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2010 DIGILAW 31 (BOM)

Champabai Piraji Somiwane v. State of Maharashtra

2010-01-07

V.R.KINGAONKAR

body2010
JUDGMENT ;- Rule, Rule made returnable forthwith and heard finally by consent. 2. The agricultural land bearing S. No.58 is inferior Inam called "Mahar Hadola" and stood in the name of the petitioner and others. The Respondent No.5 initiated proceedings before the Superintendent of Land Records, Aurangabad, for rectification of the Consolidation record alleging that his father, Laxman Zuting Jadhav was having title in respect of 0.22 Ares land out of Gat No.99 which was converted during course of consolidation scheme, and was part of original S. No.58. He alleged that his name should have been entered in the Consolidation record as owner of 0.22 Ares land. He, therefore, urged for rectification of the Consolidation record. The petitioner and others resisted the application filed by Respondent No.5 - Sahebrao Laxman Jadhav. The learned Superintendent (Land Records) came to the conclusion that father of the Respondent No.5 i.e. Laxman S/o. Zuting was having 3 anna share in old S. No.58 and during course of consolidation the entry was omitted without any reason. He, therefore, ordered rectification of the Consolidation record by invoking powers U/s.255(3) of the Maharashtra Revenue Code, 1966. He directed that name of the father of the Respondent No.5 shall be recorded as owner to the extent of 0.22 Ares land out of land Gat No.99. Feeling aggrieved, the petitioner and the Respondent Nos.5 and 7 together preferred an appeal before the Deputy Director, Land Records, Aurangabad. The Deputy Director, however, refused to entertain the appeal on the ground that the rectification of Consolidation record could be effected U/s.31-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and no appeal is provided against such order. 3. Heard learned counsel for the petitioner and learned A.G.P.. 4. None appeared for the Respondents. The Respondent No.5 Sahebrao, who had applied for rectification of the record remained absent though served. 5. The learned A.G.P. would submit that the Superintendent (L.R.) had no power to rectify the consolidation scheme. It appears that Government Resolution dated 31.8.2001 clearly confers power U/s.32(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 only on Deputy Director (Land Records). 6. The tenor of the impugned order rendered by the Superintendent (L.R.) reveals that he assumed jurisdiction by invoking Section 255(3) of the MLR Code. It appears that Government Resolution dated 31.8.2001 clearly confers power U/s.32(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 only on Deputy Director (Land Records). 6. The tenor of the impugned order rendered by the Superintendent (L.R.) reveals that he assumed jurisdiction by invoking Section 255(3) of the MLR Code. The question is whether the Superintendent (L.R.) had jurisdiction to rectify the entries in respect of the Consolidation record. This jurisdictional issue could be considered by the appellate authority when the Superintendent (L.R.) usurped the powers U/s.255(3) of the MLR Code. His judgment does not show that he acted U/s.31-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Once it is found that the Superintendent of Land Records decided the issue about rectification of the record as per provisions of the MLR Code, rightly or wrongly and with having jurisdiction or without having jurisdiction as the case may be, the order could be challenged before the Director of Land Records or Deputy Director of Land Records in view of the provisions enumerated in Schedule E appended to Section 247 of the MLR Code. It appears that the Respondent No.5 ought to have moved the Settlement Commissioner for rectification of the entries in the Consolidation record : Considering the foregoing reasons, I have no hesitation in holding that the Deputy Director erroneously declined to entertain the appeal. The communication dated 28.6.2007 is, therefore, liable to be quashed. 7. In the result, the petition is allowed. Rule is made absolute. The impugned communication dated 28.6.2007 is quashed. The Deputy Director of Land Records is directed to entertain the appeal and decide the same according to law at the earliest and within a period of six months as far as possible. Petition allowed.