Writ Petition No. 1581 of 2023 · Bombaybench High Court · 2022
Case Details
Ethape( 1 ) WP-1581-2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1581 OF 2023Chainmal Pannalal Kothari (died) Through Lrs.1-A Rajesh s/o Chainmal Kothari,Age:51 Yrs., Occu. Business,1-B Rupesh s/o Chainmal Kothari,Age:51 Yrs., Occu. Business,Both R/o Kushalnagar Jalna Road,Aurangabad....PETITIONERS(Orig. Respondent Nos.1-A and B) VERSUS1. The State of MaharashtraThrough its Principal Secretary,Revenue Deptt. Mantralaya, Mumbai- 400 032.2. Hon’ble Minister for Revenue,Govt. of Maharashtra,Mantralaya, Mumbai- 400 032.3. Deputy Director, Land Records,Aurangabad Region, Aurangabad.4. District Superintendent ofLand Records, Aurangabad.5. City Survey Officer,Office of District Collector,Aurangabad.6. Mir Mohmood Ali Khan s/o. Bashrat Ali Khan, Age: 66 Yrs. Occus. Business,
Legal Reasoning
Ethape( 2 ) WP-1581-2023R/o. Hyderabad through his GPA-Mujaheed Khan s/o. Samiullah Khan, Age: 43 Yrs. Occus. Advocate. R/o. Shad HospitalDargah Road, Parbhani. Tq. & Dist. Parbhani. ...Resp. No.6 is Orig. Appellant7. Smt. Sayyad Tayyaba Fatema s/o. Mir Ahemad Ali Khan, (Samis)Through her GPA – Krishnakumar s/o. Ramulu, Age: Major, Occu. Business,R/o. House No. 5-3-602, Usmangunj,Aandhra Pradesh (AP).8. Sayyed Kurban Hussains/o. Sayyad Naseer Hussain, since deceased - 8.1 Sayyed Kurbans/o. Sayyad Hussain,8.2 Shaikh Yousuf Ali Khan s/o.Shaikh Mehendi Ali Khan;8.3 Zahera Begumw/o. Sayyad Yawar Ali Mirsa;8.4 Sayyada Begumw/o. Mir Akbar Ali;8.5 Fatema Begum w/o. Mumtaz AliThrough her GPA- Sudhakar Dashrath BhaleraoAge: Major, Occu. Business,R/o. Aurangabad, Dist. Aurangabad. 9. Sayyad Murtuza Alis/o Sayyad Zahed Ali,Through his GPA – Sujat Hussain Khan s/o. Wajid Ali Khan, Age: Major, Occu. Business, r/o. Aurangabad. Ethape( 3 ) WP-1581-202310. Subhash Kesarmal Barlota,Through his GPA – Mohd. Abdul Shakil s/o. Mohd. Abdul Sami, Age: 53 Yrs.Occu. Business, R/o. Block No. 16,Model Colony, Opp. Himayat Baug, Delhi Gate,Aurangabad. 11. Sayyad Shaha Moin Quadris/o. Gulam Mohd. Quadri, Through his GPA- Abdul Shakil s/o. Abdul Sami. Age: 53 Yrs.Occu. Business, R/o. Block No. 16,Model Colony, Opp. Himayat Baug, Delhi Gate, Aurangabad. 12. Smt. Humayu Begumw/o. Aaga Sayyad Abbas Shustari Through her GPA – Dr. Mohd. Zakir s/o. Mohd. Zafar, Age: 62 yrs. Occu. Business,R/o. Plot No.39, Dilras Colony, Aurangabad, Tq. & Dist. Aurangabad. 13. Mir. Hasham Alikhans/o. Mir Bahar Alikhan through his GPAKacharu Bhikaji Dabhade,Age: 50 Yrs. Occus. Business,R/o. Ramanagar, Kranti Chowk,Aurangabad, Tq. & Dist. Aurangabad.14. Chandu Prabhakar Naidu,Age: 66 Yrs. Occu. Business,R/o. Aurangabad, Tq. & Dist. Aurangabad. 15. Umbrella Gold Pvt. Ltd.Through Sayyad Younus s/o. Sayyad Mohinoddin, Age: 68 Yrs., Occu. Business, Ethape( 4 ) WP-1581-2023R/o. Ramnagar, Kranti Chowk,Aurangabad. …RESPONDENTS…..Mr.S. S. Thombare Advocate for the Petitioners.Mr.K. B. Jadhavar, AGP for Respondent-State.Mr.V. D. Sapkal Senior Advocate i/by Mr. S. R. Sapkal a/w Mr.A. D. Khedkar and R. N. Patil, Advocates for Respondent No.6. Mr.M. M. Manjramkar Advocate for Respondent No.7.Mr.Quadri T. R. Advocate for Respodnent Nos. 10 and 11. Mr.R. P. Bhumkar Advocate for Respondent Nos. 13.…..CORAM:KISHORE C. SANT, J.RESERVED ON:14th JANUARY 2025PRONOUNCED ON:21st FEBRUARY 2025ORDER :-1.The present Writ Petition arises out of Judgment and Order date30th January 2023 passed by the Hon’ble Minister-Respondent No.2 inAppeal 2022/Pra. Kra.106/J-7.2. The learned Minister by way of impugned Judgment and Order,rejected the application of the present petitioners confirming the orderdated 12th October 2022 passed by the learned Deputy Director LandRecord, Aurangabad (Respondent No.3). Ethape( 5 ) WP-1581-20233.The Deputy Director Land Record, Aurangabad by way of hisjudgment and order dated 12th October 2022 has confirmed the orderpassed by the learned District Superintendent Land Record, Aurangabad(Respondent No.4). The proceeding was started by present respondentNo.6 by filing an appeal under Section 247 of the Maharashtra LandRevenue Code, (for short MLRC) against the mutation entry in the nameof the petitioners on land Survey No.3, CTS Nos.14844/A and 14844/Bsituated at Bagsherjung Daudpura, Aurangabad in 2015. 4.It is the case of the respondent No.6, who claims to be the ownerof the property, filed the said appeal seeking cancellation of the mutationentry taken in the name of the petitioners and their father. It is the casethat, one Nawab Salarjung III of Hyderabad was the original owner ofthe property i.e. Survey No.3 situated at Bagsherjung Daudpura,Aurangabad. After the death of Nawab Salarjung III, the respondentNo.6 namely, Mir Mahmood Ali Khan S/o. Basharat Ali Khan came onrecord being legal heir. In a suit filed in the Hon’ble High Court atAndhra Pradesh bearing Civil Suit No.13 of 1958 as Defendant No.112.It is the case that, after the death of Salarjung III, his estate was taken Ethape( 6 ) WP-1581-2023over by Central Government Resolution Act and was managed bySalarjung Estate Committee under Salarajung Estate RegulationNo.13/1358 Fasli and thereafter under Nawab Salarjung III Bahaddur(Administration of Assets) Act, 1950. The suit was filed in the AndhraPradesh High Court for Administration of Estate and for partition andseparate share against the Salarjung Estate Committee, Government ofIndia. In the suit, the parties had settled their dispute. A preliminarydecree came to be passed by the Andhra Pradesh High Court. Scheme ofpartition was prepared. The property was divided in various blocks andwas allotted the share to the respective parties. 5.It is further case that by this period, some people got their namesentered into revenue record without any right on the propertiesbelonging to Salarjang. Present suit property is one of such properties.There are criminal cases also filed against the respondent for theoffences like forgery, conspiracy etc. Whereas, the petitioners claim theirtitle through a transaction dated 15th January 1971 from oneTribhuwandas as per the Respondent namely, Moodali. The presentpetitioners got right through the said sale-deed. It is the case that entries Ethape( 7 ) WP-1581-2023taken in the revenue record.6.The petitioners appeared and filed their say. It is their case thatthe respondents approached after much delay of around 43 years. Thereis no sufficient cause shown for condonation of delay etc. It is submittedthat already case No.432 of 2015 filed by one Nawab Behbood Ali Khanwas rejected by the learned District Collector, Aurangabad on the groundof limitation. There was one more proceedings filed by one Mir SadatKhan against the present petitioners in respect of the same property. Thesaid appeal was rejected on the ground of delay. Against that, the appealwas preferred before the learned Deputy Director Land Record (shortshort “DDLR”. The said appeal also came to be rejected. The sameauthority now cannot condone the delay in this case. The Collector hasalready passed an order stating that any person claiming interest in theproperty through Salarjung has to get his right decided first from theCompetent Authority and only thereafter can claim the ownership andcan get the names entered.7.The learned Deputy Superintendent Land Record (for short DSLR)held that, the earlier orders were passed in the proceeding filed under Ethape( 8 ) WP-1581-2023Section 257 of the Maharashtra Land Revenue Code, whereas thepresent proceedings is filed under Section 247 of the said Code. Theauthority thus exercised the powers under Section 251 of the Code andcondoned the delay and directed to register the appeal. 8.This order came to be challenged by the present petitioners beforethe learned DDLR by filing Revision Application No.1650 of 2016praying for quashing and setting aside the order passed by the learnedDSLR dated 29th June 2016. The learned DDLR, however, confirmed theorder passed by the learned DSLR and rejected the Revision Applicationof the petitioners. Against the said order, the petitioners approached thelearned Minister. The learned Minister by way of impugned order dated30th January 2023, rejected the second Revision Application. Thepetitioners are thus, before this Court challenging the order passed bythe learned Minister. 9.Mr. Thombre, the learned Advocate for the petitioners vehementlyargued that the petitioners have become the owners of the land by virtueof sale-deed executed in 1971. The authority had no power to condonethe delay of around 44 years. When earlier appeals were rejected, the Ethape( 9 ) WP-1581-2023order impugned in the said appeal became final in making the entries inthe name of the petitioners. Though earlier, the learned DSLR rejectedthe appeal on the ground of limitation, the same authority has nowentertained the application for condonation of delay and has condonedthe delay. No reasons are assigned while condoning the delay. Therevision by the petitioner before the Minister is still pending and in themeantime, the learned DSLR passed final order. Therefore, even the finalorder of learned DSLR deserves to be quashed and set aside. There is nofinding recorded that the impugned entries were taken illegally. Theobservations which are made taken on record, earlier the same authorityhad passed the order stating that the parties should need to get decreefrom the Civil Court. The Minister now has considered the issue ofownership which is without jurisdiction. The impugned entry in the year1971 was taken after conducting survey. Though the entry in the nameof the petitioner is challenged, the sale-deed in favour of the petitionersis not under challenge. If at all, the respondents want to claim their rightover the suit property, it is necessary for them to challenge the sale-deeddated 5th January 1971. So long as the sale-deed stands, the respondent Ethape( 10 ) WP-1581-2023would not get any land over the property. It is submitted that, in fact, thepetitioners are facing civil litigation and now the second appeal ispending in this Court. The second appeal is admitted in this Court. Hethus submits that the authorities have mis-directed themselves and havepassed erroneous order. In the suit in the High Court at Andhra Pradesh,there is no reference of the present land. In any case, if the respondentNo.6 claims any right, he has to get his right established in the CivilCourt. He thus prays for allowing the writ petition by setting aside theimpugned judgment and order. 10.Learned Senior Advocate Mr.Sapkal appearing for RespondentNo.6 vehemently argued that, the petitioners had filed a suit fordeclaration of ownership bearing No.442 of 1985 in the Court atAurangabad. A specific issue was framed. The said suit came to bedismissed even the appeal was filed their-against came to be dismissed.Now the petitioner has filed a suit for possession bearing RCS No. 2 of2024. This clearly shows that the petitioners are not in possession of theproperty. When the fact of possession itself is against the petitioners,there is no question of having any entries in his name in revenue Ethape( 11 ) WP-1581-2023register. The suit was filed in the year 1985. The Court has specificallyrecorded the findings that the petitioners could not prove the ownershipeven of his vendor. It is held that the properties are of Salarjung. Thesaid suit was dismissed by order dated 24th December 2010. The appealwas filed bearing RCA No. 62 of 2011. The said appeal also came to bedismissed for default. This fact is not brought to the notice of the Court.He submits that when the rights are concluded, the revenue entries arerequired to be restored to original status. It is also pointed out thatagainst the petitioners, there is prosecution lodged. The right of thepresent respondent No.6 is arising out of original suit in the Court ofAndhra Pradesh High Court where the respondent is defendant. Oncethe Civil Court has recorded a finding that the petitioners have failed toprove his right over the property, there is no question of having theentries in the name of petitioners. The petitioners do not have any locus.Now, in the fresh suit, the petitioners have approached the civil court.However, their injunction application is refused. He submits that thelearned DDLR and the Minister have considered all these aspects andhave passed the order which does not require any interference at the Ethape( 12 ) WP-1581-2023hands of this Court. For suppression of the facts also the petitiondeserves to be dismissed. 11.The learned Advocate Mr.Manjramkar appearing for RespondentNo.7 opposes the petition. Mr. Quadri, the learned Advocate for therespondent Nos.10 and 11 also opposed the petition submitting that thepetitioners are not owners. They claim that even respondent No.6 has noright over the properties, he claimed right on the strength of the decisionof the decree passed by the High Court of Andhra Pradesh. 12.Mr.Bhumkar, the learned Advocate appearing for RespondentNo.13, who also claim to be legal heir of Salarjung opposes the petitionas well as rights of respondent No.6. He submits that there is one morecivil suit between the parties and that is pending. 13.The learned Advocate for the Petitioners relied on the judgmentsin the case of State of Gujarat Vs. Patil Raghav Natha1 and Karansing Vs.The State of Maharashtra and Ors.214.The Hon’ble Apex Court in the case of State of Gujarat Vs. PatilRaghav Natha (supra), long back has considered the provisions of11969 AIR (SC) 12972MANU/MH/0697/2016 Ethape( 13 ) WP-1581-2023Sections 65 and 211 of the Bombay Land Revenue Code, which does notprovide limitation period for exercising the powers of revision by theCommissioner. Section 65 of the said Act provided for three monthsperiod for the Collector to decide the matter. It was held that consideringthe provisions, the Commissioner was also expected to decide therevision within few months of the order of the Collector. This Court doesnot find that the said judgment is applicable in the present case. In thepresent case, there is no such issue raised. There is no issue about timeperiod taken by the Commissioner to decide the revision. So far as thejudgment in the case of Karansing Vs. The State of Maharashtra and Ors.(supra) is concerned, this Court has considered the validity of section 52of the Transfer of Property Act. The petitioner therein was added asparty at the stage of appeal. In that case, the Appellate Court held thatthe sale-deed in favour of petitioner was illegal and hit by Section 52 ofthe Act. It is held that the Revenue Authorities could not decide thequestion of title and interest of the parties. It is held that the revenueentries are only for revenue purpose. The Tehsidar in that case hadpassed an order by giving an opportunity of hearing to the parties. The Ethape( 14 ) WP-1581-2023Appellate Authority set aside the said order. In the facts of that case itwas held that the Appellate Authority had exceeded the jurisdiction byusing the power not vested in it. This Court finds even this case is nothelpful to the petitioners. 15.In the present case, this Court has to find out as to whether theorder passed by the learned Minister suffers from legality or whether thepetitioners have established their case showing that their entries arewrongly removed. From the judgment it is seen that the survey wasmade under Section 126 of the MLRC as per Rules, 1969. Rule 6provides for inquiry as to title. The entry was taken on the basis of thisinquiry. In the said inquiry, the name of father of the petitioners wastaken as purchaser of the suit land. As per Rule 7 of 1969 Rules, theentry was taken in the PR card. It is seen that when 1983 again inquirywas held in respect of ownership. After said inquiry, the name of thefather of the petitioner was shown as illegal occupant and as anencroacher. Though the property is same, the different chalta numberswere given in two different inquiries as 54/1 and 54/2 and thus it isshown in the name of two different persons. The petitioner’s father filed Ethape( 15 ) WP-1581-2023a suit bearing Suit No. 442 of 1985 for declaration of the ownership ofland. However, the said suit was dismissed. Considering the decreepassed by the Andhra Pradesh High Court, the present Respondent isheld to be entitled to share in property. Though in 1983, the inquiry washeld, no entries were corrected in the record. Thus, holding all thesethings, the authorities have decided against the petitioner. This Courtfinds that no illegality or perversity is shown by the petitioner in thejudgment of the Hon’ble Minister. The judgment of the revenueauthorities are always subject to outcome of the civil litigation. In thepresent case, it is seen that the petitioners could not shows anyjudgment or any decisions of the civil courts in favour of the petitionershowing that they are lawful owner of the property. 16.This Court does not find any force in the submissions of learnedAdvocate for the petitioners whereas the submissions of learned SeniorAdvocate for the Respondent No.6 finds support from the material onrecord. This Court does not find any reason calling for interference inthe impugned judgment and order and therefore petition deserves to bedismissed. Hence, the following order:-
Decision
Ethape( 16 ) WP-1581-2023 ORDER(i)Writ Petition stands dismissed. (ii)No order as to costs. (iii)Civil Applications, if any, also stand disposed off. [KISHORE C. SANT, J.]