SSK/912 1 WP.5346.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5346 OF 2010 Kiran Jayantilal Bhat ....Petitioner Versus The State of Maharashtra & Ors. ...Respondents Mr. Y. S. Jahagirdar, Senior Counsel i/b. Mr. S. S. Kanetkar, Advocate for the petitioner. Mr. R. M. Patne, AGP for respondent nos. 1 to 5. Mr. S. D. Patil for respondent no.6. CORAM : RANJIT MORE, J. DATED : 23rd MARCH, 2011. P.C.: Respondent No.7 is served for admission, however, he is not appearing. Mr. Jahagirdar, learned senior counsel makes a statement that no relief is claimed against the said respondent. He, therefore, seeks leave to delete the name of respondent no.7 as he is a formal party. Leave is granted at his own risk. Necessary amendment to be carried out within a period of one week. 2. Heard learned counsel appearing for the respective parties. Rule. Since short point is involved, rule is made returnable forthwith by consent of the parties and taken up for hearing immediately. SSK/912 2 WP.5346.10 3. The petitioner and one Ramesh J. Bhat are real brothers. They jointly purchased suit land in the year 1988. Mutation Entry No.1647 was effected in the name of the petitioner and the said Ramesh Bhat on 2nd May, 1990. Subsequently on 24th August, 2006, Mutation Entry No.2247 was effected by the Talathi at the instance of respondent no.6 who claimed to have purchased the suit land from the petitioner and the said Ramesh Bhat in the year 1990 itself. This mutation entry, thus, was effected after a period of 16 years. 4. The petitioner objected the certification of the Mutation Entry No.2247 before Naib Tahsildar. Naib-Tahsildar, however, by an order dated 15th February, 2007 confirmed the Mutation Entry No.2247. The petitioner preferred appeal before the Sub-Divisional Officer, Panvel. By an order dated 4th November, 2008, the Sub-Divisional Officer, Panvel, remanded the matter back to the Tahsildar for fresh hearing. The petitioner was not satisfied with this order, therefore, he preferred second appeal before the Additional Collector, Raigad. This appeal was disposed of on 4th March, 2009. The petitioner’s second appeal was allowed and the Mutation Entry No.2247 was cancelled. This order was challenged by respondent no.6 by filing revision application. By an order dated 13th May, 2010, the revisional authority disposed of the said revision. By the said order, the Additional Collector’s order dated 4th March, 2009 came to be set-aside and Mutation Entry No.2247 was confirmed. SSK/912 3 WP.5346.10 5. Mr. Jahagirdar, learned senior counsel submitted that the Sub- Divisional Officer’s order dated 4th November, 2008 was accepted by respondent no.6, inasmuch as, he did not challenge the same by filing second appeal, though same was challenged by the present petitioner. The Additional Commissioner, therefore, at the most, could have quashed and set-aside the order dated 4th March, 2009 passed by the Additional Collector, Raigad, and could not have confirmed the Mutation Entry No. 2247. Mr. Jahagirdar, learned senior counsel has no objection, if the matter is remanded back to Naib-Tahsildar in accordance with order of the Sub-Divisional Officer dated 4th November, 2008. 6. Mr. Patil, learned counsel for respondent no.6, on the contrary, supported the impugned order. He invited my attention to the Additional Collector’s order dated 4th March, 2009 and stated that the Additional Collector also could not have cancelled the Mutation Entry No.2247. He submitted that, in any case, since two civil suits between the parties are pending in Civil Court, this Court would not be justified in interfering with the impugned order. 7. Normally, this Court is reluctant to interfere in the proceedings arising out of mutation entry. However, in the present case, by the impugned order, the Additional Commissioner, not only set-aside the Additional Collector’s order dated 4th March, 2009, but also, confirmed the SSK/912 4 WP.5346.10 Mutation Entry No.2247. What was challenged before the Additional Commissioner was the order dated 4th March, 2009 passed by the Additional Collector, Raigad. The order dated 4th November, 2008 passed by the Sub-Divisional Officer, Panvel was never challenged before the Additional Commissioner by respondent no.6. In these facts, the confirmation of Mutation Entry No.2247 amounts to setting-aside the order dated 4th November, 2008 passed by the Sub-Divisional Officer, Panvel, without there being any challenge to the said order. 8. So far as pendency of the civil suits between the parties is concerned, the petitioner disputes the execution of the sale deed in favour of respondent no.6. Whether respondent no.6 was agriculturalist on the date of sale deed is also an issue raised in the above suits. These suits will have to be decided on its own merits. 10. In the above facts and circumstances, in my view, writ petition can be disposed of by passing the following order: 1. Clauses 1 & 2 of the impugned order dated 13th May, 2010 passed by the Additional Commissioner in respondent no.6’s revision being Revision No.325 is confirmed. SSK/912 5 WP.5346.10 2. Clause No.3 of the above impugned order, whereby Mutation Entry No.2247 is confirmed is quashed and set-aside. 3. Consequentially, order of the Sub-Divisional Officer, Panvel dated 4th November, 2008 shall hold the field and Naib-Tahsildar shall decide the petitioner’s objection to certification of Mutation Entry No.2247 afresh on merits and as expeditiously as possible and preferably within a period of six months from the date of receipt of this order. In view of the above order, the writ petition is disposed of. (RANJIT MORE, J.)