: 1 : wp-4857-10.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4857 OF 2010 Husseinkhan Abdullah Khan (Decd) Through LRS & Ors.... Petitioners V/s. Dadaji Waman Khairnar ... Respondent Mr. N.V.Walawalkar, Senior Advocate with Mr. A.R.Shaikh for the Petitioners Mr.S.G.Karandikar for Respondent CORAM: S.C.DHARMADHIKARI, J. DATE: AUGUST 10, 2011. P.C.: 1 This Writ Petition under Article 227 of the Constitution of India is directed against the order dated 9-4-2010 passed in Revision Application No.18/B/2003. By this order, the Learned President of the Maharashtra Revenue Tribunal has allowed the Revision Application. That has been preferred by the Respondent. The Learned President has set aside the order dated 30-11-2002 in Tenancy Appeal No.6 of 2001 which has been passed by the Sub Divisional Officer, Malegaon. 2 The Petitioners are the original Respondents before the Maharashtra Revenue Tribunal. The Respondent before me is the original Applicant. He filed the Revision Application because the SDO Malegaon passed an order dated 30-11-2002 in Tenancy Appeal No.6 of 2001. That : 2 : wp-4857-10.sxw appeal was preferred by the present Petitioners to challenge the order dated 3-6-2001 of the Tahsildar Chandwad. 3 The dispute pertained to certain agricultural lands in Block No. 158/2, admeasuring 6H 95R situated at Village Kokankhede, Taluka Chandwad. The Petitioners were the owners of this land. The Petitioners have alienated the portion of 3H 90R to the Respondent before me, by a registered Sale Deed dated 8-1-1993 accepting the consideration of Rs. 1,40,000/-. The Respondent was put in possession of this land. He has developed this land and constructed a farm house. A complaint was made to the SDO on 3-2-1993 alleging that this land was not partitioned between the owners. The land was of a restricted tenure, despite this, the Petitioner alienated the said amount in breach of the conditions. They did not obtain permission from the Collector prior to transferring this land. Similar complaint was filed by one Noorjahan to the Village Talathi. After these complaints, the Tahsildar issued notice to the Respondent so also the Petitioners calling for their explanation as to why the sale should not be declared invalid and the land forfeited to the Government. The Respondent appeared before the Tahsildar. He gave no objection for taking action under Section 84C of the Bombay Tenancy and Agricultural Land Act, 1948. By order dated 11-5-2001, the Tahsildar declared that the property vested in the Government as the transfer was made in the contravention of Section 43 of the Act. The Mutation Entry No.1045 to that effect came to be : 3 : wp-4857-10.sxw recorded. 4 The Tahsildar issued a public notice for the disposal of the land. The Respondent made an application on 20-6-2001 and showed his willingness to purchase the land. The Tahsildar Chandwad, by his order dated 30-6-2001, granted the property to the Respondent by invoking Section 32P of the Act for price of Rs.638/-. That price was deposited and the certificate came to be issued on 4-7-2001. 5 The order passed by the Tahsildar on 30-6-2001 was challenged by the present Petitioners before the SDO, Malegaon, by filing Tenancy Appeal No.6 of 2001. That appeal was allowed and the Tahsildar’s order came to be set aside. Aggrieved by the order of the SDO, the Respondent approached the Maharashtra Revenue Tribunal and by the impugned order that Revision Application was allowed, SDO’s order was set aside and that of the Tahsildar restored. 6 Mr. Walawalkar, Senior Counsel appearing for the Petitioners contended that the Tribunal was in error in allowing the Revision Application. The SDO had rightly set aside this order. He submits that the Government has not published any priority list before disposal of the land, no notice was given to the land owners. In fact, there has been no public notice and inviting my attention to Rule 21 of the Bombay Tenancy and Agricultural Land, Rules, 1956, it is submitted by Shri Walawalkar that the public notice cannot be general in nature. The notice must be published : 4 : wp-4857-10.sxw village wise. There is no proof of publication of the notice in Village Kokankhede. Once there is no such proof, then, the SDO has rightly set aside the Tahsildar’s order. If the Tahsildar’s order has been set aside by the SDO, in these circumstances, then, the Maharashtra Revenue Tribunal should not have interfered with a finding of this nature in its limited jurisdiction. The order passed by the Tribunal is vitiated by non application of mind and error apparent on the face of the record, it should be set aside. 7 On the other hand, Mr. Karandikar on behalf of the Respondent supported the order of the Tahsildar and the Tribunal by contending that if the Tribunal has perused the entire record and found as a matter of fact, that the Talhati exercises powers in common for more than one village, yet, he published a notice in each of the villages. If that is the position, then, there cannot be any breach of the Rules. The Rules do not require individual notice to be published, but a public notice. Therefore, the impugned order should not be set aside. 8 For satisfying myself as to whether there was a proper publication as urged by Shri Walawalkar, the record and proceedings were called for. The records and proceedings came to be remitted to this Court. Both sides inspected the said notices and the said records. The record indicates that the price was fixed on 21-6-2001. Further notice was issued by Tahsildar, and this was a notice under Rule 21(1) of the Rules. That notice was directed to be published in four villages Dukan, Shingave, Uswad and : 5 : wp-4857-10.sxw Raipur. The notice described the land which was situated in Village Kokankhede. Further, the report of Talhati Saja, Dondgaon is placed on record which shows that the notice was published on the notice board at the Village Dondgaon, Shisave, Kokankhede and Uhiroda. These reports are placed on record. These reports have been perused by the Tribunal as well. Further, the record indicates that there is a statement of the Tahsildar as well. In such circumstances, the Tribunal concluded that there is a report about the publication of the notice in the Tahsildar’s office. The notice has been published in the near by villages. In pursuance of the notice, only, the Respondent filed an Application dated 20-6-2001 showing his willingness to purchase the land on depositing the price to be determined. He stated that he is a land less person having no land and, therefore, the grant be made in his favour for personal cultivation. It is in pursuance of that the Tahsildar granted the land to him. There was no reason for the SDO to interfere with such an order in as much as, what has been observed by the SDO that the land was forfeited to the Government. If the land was forfeited to the Government and ultimately it has to be allotted, then, the SDO opined that the land has not been purchased by the tenant and, therefore, the Respondent not being a tenant, the allotment/grant in his favour cannot be sustained. It was contrary to law. 9 All throughout, it was nobody’s case that the Respondent is a tenant. He has categorically stated that the land was sold to him under the sale : 6 : wp-4857-10.sxw Deed dated 8-1-1993 by the Petitioners. However, that sale deed was objected by the co-sharer on the ground that there was no partition. However, no permission was taken under Section 43 and, therefore, the sale was invalid. If it was declared invalid and the land was forfeited to the Government under Section 84C of the act, then, such land is free for allotment and grant by the Government. When there is a mechanism provided by law and Section 32 P can be resorted to, but compliance there with has to be made, then, the grant in favour of the Respondent cannot be faulted. The Maharashtra Revenue Tribunal has, therefore, rightly reversed the order of the SDO, Malegaon. The Maharashtra Revenue Tribunal has observed that there is compliance with the Rules requiring notice. The priority list in clause (c) includes a land less person. There have to be either co-operative farming society or agricultural labourers. There was no application from any farming society of agricultural labourers or any agricultural labourer. In these circumstances, the land was allotted to a landless person like the Respondent. The only argument was that there was no notice served on the Petitioners. Once a public notice was issued under Rule 21 by the Tahsildar, then the land could have been disposed of. The Petitioners had no right in the land in as much as, the land was forfeited to the Government. 10 For all these reasons, the finding of fact recorded by the Tribunal does not call for any interference in the writ jurisdiction as it is not vitiated : 7 : wp-4857-10.sxw by any error apparent or perversity. The Writ Petition is dismissed, but without any costs. (S.C.DHARMADHIKARI, J.)