wp130-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.130 OF 2010 Smt.Laxmibai G. Kale & Ors ..Petitioners versus Maruti Y. Rakshe & Ors ..Respondents Mr.Sugandh B. Deshmukh for the petitioners. Mr.P.B.Shah for respondent Nos.1 and 2. Mr.R.M.Patne, A.G.P for respondent Nos.3 and 5. CORAM : S.C.DHARMADHIKARI, J. 6th July 2011. P.C.: . By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged an order passed by the Minister of Revenue, Government of Maharashtra dated 31st August 2009. A copy of this order is at pages 63 to 73 of this paper-book (Annexure A9). wp130-10.doc 2 2 The petitioners are shown in the cause title of the proceedings before the Minister of Revenue as Jabdar (opposite parties). One Maruti Rakshe and Sambhaji Maruti Rakshe are the applicants. They are the respondent Nos.1 and 2 to this writ petition. 3 The petitioners are claiming some rights through their predecessor in title, one Gopal Kale who expired on 2nd May 1992. It was their case that the consolidation scheme was introduced in the village of Sangwade and before introduction of the said scheme, there were three shares in Survey No.12. Hissa No.3 was the share of Gopal Kale to the extent of 2 Anna and 8 Pai. At the time of consolidation in Survey No.12, total 22 Hissas were created and given Gat Nos.84 to 101. The name of Gopal Kale was omitted during the scheme. Therefore, an appeal was preferred by the petitioners alongwith application for condonation of delay on 20th August 2001. The Appellate Authority, namely, Superintendent of Land Records (for short “SLR”) decided this appeal on 23rd December 2002. wp130-10.doc 3 He gave directions to the Taluka Inspector of Land Record to visit the site and find out and identify the area of 1 Hectare and 3 Ares belonging to Gopal Kale. It is stated that Taluka Inspector acted in pursuance of this order and submitted his report to the SLR on 13th September 2002. The SLR thereupon forwarded a recommendation to the Deputy Director of Land Records and prayed that necessary approval be given under section 32(3) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. The petitioners were pursuing those proceedings under the said Act and mutation entry was also effected. Aggrieved by the order of Deputy Director of Land Records dated 31st January 2008, that revision application was preferred by respondent Nos.1 and 2 before the State Government. That was to be heard by the Minister. In the grounds that are raised in this petition, ground No.4 reads thus: “4. The petitioner submits that the impugned order is passed without giving an opportunity of being heard to the petitioners. The petitioners wp130-10.doc 4 submits that if the Minister would have given the opportunity of being heard of the petitioners, the petitioners would have pointed out relevant facts and circumstances that the delay condonation application was not opposed by the respondents herein and in fact the consent was given. The petitioners submit that the said order is illegal and contrary to the provisions of law as the opportunity of hearing was not given to the petitioners herein. The petitioners submit that on this ground the impugned order is required to be quashed and set aside.” 4 My attention is invited by Mr.Deshmukh to a letter at Annexure A-10, page 73 of the paper-book. It is stated to be a letter addressed by an advocate pointing out that he had filed vakalatnama on behalf of the petitioners before the State Government in the revisional proceedings. He stated that he visited the Minister’s Department on 27th August 2009 and filed reply. However, when he was awaiting notice for a date of oral hearing and filing written arguments, he came to know that order dated 31st August 2009 was passed. wp130-10.doc 5 5 Since Mr. Shah appearing on behalf of the respondent Nos.1 and 2 contested this position and stated that the petitioner No.4 who is the power of attorney holder for all the petitioners, was present in the hearing before the Minister which was held on 4th August 2009, I thought it fit to summon the original record. 6 Upon the original record being produced, both sides inspected the same. An opportunity was given to them to file further affidavit. Accordingly, the petitioners have filed a further affidavit and in paras 4 and 5 thereof, they stated that the farad of hearing maintained in the records of the Department of the concerned Minister, shows that the petitioners were absent on 4th August 2009. It is the case of the petitioners that they have given an application on 4th August 2009 in the office of the Minister pointing out that the notice of hearing was received in the late evening on 3rd August 2009 and, therefore, some time be given to them. My attention is invited to the fact that a reply wp130-10.doc 6 was filed by the petitioner on 27th August 2009 but same was filed in the hope that a date for hearing will be fixed and duly intimated to them, instead they received the order. It is pointed out that the order is also not delivered on the date it bears, but, it is signed and delivered subsequently. 7 With the assistance of the learned counsel appearing for the parties, I have perused the petition and the annexures. With reference to the specific plea and objection that the petitioners were not given any personal hearing before the impugned order was passed, that the arguments have been heard. From a perusal of the record, I am satisfied that there is much substance in the objection raised by the petitioners that the impugned order has been passed without affording any personal hearing to them. The documents that are annexed to the affidavit filed in this Court by the petitioners, upon amendment to the writ petition and particularly on 26th June 2011, would show that the roznama/farad records that the respondent Nos.1 and 2 were present and they were heard. As wp130-10.doc 7 far as the petitioners are concerned, the endorsement is that despite notice being issued, they were absent. My attention is invited to the signature that is appearing against the name of power of attorney holder and Mr.Shah submits that the petitioners were duly served and without any sufficient cause or reason being shown, they remained absent. They send their representative who has signed on behalf of the petitioners. If that be so and duly authorised power of attorney was present, then, there was no occasion for the petitioners to make any grievance and particularly that principles of natural justice are violated. However, this argument overlooks the fact that despite the signature of Smt.Mangala Wahile, the entry is that the petitioners remained absent despite notice and the matter is closed for orders. If the matter was closed for orders as indeed it has been noted, then, there is no clarification as to how an application made by the petitioners, a copy of which is annexed as Annexure AA2, is on the record of the proceedings. This means that there was an attempt made by the petitioners to seek an adjournment and that is how the written application wp130-10.doc 8 came to be forwarded. Page 128, Annexure AA3 to the further affidavit, would show that if the arguments had concluded on 4th August 2009 and the Minister was requested to pass necessary orders, it appears that the file passed through several stages and until it reached the Minister, the order bears the signatures, subsequent to 31st August 2009. If these are the steps taken post 31st August 2009, then, it is clear that until the first week of September 2009 the Minister had not signed the order. If the orders were already pronounced and signed the file notings would not have read the way they read and inserted. In such circumstances, there is sufficient scope for coming to a conclusion that the orders were passed by the Minister without any hearing being given to the petitioners, nor considering any reply or written arguments as is now contended. There is no indication as to when the written arguments were tendered on behalf of the petitioners. In these circumstances and finding that the principles of natural justice have been clearly violated and the orders in favour of the petitioners have been reversed by the Minister without giving wp130-10.doc 9 them reasonable opportunity of being heard, the petition succeeds. The order of the Minister is set aside. The matter is restored to the file of the State Government for being decided afresh on merits and in accordance with law and after giving full opportunity to the petitioners and the respondent Nos.1 and 2. Needless to clarify that the Court has not expressed any opinion on the merits and each of the contentions in that behalf are kept open. Further, the point of delay on the part of the petitioners in approaching authorities is an issue kept open to be raised before the State Government. The State Government shall now make fresh orders on the application of respondent Nos.1 and 2, but, without being influenced in any manner by the earlier orders. 8 The matter will now be heard by the Secretary in the Department of Revenue and Forest, Government of Maharashtra who shall take up the application of respondent Nos.1 and 2 for decision, afresh in terms of this direction and endeavour and dispose it off within a period of two months from wp130-10.doc 10 today. Without prejudice to the rights and contentions of both sides and until the State Government render a fresh decision, all parties to this petition shall maintain status-quo as prevailing today in relation to the subject lands. Writ petition is disposed off in these terms. No costs. (S.C.DHARMADHIKARI, J)