Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 1351 (BOM)

Subhash Shripati Patil v. Pralhad Pandurang Tawar

2013-07-18

RAVI K.DESHPANDE

body2013
JUDGMENT Rule made returnable forthwith. Heard finally by consent of the learned Counsel for the Parties. 2. This Petition challenges the order dated 21.7.2011 passed by the trial Court rejecting the Application for reference of the matter to the Settlement Officer or the Superintendent of Land Records which is the competent authority under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act to decide the question of reference. 3. In an Appeal from Order No.1029 of 2005 decided by this Court on 6.6.2006 the trial Court was directed to frame issue no.4 as under : "Whether defendants prove that the sale deed of the year 1967 is barred by the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act? 4. After the decision of this Court, the trial Court referred the said issue for decision to the Competent authority under the said Act by an order dated 5.10.2007 which is reproduced below : "In view of order passed by the Hon'ble High Court, Mumbai in Appeal No.1029/ 2005 (Civil Application No. 1230/2005) matter be referred to Competent Authority to decide Issue No.4. i.e. Whether the sale deed of the year 1967 is barred by the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act? 5. In response to the aforesaid reference, Tahsildar, Hathkanagale has informed the Civil Court by a communication dated 22.2.2010 that if the transactions of sale and purchase are hit by the provisions of Section 31 (a) and (b) (i) during the period from 15.11.1964 to 24.8.1977, the same are to be declared as null and void as per the provisions of Section 31 of the said Act. The Petitioner upon receipt of such a reference made an Application before the trial Court for referring the matter either to the Consolidation Officer or to the Superintendent of Land records which are the authorities declared to be the Competent authorities to decide the dispute under Section 36 (a) (i) and 36 (b) (i) as per circular dated October 2004. The said Application has been rejected by the impugned order holding that no objection was raised while making the reference of the issues to the Settlement officer and hence objection cannot be entertained. 6. The said Application has been rejected by the impugned order holding that no objection was raised while making the reference of the issues to the Settlement officer and hence objection cannot be entertained. 6. It is not in dispute that under the Circular issued in the month of October, 2004, it is either the Consolidation Officer or the Superintendent of Land records which is the authority competent to decide the issue referred by the Court on 5.1.2007. There is nothing on record to suggest that the Tahsildar, Hathkanangale has been appointed or designated as the Consolidation Officer or the Superintendent of Land Records. The order dated 22.2.2010 is apparently passed by the Tahsildar, Hathkanangale. In view of this, the Civil Court is required to either make an inquiry as to whether the order has been passed by an authority competent to pass an order under the Circular dated October, 2004 or whether the Tahsildar, Hatkanangale has been designated as a Consolidation Officer or the Superintendent of Land Records. The trial Court therefore, could have made such an inquiry from the authority which has passed the order dated 22.2.2010 and then proceeded with the matter to decide the Application. In the absence of such an exercise, the Application could not have been dismissed. 7. In the result, Writ Petition is allowed Order dated 21.7.2011 passed below Exhibit 106/5 in Regular Civil Suit No.65 of 1991 is hereby quashed and set aside. The said Application is restored, to be decided by the trial Court after making an inquiry as to whether order dated 22.2.2010 has been passed by the Competent authority as is prescribed under Circular dated October, 2004 and whether the Tahsildar, Hathkanangale was designated as the Consolidation Officer or the Superintendent of Land Records so as to become competent to adjudicate on the issue in question. The trial Court is directed to carry out this exercise within a period of two months from the date of first appearance of the parties before it. Parties to appear before the trial Court on 29.7.2013. Rule is made absolute accordingly. No order as to costs. Petition allowed.