GITABAI Vs. SAYYED MAINUDDIN
LAWS(BOM)-2020-4-17
HIGH COURT OF BOMBAY
Decided on April 27,2020

GITABAI Appellant
VERSUS
Sayyed Mainuddin Respondents

JUDGEMENT

- (1.) By way of this writ petition, the petitioner is challenging the judgment and order dated 04.10.1995 passed by the Additional Commissioner, Aurangabad Division, Aurangabad in Case No.1993-REV-R-110. The petitioner has prayed to quash and set aside the said order passed by the Additional Commissioner by confirming the order passed by the Tahsildar Udgir, Special Land Acquisition Officer, Latur and Additional Collector, Latur in respect of sanctioned of Mutation Entry No.08 regarding occupancy rights of the petitioner in respect of suit lands.
(2.) Brief facts giving rise to the present writ petition are as follows: (a) The dispute in this litigation pertains to the four field properties bearing Survey Nos.84/1, 84/2, 85/1 and 85/2, in all measuring 20 acres 20 gunthas situated at village Nideban, Taluka Udgir. These landed properties originally belonged to deceased Inamdar Sayyed Nuruddin S/o Sayyed Kadar. These fields were 'Inam Madad Mash'. According to the petitioner, the above stated lands were in possession of and being cultivated by him as a tenant on behalf of Inamdar since prior to 1950. The petitioner further contends that he was granted 'Protected Tenancy Certificate' by the Tahsildar, Udgir under Sections 35 and 37 of Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short, "Hyderabad Tenancy Act"). According to the petitioner, he remained in possession of the aforesaid field properties throughout till date including the date of vesting of lands with the Government under the provisions of the Hyderabad Inams and Cash Grants Act, 1954 (for short, "Act of 1954") and since he happened to be a permanent tenant of Inamdar, he was granted occupancy rights under Section 2-A (1) (vi) of the said Act of 1954 . According to the petitioner, by the order of Tahsildar, Udgir dated 31.08.1961 in Case No.Inam/9/1/M/61, the petitioner was directed to pay occupancy price and he was declared entitled to the occupancy rights as such in respect of those four field properties. As per directions of Tahsildar, Udgir, vide order dated 31.08.1961, the petitioner had paid occupancy price by depositing requisite amount in the Treasury and applied to the Tahsildar, Udgir, after completing necessary formalities for mutation entries in the revenue record in respect of the suit field properties on the strength of occupancy rights granted to him under Section 2-A (1) (vi) of the Act of 1954. (b) After hearing both sides, the Tahsildar Udgir, by judgment and order dated 17.07.1975, directed the village Talathi to enter name of the petitioner as an occupant of suit lands. According to the petitioner, on production of receipts showing the credit of occupancy price and execution of Agreement Bond, Tahsildar, Udgir, issued order to the village Talathi for recording entries in the ROR dated 02.04.1976 and accordingly, the village Talathi recorded Mutation Entry No.8 in favour of the petitioner in the ROR. (c) Being aggrieved by the judgment and order passed by the Tahsildar dated 17.07.1975, respondent no.1's father, namely, Sayyed Nuruddin had preferred an appeal to S.D.O, Udgir and by order dated 14.05.1992, the Special L.A.O., (S.P.), Latur, in File No.1975/ROR/72, dismissed the same. Meanwhile, original Inamdar i.e. Sayyed Nuruddin died and his son Mainuddin (present respondent no.1) preferred an appeal to the Collector, Latur against the order passed by the S.D.O, Udgir dated 14.05.1992. By judgment and order dated 23.04.1993, learned Additional Collector, Latur was pleased to dismiss the same, confirming the orders of both the courts below. (d) Being aggrieved by the judgment of the Additional Collector, Latur dated 23.04.1993, respondent no.1 herein had preferred the Revision before the Commissioner (Revenue) Aurangabad Division, Aurangabad and by judgment and order dated 04.10.1995, the Commissioner (Revenue) Aurangabad Division, Aurangabad in Case No.1993/REV-R-110 allowed the said Revision and set aside the orders passed by the authorities below. Hence this writ petition.
(3.) Learned counsel for the petitioner submits that the impugned judgment and order passed by the Additional Commissioner is contrary to law and not sustainable on the strength of material on record. Learned counsel submits that the Additional Commissioner has committed grave error in holding that the order of Tahsildar, Udgir dated 31.08.1961, vide Exhibit-B, was without jurisdiction. Learned counsel submits that as per legal position, as it stood with the Government of Maharashtra, Revenue Department, Circular No.HIA-1059-VI-L, Sachivalaya, Bombay, Bombay dated 09.07.1960, the powers of the Collector under Section 2-A (1) (vi), of the Act of 1954 were delegated to the Tahsildar and that is why the said order granting occupancy rights of the suit lands to the petitioner could not have been held as nullity and void ab initio by the learned Additional Commissioner. Learned counsel submits that the order dated 31.08.1961 in the matter of occupancy rights of suit lands bestowed on the petitioner had become final and conclusive in absence of any action taken for challenging the same by original Inamdar Sayyed Nuruddin or his son Sayyed Mainuddin (respondent no.1 herein) till date. Learned counsel submits that the Additional Commissioner has also committed an illegality in holding that no enquiry has been conducted by the Tahsildar, Udgir, while granting occupancy rights in respect of the suit lands to the petitioner vide order dated 31.08.1961. Learned counsel submits that the learned Additional Commissioner has committed an error in holding that the possession of the petitioner over the suit lands is not lawful on the ground that he was not a lawful tenant and his possession was also not legal. These findings are perverse and contrary to the record and the legal position as well. Learned counsel submits that the petitioner is in lawful possession of suit lands as a permanent tenant of Inamdar Sayyed Nuruddin since prior to 1950 till date with the grant of 'Protected Tenancy Certificate' so also grant of occupancy rights to him on 31.08.1961. Learned Additional Commissioner has erred in holding that the petitioner's possession over the suit lands was not legal. Learned Additional Commissioner has also erred in applying the ratio laid down in the case of Dattatraya Sadashiv Dhond Vs. Ganpati Raghu Gauli (1965) Mh.L.J, 881, as the facts of the case were quite different. Learned counsel submits Circular No.HIA.1069.LI dated 20.11.1969 issued by Government of Maharashtra, Revenue and Forest Department, Sachivalaya, Bombay-32 also clearly shows that the Tahsildar, Udgir had the powers as delegated to him to grant occupancy rights to the petitioner in respect of suit lands under Section 2-A (1) (vi) of the Act of 1954. Learned Additional Commissioner has failed to go through the said circular and get himself apprised of the legal position in the matter. ;


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