High Court
Legal Reasoning
1 SA.118-99 & ors.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.118 OF 19991.Shakuntalabai w/o Shrinivas Dhoot,Age 50 years, Occupation: Business, R/o Nilanga, Taluka Nilanga, District Latur.2.Vilas s/o Wamanrao Patil,Age 30 years, Occupation: Business, R/o As above.3.Kalimoddin S/o Pashasaheb Hashmi,Age 35 years, occupation: Business, R/o As above.… Appellants. (Original Plaintiffs)Versus1.The State of Maharashtra,Through the Collector, Latur, District Latur.2.The Tahsildar, Tahsil Office,Nilanga, District Latur.… Respondents. (Original Defendants)WITHSECOND APPEAL NO.119 OF 1999Baburao S/o Ramanappa Mahajan,Age 45 years, Occupation: Business, R/o Nilanga, Taluka Nilanga, District Latur.… Appellant. (Original Plaintiff)Versus1.The State of Maharashtra,Through the Collector, Latur, District Latur.2.The Tahsildar, Tahsil Office,Nilanga, District Latur.… Respondents. (Original Defendants) 2 SA.118-99 & ors.odtWITHSECOND APPEAL NO.120 OF 1999Sunil S/o Vithalrao Shinde,Age 32 years, Occupation: Agriculture, R/o Nilanga, Taluka Nilanga, District Latur.… Appellant. (Original Plaintiff)Versus1.The State of Maharashtra,Through the Collector, Latur, District Latur.2.The Tahsildar, Tahsil Office,Nilanga, District Latur.… Respondents. (Original Defendants)WITHSECOND APPEAL NO.127 OF 1999Gulam Ahmed S/o Gousoddin Shaikh,Age 76 years, Occupation: Pensioner, R/o Nilanga, Taluka Nilanga, District Latur.… Appellant. (Original Plaintiff)Versus1.The State of Maharashtra,Through the Collector, Latur, District Latur.2.The Tahsildar, Tahsil Office,Nilanga, District Latur.… Respondents. (Original Defendants)WITHSECOND APPEAL NO.873 OF 2004WITH CIVIL APPLICATION NO.7410 OF 2006IN SECOND APPEAL NO.873 OF 20041. Mohammad Farhat S/o AbdulRahemanDeshmukh, died through his L.Rs. 3 SA.118-99 & ors.odti) Mohammad Rafat S/o MohammadFarhat Deshmukh, Age- 35 years, Occupation: Contractor, Resident of Khori Galli Latur.ii) Mohammad Firsat S/o Mohd. FarhatDeshmukh, Age-28 years, Occu: Contractor,R/o as above.iii) Mohd. Azmat S/o Mohd. FarhatDeshmukh, Age 20 years, Occu: Student,R/o as above.iv) Shrimati Mohd. MeharunissaW/o Mohd Farhat Deshmukh, Age 55 years, Occu: Household, R/o as above.… Appellants. Versus1.The State of Maharashtra,Through the Collector, Latur, District Latur.2.The Tahsildar, Tahsil Office,Nilanga, District Latur.… Respondents. (Original Defendants)...Advocate for Appellants in all : Mr. Ashwin V. Sakolkar h/f Mr.V. G. Sakolkar.AGP for Respondents-State in all : Mr. B. A. Shinde.…CORAM : SHAILESH P. BRAHME, J.DATE :08.08.2025JUDGMENT :- 1.Heard both sides finally. 4 SA.118-99 & ors.odt2.Under same facts and circumstances, appellants haveapproached this Court challenging distinct judgments anddecrees passed by Courts below. Appeals were admitted onsubstantial questions of law involved which are identical. Theappeals are clubbed together by the administrative order. Iproposed to decide them by common judgment referring torespective parties and paper book of Second Appeal No.118 of1999. 3.Appellants are original plaintiffs, who are presentlyoccupying eight plots from Survey No.290, situated at Nilanga.Land Survey No.290 was belonging to Government and it wasGairan land. The Collector had proposed to allot plots tohomeless persons. By common order dated 09.05.1972, thoseeight plots were allotted to the predecessor in title ofappellants. In the present appeal plot Nos.3, 6 and 8 wereallotted to predecessor in title of the appellants. They wereoccupying the plots since 1972 on the basis of certificate ofkabala. It was noticed that original allottee alienated theirrespective plots without permission of the competentauthorities and thereafter there are multiple change of hands.Some of them, even constructed shops without permission. 5 SA.118-99 & ors.odt4.The appellants were issued distinct notices dated02.12.1995 by Tahsildar calling upon them to hand overpossession for breach of conditions which was the cause forthem to approach Civil Court. Accordingly Regular Civil SuitNos.21, 22, 23, 24 and 25 of 1998 were filed for perpetualinjunction. 5.Respondents contested the claim by filing writtenstatement contending that original occupants, who wereallotted plots committed breach of conditions by alienating theplots without permission and by changing the purpose. Theywere allotted plots for their use and occupation for residentialpurpose. The appellants had no right to remain in possession. 6.Both parties led oral evidence separately in each suit.Respondents examined Tahsildar. Following are the relevantdocuments produced on record :(a)Common order dated 09.05.1972 Exh.49.(b)A certificate in form XVII dated 26.06.1972Exh.49/1.(c)A certificate in form XVIII Exh.93 in respect ofplot No.7.(d)Various sale deeds showing alienation of the plots.(e)Notice Exh.57 and notice reply.
Legal Reasoning
6 SA.118-99 & ors.odt7.Courts below held that alienations made by the originalallottee is in utter breach of conditions for want of permissionand i.e. against allotment order. Allotments were made for thepurpose of residential use. But shops were constructed. Theoriginal kabala of the suit plots or the bond executed by theallottees were not produced. By implication of Rule 28(2) ofthe Maharashtra Land Revenue (Disposal of GovernmentLands) Rules 1971 (hereinafter referred to as “Rules” for sakeof brevity and convenience), the plots were inalienable. Thereis breach of Rule 41(1) of the Rules. The possession of theappellants is held to be illegal. 8.In pursuance of the substantial questions of law framedin the appeals, learned counsel for the appellants Mr. Sakolkarsubmits the notice Exh Nos.57 to 59 calling upon theappellants to vacate the plots are bad in law. Those are againstSection 53 of the Maharashtra Land Revenue Code (hereinafterreferred to as “Code” for sake of brevity and convenience).The action of the respondents is against principles of naturaljustice and without adherence to Section 53 of the Code. It isfurther submitted that the common allotment order Exh.49,certificates issued in Form XVII and XVIII do not disclose acondition that plots were allotted for residential purpose only 7 SA.118-99 & ors.odtas well as those were inalienable. It is impermissible to adoptcondition which are not expressly mentioned in the documentsallotting the plots. 9.Per contra, learned AGP vehemently supports impugnedjudgments and orders. It is submitted that Government landwas allotted to the persons who were homeless and those werenot transferable. It is submitted that appellants have no title inthe plots and the sale deeds are bad in law for want oftransferable rights. Appellants have committed further breachby constructing shops in few plots. There is flagrant violationof Rule 41 and Rule 28 of the Rules. It is strongly contendedthat appellants are liable to be evicted from plots. The suitsfiled by the appellants are not maintainable because there wasno prayer for declaration. 10.Admitted facts are as follows :(a)By common order, eight plots were allotted todifferent persons vide order dated 09.05.1972which was under Rule 28 read with Section 53 ofthe Code.(b)It’s allotment of plots. Hence, it is regulated bySection 53 of the Code. 8 SA.118-99 & ors.odt(c)The notice to the appellants Exh.Nos.47 to 49 inSecond Appeals were issued by Tahsildar directingthe appellants to hand over possession.(d)Common order dated 09.05.1972, certificatesunder Rule 48, form XVII and XVIII do notdisclose conditions except certificate at Exh.93refers to ‘residential purpose’. Original allottee ofthe plots sold alienated plots without seekingpermission of the Collector. 11.Though the notices were issued to the appellants foreviction and both Courts below non-suited appellants, thepossession has not been taken from the appellants because ofthe interim orders passed in second appeals. 12.I have gone through notices issued by Tahsildar evictingthe original occupants. It is rightly submitted by learnedcounsel Mr. Sakolkar that those are not the show cause noticesbut directly occupants were held to be encroacher and inunauthorized use of the land directing them to hand overpossession within three days. Those notices were not issued bythe Collector but by the Tahsildar. 9 SA.118-99 & ors.odt13.My attention is adverted to Section 53 of the Code,which is as follows :“53.Summary eviction of person unauthorisedly occupying landvesting in Government.—(1) If in the opinion of the Collector anyperson is unathorisedly occupying or wrongfully in possession ofany land or foreshore vesting in the State Government or is notentitled or has ceased to be entitled to continue to use, occupationor possession of any such land or foreshore by reason of the expiryof the period of lease or tenancy or termination of the lease ortenancy or breach of any of the conditions annexed to the tenure,it shall be lawful for the Collector to evict such person.(1-A) Before evicting such person, the Collector shall give him areasonable opportunity of being heard and the Collector may makea summary enquiry, if necessary. The Collector shall record hisreasons in brief, for arriving at the opinion required by sub-section(1).(2) The Collector shall, on his finding as aforesaid, serve] anotice on such person requiring him within such time as mayappear reasonable after receipt of the said notice to vacate theland of foreshore, as the case may be, and if such notice is notobeyed, the Collector may remove him from such land orforeshore.”14.It is not the defence of the respondents that any showcause notice was ever issued to original occupants or thepurchasers or to the present appellants, calling upon them toexplain as to why they should not be evicted. No inquiry wasconducted by the Collector which is mandatory as per Section(1A) by extending reasonable opportunity. In the absence ofany opportunity of hearing, any inquiry or reasoned order 10 SA.118-99 & ors.odtpassed by Collector, it is impermissible to call upon theappellants to hand over possession within three days. Withoutfollowing due procedure of law, a drastic action has been takenagainst the appellant which is in utter disregard to Sections53(1)(a) and 53(2) of the Code. The notices issued to theappellants are bad-in-law and unexecutable. 15.The common order dated 09.05.1972 at Exh.49,certificate in form XVII Exh.49/1 and XVIII Exh.93 do notreflect the conditions for allotting the plots. There is noseparate agreement or bond executed by the parties disclosingthe conditions imposed while allotting the plots. The certificateform XVIII, Exh.93, was in respect of plot No.7 in Regular CivilSuit No.21 of 1998, only refers to purpose as residentialpurpose. It is also silent regarding the conditions. 16.My attention is adverted to Rule 28 and 41(1) by learnedAGP to buttress that grant of land would be always on acondition of non transferable and for non agricultural purpose.The Lower Appellate Court referred to the above rules. Thealienation of the plots by the original allottees is apparentbecause those alienations are not disputed. It has beenrecorded by Courts below that agreement or the bondsexecuted between the parties were not produced on record. 11 SA.118-99 & ors.odt17.A detailed objective scrutiny needs to be conducted bythe Collector into the conditions imposed on the originalallottees. An inquiry would reveal as to what were theconditions and whether those were appraised to the allotteesand the subsequent purchasers. This Court is examining thematter in the context of relief of perpetual injunction which issolitary relief claimed in the suit. I have already recorded thatnotices issued to the appellants are bad in law. Therefore, itwould be open to the respondents to conduct inquiry inaccordance with law for further objective scrutiny. 18.Learned counsel Mr. Sakolkar refer to the judgment ofVinod Harikishan Gupta Vs. Minister for Revenue in WritPetition No.2476 of 2003 to buttress the submission that unlessthe conditions are incorporated in the transfer order, thosecannot be made applicable. As no inquiry is conducted in thepresent matters and there is no order passed by the Collector, Ineed not comment on this submission. On similar lines, furtherreliance is placed on Geecy Developers and others Vs. State ofMaharashtra and others in Writ Petition Nos.2378 of 2018 and426 of 2011, which also cannot be made applicable to the factsof the present case as the facts are distinguishable. 12 SA.118-99 & ors.odt19.The suit is filed simplicitor for injunction and there is noprayer for declaration. The cause of action for instituting thesuits is a notice issued by Tahsildar. The notices are held to bebad in law. Just because relief of declaration in the suits is notclaimed cannot be said to be fatal. I have come to conclusionthat action undertaken against the appellants is withoutfollowing due procedure of law against principles of naturaljustice and arbitrary. Hence, appellants are entitled to relief ofinjunction. 20.For foregoing reasons, I find substance in the substantialquestions of law raised by the appellants. Both the Courtsbelow have committed patent illegality. Impugned judgmentsare unsustainable. However, it is clarified that respondentsshall be at liberty to take action against the appellants or theirpredecessor in title by following due procedure of law andextending opportunity of hearing. All the appeals succeed. I,therefore, pass the following order :O R D E R(i)All second appeals are allowed. (ii)Judgments and decrees passed by the Trial Courtin Regular Civil Suit Nos.21, 22, 23, 24 and 25 of1998 as well as judgments and decrees passed in
Decision
13 SA.118-99 & ors.odtRegular Civil Appeal Nos.123, 125, 126, 124 of1998 and 17 of 2001 are quashed and set aside. (iii)Regular Civil Suit Nos.21, 22, 23, 24 and 25 of1998 stand decreed by granting them injunctionas prayed for in the suit. (iv)It would be open to the respondents to take actionagainst the appellants or the predecessor in titleby following due procedure of law. (v)There shall be no order as to cost.(vi)In view of disposal of second appeal, pending civilapplication does not survive. Civil application assuch is disposed of. (SHAILESH P. BRAHME, J.)...vmk/-