C.L. Pangarkar, J.
1. By this Writ Petition the order of the Settlement Commissioner is challenged whereby she refused to accept the request of the petitioner to put him in possession of field Gat No. 116 under the Scheme of Consolidation of Holdings.
2. The facts giving rise to this writ petition are as follows:
Government of Maharashtra decided to implement the Scheme of Consolidation of Holdings under the Prevention of Fragmentation and Consolidation of Holdings Act 1947 in the year 1979. Prior to consolidation the petitioners were the owners of Survey No. 51/3 and 51/4 while the respondent Nos. 5 and 6 were the owners of Survey No. 51/1A. During the course of consolidation of scheme petitioners and respondents agreed to exchange their respective lands. Possession receipts were actually prepared on 28.05.1979. There was however no actual and physical exchange of possession. The petitioners field Sur. No. 51/3 and 51/4 were renumbered as Gat No. 120 and respondents fields Sur No. 51/1A was renumbered as Gat No. 116. Respondents 5 and 6 obtained loan after this as against Gat No. 120. Respondents 5 and 6 also dug a well in the field Gat No. 116. Since the petitioners were not delivered actual possession they made a complaint to the Government on 12.10.1995. Government directed the Collector to make enquiry. Additional Collector directed the Sub Divisional Officer to make enquiry and submit report. S. D. O. forwarded the report to the Settlement Commissioner stating therein that parties are in possession as per the possession prevailing prior to implementation of the scheme. He also informed that respondents 5 and 6 have dug a well and respondents are not ready to deliver possession of Gat No. 116. He therefore, sought further directions from Settlement Commissioner.
3. The Settlement Commissioner heard both the parties. She refused to issue direction to put the petitioner in possession of Gat No. 116 due to two reasons; first, that the respondents 5 and 6 have made improvement and have dug well in the field and second, the possession was being claimed by petitioners 12 years after implementation of scheme.
4. The above are also undisputed facts.
5. I have heard the learned Counsel for the petitioners and the State.
6. The material question that falls for determination is whether respondents 1 to 4 i. e. the State Authorities can refuse to put the petitioners in possession in breach of the scheme on the ground that respondents 5 and 6 have dug a well and petitioners are approaching after lapse of 12 years.
7. The important aspect that needs to be borne in mind is that the Government had implemented the scheme and both the petitioners and respondents had agreed to exchange their fields without any grievance. It is in pursuance to such an agreement of exchange that fields were renumbered as Gat No. 116 and 120. It is in pursuance to this agreement that possession receipts were actually prepared and executed. Respondents 5 and 6 have filed their return in this petition. In para 2 of the said return respondents 5 and 6 make following averments:
As to Para 2: So far as the implementation of the scheme for consolidation dated 22.3.79 is concerned, the being matter of record. However, so far as the land having old Sr. No. 51/1A is concerned, it was always belonging to the present respondents themselves. Only in the scheme of consolidation, it is renumbered as Gat No. 116 and it was changed as per the consent given by Nagojirao Bhoyar. The said consent letter is signed only by petitioner No. 1 Nagojirao Bhoyar and nobody else including other petitioners. Though, the Gat No. in the Talathi Register is shown to be that of the petitioners, still practically and factually, the possession of the land at Gat No. 116 is with the present respondents themselves.
From these averments it is more than clear that though possession receipts were prepared actual possession was not delivered to the parties according to scheme.
8. Section 20 of the Prevention of Fragmentation and Consolidation of Holdings Act says that after publication of the draft scheme the Settlement Commissioner may confirm it upon consideration of objections and clerical and arithmetical mistakes. The scheme in this case can be said to be confirmed as possession receipts were prepared and holdings were allotted and renumbered. If Section 21 is read, it is clear that after confirmation it is the duty of the Consolidation Officer under Section 21(3) to put respective parties in actual possession by evicting the persons concerned. Sub Section (3) of Section 21 reads as follows:
21(3): The Consolidation Officer shall from the commencement of the agricultural year next following the date of publication of the notification in the Official Gazette, under sub section (1) and in the prescribed manner, put the owners in possession of the holdings to which they are entitled under the scheme and for doing so may, in the prescribed manner evict any person from any land which he is not entitled to occupy under the scheme:
Provided that, if twothirds or more of the owners affected by the scheme agree to enter into possession of the holdings to which they are entitled under the scheme, the Consolidation Officer may put them in possession of such holdings from such earlier date as may be decided upon by such owners.
It may be mentioned that it is not disputed that the scheme has come into force. It is thus clearly the duty of the Consolidation Officer to put the parties in possession according to scheme and to see that scheme comes into force according to provision of Section
22. The Government cannot abandon the scheme half way. Therefore, it is for the Government Authority to act in accordance with the scheme. It cannot refuse to act once the scheme is confirmed. It may refuse only when some change in scheme is sought to be effected under Section 32. It is not Government's contention that the scheme is varied or is sought to be varied. There is no limitation provided in the Act to complete the acts required to be performed under the Consolidation Act. If Government Authorities do not act in accordance with the provision of Consolidation Act they cannot put the blame on the petitioner that he did not approach them quickly. Government cannot take advantage of its own inaction. It must act according to mandate of the Act and see that scheme achieves finality.
9. This becomes necessary because Section 31 of the Act puts restrictions on the persons to whom holdings are allotted to transfer the said holdings. Section 31 reads as follows:
31.Restrictions on alienation and sub division of consolidated holdings: (1) Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof shall save as otherwise provided in this section
(a) be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; or
(b) be sub divided, whether under a decree or order of a Civil Court or any other competent authority, or otherwise, so as to create a fragment, without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed.
Nothing in sub section (1) shall apply to any Land
(a) which is situated in any area for which (
i) a municipal corporation is constituted under the Bombay Municipal Corporation Act, the Bombay Provincial Municipal Corporations Act, or the City of Nagpur Corporation Act, 1948; or
(ii) a municipal council is constituted under the Maharashtra Municipalities Act, 1965; or
(iii) a cantonment is constituted under the Cantonments Act, 1924; or
(b) which is situated in a notified area for which a Special Planning Authority is constituted or appointed under Section 40 of the Maharashtra Regional and Town Planning Act, 1966; or
(c) which is situated in an area designated as a site for a new town for which a Development Authority is constituted under Section 113 of the Maharashtra Regional and Town Planning Act, 1966; or
(d) which is situated in any area specified by the State Government, by notification in the Official Gazette, as being reserved for non agricultural or industrial development.
(3) Nothing in sub section (1) shall also apply to any land which is to be transferred
(i) to the tenant of the holding or his heir; or
(ii) to the owner of the adjoining holding who cultivates his land personally; or
(iii) to an agriculturist or agricultural labourer, in its entirety; or
(iv) to a person which is rendered landless by reason of acquisition of his land for a public purpose; or
(v) to a cooperative society; or
(vi) by way of gift (whether by way of trust or otherwise) bona fide made by the owner in favour of a member of his family; or
(vii) by way of exchange, where such land is cultivated personally by the holder, for any other land allotted under this Act, which is also likewise cultivated personally by its holder:
Provided that no such transfer shall be made so as to create a fragment.]
Where therefore, the Scheme does not assume finality, the petitioners will not be able to sell the land Gat No. 116 which is allotted to them since the land is in possession of respondents 5 and 6. They shall not be entitled to sell even Gat No. 120 as it no more vests in them as that is shown to be vested in respondents 5 and 6. Even Section 27 of the Act bans transfer of holdings during continuance of proceedings. Thus the petitioners are put to great disadvantage due to the inaction on the part of the respondents 1 to 12
10. If respondents 5 and 6 have dug a well knowing fully well of exchange of the land under the scheme and they having consented to it, they have run the risk of digging the well in the field which does not lawfully belong to them. This can hardly be a ground to refuse to put the petitioners in possession. In the circumstances the Writ Petition is allowed. Order passed by the Settlement Commissioner is quashed and set aside. Settlement Commissioner is directed to put the petitioners in possession of Gat No. 116. The process of putting the petitioners in possession be undertaken in month of March 2010. No order as to costs.