( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3182 OF 1998 Shri Subhash s/o Laxmanrao Deshpande, R/o Tadwale, Tq. and Dist. Osmanabad, at present r/o Solapur. PETITIONER VERSUS 1. Shri Krishnaji s/o Sadashivrao Deshpande, R/o Tadwale, Tq. & Dist. Osmanabad. 2. The Additional Divisional Commissioner, Aurangabad. 3. The State of Maharashtra. RESPONDENTS .... Mr. M.M. Patil (Beedkar), advocate for the petitioner. Mr. V.G. Mete, advocate for the respondent No. 1. Mr. N.H. Borade, AGP for the respondents No. 2 and 3. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 25th June, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner impugns order dated 5th May, 1998 rendered by learned Additional Divisional Commissioner, Aurangabad, in revision application No. 96/Rev/R/13 whereby order passed by the learned Additional Collector, Osmanabad, in file No. 112/RTS/S9/1990-91 was ( 2 ) confirmed. 2. The petitioner claims to be holder of land Gat No. 544, admeasuring 6 hectares 11 ares situated at village Kasbe- Tadwale, to the extent of its half share. The case of the petitioner is that the said land is his ancestral property which was inam granted in favour of his father, namely, Laxman Ramchandra Deshpande. He alleges that after death of the father, he continued to cultivate the said land for himself and on behalf of other members of his family. The petitioner further alleges that the respondent No.1 has no right or concern with the land in question, but he took undue advantage of the fact that he is adjacent land holder of Gat No. 543 and in order to grab the land in question, gave a false application dated 2nd July, 1990 to the Tahsildar, Osmanabad, with a request to mutate his name in the column of cultivation. The Tahsildar allowed the application and directed to take mutation entry in name of the respondent No. 1. The petitioner challenged the order of the Tahsildar by filing an appeal. The learned Sub-Divisional Officer partly allowed the appeal and remitted the matter to the Tahsildar for de novo enquiry. The respondent No.1 preferred an appeal which was allowed by the Additional Collector. The Additional ( 3 ) Collector came to the conclusion that the respondent No. 1 was in possession of the land for that year and, therefore, entry of his name to the extent of half of Gat No. 544 was properly directed to be taken by the Tahsildar. The learned Additional Commissioner confirmed such order of the Additional Collector. Hence, the petition. 3. Heard learned counsel for the parties. 4. Question involved in this petition is : “Whether the impugned orders are rendered by the quasi-judicial authorities on basis of sufficient material or that there is perversity committed by the authorities concerned while granting application of the respondent No. 1 for effecting mutation of entry in his name in the cultivation column of the revenue record for land Gat No. 544 ?” 5. Mr. M.M. Patil (Beedkar) would submit that the procedure followed by the Tahsildar is against the letters and spirit of Rules 30 and 31 of the Record of Rights and ( 4 ) Registers Preparation and Maintenance Rules, 1971 (for short, “the ROR Rules”). He contended that the Commissioner committed patent error while observing that the respondent No. 1 is tenant of the land in question. He pointed out that the issue regarding tenancy could not have been determined in the proceedings of summary enquiry. He contended that the limited issue which required consideration of the Tahsildar and other revenue authorities was as to whether as on the date of the application dated 02-07-1990, the respondent No. 1 was in actual possession of the half share of the petitioner in respect of land Gat No. 544. He contended, therefore, that the Collector and the Commissioner travelled beyond the scope of enquiry while determining the status of respondent No. 1 as a tenant. Per contra, Mr. Mete supports the impugned judgement. 6. Perusal of the entries in the 7/12 record purport to show that initially, the land gat No. 544 was recorded in the name of Government. It appears that it was subsequently granted in favour of Rangnath Keshav Deshpande to the extent of half share and in favour of Laxman Ramchandra Deshpande to the extent of half share. They were vatandars of the said land. The petitioner is son of vatandar Laxman Ramchandra ( 5 ) Deshpande and acquired the rights as vatandar after the death of said Laxman Deshpande. The entries in the 7/12 record would further show that the land was shown as “Akari Pad” in the column of ownership. Be that may as it is, the names of the vatandars were shown until 1989-90. The entries continued to be in their names from year to year. It emerges from record that the respondent No. 1 submitted an application dated 02-07-1990 to the effect that since many years, he was cultivating the land in question on rental basis. It is an admitted fact that the respondent No. 1 is not member of the family of the petitioner. They are from the same brotherhood and that the respondent No. 1 is holder of adjoining land bearing Gat No. 543. The contention of the respondent No. 1 was that the petitioner never was residing in the village nor his father used to reside in the village and they had never toiled in the land in question, nor had cultivated the same. He alleged that since many years, he was cultivating the said land. Upon receipt of such application, the Tahsildar directed the Talathi to visit the land in question and prepare a panchanama and thereafter, to submit the enquiry report within a week. The Talathi conducted panchanama on 5th July, 1990 in pursuance to such direction. The Talathi also inquired with some adjoining land holders and submitted his report. It ( 6 ) appears that the Tahsildar thereafter verified the statements of the witnesses and allowed the application of the respondent No. 1. 7. So far as procedure for taking entries int he register of Record of Rights is concerned, Rule 31 of the ROR Rules requires verification by the Talathi at the initial stage. The Tahsildar, during the course of crop inspection , if finds that the land is in possession of any other person whose name is not recorded in the record of rights, then is required to take entry in the register in Form No. XIV. The Talathi is thereafter under legal obligation to forward the relevant extract to the Tahsildar for the necessary action. The Tahsildar is required to visit the village and make necessary enquiry after receiving such report. What happened in the present case is that the respondent No. 1 moved the Tahsildar by filing an application to record his name in the relevant record of rights. The Tahsildar then directed the Talathi to enquire into the application. It is true that panchanama dated 5th July, 1990 was drawn by the Talathi behind back of the petitioner. The learned counsel for the petitioner would submit that the enquiry itself was conducted behind back of the petitioner and, therefore, the impugned ( 7 ) order of the Tahsildar was in breach of the principles of natural justice. I find it difficult to countenance the arguments. The enquiry was conducted by the Talathi in the first phase. The duty of the Talathi was to inspect the crops. At that juncture, giving of notice to the petitioner was not necessary. The Tahsildar, however, served a notice during the course of further enquiry and recorded statements of the adjoining land holders as well as that of the petitioner. Needless to say, Sub-Rule (2) of Rule 31 was duly followed by the Tahsildar. The Tahsildar was satisfied that the said half share of land Gat No. 544 was being cultivated by the respondent No. 1 at the relevant time. Consequently, the mutation entry was directed to be recorded. The material on record shows that the petitioner was not residing in the village during the relevant period. It is also not proved that he was having agricultural instruments and bullocks, etc. so as to organize the cultivation of the land in question. 8. One cannot be oblivious of the fact that the enquiry regarding crops inspection and particularly, in the context of the entries in the record of rights, is of summary nature. The elaborate findings regarding rights of the parties are not expected to be recorded in relation to such enquiry. The ( 8 ) competent authorities appear to have duly considered the material placed on record. The statement of the petitioner was recorded on 20th July, 1990. The petitioner did not adduce adequate evidence and the impact of the evidence adduced on behalf of the respondent No. 1 was not obliterated. Under the circumstances, there appears no perversity committed by the Tahsildar, Collector and the Additional Divisional Commissioner while recording name of the respondent No. 1 in the cultivation column. The learned Collector and the learned Commissioner, however, should not have observed anything about status of the respondent No. 1. The question whether the respondent No. 1 can claim status as a tenant of the land in question ought to be left for determination by the competent Tenancy Tribunal. The question whether the tenancy can be created in respect of vatan land and whether, in fact, there was tenancy agreement between the respondent No. 1 and father of the petitioner are the questions which are outside the scope of enquiry in the context of mutation enquiry. In this view of the matter, the necessary clarification is required to be highlighted for the purpose of putting the records straight. 9. For the reasons stated hereinabove, the petition is ( 9 ) dismissed, with clarification that the observations regarding status of the respondent No. 1 as a tenant shall be ignored for all the purposes and that such a question is left open and may be considered in separate proceedings as and when the occasion would arise. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp3182-98