Bombay High Court
M/S Laxmi Ratan Builder Private Ltd., ... vs Sub Divisional Officer, Rural Nagpur ... on 12 December, 2018
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.7007 of 2017
...
M/s Laxmi Ratan Builder Private
Limited, A Company incorporated
under the Companies Act, 1956,
Represented through its Director,
Saagar Satyanarayan Ratan,
R/o 113, 2nd Floor, Sridevi Ratan
Complex, Agyaram Devi Chowk,
Nagpur. .. PETITIONER
.. Versus ..
1. Sub Divisional Officer,
Rural, Nagpur, Having its
Office at Nagpur Tahsil Office,
Civil Lines, Nagpur.
2. Smt. Indu Narayan Wat,
Age: Adult, Occupation: Nil,
Buty Road, Dixit Wada,
Sitabuldi, Nagpur.
3. Sonal Jogeshwar Parkhe,
Age: Adult, R/o Plot No.3,
Jeevan Chhaya Nagar,
Bhamti Road, Nagoba Mandir,
Nagpur.
4. Mukund Shyamlal Ghate,
Age: Adult,
Occupation: Service,
R/o Buty Road, Dixit Wada,
Sitabuldi, Nagpur.
5. Milind Sahakari Gruh Nirman
Sanstha, through its
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Secretary, Sandeep
Vishwalochan Jaini,
R/o Daroadkar Square,
Central Avenue Road,
Nagpur.
6. Shri Balasaheb Kolekar,
Aged about Adult,
Sub Divisional Officer,
Rural, Nagpur.
7. Milind Sahakari Gruh Nirman
Sanstha, through its
Ex-President, Mr. Shalikram
Dhore, R/o Near Chatrapati
Hall, Chatrapati Square,
Nagpur.
8. Smt. Alka w/o Rajan Gaimukhe,
Aged about 43 years,
Occupation: Housewife,
R/o New Babulkheda,
Near Ambedkar Putla,
Nagpur 440 027.
9. Shri Satish alias Shriram s/o
Shivaji Choudhari, aged 52
years, Occ: Business,
R/o Plot No.8, Bhaiyalal Wadi,
Sitanagar, Somalwada,
Nagpur 440 025.
10. Shri Ravi s/o Panjabrao Khade,
Aged 50 years, Occ: Service,
R/o F-3, Ganguly Apartments,
Somalwada, Wardha Road,
Nagpur - 440 025.
11. Sau. Rekha w/o Jageshwar Parkhe,
Aged 52 years, Occ: Service,
R/o Plot No.3, Shantiniketan
Colony, Pratapnagar,
Nagpur - 440 022.
12. Shri Rajesh Bacchaiya Naidu,
through its constituted Power
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of Attorney Shri Uttam s/o
Maniram Pawar, aged 42,
Occ: Service, R/o C/o Plot No.85,
Suryabhan Nipane's House,
Abhay Nagar, Near Omkar Nagar,
Ring Road, Nagpur 440 027.
13. Shri Shrikant s/o Bhagwat
Shambharkar, through its duly
constituted power of attorney
Shri Taranath s/o Bapu Dhoble,
Aged 47, Occ: Service,
R/o Plot No.54, New Kailas Nagar,
Manewada Road, Nagpur 440 027.
14. Sau Shobha w/o Suresh
Gangashettiwar, Aged 58 years,
Occ: Household, R/o Plot No.65,
Saivihar Colony, Hudkeshwar
Road, Pipla Phata, Nagpur 440 034. . RESPONDENTS
Mr. C.S. Kaptan, Senior Advocate with Mr. S.S. Joshi,
Advocate for Petitioner.
Mr. P.S. Tembhre, AGP for Respondent No.1.
Mr. R.M. Tahaliyani, Advocate for Respondent Nos. 2 & 4.
Mr. B.G. Kulkarni, Advocate for Respondent No.3.
Mr. Abhay Sambre, Advocate for Respondent No.5.
....
CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : NOVEMBER 29, 2018.
DATE OF PRONOUNCING JUDGMENT : DECEMBER 12,2018
JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
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2. By this writ petition, the petitioner company has challenged order dated 07.08.2017 passed by the Sub Divisional Officer, Nagpur (Rural) in Revision Application, whereby the Sub Divisional Officer has exercised power under Section 257 of the Maharashtra Land Revenue Code, 1966 (for short "Code"), to set aside mutation entry No. 3271 dated 13.04.2017 (certified on 05.05.2017), whereby land bearing Kh.No.42/2, situated at mouza Besa, district Nagpur, admeasuring 1.62 HR had been mutated in the name of the petitioner company. The said entry was taken on the basis of a registered sale deed dated 31.03.2017, executed in favour of the petitioner company pertaining to the said land by respondent no.5 society.
3. The said entry was challenged by respondent nos. 2 to 4 by submitting an application dated 15.05.2017 claiming that the respondent no.5 society could not have executed registered sale deed in respect of the said land because plots had already been demarcated in the same and the said respondents had purchased specific plots by registered documents in the said land. It was further submitted that there were large number of other members of the society who had ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 ::: 5 WP7007-17.odt also similarly purchased plots of land and that, therefore, the mutation entry made in favour of the petitioner in respect of the said land was unsustainable. The said application of respondent nos. 2 to 4 was directed by the Sub Divisional Officer to be registered as a revision application under the provisions of the aforesaid Code and the petitioner was called upon to given an explanation. A report was called from the Circle Officer by the Sub Divisional Officer. In the report submitted by the Circle Officer, it was stated that the respondent nos. 2 to 4 had claimed about ownership of plots in the said land but they had failed to produce any registered documents in respect of the same and further that documents pertaining to conversion of the said land to non-agricultural use were also not found.
4. It is the case of the petitioner that despite such material on record, the Sub Divisional Officer acted in a malicious and high handed manner. It was claimed that the Collector had also issued directions to the Sub Divisional Officer in respect of the said proceedings which amounted to interference in the said proceedings before the Sub Divisional Officer. The petitioner claimed that the respondent nos. 2 to 4 had approached the Collector and other authorities making ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 ::: 6 WP7007-17.odt false complaints against the petitioner and the respondent no.5 society, due to which the entire proceedings before the Sub Divisional officer had been vitiated. The petitioner claimed that the Sub Divisional Officer was acting in a biased manner and that this prompted the petitioner company to submit application before the Collector under the relevant provisions of the Code seeking transfer of proceedings from the concerned Sub Divisional officer to another Officer of the same rank. The petitioner also filed written notes of arguments before the Sub Divisional Officer because the said Officer was proceeding to decide the revision application of respondent nos. 2 to 4, without giving proper hearing to all concerned parties.
5. On the application for transfer of proceedings submitted by the petitioner company, on 02.08.2017, the Resident Deputy Collector passed an order transferring the proceedings from the Sub Divisional Officer (Rural) to the Sub Divisional Officer (City). But, on 07.08.2017, the Sub Divisional Officer (Rural) passed the impugned order allowing the revision application of respondent nos. 2 to 4 and cancelling the mutation entry No. 3271 in favour of the petitioner company. ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 :::
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6. Aggrieved by the said order, the petitioner company has filed the present writ petition. It was submitted by Mr. C.S. Kaptan, learned senior counsel appearing for the petitioner company that the impugned order dated 07.08.2017 deserved to be quashed and set aside, firstly because the entire approach of the Sub Divisional Officer smacked of bias and none of the contentions raised on behalf of the petitioner company were considered at all while passing the impugned order. Secondly, it was submitted that the statements made on behalf of the respondent Nos. 2 to 4 were accepted in the impugned order when no documentary material was placed on record in respect of the claim of the said respondents and they as well as 75 to 85 other plot holders had registered sale deeds executed in their favour by respondent no.5 society. Thirdly, it was submitted that report furnished by the Circle Officer itself demonstrated that the claims made by respondent nos. 2 to 4 were absolutely baseless and yet the said report was ignored by the Sub Divisional Officer while passing the impugned order. Fourthly, it was submitted that the petitioner company had a registered sale deed executed by the respondent no.5 society in its favour and that there was no reason why the mutation entry made in its favour could have been cancelled. Fifthly, it was submitted that the proceedings stood transferred on ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 ::: 8 WP7007-17.odt 02.08.2017 itself to the Sub Divisional Officer (City) and yet the Sub Divisional Officer (Rural) passed the impugned order on 07.08.2017, thereby demonstrating that the said order was without jurisdiction.
7. Mr. B.G. Kulkarni, learned counsel appearing for respondent No.3 and Mr. R.M. Tahaliyani, learned counsel appearing for respondent nos. 2 and 4 submitted that the writ petition itself was not maintainable because alternate remedy of appeal/revision was available under the provisions of the said Code, which was not exhausted by the petitioner company. On merits, it was submitted on behalf of the said respondents that there was no material to support the allegation of bias made by the petitioner company against the Sub Divisional Officer (Rural), who passed impugned order. It was submitted that when there were registered documents of title in favour of respondent nos. 2 to 4 and these documents were executed many years before the alleged sale deed was executed in favour of the petitioner company, the mutation entry made in favour of the petitioner company was not sustainable and it was correctly cancelled by the impugned order. It was submitted that the original authority i.e. the Tahsildar had failed to make proper enquiry in the present matter and on ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 ::: 9 WP7007-17.odt misleading material placed on record by the petitioner company and the respondent no.5 society, the mutation entry had been wrongly made in favour of the petitioner company. It was submitted that the respondent nos. 2 to 4 and many other plot holders were interested parties and yet they were not put to notice by the Tahsildar when the entry was made in favour of the petitioner company.
8. It was further submitted that the petitioner company was not justified in claiming that the impugned order dated 07.08.2017 passed by the Sub Divisional Officer (Rural) was without jurisdiction, because the order dated 02.08.2017 transferring the proceedings to the Sub Divisional Officer (City) was not communicated to the Sub Divisional Officer (Rural) before 07.08.2017. It was also pointed out that the respondent nos. 2 to 4 and others had already instituted a dispute in the year 2011 against the respondent no.5 society under the provisions of the Maharashtra Cooperative Societies Act, 1960, which was pending. In the said dispute, reliance was also placed on registered sale deeds executed in favour of the said respondents and other plot holders, thereby showing that the respondent no.5 society had illegally proceeded to execute sale deed in favour of the petitioner company. On this basis, it was ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 ::: 10 WP7007-17.odt submitted that the writ petition deserved to be dismissed.
9. Heard counsel for the parties.
10. On the question of the preliminary objection raised on behalf of the respondent nos. 2 to 4 regarding alternative remedy available to the petitioner company, it is relevant to note that in the writ petition itself, the petitioner company had stated that it was directly approaching this Court by filing writ petition because the alternative remedy was to approach the Collector against the impugned order and that sufficient material had already been placed on record to show that the Collector had interfered in the proceedings in which the impugned order was passed and that, therefore, there was no way in which the Collector would have decided a challenge raised by the petitioner company to the impugned order in an objective and unbiased manner. In fact, it is specifically stated in the writ petition by the petitioner company that it has no faith in the revenue authorities, considering the manner in which the Office of the Collector and the Sub Divisional Officer (Rural) had acted in the present matter while passing the impugned order. The communications sent by the Collector in the present case do show that certain directions/observations ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 ::: 11 WP7007-17.odt were made even when the proceeding before the Sub Divisional Officer was pending, which could be said to have had some impact on the proceedings before the Sub Divisional Officer. Although at this point in time, the Officers holding the office of the Sub Divisional officer as well as the Collector have changed, that would not necessarily have an effect on the allegations made by the petitioner company against the revenue authorities. In this situation, particularly when this Court entertained the writ petition after noting the existence of alternate remedy in order dated 01.11.2017 and granted interim relief in favour of the petitioner, it would not be in the interest of justice to relegate the petitioner to the alternative remedy available under the said Code. In any case, merely because an alternative remedy exists, the jurisdiction of this Court under Article 226 of the Constitution of India is not taken away. Therefore, the preliminary objection raised on behalf of the respondent nos. 2 to 4 is rejected.
11. A perusal of the impugned order dated 07.08.2017 passed by the Sub Divisional Officer (Rural) shows that the contentions of the rival parties have been recorded and in the portion regarding the conclusions and findings, the Sub Divisional Officer (Rural) has made reference to the claim of ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 ::: 12 WP7007-17.odt respondent nos. 2 to 4 that about 75 to 85 plot holders had registered sale deeds in their favour in respect of the said land and that, therefore, it was found that the mutation entry could not have been made in favour of the petitioner company. The finding rendered against the petitioner company is not based on actual examination and analysis of registered sale deeds in favour of the plot holders. A general reference to 75 to 85 plot holders without any perusal of registered documents, shows that the Sub Divisional Officer (Rural) approached the proceedings in a casual manner. As the question of cancellation of mutation entry made in favour of the petitioner company was involved, it was necessary for the Sub Divisional Officer to have entered into a proper enquiry before rendering findings.
12. Apart from this, the provisions of the said Code, particularly Sections 149 and 150 thereof show that when a transfer or acquisition of an immovable property is made, a report is to be made to the Talathi, upon which the Tahsildar makes enquiries and entries of mutations in the register of record of rights. The learned Senior Counsel appearing for the petitioner is justified in pointing out that after the registered sale deed dated 31.03.2017 was executed by the respondent ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:35 ::: 13 WP7007-17.odt no.5 society in its favour, it had followed the law and approached concerned authorities by giving an intimation and that upon enquiry conducted in pursuance thereof, mutation entry no. 3271 certified on 05.05.2017, was made in favour of the petitioner company. It was further correctly submitted that if the respondent nos. 2 to 4 and other plot holders claimed that there were registered sale deeds executed in their favour in respect of plots in the land in question, they should have made efforts to have mutation entries made in their favour, pursuant to such registered documents. In the absence of any effort made on their part, they could not make a grievance regarding the mutation entry no. 3271 made in favour of the petitioner company.
13. The learned counsel appearing for respondent nos. 2 to 4 contended that a proper reading of Sections 149 and 150, as also other provisions of the said Code, would show that when a person acquired a right by virtue of a registered document, such person would be exempt from obligation of making a report to the Talathi in respect of such acquisition. On this basis, it was submitted that no fault could be attributed to respondent nos. 2 to 4 if a report was not made as regards the acquisition of rights in plots in pursuance of registered sale ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:36 ::: 14 WP7007-17.odt deeds. Although, there is substance in the said contention raised on behalf of respondent nos. 2 to 4, it is clear that the petitioner company cannot be faulted for mutation entry no. 3271 made in its favour. If at all respondent nos. 2 to 4 and other plot holders claim rights in plots in the said land and they desire mutation entries to be accordingly made in their favour, they would be expected to take necessary steps, which would have the effect of cancelling mutation entry no.3271 made in favour of the petitioner company. As long as the petitioner company had approached the concerned authorities with registered sale deed in its favour for carrying out mutation entry in its favour, such entry cannot be directed to be cancelled only because the respondent nos. 2 to 4 and other such plot holders claimed to be owners of plots in the said land in pursuance of registered documents, without a detailed enquiry in the matter.
14. It has also come on record that the respondent nos. 2 to 4 and other similarly situated persons have raised a dispute before the Cooperative Court against the respondent no.5 society. They claimed to have placed on record registered sale deeds executed in their favour by respondent no.5 society, for seeking relief from the Cooperative Court. Since the said ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:36 ::: 15 WP7007-17.odt dispute is pending, this Court refrains from making any comment in that regard. The respondent nos. 2 to 4 and others who have raised the dispute before the Cooperative Court would be at liberty to pursue the said proceedings.
15. The material on record does show that the impugned order dated 07.08.2017 was passed by the Sub Divisional Officer (Rural) in a casual manner and the claims of respondent nos. 2 to 4 were accepted without detailed enquiry in the matter. As it is found that the impugned order passed by the Sub Divisional Officer (Rural) is unsustainable on merits, it is not necessary for this Court to render any finding on the question as to whether the impugned order was without jurisdiction as the proceeding stood transferred to the Sub Divisional Officer (City) by order dated 02.08.2017. In any case, there is material on record showing that the order of transfer was not communicated to the Sub Divisional Officer (Rural) when he passed the impugned order.
16. At the same time, in the facts and circumstances of the present case, although setting aside of the impugned order would be a revival of the mutation entry no. 3271 made in favour of the petitioner company, it would be in the interest of ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:36 ::: 16 WP7007-17.odt justice that the respondent nos. 2 to 4 are granted opportunity to approach the concerned authority under the aforesaid Code for establishing their claim in respect of plots in the land in question, on the basis of registered documents of title that may have been executed in their favour. If they desire to have mutation entries to be made in their favour in respect of plots in which they claim title, it would be for them to support their case for mutation entries to be made in their favour before the concerned Authorities under the provisions of the said Code. The learned counsel appearing for respondent nos. 2 to 4 expressed apprehension that if they did approach the concerned authority under the aforesaid Code, during the pendency of such proceedings, the petitioner company would complicate the matter by dealing with the properties on the basis of mutation entry no. 3271 made in its favour. In this context, the learned senior counsel appearing for the petitioner company submitted that the petitioner company was prepared to furnish an undertaking before this Court that it would not create third party rights and interests in the said land and that it would not make any development or undertake any construction for a period of two months from the date of order of this Court. Indeed such an undertaking has been filed on behalf of the petitioner company on 29.11.2018, when ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:36 ::: 17 WP7007-17.odt judgment was reserved in this writ petition.
17. In view of the above, the present writ petition is disposed of as follows:-
(i) The writ petition is allowed. (ii) The impugned order dated 07.08.2017 passed by the
Sub Divisional Officer (Rural) is quashed and set aside.
(iii) The respondent nos. 2 to 4 are granted liberty to approach the Talathi under Section 149 of the Maharashtra Land Revenue Code, 1966 to claim mutation entries to be made in their favour in respect of plots in the said land in respect of which they claim ownership on the basis of the documents. Upon such report being made by respondent nos. 2 to 4 to the Talathi under Section 149 of the Code, the Tahsildar shall undertake enquiry to verify their claims for making mutation entries in that regard on the basis of veracity of the claims of respondent nos. 2 to 4.
(iv) The Tahsildar shall put the petitioner company on notice about such proceedings and grant opportunity to it to raise objections, if any, with regard to the claims of respondent nos. 2 to 4.
(v) The Tahsildar shall dispose of the proceedings so initiated by respondent nos. 2 to 4 within a period of two ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:36 ::: 18 WP7007-17.odt months from the date of this order.
(vi) The petitioner company shall abide by its undertaking dated 29.11.2018 furnished before this Court and it shall not create any third party rights or interests in land bearing Kh. No. 42/2 situated at mouza Besa, district Nagpur, admeasuring 1.62 HR and it shall not undertake any activity of development and construction, during the pendency of the proceedings that may be initiated before the Tahsildar by respondent nos. 2 to 4.
(vii) It is made clear that the respondent nos. 2 to 4 are expected to approach the Talalthi/Tahsildar immediately upon passing of this order, if they wish to raise claims regarding mutation entries to be made in their favour and the Tahsildar shall positively take decision on such claims made by respondent nos. 2 to 4, within a period of two months.
(viii) All parties including the petitioner company , are directed to cooperate with the Tahsildar in the said proceedings, to ensure that the same are decided within the said period of two months.
18. Rule made absolute in the aforesaid terms with no orders as to costs.
(Manish Pitale, J. ) ::: Uploaded on - 12/12/2018 ::: Downloaded on - 27/12/2018 06:13:36 ::: 19 WP7007-17.odt halwai/p.s.
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