*1* wp.3926.11.918.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3926 OF 2011 Ananda Gena Karpe and others. ..Petitioners -Versus- Laxmibai Janba Karpe and others. ..Respondents .......... Mr.P.B.Shah a/w Mr.Vivek Salunke, for the Petitioners. Mr.A.V.Anturkar with Mr.S.B.Deshmukh, for the Respondent Nos.1 to 5, 7, 10 and 11. Mr.V.D.Raut, for the Respondent Nos.6 and 8. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 19th July, 2011. P.C.: 1 By this Writ Petition under Articles 226 and 227 of the Constitution of India, the Petitioners are challenging the orders dated 22.04.2011 passed by the Minister of Revenue, Government of Maharashtra, so also, the order passed on 31.05.2010 passed by the Deputy Director of Land Records, Pune Region, Pune. 2 It is the grievance of the Petitioners that the objections raised on 04.02.2010 and 05.02.2010 have been overruled and the Deputy Director of Land Records has approved the draft amendment in the scheme under Section 32 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (in short, Act, 1947). 3 The Petitioners are also impugning the orders passed by the Inspector of Land Records, Pune on 05.09.2009 allowing the Appeal No. 330/2009 filed by the Respondent Nos.1 to 11. 4 It is not necessary to deal with the factual aspects and *2* wp.3926.11.918.sxw contentions in detail because two lands which are involved in this Writ Petition are Gat Nos.489 and 490 situate at village Moi, Taluka : Khed, District : Pune. The land insofar as Gat No.490 is concerned, the Petitioners have already filed a civil suit and the said suit is numbered as Regular Civil Suit No.93/2009 and pending in the Court of Civil Judge, Junior Division, Rajguru Nagar. It is stated that the Petitioners are protected by an interim order in the said suit. 5 It is submitted that the Respondent Nos.1 to 11 made a grievance before the Respondent No.12 that the consolidation scheme implemented in the year 1963-64 has some errors and the same are required to be rectified and the said scheme has to be brought in consonance with the revenue entries. Therefore, the revenue entry No. 1369 be set aside and the names of present Petitioners appearing in the revenue record in respect of the said land be removed. The grievance of the Petitioners is that after a period of 45 years, the Respondent Nos.1 to 11 filed the appeal before the Respondent No.12. In the meanwhile, the Petitioner No.31 acquired the rights in the lands, but without any notice or hearing the Petitioners, so also, without making the Petitioner No.31 a party to the proceedings; that the Respondent No.12 condoned the delay of 45 years and allowed the appeal. Aggrieved and dissatisfied by this order, the matter was carried before the Deputy Director of Land Records. By an order dated 31.05.2010, the objections of the Petitioners were rejected and the variation in the scheme was approved. When the matter was carried in revision before the Minister, the Minister who heard the matter did not pass the order. Subsequently, another Minister took over the said Department and he did not hear the Petitioners or their Advocate and passed an order on the basis that the hearing was concluded earlier. 6 Mr.Shah, learned counsel appearing on behalf of the *3* wp.3926.11.918.sxw Petitioners, submits that all this has seriously prejudiced the Petitioners and the objection goes to the root of the matter, namely, under what authority the Deputy Director of Land Records has effected any variation. The scheme could not have been varied by anybody other than the settlement commissioner. The settlement commissioner has not been involved and therefore, the action of the Deputy Director of Land Records is ex-facie without jurisdiction and nullity. Similarly, the Petitioners have not been heard either by the Inspector of Land Records or by the Minister. Therefore, these orders are vitiated by non observance of the principles of natural justice. 7 It is not necessary to go into all these aspects because the Petitioners have already instituted a civil suit in relation to Gat No.490. I do not see how the present proceedings will straightway be an impediment to file a civil suit in respect of Gat No.489 also for protecting their rights therein as well. The apprehension of Mr.Shah that the objection to the maintainability of the suit and the jurisdiction of civil court to entertain the said suit, would be raised and eventually, the Petitioners will be remedy-less. It is not necessary to take care of this apprehension at this stage. This is a change in mutation entry and the record of rights and that change is effected on the basis of certain shares claimed by the Respondent Nos.1 to 11. They claimed that their predecessor-in-title was having certain share in the subject lands. Ultimately, the said Janba Karpe made a request so as to effect the changes in the revenue records. It is in these proceedings, when issue revolved around a limited controversy and yet the request to vary the consolidation scheme was made, I do not see as to how, at this stage itself, this Court can proceed on the assumption that the jurisdiction of civil court will be barred. The civil court will have to deal with all aspects of *4* wp.3926.11.918.sxw the matter and particularly, in respect of the right, title and interest of the parties. Further, the civil court will apply its mind to all objections that have been raised in this petition and particularly that once the Petitioner No.31 has acquired the rights in the land, he ought to have been joined in the proceedings and his non-joinder and further he being not heard and allowed to participate in the matters and proceedings; will mean that none of the findings and conclusions in the orders bind him. The civil court will definitely consider this objection and hear the parties on the same. It will give an opportunity to the Petitioners, so also, the Respondent Nos.1 to 11 to place on record such materials by way of oral and documentary evidence as is permissible in law. Ultimately, the civil court may have to decide as to whether, the proceedings which have been initiated by the Respondent Nos.1 to 11 are vitiated by any nullity as urged and the orders therein do not bind the Petitioners. Today itself, it cannot be assumed that the civil court has no jurisdiction. Once the issues of rights, title and interest in the immovable property are raised before the civil court, I have no doubt in my mind that it will proceed to adjudicate the same in accordance with law. Merely because the objection to the jurisdiction is raised and it may be urged that the findings and conclusions in the impugned order bind the civil court; that it will not refuse to adjudicate the matter. All these pleas will have to be decided by the civil court as and when raised. This Writ Petition involves disputed questions of facts and this Court cannot resolve the issue of right, title and interest of the parties to the immovable property, then, all the more no cognizance can be taken of the rival contentions. Leaving them open and holding that the Petitioners must approach the competent civil court to establish their right, title and interest in the immovable property; this Writ Petition is disposed of. No costs. *5* wp.3926.11.918.sxw 8 At this stage, Mr.Shah, prays that some protective order may be passed so as to enable the Petitioners to approach the civil court. Mr.Anturkar submits that insofar as Gat No.490 is concerned, the Petitioners have already approached the civil court and they are already protected by the interim order therein. 9 Without going into these contentions and without prejudice to the rights and contentions of both sides, it is directed that for a period of four weeks from today, the parties should maintain status-quo as of today in relation to Gat No.489 so as to enable the Petitioners to approach the competent civil court. It is clarified that this order and direction is without prejudice to the rights and contentions of both parties and it is for the civil court, if approached, to decide and determine as to whether, any protective order should be made. The civil court should decide the same after hearing both sides and uninfluenced by the directions in this petition to maintain status-quo. 10 The Writ Petition is disposed of in the above terms. No costs. (S.C. Dharmadhikari, J)