(1) WP. 1703.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1703 OF 2010 1. Nabaji S/o Gopala Korade Age : 57 years, Occu.: Agri., R/o. Kelewadi (Bota), Tq. Sangamner, Dist. Ahmednagar 2. Kisan S/o Gopala Korade, Age : 60 years, Occu.: Agri., R/o : Kelewadi (Bota), Tq. Sangamner, Dist. Ahmednagar 3. Sawaleram S/o Gopala Korade Age : 55 years, Occu.: Agri., R/o : Kelewadi (Bota), Tq. Sangamner, Dist. Ahmednagar 4. Pandharinath S/o Gopala Korade Age : 50 years, Occu.: Agri. R/o : Kelewadi (Bota), Tq. Sangamner, Dist. Ahmednagar 5. Laxman S/o Gopala Korade, Age : 47 years, Occu.: Agri., R/o : Kelewadi (Bota) Tq. Sangamner, Dist. Ahmednagar .. Petitioners VERSUS 1. Anantha S/o Govidna Korade Age : 70 years, Occu.: Agri., R/o. Kelewadi (Bota), Tq. Sangamner, Dist. Ahmednagar 2. Deputy Director Land Record, Nashik Division, Nashik, Near Old CBS, Nashik-1 3. The Collector, Ahmednagar, Collector Office, Ahmednagar (2) WP. 1703.2010 4. Baburao S/o Govinda Korade, Age : 58 years, Occu.: Agri., R/o : Kelewadi (Bota), Tq. Sangamner Dist. Ahmednagar 5. Karbhari S/o Govinda Korade, Age : 53 years, Occu.:Agri., R/o : Kelewadi (Bota), Tq. Sangamner, Dist. Ahmednagar 6. Tabaji S/o Govinda Korade Age : 45 years, Occu.: Agri., R/o : Kelewadi (Bota), Tq. Sangamner, Dist. Ahmednagar .. Respondents Mr. A.N. Nagargoje, Advocate for the Petitioner Mr. D.R. Korde, AGP for the respondent-State Mr. S.K. Shinde, Advocate for the respondents ... CORAM : V.R. KINGAONKAR, J. DATED : 6TH JULY, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioners are original defendants no.1 to 5 against whom suit (R.C.S. 69 of 2005) is filed by respondent no.1. The suit is for mandatory injunction and direction for rectification of the consolidation record. It is not necessary to elaborately set out the rival contentions. Suffice (3) WP. 1703.2010 it to say that the suit of the respondent no.1 is based on averment that during the course of implementation of consolidation scheme, is land to the extent of 2H 9G area out of original survey no.116(2) was taken away and was got amalgamated with the land of the petitioner while forming block no.186 and 188. He alleges that he was not paid any compensation nor he had consented for giving up the said land to the petitioner nor there was any exchange of the land in lieu of any other fragment of land. He therefore, alleges that he has not lost ownership rights in respect of the said land which was erroneously amalgamated with the land of the petitioner. Consequently, he sought mandatory injunction against the petitioners for restoration of that excessive land of 2H 9G area and also direction for rectification of the relevant consolidation record. The maintainability of the suit was objected to by the petitioners on the ground that the civil Court had no jurisdiction to try the issues regarding the correctness of the consolidation scheme. It was submitted that the Civil Court’s jurisdiction is (4) WP. 1703.2010 barred under section 36-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short "the Act"). The learned Civil Judge by impugned order dated 20.11.2009 directed that first two issues struck below exhibit 39 shall be referred to the competent consolidation authority for determination. The issues pertaining to error committed while preparation of the consolidation scheme and entitlement of the respondent no.1 (plaintiff) to seek rectification of the consolidation record. 3. Heard learned counsel for the parties. 4. It is important to notice that the approved scheme may be valid as provided under section 33 of the Act. The competent authority under the Act may effect changes in the scheme as provided under section 35 of the said Act. The first two issues referred to the competent authority are as below:- " Issues 1. Do the plaintiffs prove that the defendant Nos.5 and 6 have committed (5) WP. 1703.2010 mistake in forming the Gat numbers from original survey numbers when the consolidation scheme was applied to village Kelewadi (Bota)? 2. Are the plaintiffs entitled for rectification of the record as prayed?" 5. Mr. Nagargoje would submit that the civil Court did not properly frame the issues. He would submit further that variation in the consolidation scheme can be sought within a reasonable period and in any case not more than 3 years after finalisation of the scheme but due to the impugned order, now, the question of limitation will be made redundant by the act of the trial Court. He therefore seriously objects reference of the said issues. He would further submit that if the issue no.2 is referred to the consolidation authority, then there remains nothing to be decided by the Civil Court and that the defence raised in the written statement will be meaningless. I find sufficient force in the contention of Mr. Nagargoje. In fact, reference can (6) WP. 1703.2010 be made only in respect of the issues which are required to be settled, decided or dealt with by the competent authority under the said Act. Section 36B of the Act reads as follows:- “36B. (1) If any suit instituted in any Civil Court or Mamlatdar’s Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the ‘competent authority’) the Civil Court or Mamlatdar’s Court shall stay the suit and refer such issues to such competent authority for determination. (2) On receipt of such reference from the Civil Court or Mamlatdar’s Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court or Mamlatdar’s Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.“ (7) WP. 1703.2010 6. Perusal of the above referred provision would reveal that the Civil Court may refer only such an issue/issues to the competent authority which cannot be tried due to the legal embargo under the Act. The reference of the issues shall not be of such kind that the entire adjudication is left to the competent authority and the work of the Civil Court will remain only as a mute spectator. If the two issues referred to above are required to be decided by the competent authority under the said Act, then there hardly remains any adjudicatory work left to be done by the Civil Court. In my opinion, the following issue is required to be framed and referred to the competent authority: "Issue no.1-A – Whether the Consolidation Officer, in fact, amalgamated any land of the plaintiff with the land of the defendants during course of implementation of the consolidation scheme without payment of compensation or without exchange of the land or without consent or that such consolidation work was carried out by following due procedure and in legal manner?" (8) WP. 1703.2010 No other issue is required to be referred to the competent authority. In this view of the matter, the impugned order is un-sustainable in the eye of law. 7. In the result, Petition is allowed. Impugned order is set aside. The trial Court is directed to frame additional issue as above and to make reference of the issue by recalling the references of the issue no. 1 and 2 mentioned above. The question regarding limitation and all other issues are kept open. No costs. The competent authority may be called upon to decide the reference within a period of six (6) months and thereafter the suit shall be expeditiously disposed of within a period of nine (9) months. Rule made absolute accordingly. Sd/- [V.R. KINGAONKAR, J.] arp