of this Court in Prabhakar Kushaba Hagwane
and others Vs. Yashwant Bhau Hagwane since deceased

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by L.Rs. Ganpat Yashwant Hagwane and others, 1993

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Mh.L.J. 1291, where this Court was considering a
 case where the plaintiff had filed a suit on the
 basis that he had been illegally dispossessed from
 the property subsequent to his acquisition of title
 under the said Act. The defendants had disputed
 this fact. After considering Section 36A of the
 said Act, this Court observed that "the dispute of
 the nature involved in the suit would fall within
 the jurisdiction of the ordinary civil Court." We
 however, do not want to express any opinion as to
 whether the above judgment is attracted to this case
 and whether the petitioner’s suit is maintainable or
 not.

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 8. In view of the above, the petition is dismissed.

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 9. We make it clear that all other contentions of
 both sides on merits of the case, are kept open.

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 [ SMT.RANJANA DESAI, J.]

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 [SMT.V.K.TAHILRAMANI,J.]

Shri Ananda Mahadeo Mali v. Shri Shankar Appa Mali and Anr.

Case brief

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Shri Ananda Mahadeo Mali v. Shri Shankar Appa Mali and Anr.

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