Dismissed

Bhagwan Madhav Borade v. State of Maharashtra and Ors.

Bombay HC30 Oct 2014WP/2008/2001

Case brief

AI extract

What is this about?

Petitioners challenged orders granting a correction in the revenue record favored by a respondent. The court rejected the plea of limitation, found the respondent authority empowered under the Conduct of Business Rules, and dismissed the writ petition for lack of merit.

What did the court decide?

Writ petition dismissed with no order as to costs.

Bhagwan Madhav Borade Vs State of Maharashtra and Ors. — Land Acquisition | Bombay HC (2014)

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W.P. No.2008.01

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( 1 )

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION N0.2008 OF 2001

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Bhagwan s/o Madhav Borade, Died through L.Rs.

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1-A) Vasudev S/o Bhagwan Borade, Age: 55 years, Occu: Agril., R/o Pathrud, Tal. Bhoom, Dist. Osmanabad

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1-B) Ranjeet S/o Bhagwan Borade, Age: 35 years, Occu: Agril., R/o As above

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1-C) Vijaya W/o Shesherao Dhage, Age: 52 years, Occu: Household, R/o Chinchpur Dhage,Tal. Bhoom, Dist. Osmanabad

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1-D) Chandrashila W/o Suresh Doke, Age: 55 years, Occu: Household, R/o Tandalwadi, Tal. Paranda, Dist. Osmanabad

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1-E) Tai W/o Shivaji Choudhari, Age: 45 years, Occu : Household, R/o Dipani Vadgaon, Tal Kallamb, Dist. Osmanabad

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1-F) Kishinda W/o Arjun Bedale, Age: 40 years, Occu : Household, R/o Pangaon, Tal. Kallamb, Dist. Osmanabad ..PETITIONERS VERSUS

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W.P. No.2008.01

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( 2 )

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1)	The State of Maharashtra
2)	The Principal Secretary and Officer on Special Duty (Appeals), Revenue and Forest Department, Government of Maharashtra, Mumbai
3)	Deputy Director of Land Records, Aurangabad
4)	Superintendent of Land Records, Osmanabad
5)	Shri Sandipan s/o Apparao Borade, Age: 35 years, Occu: Agriculture, R/o. Pathrud, Talula Bhoom, Dist. Osmanabad
6)	Vishnu s/o Ganpati Borade, Age: Major, Occu: Agril., R/o. As above
7)	Uttam s/o Sopan Borade, Age:30 years, Occu: Agriculture, R/o. As above
8)	Murlidhar s/o Ganpat Borade, Age: 38 years, Occu: Agriculture, R/o As above
9)	Bajirao s/o Manikrao Borade, Age: 33 years, Occu: Agriculture, R/o. As above (Petition is dismissed vide order dated 13.12.2002)

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( 3 )

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W.P. No.2008.01

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1. Smt. Parvatibai w/o Janu Borade, Age: 40 years, Occu: Agriculture, R/o As above

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1. Shripati s/o Manik Dhudhal, Age: 36 years, Occu: Agriculture, R/o As above.

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1. Abhiman s/o Bhoja Pawar, Age: 42 years, Occu: Agriculture, R/o As above. ( Petition is dismissed vide order dated 12.12.2002 ) ..RESPONDENTS

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Mrs M.A. Kulkarni, Advocate for petitioners; Mrs S.G. Chincholkar, Asstt. Govt. Pleader for respondents no.1 to 4; Mr V.G. Mete, Advocate for respondents no.5 & 11

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CORAM : N.W. SAMBRE, J.

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DATE : 30^th October, 2014

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ORDER

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Heard Mrs M.A. Kulkarni, learned Counsel for petitioners and Mr V. G. Mete, learned Counsel for respondents no.5 and 11.

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The petitioners herein are legal representatives of deceased

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Bhagwan, who died during the pendency of the instant petition.

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( 4 )

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W.P. No.2008.01

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The petitioner has questioned the order dated 30^th April, 1996, passed by respondent no.4 Superintendent of Land Records, Osmanabad; the order dated 26^th November 1996 confirming the order dated 30^th April, 1996, passed by respondent no.3 Deputy Director of Land Records, Aurangabad and the order dated 6^th April, 2000, passed by respondent no.2 Principal Secretary and Officer on Special Duty (Appeals), Department of Revenue, confirming the orders passed by respondents no.3 and 4.

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It is the claim of the petitioner that the consolidation scheme of village Pathrud was completed on 31^st March, 1989. Respondent no.5 herein, by application dated 13^th April, 1993, filed before respondent no.3, has claimed that the area shown against survey No.126 was less, if compared to the area prior to implementation of the consolidation scheme and he has also urged that no area was shown as against survey No.129.

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The aforesaid application was referred to respondent no.4 Superintendent of Land Records for appropriate inquiry, who in turn ordered the Taluka Inspector of Land Records to conduct the inquiry in the matter.

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( 5 )

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W.P. No.2008.01

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After hearing the parties, Respondent no.4 herein, has passed an order dated 30^th April, 1996, in exercise of powers under section 247 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as the “Code”, for the sake of brevity), thereby accepting the claim made by respondent no.5.

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Aggrieved by the order dated 30^th April, 1996, the petitioner herein preferred an appeal before respondent no.3 Deputy Director of Land Records, which came to be rejected by an order dated 26^th November, 1996, which prompted the petitioner to prefer a revision before respondent no.2 Principal Secretary & Officer on Special Duty (Appeals), Department of Revenue. Respondent No.2 also dismissed the revision and confirmed the orders passed by respondents No.3 and 4. As such, present petition.

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Learned Counsel for the petitioner submits that the right of the petitioner to the property in question flows from the agreement entered into between the petitioner and predecessor-in-title of respondent No.1. Learned Counsel submits that the consolidation scheme was implemented in 1989 and the application for correction came to be moved on 13^th April, 1993. According to her, the said application is time barred and as such ought not to

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( 6 ) W.P. No.2008.01

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have been considered and allowed by respondents no.2 to 4. In addition to above, she has urged that the power to hear and decide revision, in view of the provisions of the Code vests with the State Government and the Principal Secretary, according to her, is not empowered to decide the said revision and as such, prayed for quashing the orders impugned herein.

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While countering the above referred submissions, Mr Mete, learned Counsel for respondents No.5 and 11, has invited my attention to the inquiry conducted by respondents no.2 to 4, in the matter qua the claim of the present petitioner and respondent no.5. According to him, the authorities have taken into account the earlier revenue record, the inquiry and the reports called for from the revenue authorities. He further submits that sufficient opportunity of hearing was granted to the parties to the said proceedings including that of the petitioner. He submits that the petition is not tenable in view of the fact that the Civil Judge Junior Division, Bhoom, in Regular Civil Suit No.27 of 1988, decided on 22^nd April, 1993, has adjudicated the rights of the petitioner and respondent no.5 qua the suit property has given verdict in favour of respondent no.5 herein. He further submits that subsequent thereto, even in a suit for injunction, the rights of the present petitioner were adjudicated and it was held that the petitioner was not entitled

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( 7 ) W.P. No.2008.01

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to any relief, which orders were upheld up to this Court. According to him, the authorities have taken care of the said orders and have reached to proper conclusion as regards grant of prayer of respondent no.5 herein for correction of the record. As such, he prayed for dismissal of the writ petition.

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It is required to be noticed that all the three authorities have appreciated the factual position which was placed before them and have scrutinized the evidence brought in support of the claim made by the rival parties, i.e. petitioner and respondent no.5. The authorities below, based on the same, have passed orders in favour of respondent no.5 by granting him appropriate share out of survey no.126, which later on was given Gat No.1415 out of hissa no.1 ad measuring 1.5 Hectares, was recorded in the name of respondent no.5 and other respondents, hissa no.7 bearing Gat No.1411 ad measuring 0.57 Hectares, Gat No.1346 bearing hissa no.16 ad measuring 0.12 Hectares, out of Gat No.1385 hissa no.10 and 12 ad measuring 0.94 and 0.09 Hectare, total 1.03 Hectares and Gat No.1414 hissa no.4 ad measuring 0.36 Hectare in favour of respondent. The filing of Regular Civil Suit No.160 of 1982 and Regular Civil Suit No.27 of 1988 and adjudication by the competent Civil Court in favour of respondent no.5 is also taken into account by the authorities below.

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( 8 ) W.P. No.2008.01

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In view of above, the contention of the petitioner that the period for variation in the consolidation scheme is reasonably to be construed as three years, in my opinion, does not call for any consideration as the authorities below, upon a complaint made by respondent no.5 have noticed their mistake and have corrected the revenue record to that effect. The very locus of the petitioner herein, in challenging the same is also required to be noticed as the petitioner herein intend to enjoy the property in question, without any title to the same. Be that as it may, reliance placed by the learned Counsel for the petitioner on the judgment of this Court in the case of Ganpati Dadu Mali since deceased through L.Rs. Rakhmabai Ganpati Mali & ors. vs. State of Maharashtra & ors ., reported in 2012 (1) Mh.L.J. 341 and the judgment in the case of Dattu Appa Patil since deceased by L.Rs. Ananda Dattu Patil & ors. vs. State of Maharashtra & ors ., reported in 2007 (1) Mh.L.J. 393 , is wholly misplaced, because in both the cases the consolidation scheme was questioned after lapse of period of 18 years and 27 years, respectively, whereas in the case in hand, respondent no.5 has sought correction in the scheme qua his holding within a period of four years and in my opinion, the authorities below have rightly entertained application for correction of holding at the behest of respondent no.5. Even otherwise, the issue of limitation was

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( 9 ) W.P. No.2008.01

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not raised by the petitioner any time before and as such the authorities below have no occasion to consider the same. Thus, it has to be presumed that the petitioner has given-up the said issue before the authorities below and has sought to raise it for the first time in the instant petition. In view of the same, the contention of the petitioner as regards the time barred claim of respondent no.5 stands rejected.

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The next contention of the petitioner that respondent no.2 revisional authority is not empowered to hear revision under section 257 of the Code is concerned, it is required to be noted that the State Government has framed the Conduct of Business Rules. In the said Rules, the authority, i.e. respondent no.2 is referred to as the revisional authority and has all the powers to deal with revision, particularly the revision in question preferred under section 257 of the Code. The presumption provided under the provisions of the Evidence Act, particularly section 114 as regards the official act is also required to be taken into account. The petitioner herein has failed to demonstrate that the conferment and exercise of revisional powers by respondent no.2 is without jurisdiction, except for making submission to that effect. Though the petitioner has sought support from the judgment rendered

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by the Full Bench of this Court in the case of Sombharti Guru Damu Bharti

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( 10 ) W.P. No.2008.01

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vs. The State of Maharashtra & ors ., reported in 2000 (Supp.) Bom. C.R.

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371 , the petitioner has failed to discharge his burden to demonstrate that the Conduct of Business Rules do not empower respondent no.2 to exercise the revisional powers and the said powers are vested with any other authority like that of revenue or judicial. As such, the said contention is also rejected.

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In view of the foregoing observations, no case for interference is made out by the petitioner. In the result, writ petition being devoid of merit is dismissed with no order as to costs.

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amj

Bhagwan Madhav Borade v. State of Maharashtra and Ors.

Case brief

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Bhagwan Madhav Borade v. State of Maharashtra and Ors.

Case brief

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