wp10219-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10219 OF 2010 Arun T. Ovhal & Ors .. Petitioners versus M/s.Harshvardhan Infrasctructure Pvt Ltd & Ors .. Respondents Mr.Shekhar Naphade, Sr.Adv with Mr.Mukul Taly, Mr.Kapil Shetye & Ms.Mallika Taly i/by M/s.K.P.Tiwari & Co for the petitioners. Mr.S.R.Nargolkar, Addl. G.P for respondent Nos.1 to 4. Mr.V.A.Thorat, Sr.Adv with Mr.R.A.Thorat & Mr.P.J.Thorat for respondent No.5. Mr.Harshad Shingnapurkar i/by Mr.Amit B. Borkar for respondent Nos.18 and 51. CORAM : S.C.DHARMADHIKARI, J. DATE : 28th JUNE 2011. P.C.: 1] By this petition under article 226 of the Constitution of India the petitioners are challenging the order passed by the Minister of Revenue and Forest, Government of Maharashtra dated 4th November 2010 Annexure T and that of the Collector, Pune dated 17th June 2008 Exh.L. The prayer clause (C) of the wp10219-10.doc 2 petition reads thus:- “(C) This Hon'ble Court may be pleased to direct respondent No.2 to expeditiously and extensively hear and dispose off Appeal of the petitioners bearing No.RM/MH/46/2005 pending on the file of the respondent No.2 within such period as this Hon'ble Court may think fit and proper.” 2] Mr.Naphade, learned Senior Counsel appearing for petitioners has taken me through the impugned order and has contended that the petitioners have a common ancestor Mahadeo Ovhal. He was sole Mahar Vatandar of Village Vanavdi, Pune. After the attention of the Court is invited to the description of the property and the earlier proceedings, it is contended by Mr.Naphade that the land was sought to be resumed but in 1994 that Act of Resumption was set aside and reversed and it was declared that the property is Vatan land and be dealt with in accordance with provisions of Bombay Inferior Village Vatan Abolition Act, 1958 (for short Abolition Act). 3] It is alleged that the matter was again carried to the wp10219-10.doc 3 Minister of Revenue and Forest after a gap of 7 years. He issued certain directions. That proper enquiry be held as to who are the real vatandar and who are the legal heirs. Reliance is also placed on an amendment made in the year 2002 to the Abolition Act. It is stated that Shashikant Yadav, son of petitioner No.7 filed an application praying that petitioners are the legal heirs of the Vatandar. That application was made on the basis of heirship certificate issued by the Civil Judge, Senior Division, Pune. Without considering that application, on 2nd May 2003 the respondent No.3 to this petition who is Collector, Pune passed an order re-granting the said Mahar Vatan property. The petitioners tried to approach the Collector by pointing out that there is grave injustice in the light of the documents that have been produced by the petitioners. The petitioners then pursued certain proceedings which they were advised as not being maintainable. 4] Mr.Naphade submits that the petitioners approached the State Government by preferring an appeal under section 3(2) of the Abolition Act. This appeal was filed on 18th August 2005. That appeal is still pending. He submits that the Abolition Act wp10219-10.doc 4 read in its entirety would demonstrate that there is no other authority which can determine the issues raised therein. Reliance is also placed on a judgement of the Supreme Court in this behalf. 5] However, the civil suit came to be filed being Regular Civil Suit No.1147 of 2007 which was decreed ex parte against the petitioners and their family members. That decree upon knowledge of the petitioners was challenged and impugned by filing an appeal before the Dist. Court Pune. The Dist. Court has passed an order of status-quo staying the judgement and decree of the trial court. It is in such circumstances that the petitioners came to know that respondent No.5 was granted prior sanction by the Collector for transfer of lands in which the petitioners have claimed interest and status quo as aforementioned. Upon coming to know that some lands are involved in the appeal and the proceedings before the Dist. Court, the petitioners approached the Authority by filing an intervention application. On that intervention application extensive oral and written arguments were heard and tendered. Similarly, the petitioner's appeal before wp10219-10.doc 5 the State Government is pending. However, without in any manner deciding the pending appeal preferred by the petitioners under section 3(1) of the Abolition Act, the Minister of Revenue confirmed the order dated 17th June 2008 passed by the Collector granting prior sanction for sale of the property. 6] Mr.Naphade submits that without any reference to the stay granted by the Dist. Court and to the pending appeal under section 3(1) of the Abolition Act in which status of the petitioners is in issue, the permission has been granted. The impugned order is completely vitiated by non application of mind because Minister's reference is to some proceedings in this Court. Instead, the petitioners did not make any reference before the Minister to any proceedings pending in this Court but in the Dist. Court Pune. In these circumstances, when the lands, if ultimately held to be covered by the Abolition Act are not capable of any alienation, then, the sanction must fail. There was no reason to rush up that aspect of sanction for alienation of the said property without in any manner determining and adjudicating vital issues which are involved in the pending appeal under section 3(1) of the wp10219-10.doc 6 Act. For all these reasons, according to him this is a fit case for interference in writ jurisdiction and appropriate directions to dispose of pending appeal be issued after the order under challenge is set aside. 7] Mr.Thorat learned Senior Counsel appearing for respondent No.5 purchaser on the other hand submits that the Minister was approached by the first respondent. Respondent No.5 was granted prior sanction by the Collector on 17th June 2008. That order was stayed by the Minister of Revenue because of the pendency of the appeal of the petitioners but the allegation is behind their back, the hearing was conducted and an order was passed on 22nd July 2009. The order was challenged before the Division Bench of this Court which set aside the order dated 22nd July 2009 and remand was ordered. It is during the course of such remand intervention application was filed. Once the Minister was ceased of the intervention application, he has taken up the matter pursuant to the orders of this Court. Therefore, he cannot be faulted for having conducted a hearing only on the application seeking transfer of the lands. However, without prejudice to the wp10219-10.doc 7 rights and contentions of respondent No.5, Mr.Thorat submits that if this Court is inclined to give directions for disposal of the appeal preferred by the petitioners under section 3(1) of the Abolition Act, the 5th respondent will not precipitate the matter by concluding the sale or taking any steps in furtherance of the order of sanction dated 17th June 2008. However, this Court should protect the interest of both sides accordingly. 8] After this matter was argued for some time, in my view, bearing in mind, pendency of the appeal under section 3(1) of the Abolition Act, interest of justice would be served if without expressing any opinion on the rival contentions, it is directed that the appeal be disposed of. Mr.Naphade, learned Senior Counsel on instructions states that other respondents to this petition have been duly served and particularly newly added as parties. The affidavit of service is also filed. Bearing in mind the limited direction that I propose to issue, it is not necessary to issue notice against these newly added parties as no prejudice would be caused to their interest. The petitioners and even these newly added parties are parties to the appeal under section 3(1) of the wp10219-10.doc 8 Abolition Act. Now even respondent No.5 is ready and agreeable to the course of disposal of this appeal and even respondent No.5 would, therefore, be party before the State Government. In these circumstances, this petition is disposed of with a direction to the Secretary, Department of Revenue and Forest, Government of Maharashtra, to take up the appeal that is preferred by the petitioners under section 3(1) of the Abolition Act and dispose of the same as early as possible and within a period of three months from the date of appearance of parties. This appeal which is filed on 18th August 2005 and details thereof are set out in paras 25 and 26 of this petition be decided by the said Secretary on its own merits and in accordance with law, without in any manner being influenced by the observations made in the order of the Minister which is impugned in this petition. Needless, therefore, to state that the order dated 4th November 2010 passed by the Minister of Revenue and Forest Department is set aside and the parties will abide by the direction as issued hereinabove. All contentions of all parties to this appeal are kept open and no opinion is expressed thereon. wp10219-10.doc 9 9] Till the disposal of this appeal and for a period of two weeks after the orders in that appeal are communicated to parties, the 5th respondent shall not take any steps in furtherance of the order dated 17th June 2008 of the Collector, Pune and conclude the sale in its favour. Petition disposed of accordingly. No costs. (S.C.DHARMADHIKARI, J)