Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7097 OF 2011
1. Maheboobsab Husainsab Ladaf,
2. Mahamadsab alias Masudsab
s/o Hasansab Ladaf
(deceased) through L.R.
A. Ajijsab Chandsab Ladaf,
Age: 30 years,
R/o. Korali, Taluka Nilanga,
District Latur.
Through their Special Power of
Attorney Ainoddin Azizsab Ladaf,
Age: 30 years, Occ: Agri.,
R/o. Korali, Taluka Nilanga,
District Latur. ...PETITIONERS
VERSUS
1. Putalabai Ghudusab Kalawant,
Age: 46 years, Occ: Household,
R/o. Block NO. 19, New Kuntha,
Hyderabad (Andhra Pradesh).
2. Nivrutti Dasharatha Survase,
Deceased, through his L.R.
Sojarbai Nivrutti Survase,
Age: 40 years,Occ: Household,
R/o. Korali, Tq.Nilanga,
District Latur. ...RESPONDENTS
...
Mr. Nanasaheb N. Shinde, Advocate for petitioners.
Mr. S.G. Rudrawar, Advocate for respondents.
...
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CORAM: S.S. SHINDE, J.
DATE : 1ST AUGUST, 2012
ORAL JUDGMENT :
. Rule. Rule made returnable forthwith. By
consent heard finally.
2. This writ petition takes exception to the
th
impugned order dated 18 August, 2010 in Appeal
No. 11A/2010L, passed by the Member, Maharashtra
Revenue Tribunal, Aurangabad, thereby entertaining
the appeal and granting interim relief in favour
of the respondents.
3. The facts leading to file this writ
petition, as disclosed in the writ petition, are
as under.
. The petitioners filed application being
Case No. 2009/LR/Inam/KV/53 before the Tahsildar,
Nilanga under Section 9 of the Bombay Inferior
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Village Watans Abolition Act, 1958 (For short,
"said Act"), stating therein that, they had filed
proceedings before the Deputy Collector (Land
Reforms), Latur for restoration of the land Survey
No. 198A, situated at village Korali Taluka
Nilanga District Latur, by evicting the
respondents. The Deputy Collector had transferred
the proceedings to the Tahsildar, Nilanga under
Section 225 of the Maharashtra Land Revenue Code,
in view of the powers vested in the said
authority. It is the case of the petitioners
that, the matter was contested before the
Tahsildar and the petitioners submitted that, the
respondents are unauthorizedly and illegally
having the possession of the suit property and
they should be evicted, and the petitioners are
liable for holding the possession of the said land
in view of the Section 9 of the said Act. It is
the case of the petitioners that, it was brought
to the notice of the authorities that the alleged
transaction of the sale deed was null and void and
it had no legal validity and not binding on the
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Government, as the same was without prior
permission of the competent authority i.e.
Collector. It is also pointed out that, the
petitioners are watandar of the land, Mutation
Entry was effected in favour of the petitioners
and therefore, they are having rights of ownership
and restricted ownership is acquired by the
petitioners.
th
. The Tahsildar, Nilanga by order dated 5
March, 2010 allowed the application of the
petitioners and directed the land in question be
restored in favour of the petitioners by evicting
the respondents who are illegally and
unauthorizedly holding the possession of the suit
land. It was directed that, the possession should
be given to Naib Tahsildar.
4. The respondents herein, aggrieved by the
said order of the Tahsildar filed Appeal No.11
A/2010L before the Maharashtra Revenue Tribunal,
st
Aurangabad. By order dated 1 April, 2010, the
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Maharashtra Revenue Tribunal, Aurangabad, granted
adinterim stay to the execution of the order
passed by the Tahsildar. The petitioners herein,
appeared in the said proceedings and resisted the
alleged claim of the respondents before the
Maharashtra Revenue Tribunal and raised the points
that, the respondents are unauthorizedly holding
the lands in question and the lands in question,
have been abolished and are regranted to Watandar
after payment of occupancy charges and their names
have been incorporated in the record and the
respondents have no any right whatsoever.
. It is the case of the petitioners that,
the application was filed by the petitioners
before the Maharashtra Revenue Tribunal, thereby
questioning the jurisdiction of the Maharashtra
Revenue Tribunal to entertain the appeal. It was
contended that, the provisions of appeal under
Section 12 of the said Act are provided only
against the award passed by the Collector and the
appeal is not maintainable against the order
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passed by the Tahsildar, however, the Maharashtra
Revenue Tribunal rejected the said application.
Hence the writ petition.
5. The learned Counsel appearing for the
petitioners invited my attention to the provisions
of sections 9 and 12 of the said Act. It is
submitted that, the order passed by the Tahsildar
is under section 9 of the said Act. The appeal
which is provided under section 12 of the said Act
is only against the award passed by the Collector
and appeal is not provided against any order
passed by the Tahsildar under section 9 of the
said Act. It is further submitted that, the order
is passed by the Tahsildar for summary eviction of
the respondents from the suit lands and Naib
Tahsildar was told to restore the possession of
the petitioners and therefore, the said order
cannot be said to be award. It is submitted that,
the appeal should not have been entertained by the
Maharashtra Revenue Tribunal and further no any
interim order should have been passed staying the
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effect of the order of the Tahsildar. Therefore,
relying on the grounds taken in the writ petition,
provisions of the said Act and also judgment of
the Maharashtra Revenue Tribunal, Nagpur in the
case of Latari Rama Warthi vs. Krishna Rajeshwar
Thipe reported in 1967 Mh.L.J. 27, the Counsel for
the petitioners submits that, the writ petition
deserves to be allowed.
6. On the other hand, the learned Counsel
appearing for the respondents submits that, the
powers are delegated by the Collector to the
Tahsildar, and therefore, it cannot be said that,
the order passed by the Tahsildar cannot be
challenged before the Maharashtra Revenue
Tribunal. It is submitted that, the powers of the
Collector have been delegated to the Tahsildar
under the provisions of the said Act read with
th
Government Notification dated 8 February, 1963,
therefore, once the powers are delegated to the
Tahsildar, the Tahsildar has exercised the powers
of the Collector and passed that order, is an
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award and therefore, the Maharashtra Revenue
Tribunal has rightly entertained the appeal. The
learned Counsel relied upon the reasons recorded
by the Maharashtra Revenue Tribunal and submitted
that, the writ petition is devoid of any merits,
same may be dismissed.
7. Upon hearing the Counsel for the parties
and upon perusal of the grounds taken in the writ
petition, provisions of section 9 and 12 of the
said Act, this Court is of the opinion that, the
Maharashtra Revenue Tribunal had no jurisdiction
to entertain the appeal against the order passed
by the Tahsildar under section 9 of the said Act.
The provisions of section 9 and 12 of the said Act
reads thus :
"9. (1) Where any watan land resumed
under Section 4 is in the possession
of an unauthorised holder, such
unauthorised holder shall be
summarily evicted therefrom by the
Collector in accordance with the
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provisions of the Code:
Provided that where in the
case of any unauthorised holder, the
State Government is of opinion that
in view of the investment made by
such holder in the development of the
land or in the nonagricultural use of
the land or otherwise, the eviction
of such holder from the land will
involve undue hardship to him, it may
direct the Collector to regrant the
land to such holder on payment of
such amount and Subject to such terms
and conditions as the State
Government may determine and the
Collector shall regrant the land to
such holder accordingly.
(2) Watan land which is not regranted
under subsection (1) shall be
disposed of in accordance with the
provisions of the Code and the rules
made thereunder applicable to the
disposal of unoccupied unalienated
land ."
"12. An appeal shall lie against an
award of the Collector to the Bombay
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Revenue Tribunal constituted under
Bombay Revenue Tribunal Act, 1957,
notwithstanding anything contained in
the said Act ."
8. Bare perusal of the provisions of section
9 of the said Act would make it abundantly clear
that, the Tahsildar is empowered to pass the order
in respect of eviction of unauthorized holder of
the land and to pass appropriate orders. The
order passed by the Tahsildar in the present case
cannot be said to be an award. The Maharashtra
Revenue Tribunal in its judgment in paragraph2
has observed that, “In the present case the
impugned order is passed by the learned Tahsildar,
Ausa in the proceedings U/s 9 of the Act of 1958.
Hence, it is difficult to say that the
impugned order is an award.” Therefore, this
observation/finding of the Maharashtra Revenue
Tribunal would make it abundantly clear that, the
Maharashtra Revenue Tribunal was convinced that,
the order passed by the Tahsildar under section 9
of the said Act, is not an award. Therefore,
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there is no manner of doubt that, the Maharashtra
Revenue Tribunal had no jurisdiction to entertain
the appeal filed by the respondents. The appeal
which is provided under section 12 of the said Act
to the Maharashtra Revenue Tribunal, is only from
the award passed by the Collector and there was no
question of entertaining the appeal filed by the
respondent challenging the order of the Tahsildar,
which is passed under section 9 of the said Act.
9. Reliance placed by the Maharashtra
Revenue Tribunal upon the provisions of section
315 of the Maharashtra Land Revenue Code, 1966 is
wholly misplaced in the facts of this case. The
said Act of 1958, provides remedy of appeal under
section 12 only against an award passed by the
Collector.
. There is another remedy of appeal
provided under sub section (2) of Section 3 of the
said Act. If any order is passed by the Collector,
when any question arises whether any land is Watan
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land or whether any person is a Watandar or
whether any person is an unauthorized holder and
if such question is answered by the Collector and
the decision is given and if any person is
aggrieved by the said decision, the appeal is
provided to the State Government under sub section
(2) of section 3.
10. Therefore, viewed from any angle, the
impugned order passed by the Maharashtra Revenue
Tribunal, Aurangabad, cannot be sustained in law,
same is liable to be quashed and set aside.
Accordingly, same is quashed and set aside. As a
result, the appeal filed before the Maharashtra
Revenue Tribunal being Appeal Nos. 11A/2010L by
the respondents, is not maintainable, therefore,
same stands dismissed. Writ Petition is allowed
to the above extent, same stands disposed of. Rule
made absolute on above terms. No order as to
costs. sd/
[S.S. SHINDE, J.]
sut/AUG12
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