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Judgment
Survey No.,Hissa No.,Area Acre Gunthe Hect. Aar.,Kabjedar,Gut No.
40,1,"9A 08 Gun.
3.72",Shripati Ganpati,124
40,2,"2 A 23 Gun.
1.04",Bajirao Mhasu,125
40,3,"6 A 32 Gun.
2.75",Kaduba Nana,126
40,4,3 A 37 Gun.,Tukaram Nana,127
40,5,"2A 38 Gun.
1.20",Sakharam Tulshiram,69
Total,,"25 A 19 Gun.
10.30 “",,
(3A) If the scheme is varied under sub-section (3), a notification stating that the scheme has been varied shall be published in the Official Gazette and",,,,
the scheme so varied shall be published in the prescribed manner in the village or villages concerned.,,,,
(4) From the date of the notification stating that the scheme has been varied the variation shall take effect as if it were incorporated in the scheme.â€,,,,
Section 32 does not prescribe a time limit for exercise of power of rectification or modification of the consolidation scheme.,,,,
However, it is trite law, that even in the absence of a prescribed period of limitation, a statutory power must necessarily be exercised within a",,,,
reasonable period. While reasonable period would be a question of fact, no cut and dried formula can be applied to determine whether exercise of the",,,,
power is within a reasonable period. In the context of the exercise of the power U/s. 32 of the Act, I am not without guidance and the issue is",,,,
addressed by a catena of the decisions of this Court, to which I shall advert at a later stage in the judgment.",,,,
In Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim (1997) 6 Supreme Court Cases 7,1 the question, which fell for consideration before the",,,,
Hon’ble Apex Court was, whether suo motu enquiry initiated by the Mamlatdar U/S. 84 (C) of the Bombay Tenancy and Agricultural Lands Act,",,,,
1976 nine months after the sale transaction was initiated within a reasonable time. The Hon’ble Apex Court held that the fact that no time limit is,,,,
prescribed for exercise of a power under the statute would not mean that the power can be exercised at any time and that such power has to be,,,,
exercised within a reasonable time. In the factual matrix, the Hon’ble Apex Court found that the exercise of suo motu power U/S. 84(C) of the",,,,
said enactment was not within a reasonable time.,,,,
In Dattu Appa Patil Vs. Ananda Dattu Patil and others Vs. State of Maharashtra and others , 2007(1) Mh.L.J. 39 3, the Division Bench was",,,,
considering the justifiability of exercise of power U/S. 32(1) of the Act 27 years after the implementation of the consolidation scheme. A submission,,,,
was canvassed that in view of the three Judges decision of the Hon’ble Apex Court in Uttam Namdeo Mahale Vs. Vithal Deo and others, (1997)",,,,
6 Supreme Court Cases 73, which strikes a discordant note, the decision of the two Judges Bench in Mohamad Kavi (supra), does not hold the field.",,,,
The Division Bench considers the submission thus:,,,,
“19. We find no substance in the submission advanced by the learned Counsel for the respondent that since Section 32(1) prescribes no period of,,,,
limitation, it cannot be read into it. Answer to this submission is found in the judgment of the Supreme Court in Mohamad Kavi's case (supra), where",,,,
the Supreme Court has reiterated its view in the earlier decisions that where no time limit is prescribed for exercise of power under a statute, it does",,,,
not mean that it can be exercised at any time. Such power has to be exercised within a reasonable time. It is true that in Uttam Mahale's case (supra),,,,
three learned judges of the Supreme Court have held that where there is a statutory rule operating in the filed, the implied power of exercise of the",,,,
right within reasonable limitation does not arise. It is also true that the judgment in Mohamad Kavi's case (supra) is delivered by two learned judges of,,,,
the Supreme Court. In our opinion, that would, however, not make any difference. In Javed Ahmed's case (supra) the Supreme Court has stated that",,,,
the Supreme Court sits in divisions of two and three judges for the sake of convenience and it may be inappropriate for a Division Bench of three,,,,
judges to purport to overrule the decision of a Division Bench of two judges and it may be otherwise where a Full Bench or Constitution Bench does,,,,
so. Though the Supreme Court has clarified that it was not embarking upon this question, the above observations of the Supreme Court cannot be",,,,
glossed over.,,,,
We must also note that in Mohamad Kavi's case (supra) the Supreme Court was dealing with suo moto powers of Mamlatdar under Section 84C,,,,
of the Bombay Tenancy and Agricultural Lands Act, 1976. In the present case, the impugned order of the Additional Chief Secretary, Government of",,,,
Maharashtra is passed under Section 35 of the said Act. Section 35 of the said Act refers to the power of the State Government or the Commissioner,,,,
to call for and examine the record of any case for the purpose of satisfying itself or himself as to the legality or propriety of any order passed by any,,,,
officer under the said Act. In Uttam Mahale's case (supra), however, the Supreme Court was dealing with execution proceedings initiated under",,,,
Section 21 of the Mamlatdar's Courts Act, 1906. Section 21 makes statutory provision for execution of Mamlatdar's decision. In our opinion, in",,,,
Mohamad Kavi's case (supra) the Supreme Court was dealing with a provision which is somewhat similar to the provision with which we are,,,,
concerned and, therefore, we are of the opinion that the present case is covered by the ratio of that judgment. In the ultimate analysis, therefore, in",,,,
view of the judgment of the Supreme Court in Mohamad Kavi's case (supra) and also the judgment of this Court in Gulabrao's case (supra), we feel",,,,
that exercise of powers by the Consolidation Officer after about 27 years, is totally unjustified and on that ground alone the impugned orders need to",,,,
be set aside.â€,,,,
The Division Bench proceeded to hold that the delay of 27 years in initiating action U/S. 32(1) of the Act was unreasonable. The Division Bench,,,,
in Dattu Appa Patil (supra) referred to and relied upon the Division Bench judgment in Gulabrao Bhaurao Kakade Vs. Nivrutti Krishna Bhilare and,,,,
others, 2001 (Supp.1) Bom. C.R. 688 and observed thus:",,,,
“17. In our opinion, the impugned orders are liable to be set aside on the ground of delay. In this connection, we may usefully refer to the judgment",,,,
of this Court in Gulabrao's case (supra). In that case, 16 years after the Scheme was finalised, the original petitioner received a notice informing him",,,,
that the Scheme earlier finalised had been varied under Section 32(1) of the said Act and possession as per the varied Scheme would be taken on,,,,
14/2/1989. Aggrieved by that order, the original petitioner filed a writ petition in this Court. This Court noted that there was no dispute that the Scheme",,,,
was finalised following the procedure contemplated under the said Act way back in the year 1973 whereby the earlier Survey No. 95/4 was divided,,,,
into different Gat numbers and the said Scheme was enforced and it remained in force without any demur or objection by any party for about 15,,,,
years. This Court then referred to Sections 32 and 31A of the said Act and observed that Section 32 gives power to Settlement Commissioner to vary,,,,
the Scheme on the ground of error, irregularity or informality other than the errors referred to in Section 31A. It was observed that though there is no",,,,
time limit prescribed under Section 32(1) for the Settlement Commissioner to vary the Scheme, which has come into force, but obviously even in the",,,,
absence of any period prescribed under Section 32, the said power can only be exercised within a reasonable period in any case. It was further",,,,
observed that what would be the reasonable period for exercise of power under Section 32(1) by the Settlement Commissioner may depend on facts,,,,
and circumstances of each case. It was observed that ordinarily exercise of such power after three years of finalisation of the Scheme under Section,,,,
22 may not be justified. This Court analysed the facts before it and held that the exercise of power by the Settlement Commissioner for variation of,,,,
the Scheme which had come into force in the year 1973, by initiating proceedings in the year 1988 cannot be said to be within the reasonable time. It",,,,
was further observed that the earlier Scheme was finalized in the year 1973 under the said Act to the knowledge of all the parties concerned. Nobody,,,,
was aggrieved by the said Scheme finalised under the said Act and the Scheme came into force under Section 22. It was further observed that the,,,,
said Scheme which had been finalised in accordance with law and which came into force and continued to be in force, could not have been unsettled",,,,
by initiating proceedings for variation under Section 32 on Page 3134 the purported ground of error, irregularity or informality after a lapse of about 15",,,,
years and thus the exercise of power by the Settlement Commissioner under Section 32 for variation of the Scheme in the facts and circumstances of,,,,
the case was grossly unjustified. â€,,,,
In Gulabrao Kakade (supra), the Division Bench articulated that even in the absence of any period prescribed U/S. 32, the power can only be",,,,
exercised within a reasonable period. While the Division Bench did observe that what would be the reasonable period may depend on facts and,,,,
circumstances of each case, ordinarily exercise of such power after three years of finalisation of scheme U/S. 22 may not be justified. The relevant",,,,
observations of the Division Bench in Gulabrao Kakade (supra) reads thus:,,,,
“6. The power given to the Settlement Commissioner for variation of the scheme is on account of an error other than that referred to in section,,,,
31A, irregularity or informality after following the procedure prescribed. Though there is no time limit prescribed under Section 32(1) for the",,,,
Settlement Commissioner to vary the scheme which has come into force, but obviously even in the absence of any period prescribed under section 32,",,,,
the said power can only be exercised within reasonable period in any case. What would be the reasonable period for exercise of power under Section,,,,
32(1) by the Settlement Commissioner may depend on facts and circumstances of each case and we do not intend to lay down any specific period for,,,,
exercise of that power by Settlement Commissioner but ordinarily exercise of such power after three years of finalisation of scheme under section 22,,,,
may not be Justified. In the facts and circumstances of the present case, the exercise of power by Settlement Commissioner for variation of scheme",,,,
which has come into force in the year 1973, by initiating proceedings in the year 1988 cannot be said to be within reasonable time. The fact is and that",,,,
is not disputed that the earlier scheme was finalised in the year 1973 under the Act of 1947 to the knowledge of all the parties concerned. Nobody,,,,
was aggrieved by the said scheme finalised under the Act of 1947 and the scheme came into force under section 22. The said scheme which had,,,,
been finalised in accordance with law and came into force and continued to be in force, could not have been unsettled by initiating the proceedings for",,,,
variation under section 32 on the purported ground of error, irregularity or informality after a lapse of about 15 years. Thus, the exercise of power by",,,,
Settlement Commissioner under section 32 for variation of the scheme in the facts and circumstances of the present case is grossly unjustified.“,,,,
The enunciation of law by the Division Bench is followed in catena of decisions rendered by the learned Single Judges of this Court and suffice it,,,,
to refer to the decision in Ganpati Dadu Mali Vs. State of Maharashtra and others, 2012 (3) Bom. C.R. 703.",,,,
In the light of the settled legal position, I have no hesitation in holding that the exercise of power U/S. 32 of the Act was not within a reasonable",,,,
period and, on that ground alone, the order impugned deserves to be quashed and set aside, which I accordingly do.",,,,
Needless to observe, that every action initiated pursuant to the orders impugned, including mutation entries, are also quashed and set aside.",,,,
The contesting private respondents are at liberty to prove their title by approaching the Civil Court, if so advised, and if such proceedings are",,,,
initiated, the Civil Court shall give due consideration to the provisions of Section 14 of the Limitation Act.",,,,
In view of disposal of the writ petition, pending civil application stands disposed of.",,,,
Rule is made absolute in the aforestated terms.,,,,