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Sandu s/o Mahadeo Kale v/s Harising s/o Deosing Solanke & Others

    WRIT PETITION NO.2233 OF 2018
    Decided On, 20 September 2019
    At, In the High Court of Bombay at Aurangabad
    By, THE HONORABLE JUSTICE: R.G. AVACHAT
    By, J
    For Petitioner: Shri S.S. Tope And For Respondent: Shri K.R. Doke,Shri P.M. Kulkarni, A.G.P.


Judgment Text
Rule. Rule returnable forthwith and heard finally withthe consent of learned counsel appearing for the parties.

2. This Writ Petition, under Article 227 of the Constitutionof India, is directed against the judgment and order dated15/12/2017, passed by Additional Commissioner, AurangabadDivision, Aurangabad in R.O.R. Revision No.492/2012. By theimpugned order, the learned Additional Commissioner did setaside the order passed by the Additional Collector, Jalna, declaringthe sale deed dated 11.2.2008 to be illegal one. The AdditionalCollector had further directed the Tahsildar, Jafrabad to take theland into possession and grant it for cultivation for a year.

3. The Additional Commissioner has set aside theaforesaid order directing the sale deed (No.414), dated 11.2.2008,to be regularized on depositing ‘Nazrana’ amount.

4. Mr. Sambhaji S. Tope, learned counsel for the petitioner, would submit that, the petitioner had moved applicationto the Collector for making enquiry into the sale transaction, beingNo.442, dated 8.2.1968. Learned counsel would submit that, thewrit land had been granted to the father of the petitioner as aninferior Watan (Mahar). The writ land was the only source of livingfor the petitioner’s father. The petitioner found that, the writ landhad changed hands. The revenue entries also came to bechanged in accordance with the transaction that took placepertaining to the said land. The revenue authorities and thepurchasers were hands-in-glove to deprive the petitioner’s fatherof his Watan land. During enquiry, it was found that the land wassold without obtaining prior permission, in view of Section 5(3) ofthe Bombay Inferior Village Watan Abolition Act, 1958 (for short,the Act of 1959). The sale transactions were, therefore, illegal andnon est. The learned Additional Collector passed the wellreasoned order. Under the provisions of the Act of 1959, anappeal is provided against the order passed by the AdditionalCollector. The forum of appeal is the State Government and notthe Commissioner. The respondent No.1 did not prefer appealagainst the order of the Additional Collector. He preferred revisionapplication, wherein the impugned order has been passed. Thescope of enquiry in revision application is very limited. The Additional Commissioner travelled beyond his revisional powersand passed an order for regularization of the disputed sale deed.In the revision application, the respondent No.1 had not urged forsuch a relief. The learned Advocate ultimately urged for allowingthe Writ Petition, setting aside the impugned judgment and order.

5. Shri K.R. Doke, learned counsel for respondent No.1would, on the other hand, submit that, the powers of the StateGovernment to entertain appeal against the order passed by underSection 3 of the Act of 1959 have been delegated to the AdditionalCommissioner. Although the proceedings before the AdditionalCommissioner were titled as revision application, those wereentertained and decided as an appeal. The AdditionalCommissioner has an authority to regularize sale deeds executedwithout obtaining prior permission of the Collector, under Section5(3) of the Act. The learned Advocate urged for dismissal of theWrit Petition.

The learned A.G.P. supported the impugned order.

6. The land Gat No.52 (Old Survey No.212) was theWatan land. It was allotted by the Government to seven persons including the father of the petitioner. The holdings of thepetitioner’s father in the said land was little over one acre. It was aMahar Watan land. Sections 4 and 5 of the Act of 1959 need to bereferred to. The Sections read as follows :

'4. Notwithstanding anything in any usage, custom,settlement, grant, agreement, sanad, or in any decree ororder of a court or in the existing watan law, with effect onand from the appointed date,

(1) all inferior village watans shall be and are herebyabolished.

(2) all incidents (including the right to hold office andwatan property, the right to levy customary fees orperquisites in money or in kind, and the liability to renderservice) appertaining to the said watans shall be and arehereby extinguished.

(3) subject to the provisions of sections 5, 6 and 9 allwatan land shall be and is hereby resumed and shall besubject to the payment of land revenue under the provisionsof the Code and the rules made thereunder as if it were anunalienated land :

Provided that such resumption shall not affect thevalidity of any alienation of such watan land made inaccordance with the provisions of the existing watan law orthe rights of an alienee thereof or any person claiming underor through him.

5. (1) A Watan land resumed under section 4 shall, in casesnot falling under sections 6 and 9 be regranted to thewatandar of the watan to which it appertained on payment by or on behalf of the watandar to the State Government ofthe occupancy price equal to three times the amount of thefull assessment of such land within the prescribed periodand in the prescribed manner and the watandar shall bedeemed to be an occupant within the meaning of the Codein respect of such land and shall primarily be liable to payland revenue to the State Government in accordance withthe provisions of the Code and the rules made thereunder;and all the provisions of the Code and rules relating tounalienated land shall, subject to the provisions of this Act,apply to the said land :

Provided that in respect of the watan land which wasnot assigned under the existing watan law as theremuneration of the inferior village hereditary office, anoccupancy price equal to the amount of the full assessmentof such land shall be paid by or on behalf of the watandar forthe regrant of such land.

(2) If there is failure to pay the occupancy price undersub-section (1) within the prescribed period and in theprescribed manner, the watandar shall be deemed to beunauthorisedly occupying the land and shall be liable to besummarily evicted therefrom by the Collector in accordancewith the provisions of the Code.

(3) . . . . . . . . . . . . . . . . . .

(4) Notwithstanding anything contained in sub-section(3), the occupancy of the Mahar watan land re-grantedunder sub-section (1), shall not be transferable or partiableby metes and bounds without the previous sanction of theCollector and except on payment of such amount as the State Government may, by general or special orderdetermine.

7. By virtue of Section 4 of the Act of 1959, inferior villageWatans came to be abolished. All incidents appertaining to thesaid Watans stood extinguished. Watan lands stood resumed tothe Government and became subject to the payment of landrevenue under the provisions of the Code and the Rules madethereunder as if it were unalienated land.

8. By virtue of Section 5 of the Act, the Watan Landresumed by the Government, became liable to be regranted to theWatandar of the Watan, to which it appertain on payment by or onbehalf of the Watandar, to the State Government of the occupancyprice.

9. In the case at hand, the writ land came to be resumedby the State Government. The mutation came to be effected inthat regard way back in February 1961. There is no evidence toindicate that the father of the petitioner or anyone through him gotthe writ land regranted in their favour on payment of theoccupancy price. As such, the writ land continued to belonged tothe State Government. The record indicates that, still the petitioner’s father ventured to sell the said land on 8.2.1968 toPandu Ganu Pate. Mutation Entry (No.1440) came to be effected,giving effect thereto in the revenue record. The purchaser PanduPate passed away in or about 1978. He was survived by his son –Tukaram and one daughter. Tukaram sold the said land to therespondent No.1 herein in February 2008 for a consideration ofRs.1,45,000/-.

10. It appears that, the petitioner could not digest the factthat the writ land came to be purchased by the respondent No.1.The petitioner, therefore, preferred application to the Collector on20.8.2011, requesting for enquiring into the transaction of saledated 8th February 2008. The petitioner conveniently kept silentto disclose that his father had sold the land way back in 1968. TheAdditional Collector did enquire into the transaction. After givingopportunity of hearing to the petitioner, respondent No.1 andPandu Pate, the Collector and was pleased to pass the order,declaring the sale deed to be illegal one.

11. In my view, after the writ land was resumed by theGovernment, after passing of the Act of 1959, it no longerremained with the father of the petitioner. He failed to get the said land regranted in his favour till the petitioner’s father sold the saidland in 1968. When he sold the said land, he did not have right,little and interest therein. The petitioner, in the year 2011, i.e. aftertitle over 43 years, moved the application to the AdditionalCollector for making enquiry into the sale transaction. In my view,the Additional Collector should not have heard the petitioner in theaforesaid factual backdrop. True, the revenue authorities couldhave, on their own enquired into the sale transaction that tookplace in breach of the provisions of the Act of 1959. It appearsthat, the petitioner, with an oblique motive, moved the application,asking for enquiring into the sale deed. Be that as it may.

12. Section 3 of the Act of 1959 reads thus :

'3. (1) If any question arises, –
(a) whether any land is watan land,
(b) whether any person is a watandar,
(c) whether any person is an unauthorised holder,

the Collector shall, after giving the party affected anopportunity to be heard and after holding an inquiry,decide the question.

(2) Any person aggrieved by such decision may file anappeal to the State Government within ninety days ofsuch decision.

(3) The decision of the Collector, subject to an appealunder sub-section (2) and the decision of the StateGovernment in appeal under sub-section (2), shall befinal.'

13. The decision of the Collector is subject to an appeal tothe State Government.

Section 18 of the Act authorizes the State Governmentto delegate to any of its officers not below the rank of a Collector,all or any of the powers conferred on it by the Act of 1959.

14. By Bombay Government Gazette dated 25.3.1975, theState Government exercised its powers under sub-section (2) ofSection 3 of the said Act to all Additional Commissioners ofDivision. As such, the Additional Commissioner was competentenough to decide the proceedings filed against the decision of theAdditional Collector, dated 15.9.2012.

15. It is true that the proceedings before the AdditionalCommissioner were titled as Revision Petition under Section 257of the Maharashtra Land Revenue Code, 1966. It is also true that,nature of revisional powers may differ with the powers to be exercised as an appellate authority. The title of the proceedingswould further indicate that it was registered as an appeal, beingNo.492/2012. The learned Additional Commissioner, relying uponjudgment of the Division Bench of this Court, directed to regularizethe sale deed. It may sound that the Additional Commissioner hastravelled beyond his powers as an appellate authority. The fact,however, remains that, in view of the law laid down by the DivisionBench in case of Kacharu s/o Bhagaji Gaikwad & ors. Vs. Smt.Sheela w/o Ramesh Mittal & ors. (Writ Petition No.3220/1990),sale transaction executed in breach of Section 5(3) of the Act of1959 could be regularized by ex-post-facto sanction. The saidpower has been exercised by the Additional Commissioner. Thepetitioner, having lost right, title and interest in the land way backin 1968, could not be heard to dig out the claim after 43 years ofthe land having been resumed by the Government.

16. It is a well settled proposition of law that, quoting of awrong provision does not take away jurisdiction of authorities/Court under the Act. Therefore, even the proceedings before theAdditional Commissioner may title as revision instead of anappeal, there was no jurisdictional error committed by theAdditional Commissioner in deciding the proceeding.

17. Reliance on the judgment of Ramchandra DagduSonavane (Dead) by L.Rs. & ors. Vs. Vithu Hira Mahar (Dead)by L.Rs. & ors. [2010 AIR (SC) 818] is of no avail to thepetitioner. In the factual backdrop. The facts of the said casewould indicate that the Collector’s decision had become final sinceno appeal was preferred to the State Government under Section 3of the Act of 1958. In the case in hand, the revision petition-cumappeal was preferred to the Additional Commissioner, as he wasauthorized to hear and decide the same by virtue of the delegationof the powers under the aforementioned Government Gazettedated 25.3.1975.

18. The learned counsel for the petitioner, relying on thejudgment in the case of M/s Sneh Enterprises Vs.Commissioner of Customs, New Delhi [Appeal (Civil)No.706/2005], would submit that the issue involved was pertainingto interpretation of taxing provision. The Court held that, theprinciple of strict interpretation should be applied. The Court shallnot interpret the statutory provisions in such a manner whichwould create an additional fiscal burden on a person.

19. I am afraid, as to how the learned counsel for the petitioner could be heard to rely upon the judgment in the case ofM/s Sneh Enterprises (supra). Same is the case about relianceplaced on the judgment of the Division Bench of this Court in caseof Amrutrao Shankarrao Deshmukh & anr. Vs. LaxmanTulshiram Pawar & ors. [2011 (4) AIR Bom. R. 696]. The factsof the said case would indicate that the State Government haddelegated its powers of hearing of the appeal to the Officer onSpecial Duty. The Division Bench relied on the judgment of theanother Division Bench in case of Ganeshrao KishanraoDeshmukh Vs. Devisingh Venkatasingh [AIR 1972 Bom. 369].Reference to para 7 would itself indicate that, looking to thescheme of the Statute, the Court found that power could not bedelegated to another person or authority in absence of thestatutory provisions authorizing such delegation. The Court wasdealing with the provisions of the Hyderabad Abolition of Inams(amendment) Act, 1956. Here, we are concerned with theprovisions of the Act of 1959.

20. The another judgment relied upon pertains to theprovisions of Right to Information Act, 2005 [2012 AIR (SC) 864].There, the question was as to nature of powers under Sections 18and 19 of the Right to Information Act.

21. In short, the petitioner’s father did not get the landregranted in his favour on payment of ‘Nazrana’ after the land wasresumed by the Government in terms of Section 5 of the Act of1959. Since then, the petitioner’s father did not have right, title orinterest in the writ land. Still, he ventured to sell the said land toPandu pate way back in 1968. The petitioner’s father, and afterhim the petitioner kept mum until 2011. After about 43 years, thepetitioner moved the application that too without disclosing the factthat his father sold the land. Thus, the petitioner s

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eems to havean oblique motive. Meanwhile, the land changed hands. Therespondent No.1 purchased the land for consideration ofRs.1,45,000/-. The Additional Commissioner directed to regularizethe said sale transaction. The Division Bench of this Court (WritPetition No.3220/1990) has held that, permission for sale of theland under Section 5(3) can be granted ex post facto. It means,the sale executed in breach of provisions of Section 5 could beregularized by granting ex post facto sanction. True, the writ landbelongs to the State Government. The respondent No.1purchased from someone else and not from the StateGovernment. I, therefore, propose to direct the State Governmentthat, while regularizing the impugned sale instance, the respondent No.1 be directed to pay the State Government price ofthe land at the ready reckoner rate prevailing at the time the saledeed was executed in 2008. If the respondent No.1 fails to paythe same, the State Government would be at liberty to summarilyevict him from the land. The aforesaid directions are necessary soas to ensure that the loss caused to the State exchequer is madegood. 22. For the aforegoing reasons, the Writ Petition fails. Thesame is, therefore, dismissed. Rule discharged. The AdditionalCollector, who has been directed by the Additional Commissionerto regularize the sale instance, is expected to get deposited fromrespondent No.1 the price of the writ land at the ready reckonerrate prevailing at the time the sale deed was executed in 2008,and not the ‘Nazrana’ amount, in multiples of the land revenue ofthe writ land. It is expected of the Additional Collector, Jalna tocomply with the directions given in this judgment at the earliest.
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