Division Bench dismissed Letters Patent Appeal challenging a Single Judge's order upholding a Consolidation Officer's decision to modify a land scheme after 18 years without hearing the respondent. Court upheld the Single Judge's view on lack of authority and procedural error.
Letters Patent Appeal dismissed and Civil Application dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
LPA30.14(corrected)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
LETTERS PATENT APPEAL NO. 30 OF 2014 IN WRIT PETITION NO. 1783 OF 1990 WITH CIVIL APPLICATION NO. 44 OF 2014
IN
LETTERS PATENT APPEAL NO. 30 OF 2014
DAGADU RAMA MALI & ORS.
.. APPELLANTS
Versus
GANPATI DADU MALI & Ors.
.. RESPONDENTS
Mr. Mandar Limaye, Advocate for the appellants Mr. R. R. Chile, Advocate for R. No. 1 (B) Mr. Asif Patel – AGP for R. No. 5.
CORAM:-NARESH H. PATIL & R. V. GHUGE, JJ. DATED : -10/06/2014
P.C.
Heard.
2 The appellant herein has challenged the order
passed by the learned Single Judge in Writ Petition No. 1783 of 1990 dated 21/10/2011.
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2
LPA30.14(corrected)
That in the year 1971 consolidation scheme was
implemented by the State authorities under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short “the said Act”). The appellant was possessing land admeasuring 18 gunthas in Survey No. 349, Hissa No. 7. The said land was numbered as Gat No. 1316 in consolidation scheme and was allotted to the respondents. The appellant filed an application for modification of the consolidation scheme u/s 32 of the Act. The first application was filed in the year 1977 which came to be rejected. Second application was filed in the year 1983, the same was also rejected. The appellant had filed third application in the year 1989. On the opinion of the settlement commissioner, the consolidation officer allowed the application of the appellant and directed that the subject land be renumbered and the possession of the subject land be handed
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LPA30.14(corrected)
over to the appellant. The original scheme was accordingly modified.
The respondent questioned this order by filing a writ petition before single judge of this court. The learned Single Judge allowed the petition. The said order is subject matter of challenge before us.
4 The learned counsel appearing for the appellant submitted that the subject land was owned and possessed by three persons. Statement of one of them i.e. appellant was recorded. The impugned judgment and order is erroneous.
5 The learned counsel for the respondent submitted that the consolidation officer had no authority in law much less jurisdiction to entertain the third application. The consolidation officer had passed order modifying the scheme without hearing the respondent. The modification order was passed after about 18 years of the implementation of original consolidation scheme in the year 1971.
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4
LPA30.14(corrected)
7 The learned AGP has supported the order passed
by the consolidation officer. The Division Bench of this Court
in the case of Gulabrao Bhaurao Kakade (Smt.) since deceased by his heirs and legal representatives v. Nivrutti Krishna Bhilare & Ors. Reported in 2001 (Supp.) Bom. C.R. 688 observed in para 6 as under:
“6. The power given to the Settlement Commissioner for variation of the scheme is on account of an error other than that referred to in section 31A, irregularity or informality after following the procedure prescribed. 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 reasonable period in any case. 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 and we do not intend to lay down any specific period for exercise of that power by Settlement Commissioner but ordinarily exercise of such power after three years of finalisation of scheme under section 22 may not be Justified. In the facts and circumstances of the present case, the exercise of power by Settlement
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5
LPA30.14(corrected)
Commissioner for variation of scheme which has come into force in the year 1973, by initiating proceedings in the year 1988 cannot be said to be within reasonable time. The fact is and that is not disputed that the earlier scheme was finalised in the year 1973 under the Act of 1947 to the knowledge of all the parties concerned. Nobody was aggrieved by the said scheme finalised under the Act of 1947 and the scheme came into force under section 22. The said scheme which had been finalised in accordance with law and came into force and continued to be in force, could not have been unsettled by initiating the proceedings for variation under section 32 on the purported ground of error, irregularity or informality after a lapse of about 15 years. Thus, the exercise of power by Settlement Commissioner under section 32 for variation of the scheme in the facts and circumstances of the present case is grossly unjustified.”
8 Admittedly the consolidation scheme implemented
in the year 1971 was modified after 18 years, that also on the third application filed by the appellant. Earlier two applications filed for the same purpose were rejected by the consolidation officer. We do not find any authority with the consolidation Officer to entertain third application filed by the appellant for modification of the scheme. Even if the
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LPA30.14(corrected)
consolidation officer claimed to have jurisdiction to entertain such an application then the officer ought to have issued notice to the other side before passing the order. The order was passed without hearing the respondent. The second issue raised by the appellant is that the other two owners/possessors of the subject land were not noticed and heard by the Consolidation Officer while the scheme was implemented. It has come on record that the other two owners / possessors of the subject land had already expired before the scheme was implemented. Therefore, there is no question of consolidation officer recording their statements or obtaining signatures on the kabja pavati.
9 The learned Single Judge has discussed all these relevant issues in detail in the judgment. The scheme of 1971 was modified after eighteen years. The modification was done by the Consolidation Officer without hearing in respect of earlier two applications filed by the appellant getting rejected.
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LPA30.14(corrected)
10 The judgment of the learned Single Judge is proper. We do not find any error or infirmity in the judgment and order. No interference is warranted. The letters patent
appeal is dismissed.
11 In view of the above, the civil application is also
dismissed.
(R. V. GHUGE, J.) (NARESH H. PATIL, J.)
md.saleem
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2 issues framed by the court
Whether the Consolidation Officer had jurisdiction to entertain a third application for modification of a consolidation scheme after 18 years.
Whether the modification order passed without hearing the respondent was lawful.
Colour shows how this judgement treated each authority
Gulabrao Bhaurao Kakade (Smt.) since deceased by his heirs and legal representatives v. Nivrutti Krishna Bhilare & Ors.Explained¶39
Gulabrao Bhaurao Kakade (Smt.) since deceased by his heirs and legal representatives v. Nivrutti Krishna Bhilare & Ors. 2001 (Supp.) Bom. C.R. 688
2 provisions across 1 enactments
DAGADU RAMA MALI & ORS.
GANPATI DADU MALI & Ors.
NARESH H. PATIL
R. V. GHUGE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
