1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1722 OF 2010 ... Sudarshan Loyalka ...Petitioner v/s. The Sub Divisional Officer and ors. ...Respondents AND WRIT PETITION NO.1723 OF 2010 ... Mahesh Patel and ors. ...Petitioners v/s. The Sub Divisional Officer and ors. ...Respondents ... Mr.Zubin Behramkamdin with Mr.Ranbir Singh i/b Yatin Shah for the Petitioner in Writ Petition No.1722 of 2010. Mr.Zubin Behramkamdin with Mr.Ranbir Singh with Ms.Ferzama Behramkamdin with Ms.Swati Deshpande i/b FZB & Associates for the 2 Petitioner in Writ Petition No.1723 of 2010. Mr.S.N.Patil, AGP for State. ... CORAM: D.K. DESHMUKH & A.R.JOSHI,JJ DATED: 11th March,2010 P.C.: (PER D.K.DESHMUKH, J.) 1. Rule. Returnable forthwith. Heard finally by consent of parties. 2. The common question of law arises in both these petitions, and therefore, both these petitions can be disposed of by a common order conveniently. In both the petitions what is challenged is the order dated 21-12-2009 passed by the Sub Divisional Officer, Alibaug Sub-Division, Alibaug setting aside following Mutation Entries: 3 Mutation Entry No. 458 1251 1252 1253 1254 1269 1270 & 1271 in relation to Survey No. 102/1, 103/1A + 2A, Gat No.416 of village Awas. Taluka: Alibaug. 3. The relevant facts are that the Mutation Entry No.458 was taken on 30th March, 1991 in the revenue record of the land which are mentioned above on the basis of a registered sale-deed dated 14-2-1991. By that sale-deed following persons, (1) Sitaram Tukaram Rane, (2) Prabhakar Sadashiv Rane, (3) Dattatray Hari Bhagat, (4) Dinkar Hari Jadhav, (5) Kisan Vithoba Rane, (6) Mahadeo Janu Raul, and (7) Madhukar Gopal Rane transferred their lands in favour of following persons namely (1) Manohar Vinayak Bhagat, (2) Narayan Bhiku Mhatre, (3) 4 Dattatray Bhikaji Naik, (4) Laxman Nanawade, (5) Prabhakar Ragho Patil, and (6) Shankar Ganpat Gawade. These transferees, it appears by a registered sale-deed dated 6-5-1997 transferred part of the land purchased by them by the above referred sale-deed in favour of one Sudarshan Loyalka, who is Petitioner in Writ Petition No.1722 of 2010. Mutation Entry on the basis of that sale deed was taken in the revenue record on 25-1-1999. That Mutation Entry was numbered as Mutation Entry No.1252. By a registered sale-deed dated 10-7-1997, same persons transferred a part of the land purchased by them from Gat No.416/2 to one Mahesh Patel and Mutation Entry in the revenue record pursuant to this registered sale deed was taken on 20th April, 1999. That Mutation Entry is numbered as Mutation Entry No.1269. This Mahesh Patel is the Petitioner No.1 in Writ Petition No.1723 5 of 2010. By a registered sale-deed of the same date i.e. 10-7-1997 same persons transferred a part of the land from same Gat number again in favour of Meena Patel, who is Petitioner No.2 in Writ Petition No.1723 of 2010. Mutation Entry in the revenue record was taken on 20th April, 1999. That Mutation Entry is numbered as Mutation Entry No.1272. It further appears that by a registered sale deed dated 6-5-1997, the same persons transferred a part of the land from same Gat no. in favour of Anand Patel, who is Petitioner No.3 in Writ Petition No.1723 of 2010. Mutation Entry was taken on 25th April, 1999 in the revenue record. That Mutation Entry is numbered as Mutation Entry No.1248. It appears that a show cause notice was issued by the Sub-Divisional Officer to Anand Patel, Mahesh Patel and Meena Patel as also persons whose names are mentioned in Mutation 6 Entry No.458 asking them to show cause why orders taking these entries should not be reviewed. Pursuant to that notice, an order was made on 21-12-2009, as amended by order dated 1-1-2010, setting aside all Mutation Entries. According to the order though notices were issued to Anand Patel, Meena Patel, Mahesh Patel they did not remain present. However, even according to the order no notice was issued to Sudarshan Loyalka, who is Petitioner in Writ Petition No.1722 of 2010. 4. The present petitions are directed against the order dated 21st December, 2009, as amended by order dated 1st January, 2010. The learned Counsel appearing for the Petitioners submits that the show cause notice was issued by the Sub-Divisional Officer, who has made the order to show cause 7 as to why he should not review the order taking the Mutation entries. It is submitted that the order taking entries was not made by the Sub Divisional Officer, but was made by the Circle Officer and therefore the Sub- Divisional Officer could not have reviewed the order. It is further submitted that the principal entry is Entry No.458, which was taken by the survey officer on 30th March, 1991, whereby the name of the predecessor-in- title of the Petitioners in both these petitions including Loyalka were mutated as owners of the land. Therefore, before deleting or cancelling that entry issuance of show cause notice to Loyalka who has purchased the land from all the persons to whom land was transferred by sale-deed dated 14-2-1991 was necessary. Therefore, according to the Petitioners cancellation of Mutation Entry No.458 is invalid being in breach of 8 the principles of natural justice. It is further submitted that the show cause notice was also not served as per the law on the Petitioners in Writ Petition No.1723 of 2010. The learned AGP appearing for the State submitted that the order has been made under the provisions of Section 257 of the Maharashtra Land Revenue Code, which is the revisional power, and therefore, according to the learned Counsel the Sub Divisional Officer had power to make the order. 5. The learned Counsel appearing for the Petitioners, however, submits that the show cause notice was not given for revising the order but for reviewing it. It is further submitted that if it is the revisional power that is exercised, then the power could not have been exercised in the year 2009 in relation to the order which was made in the 9 year 1991 and 1999. It is submitted that the maximum period as per the judgment of the Supreme Court is three years for invoking the revisional jurisdiction. It is further submitted that in any case whether it is review or revision, the order cannot be modified or cancelled without complying with the requirements of natural justice and as Entry No.458 has been set aside, admittedly without giving notice to the Petitioner in Writ Petition No.1722 of 2010, the order impugned in both the petitions is liable to be set aside. We do not propose to go into the question whether the Sub-Divisional Officer has reviewed or has revised that order. We also do not propose to go into the question whether the exercise of revisional power is within the period of limitation or beyond the period of limitation. Because, according to us the order is liable to be set 10 aside because admittedly show cause notice was not given to Mr.Loyalka, who is Petitioner in Writ Petition No.1722. By sale- deed dated 14-2-1991, the land was transferred in favour of predecessor-in-title of Loyalka. Mutation Entry was taken on 30th March, 1991 and one of the entries that has been set aside by the order impugned is Mutation Entry No.458. Because relying upon Mutation Entry No.458, Loyalka had purchased by registered sale-deed dated 16-5-1997 a part of the land which was mutated in favour of his predecessor-in-title, in our opinion, issuance of show cause notice to Mr.Loyalka in relation to Mutation Entry No.458 was mandatory. Cancellation of Mutation Entry No. 458 adversely affected the interest of Loyalka and therefore, in our opinion, cancellation of Mutation Entry No.458 cannot be held to be valid, and therefore, has to be 11 set aside. If order setting aside Mutation Entry No.458 is set aside, then the order cancelling other entries which depend on Entry No.458 also cannot survive. Second aspect to be seen is that though there is a controversy between the parties whether notices were properly served on the Petitioners in Writ Petition No.1723 of 2010 or not, fact remains that they have not appeared and submitted their replies to the show cause notices, and the order in so far as they are concerned has been made without considering their point of view. In our opinion, therefore, following order would meet the ends of justice. O R D E R (i)The order dated 21st December, 2009, as amended by order dated 1-1-2010, is set aside. (ii) The Sub Divisional Officer shall be at 12 liberty to take such action as he may be advised, in accordance with law. (iii)Rule made absolute accordingly. No order as to costs. (iv)All contentions available to both sides are kept open. ( D.K. DESHMUKH,J.) ( A.R.JOSHI,J)