State.Mr v. D. Salunke
Case Details
Ethape( 1 ) WP-5256-5342-2013IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5256 OF 20131.Maulasaheb s/o. Maheboobsaheb PathanAge: Major. Occu. Agri.R/o. Shelhal Tq. Udgir Dist. Latur.….PETITIONER VERSUS1.The State of Maharashtra Through Principal Secretary, Revenue and Forest Dept. Mantralaya Mumbai.2.District Collector,Latur, Tq. & Dist. Latur.3.Deputy Collector (General),Latur, Tq. Dist. Latur.4. Rohinibai w/o. Bhimrao JabadeAge: Major, Occu. HouseholdR/o. Shetkar Galli, Killa Road,Udgir, Tq. Udgir Dist. Latur.5. Digambar s/o. Yeshwantrao BiradarAge: 70 years. Occu. Agril.R/o. Shivaji Society, UdgirTq. Udgir Dist. Latur.6. Kishan s/o. Yeshwantrao BiradarAge: 56 years, Occu: Agri.R/o. Shivaji Society Udgir,Tq.Udgir Dist. Latur.
Legal Reasoning
Ethape( 2 ) WP-5256-5342-20137.Govind Sakharam JamkhandeAge: 70 years, Occu: Agri.R/o. Nayi Abadi, Udgir Tq. Udgir,Dist. Latur.….RESPONDENTSWITHWRIT PETITION NO.5342 OF 20131.Maulasaheb s/o. Maheboobsaheb PathanAge: Major. Occu. Agri.R/o. Shelhal Tq. Udgir Dist. Latur.….PETITIONERVERSUS1.The State of Maharashtra Through Principal Secretary, Revenue and Forest Dept. Mantralaya Mumbai.2.Deputy Collector (General),Latur, Tq. Dist. Latur.3.Digambar s/o. Yeshwantrao BiradarAge: 70 years. Occu. Agril.R/o. Shivaji Society, UdgirTq. Udgir Dist. Latur.4.Kishan s/o. Yeshwantrao BiradarAge: 56 years, Occu: Agri.R/o. Shivaji Society, Udgir,Tq. Udgir, Dist. Latur.5.Shri MarwaleAge: Major. Occu: Service(Deputy Collector, (General) Latur), Ethape( 3 ) WP-5256-5342-2013C/o. Collector Office, Latur,Tq. & Dist. Latur.….RESPONDENTS---------------------------------------------------------------------------------------------------Mr. N. K. Tungar, Advocate for the petitioner.Mr. P. D. Patil, AGP for Respondent No.1 to 3-State.Mr. V. D. Salunke, Advocate for Respondent No.6 and 7. Mr. J. R. Patil i/by Mr. Manoj D. Shinde, Advocate for Respondent No.8.---------------------------------------------------------------------------------------------------CORAM:KISHORE C. SANT, J.RESERVED ON:20th FEBRUARY 2025.PRONOUNCED ON:8th MAY 2025PC :-1.Heard Mr. Tungar, the learned Advocate for the Petitioner,Mr. Patil, learned AGP for Respondent No.1 to 3, Mr. Salunke, learnedAdvocate for the Respondent Nos. 6 & 7, and Mr. Patil, the learnedAdvocate for Respondent No.8. 2.Both the writ petitions are in respect of same subject matter andbetween the same parties and, therefore, the matters are taken up forfinal disposal with the consent of the parties.
Decision
Ethape( 4 ) WP-5256-5342-20133.A challenge, in Writ Petition No.5256 of 2013, is to a judgmentand order passed by the learned Deputy Collector (General) dated 20thFebruary 2013 whereby the learned Deputy Collector rejected theapplication of the present petitioner. Transfer of land betweenRespondent Nos. 4 to 7 and the deceased, uncle of the petitioner namely,Gafursaheb Pathan came to be regularized. The suit property is at surveyNo.89 admeasuring 13H 22R.4.In the Writ Petition No.5342/2013 challenge is to an order passedby the learned Deputy Collector (General), Latur dated 3rd April 2013.By way of impugned order, the learned Collector regularized the sale-deed executed by the deceased, uncle of the petitioner namely,Gafursheb Pathan in favour of one Yashvantrao Madhavrao Biradardated 4th September 1971. The petitioner claims to have right in the suitproperty Gut No. 89 admeasuring 1H 36 R. 5.The facts, in short, giving rise to the present petitioner are that,one Mastan Ismailsaheb r/o. Shelhal from village Majkuri was allotted aland survey No.89 admeasuring 13H 20 Guntha. The land was allotted Ethape( 5 ) WP-5256-5342-2013to him as service Inam land as Khidmat Gaon Majkuri. He had two sonsnamely, Mahboobsaheb, father of the petitioner and and GafurshebPathan. Gafursheb Pathan died issuless. Wife of Gafursheb performedsecond marriage after his death. After death of Gafursheb, the name ofMahboobsaheb came to be recorded in the revenue record on 31st March1959. 6.In 1972, Gafursheb Pathan approached Respondent Nos. 4 to 8and obtained loan by mortgaging the suit land. It is the case of thepetitioner that, the land was to be re-transferred after five years. It isfurther case that, after five years, the respondent avoided to restorephysical possession of the land and enjoined the possession. 7.It is further case that Mahboobsaheb had deposited occupancyprice in view of order passed by the learned Tahsildar. He requested torecord his name in the revenue record and it came to be recorded bymutation entry No.118 on 10th September 1974, in the ownershipcolumn. The said order was challenged by the Respondent Nos. 3 and 4showing that the Gafursheb Pathan had executed sale-deed on 4th Ethape( 6 ) WP-5256-5342-2013September 1971 in favour of father of the present Respondent Nos. 6and 7 and challenged the entry in the name of Mahboobsaheb. Heapproached the authorities with the case that the land being Vatan Land,in view of Bombay Village Vatan Abolition Act, no transaction could havebeen there by Gafursheb Pathan. The transaction was withoutpermission. The said application was dealt with by the Tahsildar. TheTahsildar allowed the application by order dated 16th March 2002 andordered to put Memboobsaheb in possession to the extent of landadmeasuring 1H 21R from Gut No.305 and land admeasuring 2H 42Rfrom Gut No.304. So far as land admeasuring 1H 6R from Gut No.302and land 81R from Gut No.303 i.e. from Survey No.89 came to berejected for want of locus standi. 8.Against the order of Tahsildar, to the extent of land from GutNo.302 and 303, Mehboobsaheb approached the Maharashtra RevenueTribunal. The Respondent Nos. 8 i.e. purchaser also preferred an appealbefore the Maharashtra Revenue Tribunal challenging the order to theextent of Gut No.304 and 305. It is the case of the petitioner that the Ethape( 7 ) WP-5256-5342-2013petitioner was not made a party to the revision before the MaharashtraRevenue Tribunal filed by the respondent.9.The learned Member, Maharashtra Revenue Tribunal on 1stOctober 2010 decided both the appeals. The appeal of the respondentcame to be allowed. The appeal of the petitioner came to be dismissed.It is observed that, there is ex-post facto sanction granted to transactionentered into between Gafursaheb Pathan and Respondent No.5 by theTahsildar. Against the said order, writ petition No.11733/2010 was filedby the petitioner. The petition was partly allowed by order dated 24thJanuary 2012. The parties were directed to obtain ex-post facto sanctionfrom the Tahsildar. After the hearing started, the petitioner againapproached the learned Divisional Commissioner. The learned DivisionalCommissioner directed the Tahsildar to decide the application of thepetitioner and respondents by considering the order passed by thisCourt. Thus, the matter was about ex-post facto sanction to thetransaction. The Tahsildar by impugned order granted ex-post factosanction. The said order was challenged before the learned District Ethape( 8 ) WP-5256-5342-2013Collector in which now, the Deputy Collector has passed the order and,thus, the petitioner is before this Court in Writ Petition No.5256/2013.10.So far as the facts of Writ Petition No.5342 of 2013 are concerned,it is the case that on 4th September 1971, deceased Gafursheb Pathanexecuted sale-deed in favour of father of Respondent Nos.3 and 4.However, he was not owner of the said property as per the allegations ofthe petitioner. It is the petitioner’s case that on 10th September 1974, themutation entry was taken bearing No.118 in the name ofMehboobsaheb. Since the entry was taken in the name ofMehboobsaheb, the petitioner is entitled to get possession. Thetransactions in respect of the land were without permission andsanction. Mehboobsaheb approached the learned Tahsildar by orderdated 16th March 2002. The learned Tahsildar partly allowed theapplication directing that the possession of land Gut Nos.304 and 305 berestored to the possession of Mehboobsaheb. Against the said order, thematter went to learned Maharashtra Revenue Tribunal in Appeal bearingNo.49/A/2002/L filed by the Mehboobsaheb and Appeal of one Govind Ethape( 9 ) WP-5256-5342-2013Jamkhande (R7) bearing Appeal No.28/A/2002/L. It is in thisproceeding, the judgments in both the appeals were challenged in WritPetition No.11733 of 2010 in this Court. The petition was partlyallowed. The parties were directed to move the learned District Collectorfor grant of ex-post facto sanction. The learned Tahsildar rejected theapplication of Mehboobsaheb to regularize alleged sale-deeds. Againwrit petition was filed. It is alleged that thereafter, the learned Tahsildarpassed back dated order date 3rd April 2013. No effect could have beengiven to the order dated 3rd April 2013, in view of circularNo.2010/Mashaka-2/land-2/PK-15 dated 27th August 2010 andregularized the sale-deed executed by Gafursaheb Pathan in favour offather of Respondent Nos. 3 and 4 and thus, the petitioner is before thisCourt. 11.So far as Writ Petition No.5342 of 2013 is concerned, Mr. Tungar,the learned Advocate for the petitioner vehemently submits that themutation entry was rightly taken in the name of petitioner. GafursahebPathan sold the property without obtaining prior permission from the Ethape( 10 ) WP-5256-5342-2013authority. The sale-deed dated 4th September 1979 executed in favour ofYashwant Birasdar i.e. father of Respondent Nos. 6 and 7 to the extent of1H 63R was illegal. Initially, the survey No.89 was one land which wasconverted into four gut numbers. Since the sale-deeds were illegal andMehboobsaheb was entitled to receive the property, the petitioner rightlyapplied to the Collector for restoration of the land. The Tahsildar rightlypassed an order directing to give back possession to Mehboobsaheb fromRespondents. The learned Member, Maharashtra Revenue Tribunalhowever, committed illegality by setting aside the order passed by theTahsildar in the revision preferred by the Respondents regularizing thesale-deed and dismissed the appeal of the petitioner. He thus prays forallowing the writ petition. 12.So far as Writ Petition No.5256 of 2013 is concerned, Mr. Tungarsubmits that, the learned Member, Maharashtra Revenue Tribunal hascommitted mistake while deciding the appeal. Mehboobsaheb was theonly legal heir of father of Mastan Ismailsaheb. No ex-post facto sanctioncould have been granted. He thus prays for allowing the writ petitions. Ethape( 11 ) WP-5256-5342-201313.Mr. Salunke, the learned Advocate for the Respondent Nos. 6 & 7,opposes the writ petitions. He submits that looking to the prayer clauses,it is seen that there is no challenge to the order passed by the learnedMaharashtra Revenue Tribunal. The earlier order of MRT merged intoorder passed by the High Court in Writ Petition No.11733 of 2010. Sofar as regularization is concerned, he relied on the judgment in the caseof Vithal Kondhalkar Vs. State of Maharashtra and Ors.1. Ex-post factosanction can be granted by regularizing the same. He submits that inview of section 9 of Bombay Inferior Village Watans Abolition Act, 1958,order passed by the Tahsildar regularizing the sale-deed dated 29th July1974 in favour of respondent No.8 is correct. In view of notification byempowering the Tahsildar to exercise the power of the Collector underthe said Act, by exercising the power confirmed by clause IV of Section 2of the Bombay Inferior Village Watans Abolition Act. From notification,it is seen that the Tahsildar was given authority to perform the functionsand exercise the power of the Collector under Section 6 and 9 of the saidAct. He thus submits that sanction granted by the Tahsildar was well11981 Bom. C.R. 32 Ethape( 12 ) WP-5256-5342-2013within the power. No fault can be found in the order. In support of hissubmissions, he relied upon the judgments passed by this Court in WritPetition No.10979 of 2021 in the case of Sunita Vasant Kamble Vs. TheState of Maharashtra and Ors. decided on 1st July 2024, and WritPetition No. 3220 of 1990 in the case of Kacharu s/o. Bhagaji Gaikwadand Ors. Vs. smt. Sheela w/o. Ramesh Mittal and Ors. decided on 30thApril 2008.14.It is seen from the judgment of learned Sub-Divisional Officer thathe has considered the transactions of the mutation entry and also thesale-deed dated 29th July 1974 in favour of Smt. Rohinibai BhimraoJabade (R4). It is held that Mehboobsaheb Pathan had never mortgagedthe land. The land, thereafter, was purchased by Govind SakharamJamkhande (R8) from Smt. Rohinibai B. Jabade (R4). 15.On disposal of Writ Petition No.11733 of 2010 by this Court, thematter went to the District Collector, Latur for considering regularizationof the sale-deed between Mehboobsaheb and Smt. Rohinibai B. Jabade.It is considered that the land Gut No.302 admeasuring 1H 2R and Gut Ethape( 13 ) WP-5256-5342-2013No.303 admeasuring 81R were regularized by the learned Tahsildar.The said was set aside by the learned Maharashtra Revenue Tribunal.However, there is no finding given by this Court in the writ petition andthus, the judgment in favour of Respondent Nos.6 and 7 dated 16thMarch 2002 is in existence. The sale-deeds between Mehboobsaheb andRespondent Nos. 4 and 8 were registered. The possession is also withRespondent No.8. The land Gut No.302 and 303 were also sold byregistered sale-deed by Gafursaheb. The sale-deed betweenMehboobsaheb Pathan and Respondent No.4 was also with priorsanction of the Tahsildar. It is, thus, the petitioner’s applications dated1st October 2010 and 11th May 2012 came to be rejected. All thetransactions were held to be legal and valid. 16.In the case of Sunita Vasant Kamble Vs. The State of Maharashtraand Ors. (supra), in that case, there was no dispute about the executionof registered sale-deed by deceased, husband of the petitioner. Onlycontention was that the petitioner was not heard in that case. He alsorelied upon the judgment of this Court in the case of Kacharu s/o Ethape( 14 ) WP-5256-5342-2013Bhagaji Gaikwad and Ors. Vs. Smt. Sheela w/o. Ramesh Mittal and Ors.(supra), this judgment was also in respect of grant of ex-post factosanction. The transaction was regularized by the impugned order. ThisCourt, on considering the facts, dismissed the writ petition. 17.This Court finds that the respondent has rightly relied upon thesejudgments. While considering petitions, the conduct of the petitionerneeds to be seen. Since after filing of the petition in 2013, the petitionerhas changed three Advocates. When this petition was taken up on 18thNovember 2024, the learned Advocate expressed that petitioner wantsto be present at the time of hearing and time was sought. This Courtspecifically recorded that the petitioner has change three Advocates. Heis playing tactics for delaying the matter and adjourned the matter on16th December 2024 subject to costs of Rs.2,000/-. Office note showsthat inspite of this, no costs is deposited. Looking to the earlier orders, itis seen that, from time to time, requests were made by the Advocate forthe petitioner for adjournments. On three occasions, none appeared forthe petitioner. The petition was dismissed on 16th December 2015 for Ethape( 15 ) WP-5256-5342-2013none removal of objection. The said dismissal order was quashed and setaside subject to costs of Rs.1,000/- in both the petitions. This conductshows that the petitioner was not interested in dealing with the issue.When this Court adjourned the matter subject to costs, even that cost isnot paid. This Court finds that it would be proper to dismiss these writpetitions with costs of Rs.25,000/- each, in view of the conduct. 18.Having heard the submissions at the bar and the material placedbefore this Court, this Court does not find any illegality in the orderimpugned in Writ Petition No.5256 of 2013. This Court also does notfind any illegality or perversity in the impugned order in Writ PetitionNo.5342 of 2013. For the reasons recorded in the writ petitions and asthere is no substance in the writ petitions, both the writ petitions standdismissed, subject to payment of costs of Rs.25,000/- in each petition, tobe paid to the private respondents equally. 19.With this, both writ petitions stand disposed off. [KISHORE C. SANT, J.]