Bombay High Court
Subhash Mahadeo Ghorpade And Ors vs Baburao Narayan Gosavi (Decd) Through ... on 25 March, 2021
Author: M. S. Karnik
Bench: M. S. Karnik
2. wp 10274.16.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10274 OF 2016
Subhash Mahadeo Ghorpade and ors. ....Petitioners
Vs.
Baburao Narayan Gosavi
since deceased thru legal heirs
1. Vishnudas Baburao Gosavi
since deceased thru legal heirs
1A. Shri Amar Vishnudas Gosavi and ors. ..... Respondents
Mr.Avinash V. Joshi aw/ Ms.Prachi Jain, for the Petitioners.
Mr.Dilip Bodake, for Respondents No. 1 to 6.
Mrs.V.S. Nimbalkar, AGP for the Respondents No. 7 to 9 - State.
CORAM : M. S. KARNIK, J.
DATE : 25th MARCH, 2021
P.C. :
. The papers of the Petition are not placed before me.
Learned Counsel for the Petitioners tendered a copy of the Petition. On the copy so tendered, the order is passed. The office to reconstruct the Petition on the basis of the copy tendered if the papers are not traced.
2. Heard learned Counsel for the Petitioners and learned 1/6
2. wp 10274.16.doc Counsel for Respondents No. 1 to 6. It is the contention of the learned Counsel for the Petitioners that the revisional authority (State Government) has erred in allowing the Revision fled by the Respondents.
3. The consolidation scheme was implemented some time in 1968. The transfer of possession was efected on 02/12/1970 under Section 24 of the Prevention of Fragmentation & Consolidation of Holdings Act, 1947 (for short 'the said Act') The Petitioners approached the District Superintendent of Land Records (for short 'DSLR') under the provisions of the Maharashtra Land Revenue Code, 1966 (for short 'Code') by fling an Appeal under Section 247 of the Code contending that the area in respect of which the Petitioners are put in possession is shown to be more and therefore he requested that the area be corrected. It is the contention of the learned Counsel for the Petitioners that this was pursuant to the measurement carried out after obtaining consent from the Respondents No.1 to 6 as well. The Petitioners therefore fled Appeal before the DSLR. The DSLR allowed the Appeal.
4. Respondents No. 1 to 6 being aggrieved by the order 2/6
2. wp 10274.16.doc passed by DSLR approached Deputy Director of Land Records, Pune (for short 'DDLR). The Appeal came to be dismissed. Respondents No. 1 to 6 then approached the State Government by fling Revision under Section 35 of the said Act read with section 257 of the Code challenging the order passed by the DDLR. The State Government allowed the Revision. Relying upon the decision of this Court the State Government held the Appeal fled by the Petitioners before DSLR was belated. On the ground of delay in fing the Appeal before DSLR, the Revision came to be allowed.
5. I have heard learned Counsel for the Petitioners as well as learned Counsel for the Respondents No. 1 to 6. Learned Counsel for the Petitioners submitted that it was pursuant to the consent for joint measurements given by Respondents No. 1 to 6 that the measurements were carried out when discrepancy was noticed. It is in that context that though more area was shown in the name of the Petitioners, to set the records straight, the Petitioners approached DSLR by fling Appeal. He therefore submitted that there is no delay.
6. Learned Counsel Shri Bodake for Respondents No. 1 3/6
2. wp 10274.16.doc to 6 submitted that after the scheme is implemented and transfer of possession is efected and even certifcate under section 24 is issued, thereafter it is not open for the parties concerned to fle proceedings after long delay. According to him there is gross delay of 37 years in fling the Appeal and therefore State Government was justifed in allowing the Revision on the ground that DSLR entertained a grossly belated Appeal.
7. I have gone through the order passed in Revision. The revisional authority has allowed the Revision on the ground that the Appeal was fled belatedly before DSLR. However, perusal of the orders passed by DSLR as well as DDLR reveal that the issue regarding the delay in fling the Appeal was never seriously contested. No doubt a contention is raised by Respondents No. 1 to 6 that Appeal is belated, but there is no fnding on this aspect either by DSLR or DDLR.
8. In my opinion the revisional authority should have called upon the DSLR to decide on the aspect of delay in the frst instance as this aspect of delay was not at all considered and the Appeals were decided only on merits. In these circumstances, if it is the contention of the learned Counsel for Respondents No. 4/6
2. wp 10274.16.doc 1 to 6 that Appeal fled is grossly belated, then in the frst instance the said aspect should be considered by DSLR. In such circumstances, an opportunity needs to be given to the Petitioners to explain the delay.
9. It is the further contention of learned Counsel Shri Bodake that the in view of the provisions of the said Act, if any objection to the scheme is raised then in that case, the jurisdiction does not lie with the DSLR to exercise of powers under section 247 of the Code. He submits that the Appeal itself is not maintainable. I make it clear that it is open for the Respondents No. 1 to 6 to raise objection about maintainability of the Appeal before DSLR which obviously shall be considered on its own merits in accordance with law.
10. The matter is remitted to DSLR for considering the Appeal afresh.
11. The Petitioners to fle appropriate application for condonation of delay.
12. All contentions are kept open including the contention of learned Counsel for Respondents No. 1 to 6 that 5/6
2. wp 10274.16.doc Appeal is not maintainable which shall be decided by DSLR on its own merits and in accordance with law. DSLR not be infuenced by the fndings of the Hon'ble Minister or that of this Court while deciding the question of delay in fling Appeal.
13. Consequently, as the matter is remitted to the DSLR for considering the issue of delay as well, orders passed by the State Government in Revision, the Deputy Director of Land Records in Appeal as well as order passed by DSLR are set aside.
14. Writ Petition is disposed of.
(M.S.KARNIK, J.) Digitally signed by Urmila Urmila P. Ingle P. Date:
Ingle 2021.03.25
18:09:40
+0530
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