1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4252 OF 2010. 1) Murlidhar s/o Keshavrao Dixit and another. - PETITIONERS VERSUS 1) The State of Maharashtra and others. - RESPONDENTS ***** Mr.BL Sagar-Killarikar,Advocate for Petitioners; Mrs.SD Shelke,AGP for Respondent Nos.1 to 3; Mr.VD Salunke, Advocate for Resp.Nos. 4 to 7. ----- CORAM : K.U.CHANDIWAL,J. DATE : 21st October,2010. PER COURT: 1) Heard the learned Counsel for the respective parties. Extensive submissions are advanced. 2) The controversy revolves to challenge to mutation entry No. 209 dated (02.11.1983) 10.11.1983. The learned Counsel for the landlord/petitioners submits that the learned Sub Divisional Officer (SDO), while entertaining the 2 application, seeking cancellation, did not bother to issue notices to the proper persons. Though Paper publication was caused in a local newspaper at Aurangabad, incorrect and insufficient addresses of Pune concerning purported respondents (writ petitioners in writ petition) were mentioned in the said appeal. He also points that though there was an application, seeking condonation of delay, however, no specific orders are passed on such application. The Counsel further informs, even on the date of making or presenting the appeal, few of the respondents/owners were not alive. 3) The learned counsel further submits that the order of the Additional Commissioner dated 3.3.2010, confirming the order of the learned SDO and setting aside the order of learned Additional Collector, recorded against dead respondent nos. 3, 5, 6, 8 and 9 (pages 125 to 145 of paper book). 4) The second limb of submission from learned Counsel for the petitioners was, the mutation, having been taken place before more than 20 years, the appeal on 27.1.2004 could not have been entertained by the learned SDO and decided the same on 14.1.2006, invoking Section 247 of the Maharashtra Land Revenue Code, 1966. 3 In order to stress his points, he took me to the judgment of the Apex Court, reported in 2010 (2) Mah.L.J. 150 (Santoshkumar Shivgonda Patil and Ors. Vs. Balasaheb Tukaram Shevale and Ors.)(part of paper book page 186 onwards). As regards the Judgment of the Apex court, Mr.Salunke, learned Counsel for respondent, submits that it will not be applicable to the present case as it involves direct exercise of revisional powers by the competent authority under the Maharashtra Land Revenue Code, 1966. 5) Mr.Salunke, learned Counsel for the respondents (legal representatives of tenants), firstly submits that the controversy basically revolves to competence of the Circle Inspector (Mandal Nirikshak)in recording mutation entry No. 209. Secondly, the point of delay cannot be entertained as petitioners did not canvass it before the Additional Collector and acquiesced for the same. Thirdly, the basic mistake crept in was, in 1958, the tenant was declared as owner, his entry should have been properly recorded as a owner and not in other rights column. 6) Several points, touching to the provisions of Hyderabad Tenancy & Agricultural Lands Act; Revenue Manual and reported judgments 4 were canvassed. 7) Without adverting to merits of above referred contentions, I find on perusal of the original record that the learned SDO did not properly issue notices to the adversely affected persons. Secondly, the learned SDO did not pass appropriate orders on the application, seeking condonation of delay. At some places, appearances of Shri Dandekar were recorded. Even power of Mr. Sant is in the file. However, it will not be binding to other aggrieved petitioners as the power or the authority being Mr.Dandekar was to be confined to the extent of petitioner no.1 – Murlidhar. 8) Reference was also given by Mr.Sagar to an order of learned Additional Tahsildar, Aurangabad dated 17.1.1985, accepting resignations of Shri Umaji Mhatarji; Shantabai w/o Shamrao Chopade and Subhadrabai w/o Shamrao Chopade, concerning the land Gut No. 17 admeasuring 4 hectors and 85 R. The learned Additional Tahsildar has also clarified that it will not dissolve in existing rights of Gamaji and Dhamaji sons of Mhatarji Chopade. This order is nowhere reflected by the competent authorities, probably it was not so informed. 5 9) The SDO and Additional Commissioner passed orders against dead persons. The lapses on the part of the authorities have caused prejudice to both the sides. Proper adjudication, as was warranted, is not demonstrated by the learned SDO and consequently, leaving that part in air, other points are discussed and dealt with by the learned Additional Collector, or for that purpose the learned Additional Commissioner. 10) In the result, the order, cancelling the mutation entry No.209 in respect of land Gut no. 17, is set aside. The matter is remitted back to the learned Sub Divisional Officer, Aurangabad, who will hear the parties afresh including considering the point of condonation of delay, based on such application being already on record and pass appropriate orders in accordance with law. The parties to appear before the learned SDO on 18th November, 2010. The learned SDO shall endeavour to complete the hearing within six months thereafter. All the points are kept open. The original record, which is made available, is returned to learned AGP. Writ Petition disposed of. No costs. (K.U.CHANDIWAL) JUDGE bdv/