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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 8018 OF 2022Laxmibai Raosaheb Kadam And OthersVERSUSThe State Of Maharashtra Through Its Secretary And OthersMr. R. S. Deshmukh, Senior Advocate a/w Mr. Shriram Deshmukh i/b Mr. R. J. Nirmal, Advocate for PetitionersMr. B. A. Shinde, AGP for Respondent Nos. 1 to 4Mr. P. R. Katneshwarkar, Senior Advocate i/b Mr. A. A. Fulfagar, Advocate for Respondent No. 5CORAM: R. M. JOSHI, J.RESERVED ON: 25th February, 2025PRONOUNCED ON: 03rd March, 2025PER COURT :-1.This petition takes exception to order dated 22.07.2022passed by Tahsildar Aundha, Dist. Hingoli which reads thus :-mijksDr lanHkhZ; fo”k;h vtZnkj 1)f’kokth nknkjke dne obrj 2 jk-riksou ;kauh fn-11/03/2022 jksth fnysyk vtZ2)vtZnkj Jh- ek#rh fi-t;jke dne jk-riksou ;kapk fouarhvtZ fn- 26/04/2022 lnjps nksUgh eqG vtZ vkiY;kdMsikBfo.;kr ;sr vlqu izdj.kkr ek-foHkkxh; vk;qDr]vkSjaxkckn ;kauh fn-04/01/2022 jksth fnYksY;k fu.kZ;kuqlkjvki.k ek-miftYgkf/kdkjh ¼Hkqlq/kkj) ijHk.kh ;kaps vkns’k fn-21/11/1993 uqlkj eks-riksou ;sFkhy losZ ua- 31 xV dz- 76e/khy 3 gs 25 vkj tehuhpk rkck gk ekjksrh t;jkedne ;kauk ns.;kph dk;Zokgh eaMG vf/kdkjh foHkkx] toGkcktkj o rykBh lTtk]vktjlksMk ;kaP;k leosr tk;eksD;kojtkoqu djkoh ¼izdj.kkr U;k;ky;kpk LFkxhrh vkns’k vkgsfdaok dls ;k ckcr vtZnkj xSjvtZnkj ;kaP;kdMwu vki.kiMrkG.kh d#u) o lnjph tehuhpk rkck ekjksrh t;jke932-WP-8018-2022.odt1 of 11 dne ;kauk fnY;k ckcr iapukek o rkck ikorh d#u d#uvkiyk ys[kh vgoky ;k dk;kZy;kl lknj djkok- djhrkvki.kkl dGfo.;kr ;sr vkgs-2.The facts led to the filing of the petition can be narrated inbrief as under :-It is the case of petitioner that in respect of the land bearingSy. No. 31, admeasuring 10A 39R, situated at village Tapowan, Tq.Basmat, Dist. Parbhani, Inamdar is declared as re-grantee as per theHyderabad Abolition of Inam and Cash Grants Act, 1954 (for short “theAct”) The legal heirs of the Inamdar sold the land to the one Sawandkarand subsequently the same to the father and uncle of petitioners in theyear 1988. The petitioners claimed to be in possession of the subjectland.3.In the year 1986, suo-moto proceedings (File No.1986/INAM/47 and 80) was initiated by Deputy Collector Land Reformsunder the provisions of the Act. By order dated 18.05.1993, directionwas issued to hand over the possession of the subject land to MarotiJayram Kadam i.e., Respondent No. 5. This order came to be assailed bypetitioners before the Commissioner in case No. 1993/WTN/A/18 and byorder dated 20.08.1993 the proceedings before Deputy Collector wasremanded by setting aside order dated 18/05/1993. On remand DeputyCollector passed order dated 21.12.1993, declaring Maroti as re-grantee,932-WP-8018-2022.odt2 of 11 but direction was issued to take land under government supervision. Areview was sought of the said order. Deputy Collector ( Land Reform) byorder dated 05/01/1994, set aside order dated 21.12.1993, with furtherdirection that in case purchasers fail to deposit “Nazarana” withinstipulated period, the land would be taken under Governmentsupervision. Against, this order appeal was filed under Section 2A(2) ofthe Act, before Additional Divisional Commissioner, Aurangabad, ebigncase No. 1994/WTN/App/1. In this proceedings, order dated 21.12.1993was set aside and case before Deputy Collector (Land Reform) wasrestored. This order was subjected to challenge in Writ Petition No.14276/2017. This Court by order dated 04/03/2020, set aside the saidorder and remanded appeal for decision a fresh. On remand, AdditionalDivision Commissioner, passed order dated 04/01/2022, confirming orderdated 21.12.1993 passed by Deputy Collector (Land Reform). Beingaggrieved by this order Writ Petition No. 928/2022 was preferred bypresent petitioners. By judgment dated 25.04.2022, petition wasdismissed. The challenge to this order is pending before Supreme Courtin SLP(C) No. 001731-001732/2023. It is a case of the petitioner that inthe light of above facts, impugned order dated 22.07.2022 came to bepassed by Tahsildar directing handing over of the possession of thesubject land to Maroti. Being aggrieved by the said order, presentpetition.932-WP-8018-2022.odt3 of 11 4.Learned Senior Counsel for petitioners submits that when thepetition came to be filed on 27.07.2022, application for review of theorder passed by this Court in Writ Petition No. 928/2022 was pending. Itis his contention that after the said review application was heard, samewas reserved for judgment, order impugned came to be passed, whichindicates that the order in question is passed hurriedly. Apart from this, itis his contention by drawing attention of the Court to the order passed bythe Additional Commissioner which is confirmed by this Court, that noworder passed by Deputy Collector (Land Reform) dated 21.12.1993 holdsthe field. According to him in the said order, there is no direction ofhanding over of possession to Maroti and on the contrary, it is said thatthe land being taken under the Government supervision. It is thus hissubmission that in no circumstances, order could have been passed forhanding over of the possession thereof to Maroti. By referring to Section53 of the Maharashtra Land Revenue Code (for short “the Code”), it issought to be argued that for the purpose of eviction of any person who isin unauthorised use and occupation of the land, atleast a summaryenquiry is mandated before taking over of the possession of land. It ishis submission that in absence of any direction in the substantialproceedings of handing over of the possession, it would not be open forauthorities to by pass this provision. Finally, he argues that the challengeto the order passed by this Court confirmed the order of theCommissioner is subjudice before the Hon’ble Supreme Court and hence,932-WP-8018-2022.odt4 of 11 it would not be in the fitness of justice that the order impugned isallowed to be executed.5.Learned senior counsel appearing on behalf of the contestingrespondents opposes the said contention by pointing out the previouslitigation between the parties. It is his submission that in the substantiveproceedings under the Act, the Competent Authority has held Maroti tobe re-grantee and occupancy rights are also said to have been vested inhim. Thus, it is his contention that once the occupancy rights are vested,question of following procedure contemplated under Section 53 of theCode does not arise. It is his submission that the order of theCommissioner is upheld by this Court and that there is no stay grantedby the Hon’ble Supreme Court to the said order and as a result of whichthere is no impediment in implementing the order impugned. It is hisfurther submission that by referring to the order impugned, it is merely anotice and not an order in order to cause challenge thereof in the writpetition. On these amongst other submissions, he seeks dismissal of thepetition.6.There is no dispute about the fact that proceedings were heldbefore the Deputy Collector under the provisions of the Act wherein it isheld that Maroti is re-grantee of the subject land so also his occupancy isaccepted and this order holds field as on today. It would be relevant to932-WP-8018-2022.odt5 of 11 take note of the operative part of the order dated 21.12.1993, whichreads thus :-ORDERThe Non-Applicant Maroti Jairam Kadam,R/o Tapowan Taluka Basmat now Taluka AundhaNagnath is declared as a regrantee of the suit land.Occupancy rights are hereby vested in him.The land Sy.No. 31 Gat No. 76,admeasuring 3 H. 25 R situated at village Tapowan, Tq.Basmat now Taluka Aundha Nagnath be taken underGovt. Supervision immediately without waiting forfurther orders.Inform all the Non-applicants accordinglythrough their respective advocates by issuingintimations.Inform the Tahsildar Aundha Nagnathalongwith a true copy of this judgement & order byissuing intimation for necessary compliance.Close the case & consign to record.7.Additional commissioner in appeal passed order dated04.01.2022, which is confirmed by this Court in Writ Petition No.928/2022. It is necessary to reproduce operative part thereof :-1- vihykFkhZ ;kaps iquLFkkZfir vihy ekU; dj.;kr ;sr vkgs-2- miftYgkf/kdkjh ¼Hkwlw/kkj½ ijHk.kh ;kapk vkns’k dzekad1993@,Pk@buke@lhvkj@34 fnukad 05@01@1994jksthpk vkns’k jn~n dj.;kr ;sr vkgs-932-WP-8018-2022.odt6 of 11 3- miftYgkf/kdkjh ¼Hkwlw/kkj½ ijHk.kh ;kapk vkns’k dzekad1993@,p@buke@lhvkj@34 fnukad 21@12@1993jksthpk vkns’k dk;e dj.;kr ;sr vkgs-4- loZ lacaf/krkauk fu.kZ; dGoqu izdj.k ;k U;k;ky;kr candjk o lafpdk vfHkys[k d{kkr oxZ djk-Initially, Deputy Collector (Land Reform) passed order dated18.05.1993 and operative part thereof is as under :-::O R D E R ::The possession of the land Sy. No. 31Gat No. 76, admeasuring 3 H. 90 R situated atvillage Tapowan, Taluka Basmat be handover to theregrantee Maroti Jairam, R/o Tapowan, TalukaBasmat from taking over the possession of the suitland from Dadarao, Raosaheb, Sudam sons ofBabarao, R/o. Tapowan, Taluka Basmat or who soover may be in possession of the suit land.Inform both the parties accordingly beissuing intimation letter.Inform the Tahsildar Basmat accordinglywith a true copy of this judgement and order byissuing intimation for information and compliance.Return the lower court’s record &Proceedings if any, Close the case and consign torecord. This order specifically directs the handing over possession ofsubject property to Maroti. However, this order is already set aside and932-WP-8018-2022.odt7 of 11 as such now there is no order directing handing over of possessiondirectly to Maroti. By order dated 21.12.1993 land in question is requiredto be taken in Government supervision. In case of any direction to handover possession of land to Maroti, there was no need for authorities toundertake any other proceeding but in absence thereof it would not bepermissible to do so.8.Hence, question arises as to whether the said order dated21.12.1993 would entitle the authorities to seek possession of thesubject land from petitioners to hand it over to Maroti/Respondent No.5., without compliance of Section 53 of the Act.9.At this stage, it would be relevant to refer to provisions ofSection 53 of the Code which reads thus :-53. Summary eviction of person unauthorisedlyoccupying land vesting in Government:(1) If in the opinion of the Collector, any person isunauthorisedly occupying or wrongfully in possession ofany land or foreshore vesting in the State Governmentor is not entitled or has ceased to be entitled tocontinue the use, occupation or possession of any suchland or foreshore by reason of the expiry of the periodof lease or tenancy or termination of the lease ortenancy or breach of any of the conditions annexed tothe tenure, it shall be lawful for the Collector to evictsuch person.(1-A) Before evicting such person, the Collectorshall give him a reasonable opportunity of being heardand the Collector may make a summary enquiry, if932-WP-8018-2022.odt8 of 11 necessary. The Collector shall record his reasons inbrief for arriving at the opinion required by sub-section(1).(2)The Collector shall on his finding as aforesaid,serve a notice on such person requiring him within suchtime as may appear reasonable after receipt of the saidnotice to vacate the land or foreshore, as the case maybe, and if such notice is not obeyed, the Collector mayremove him from such land or foreshore.(3) A person unauthorisedly occupying or wrongfully inpossession of land after he has ceased to be entitled tocontinue the use, occupation or possession by virtue ofany of the reasons specified in sub-section (1), shallalso be liable at the discretion of the Collector to pay apenalty not exceedings two times the assessment orrent for land or such amount may be prescribed,whichever is higher, for the period of such unauthoriseduse or occupation.These provisions indicate that for the purpose of taking possessionin respect of the land from the unauthorised occupant summary inquiryis mandatory to be held.10.It is sought to be argued on behalf of the contestingrespondents that in view of the orders passed by the CompetentAuthority under the Act, this is not the case wherein the compliance ofSection 53 is necessary.11.This Court is unable to accept the said submission for thereason that orders referred above clearly indicate that the order of932-WP-8018-2022.odt9 of 11 granting possession to re-grantee i.e., Maroti does not subsist, in view ofthe subsequent order dated 21.12.1993, wherein it is held that thesubject land be taken under the Government supervision and there is nodirection of handing over the possession thereof to the respondent No. 5.12. In a given case, where in a substantial proceedingsdirection is given for handing over a possession of the subject land to theRespondent No. 5, then question of compliance of Section 53 may notarise. However, when the order dated 21.12.1993, available forimplementation, does not direct for handing over possession of subjectland to Maroti, the compliance of Section 53 before taking over thepossession is imperative. Apart from this, perusal of the impugned orderindicates that though there was no direction to hand over the possessionof the subject land to Maroti, it is so observed therein, which iserroneous consideration of fact. Thus, apparently, Tahsildar, hasexceeded his jurisdiction while implementing the order passed byDivisional Commissioner confirming order dated 21.12.1993. Thus,direction of handing over of possession to Maroti (Respondent No. 5),without following mandatory procedure contemplated by Section 53 ofthe Act, cannot sustain.13.As a result of the above discussion, Petition stands allowed.Impugned order is set aside. It is however open for the authorities toadopt appropriate procedure of law as contemplated by the Land932-WP-8018-2022.odt10 of 11 Revenue Code for the purpose of the implementation/execution of theorder dated 21.12.1993.(R. M. JOSHI, J.)bsj932-WP-8018-2022.odt11 of 11