1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5722 OF 2009 1) Shri Ajaykumar s/o Madhavanand Udasi, Age: 48 Yrs., occu. Priest, r/o Alwal, District Rangareddy (A.P.) 2) Dr. Sureshchandra s/o Dindayal Udasi, Age: 68 yrs., occu. Retired Veterinary Officer, r/o Sai Prestige Colony, Pune. - PETITIONERS VERSUS 1) The State of Maharashtra Through Secretary, Revenue Department, Mantralaya, Mumbai-32. 2) The Collector, Nanded District Nanded. 3) The Deputy Director of Land Records, Aurangabad Region, Aurangabad. 2 4) The Superintendent of Land Records, Nanded District Nanded. 5) The Taluka Inspector of Land Records, Nanded, District Nanded. 6) The Tahsildar, Nanded, District Nanded. 7) The Circle Officer, Nanded, Dist. Nanded. 8) The Talathi, Nanded, District Nanded. - RESPONDENTS ***** Mr.MV Ghadage, Adv. h/for Mr. B.N.Gadegaonkar- Patil,Advocate for Petitioners; Mr.VH Dighe,AGP for Respondents. ----- CORAM : NARESH H. PATIL & K.U.CHANDIWAL, JJ. DATE : 4th December, 2009. JUDGMENT (PER: K.U.CHANDIWAL,J.) . Rule. Rule made returnable forthwith and 3 heard finally. 2) The petitioners claim to be co-owners and possessors of land bearing CTS No.2930 admeasuring 4 acres and 38 gunthas situate at Nanded (for short, said land). The petitioners have prayed – a) The panchanama dated 3rd August, 2009 drawn by respondent no. 7 – Circle Officer, Nanded, showing taking of possession of the said land, be declared illegal, null and void and it be declared that the petitioners are in possession of the land or their possession of the land be restored; and b) The respondents be prohibited from interfering with the peaceful possession of the petitioners until final decision in the revision petition pending before the State Government and four weeks thereafter. 3) The petitioners contend that the said land belongs to them since last 100 years. They have City Survey record to show their possession and ownership and some portion of the land 4 acquired for 50 ft. wide road, was accepted and they got the compensation of Rs.13,685.21. The petitioners contend that indeed this land was donated/gifted by Nizam to Udasi Aashram. In a litigation in RCS No.281/1976, the decision is in favour of the petitioners as the Government did not object about the ownership. The City Survey having effected in 1970, accepts ownership of the petitioners. 4) The petitioners contend that the Judgment and order passed by the Dy. Director of Land Records, Aurangabad Region dated 28th July, 2008 was challenged before the State Government in Revision Petition No.317/2008. The revision petition is not yet taken for hearing in spite of several requests of the petitioners and pending before the State Government. In paragraph 18, the petitioners have reiterated that they are in possession of the said property or that the panchanama drawn by the authorities is false and bogus, as it was without any notice to the 5 petitioners. 5) Respondent nos. 2, 6, 7 and 8 have filed affidavit in reply of Mahesh s/o Ajabrao Wadadkar, Tahsildar Nanded. The affiant denied the contentions of ownership, as indicated by the petitioners herein and justified drawing of panchanama dated 3.8.2009 by the Circle Officer taking possession of CTS No.2930 by the Government. 6) It was informed that any action in respect of Government property interse taken by private parties in civil court will not have its binding effect on ownership of the Government. The Deputy Director of Land Records has taken all the aspects in consideration in his order dated 10th May, 2001, against which, Writ Petition Nos. 62/2004 and 4209/2001 were filed and the matters were remanded to the Appellate Authority by order dated 13th February, 2008. Thereafter the Deputy Director of Land Records has heard the parties 6 and passed the order, confirming the earlier order dated 10th May, 2001. 7) The developmental activities carried by Nanded-Waghala Municipal Corporation for road widening interfering in certain portion of land CTS No.2930 was tested by Smt. Mangaladevi Sudarshan Udasi and 3 others by RCS No.21/2007 before the learned Joint Civil Judge, Senior Division, Nanded, wherein the orders of status quo were passed. However, the same was challenged by the State in Misc. Civil Appeal No. 19/2008 and it was directed that the plaintiffs’ possession of the suit property should not be disturbed otherwise than due process of law. It was thereafter the Tahsildar, Nanded has issued notices dated 24.7.2009 in terms of Section 50 of Maharashtra Land Revenue Code, 1966 to the plaintiffs in RCS No.21/2007, seeking restoration of the possession of CTS No.2930. Since it was not handed over, the Talathi took possession on 3rd August, 2009. The petitioners challenged the 7 said action by filing RCS No.428/2009 before learned Civil Judge, Senior Division, Nanded, wherein State filed its reply, pointing the court that the property belongs to the Government and by order dated 14th October, 2009, the request of the plaintiffs in the said case, i.e. the petitioners, came to be rejected. 8) As stated earlier, RCS No.281/1976 filed by the petitioner no.2 against few of other so- called co-owners, would not bind the property rights of the State since the State was not a party and the said suit is not decreed on merits, it was on a consensual written statement. 9) Though we find that in the year 1978 compensation was paid to the petitioners, however, by that itself would not accelerate the title to the petitioners over the property or to their forefathers. 10) During the course of submissions, 8 specific query was put to the learned Counsel to show any document preceding the so-called city survey of 1970, showing the names of the petitioners to the corresponding old record. However, the learned Counsel could not put up any such record, barring flashing so-called 100 years old revenue record, which, in the facts and circumstances, is difficult to connect to the disputed property and that too in continuation. If indeed, either the petitioners or their forefathers were legally in use and enjoyment of the property, it follows that there should have been relevant revenue entries as the property is referred in acres and gunthas. There is nothing to demonstrate as to when the property was converted from agricultural to non-agricultural user. Existence of any well in the property by itself at this stage will not bestow ownership. 11) Learned Counsel took recourse to the Judgment in the matter of Sarla wd/o Pralhadrao Deshmukh Vs. State of Maharashtra and Ors – 2009 (6) Mh.L.J. 187. It was a case, where the 9 Collector requisitioning the property of the petitioner for public purpose, and it was alleged that no personal hearing was given. No such eventuality is emerged in the present factual details. 12) In the matter of Bhima Nana Savekar Vs. The Collector of Kolhapur and Ors. - 1999 (2) ALL MR 126, which pertains to the controversies under the Bombay Tenancy and Agricultural Lands Act, 1948 and also the Maharashtra Land Revenue Code. In that case, the land belonged to Deosthan was given to the appellant for cultivation. The learned Single Judge of this Court observed that possession of the land can be taken after following procedure under Section 242 of the Maharashtra Land Revenue Code, 1966. 13) In the instant case, the learned Tahsildar has directed the petitioners to furnish their documents to indicate and establish their possession as to owners of the property by notice 10 dated 24.12.1979 and directed them to remove the encroachment in terms of Section 50(3) of the Maharashtra Land Revenue Code, 1966. The reply to the said notice is indicative that the petitioners did not produce any record and sought time of two months from the learned Tahsildar. Thus, effective hearing, as contemplated under the Act, was given to the petitioner. 13) In the matter of M/s Kellogg India Pvt. Ltd. Vs. Union of India – 2005 (4) ALL MR 64, the Division Bench of this Court considered the scope of existence of alternative remedy to be no bar to a writ jurisdiction, where it is alleged that the authority below has acted and proceeded to pass order in violation of principles of natural justice. 14) The overall analysis of the documents annexed with the petition coupled with the submissions referred above, at this stage, indicate that the revision is moved by the 11 petitioners herein which is pending before the Hon’ble Minister and it should have been better for the petitioners to have waited for adjudication of the revision. However, since the matter is taken in writ court, no interference in the action of the authorities is desirable. We do not find any merit in the petition, it is accordingly dismissed. Rule discharged. (K.U.CHANDIWAL) (NARESH H. PATIL) JUDGE JUDGE bdv/wp5722.09 fldr.25.11.09