Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 1428

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR
AVINASH G. GHAROTE, J.
Shankarrao Premaji Banarase & Ors. – Petitioners
Versus
Madarsa Jamia Arabia Islamiya, through its Mutavali, Maulana Abdul Kadir s/o Mahrum Mufti Abdul Rashid – Respondents
WRIT PETITION NO. 6511 OF 2019
Decided On : 02-03-2023

Advocates appeared:
Mr. P.V.Vaidya, Advocate with Mrs. Ketki Jaltare, Advocate for Petitioners
Mr. Masood Shareef, Advocate with Mr. A.J.Mirza, Advocate for Respondent
Nos. 1 & 2.
Mr. N.R.Patil, AGP for Respondent Nos. 12 and 13

The absence of obligation to report mutation under the Maharashtra Land Revenue Code and the need for expeditious initiation and completion of the mutation process.

Headnote:
Mutation Entry - Maharashtra Land Revenue Code - Section 150, Section 154 - The court discussed the obligation of reporting acquisition of rights under Section 149, the duty of the Talathi under Section 150, and the intimation of transfers by registering officers under Section 154 of the Maharashtra Land Revenue Code. The court emphasized that there is no obligation upon a person acquiring a right under a registered document to report such acquisition under Section 149, and the delay in filing the application for correcting the mutation was construed in the light of such absence of obligation. The court also highlighted the procedures for mutation entry and emphasized the need for expeditious initiation and completion of the mutation process.
Fact of the Case:

The case involved a challenge to the rejection of a delay of 35 years in challenging a mutation entry in the name of respondents No.1 and 2. The petitioner claimed to have acquired title of land by virtue of a sale deed, while the respondents claimed title based on sale deeds from the same vendor. The court analyzed the obligations and procedures under the Maharashtra Land Revenue Code related to reporting acquisition of rights and intimation of transfers.
Finding of the Court:

The court found that there was no obligation upon the petitioner to report the mutation, and therefore, the delay in filing the application for correcting the mutation was not considered a delay at all. The court allowed the petition, quashed the impugned order, and allowed the application for condonation of delay in filing the appeal.
Issues: The issues involved the rejection of a delay in challenging a mutation entry, the obligations and procedures under the Maharashtra Land Revenue Code related to reporting acquisition of rights and intimation of transfers, and the availability of alternate remedies.
Ratio Decidendi: The court's decision was based on the absence of obligation upon the petitioner to report the mutation, as well as the procedures for mutation entry and the need for expeditious initiation and completion of the mutation process.
Final Decision: The petition was allowed, the impugned order was quashed and set aside, and the application for condonation of delay in filing the appeal was allowed. The parties were directed to appear before the learned SDO for further proceedings.

JUDGMENT

1] By the order dated 23.02.2023, the following position was recorded :

“Heard Mr. Vaidya, learned counsel for the petitioner and Mr. Masood Shareef, learned counsel for the respondents No.1 and 2. None appears for the respondent Nos. 3 to 11 though served. Learned AGP for respondent nos.12 and 13

2. The petition challenges the order dated 30/07/2019, passed by the Sub-Divisional Officer, Nagpur (page 66) whereby the delay of 35 years, in challenging the mutation entry in the name of respondent Nos.1 and 2 has been rejected on account of absence of any reasons. Mr. Vaidya, learned counsel for the petitioner submits, that in fact there is no delay whatsoever, as the obligation, for making a correct mutation entry was that of the authority based upon the language of Section 150 read with Section 154 of the Maharashtra Land Revenue Code and as the authorities had committed the mistake, the petitioner cannot be blamed for the same. He submits, that this obligation has been recognized by this Court in Shamrao Ganpat Chintamani Vs. Kakasaheb Laxman Gorde 2008 (Suppl) BCR 848 (paragraph 12).

3. It is therefore, submitted that the impugned order, cannot be sustained and is required to be quashed and set aside.

4. Mr. Shareef, learned counsel for the respondent Nos.1 and 2 raises a plea that at the outset alternate remedy is available under Section 247 of Code to the petitioner to challenge the impugned order dated 03/7/2019 and therefore, the petitioner be relegated to the same. On merits, he submits that there is huge delay of 35 years which has gone without explanation as to sufficient cause and therefore, he supports the impugned order.

5. The factual position, indicates that the predecessor-intitle of the petitioner claimed to have acquired title of land Survey No. 18/1 (New No.12) and Survey No. 18/2 (New No.40) both situated at Surabardi, Nagpur by virtue of sale deed dated 22/9/1960 executed by one Mohansingh s/o Lala Santraom Panjabi in favour of their father named Premaji Banarase.

6. The respondent Nos.1 and 2, claimed title to the property on the basis of two sale deeds dated 18/07/1978 and 18/7/1960 from the vendors of Mohansingh Panjabi. The name of respondent Nos.1 and 2 were mutated in the 7/12 extract on 05/02/1982 as against which the application by Premaji Banarase for mutation of his name in the 7/12 extract filed on 24/4/1985, was filed on 7/5/1999 because of his absence. It is not disputed that the sons of Premaji Banasre have since instituted Regular Civil Suit No.569/2014 against the respondent Nos.1 and 2 for permanent injunction which proceedings are pending.

7. The provisions of Section 149 of the Maharashtra Land Revenue Code require acquisition of rights to be reported, it is an obligation cast upon every person who has acquired right in the immovable property. The provisions of Section 154 of the Maharashtra Land Revenue Code cast an obligation upon the Registrar under the Indian Registration Act, 1908 to send an intimation to the Talathi of the village in which the land is situated and to the Tahsildar of the Taluka regarding any acquisition by a registered instrument, which is for the purpose of the Talahi / Tahsildar taking an according entry into his record of such acquisition. The second proviso to Section 149 speaks of a person acquiring a right in the property being exempted from the obligation to report to the Talathi, where the right has been acquired by a registered document. This would clearly indicate that there is no obligation upon a person acquiring a right under the registered document to report such acquisition under Section 149 of the Maharashtra Land Revenue Code, to the Talathi or the Tahsildar as that obligation, is that of the Registrar under the Registration Act. Being thus absolved of such an obligation, the non-reporting of such an acquisition, cannot therefore, have the effect of depriving the person who has acquired the right under the registered instrument / document of the ri