Case Note & Summary
The dispute pertained to the reopening of a consolidation scheme for agricultural lands in village Kasba Aalte, taluka Hatkanangale, district Kolhapur, under the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The scheme was finalized and gazetted on 4 March 1971, with mutations in the revenue record effected on 9 February 1973, recording the petitioners as owners of Gat Nos. 1153, 1646 and 1647/1. After 44 years, respondent No. 5 filed an application on 22 December 2015 under Section 32 of the Act, alleging an error in the original scheme that drastically reduced his land holding. The authority, respondent No. 4, by order dated 6 May 2017, rejected the petitioners’ objection regarding limitation and forwarded the case for sanction. The petitioners filed a writ petition seeking to quash this order and the communication dated 23 December 2015 from respondent No. 2 referring the matter. The core legal issues were whether the application under Section 32, made 44 years after finalization, was within limitation and whether the proceeding was maintainable. The petitioners argued that although Section 32 prescribes no limitation period, the power must be exercised within a reasonable time, which as per the Division Bench judgment in Gulabrao Bhaurao Kakade v. Nivrutti Krishna Bhilare is ordinarily three years. Hence, the application was hopelessly barred. Respondent No. 5 contended that objections were first raised in 1981 and a measurement was conducted in 1989, so there was no delay, and that the writ petition was not maintainable due to an alternate remedy. The Court, relying on the principle laid down in Gulabrao Kakade and subsequent decisions, held that the 2015 application was the first formal invocation under Section 32; earlier objections did not amount to such an application and could not cure the delay. The delay of 44 years was unreasonable and the application was barred by limitation. The Court further held that when proceedings are without jurisdiction and barred by limitation, a writ petition under Article 226 is maintainable despite an alternate remedy. Consequently, the writ petition was allowed, and the impugned orders were quashed, setting aside the entire reopening proceedings.
Headnote
A) Property Law - Consolidation of Holdings - Limitation Period for Section 32 Application - Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947, Section 32 - The Court considered whether an application under Section 32 to vary a consolidation scheme could be entertained after 44 years. Held that the power must be exercised within a reasonable time, generally not exceeding three years from the date of finalization of the scheme, and an application after 44 years was hopelessly barred (Paras 11-14). B) Property Law - Consolidation of Holdings - Effect of Earlier Objections on Limitation - Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947, Section 32 - The respondent contended that objections were raised in 1981, thereby negating the delay. The Court held that these objections did not amount to a formal application under Section 32, and the first such application was only in 2015, which was unreasonably delayed. The earlier objections could not cure the limitation defect (Paras 11-13). C) Constitutional Law - Writ Jurisdiction - Maintainability Despite Alternate Remedy - Constitution of India, Article 226 - The Court held that where the impugned proceedings are wholly without jurisdiction and barred by limitation, a writ petition under Article 226 is maintainable notwithstanding the existence of an alternate remedy. The petitioner is not required to exhaust alternate remedies in such circumstances (Para 14).
Issue of Consideration
Whether the application under Section 32 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 for reopening consolidation proceedings finalised in 1971, filed after 44 years, was within limitation and maintainable.
Final Decision
The writ petition was allowed. The impugned communications/orders dated 23.12.2015 and 6.5.2017 were quashed and set aside. The entire proceedings initiated on the application of Respondent No. 5 for reopening the consolidation scheme were set aside.
Law Points
- Power under Section 32 must be exercised within reasonable time
- ordinarily not beyond three years from finalization of consolidation scheme
- delay of 44 years fatal
- earlier objections do not constitute application under Section 32
- writ petition maintainable when proceedings barred by limitation
