1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.794 OF 1991. 1. Digambar Hiraman Saraf, Resident of Bhusawal, Jamner Road, Unt Mohalla, Bhusawal, Taluka Bhusawal, Dist.Jalgaon. 2. Ramdas Dina Patil(dead) 2A. Bhaskar S/o Ramdas Patil, Age 57 years, 2B. Tukaram S/o Ramdas Patil,, Age 55 years, 2C. Ramesh S/o Ramdas Patil, Age 47 years, 2D. Suresh Ramdas Patil, Age 45 years, 2E. Annapurnabai W.o Ramdas Patil, Age 73 years, 2(A) to 2(E) all resident of Khirdi (Kh.) and Raver, Tal. Dist.Jalgaon. 2F. Bhagirathibai W/o Laxman Bhirud, Age 59 years, R/o Nimbhora, Tal.Raver, Dist. Jalgaon. 3. Kitkul Changu Warke, Resident of Dahigaon, Taluka Yawal, Dist. Jalgaon. 2 4. Madhukar Trambak Chaudhari, Resident of Virode, Taluka Yawal,Dist.Jalgaon through their Power of Attorney Digambar Hiraman Saraf. ... Petitioners. Versus 1. The State of Maharashtra 2. The Assistant Collector, Jalgaon, Division Jalgaon. 3. Shriram Srivallabh Chowk Manager, Trustee, Shriram Mandir Sansthan, Bhusawal, Resident of Gangaram Plot, Bhusawal. ... Respondents. ... Ms.Vasundhara Kudmulwar, advocate for the petitioners. Mr.D.R.Kale, A.G.P. for the Respondent Nos.1 and 2. Mr.V.V.Deshmukh, advocate holding for Mr.V.J.Dixit, Sr. counsel for the Respondent No. 3. ... CORAM : V.R.KINGAONKAR,J. Date : 19.01.2010. ORAL JUDGMENT 1. By this petition, the petitioners impugn order dated 24.12.1990, rendered by the learned Assistant Collector, Jalgaon, whereby mutation entry No.8930 regarding the land bearing S.No.50 situated at Bhusawal was cancelled and 3 the land was directed to be restored to the Government. 2. The petitioners allege that after obtaining due permission of the Charity Commissioner, they purchased the land in question by virtue of a registered sale deed executed by the Archak and trustee of Public Trust called "Shriram Mandir Sansthan, Bhusawal". They allege that they became owners on the basis of sale-deed dated 27.4.1984. They would submit that they had obtained NA permission from the competent authority. They further submit that they submitted lay out plan to the Municipal Council for the purpose of dividing the land into plots. They have been granted permission to construct internal roads and drainage vide communication dated 6.9.1990 issued by the Municipal Officer. The petitioners allege that the land bearing S.No.50 was Devasthan property and due permission was given by the Charity Commissioner for alienation thereof and as such the transaction of sale was valid. They submit that their names were mutated vide mutation entry No. 4 15756 dt.8.2.1991. The Assistant Collector, Jalgaon had called upon them to show cause as to why mutation entry be not cancelled. However, without giving any proper opportunity to them, the learned Assistant Collector, in the course of same proceedings, forfeited the land to the Government while cancelling the mutation entry. They would submit that the the learned Assistant Collector, erroneously invoked the revisional jurisdiction and illegally directed restoration of land S.No.50 to the Government. Consequently, they submit that the impugned order rendered by the Assistant Collector, Jalgaon in the exercise of revision powers in suo-motu Revision NO. 2231/1990 be set aside. 3. Heard learned counsel and learned A.G.P. 4. Indisputably, land S.No.50 was Devasthan Inam land. It is class III inam. There is also no dispute about the fact that land S.No. 50 was granted in favour of Shriram Mandir,Bhusawal as per terms of Sanad issued by 5 the then Secretary of State in Council. The Sanad was issued in accordance with the order of the then Governor in Council of Bombay, on 30.3.1887. On perusal of the copy of Sanad, it is amply clear that the land was granted in favour of Shriramchandra Devasthan, Bhusawal. The recitals of the Sanad would make it clear that it was to be continued for ever by the then British Government as the endowment property of Shriramchandra Devasthan, Bhusawal. 5. It appears from the record that after commencement of the Bombay Public Trusts Act, 1950, Shriramchandra Devasthan was registered as a Public Trust. The land S.No.50 was recorded as the property of said Public Trust after due inquiry U/s 19 of the BPT Act. There is no dispute about the fact that the trustee (Archak) submitted an application for permission to alienate the land in question and the same was accorded by the learned Charity Commissioner on 2.12.1982. Copy of the permission issued is placed on record vide Exh.A). The permission issued U/s 36(1)(a) of the Bombay Public Trusts 6 Act, 1950 was conditional and the petitioners did comply with the conditions before the sale deed was executed in their favour. The names of the petitioners were recorded as purchasers. The learned Assistant Collector entertained suo-motu Revision against the mutation entry which was sanctioned. The learned Assistant Collector issued show cause notice dated 26.11.1990 (Exh.F.) calling upon the petitioners as well as the Trust to explain why the mutation entry be not cancelled as the transaction of sale was illegal. It is pertinent to notice that in the said show cause notice there was nothing to indicate as to how a prima facie opinion was formed by the learned Assistant Collector to infer that the sale transaction was illegal. The show cause notice is silent as regards the reasons on basis of which the transaction was prima facie found to be illegal. Needless to say, the petitioners could not have any reason to gather prior information as regards the contemplated action of forfeiture of the land and the nature of illegality alleged in respect of the sale transaction. In other words, they were 7 deprived from raising proper pleas in order to substantiate their contentions in support of the transaction and to demonstrate as to how the sale transaction was legal and proper. 6. It is worthwhile to notice that the Sanad discloses that there shall be no exemption from any local cess which was imposed or could have been imposed for the purpose of local improvement. The recitals of the Sanad further go to show that the land was fully assessed for the purpose of land revenue which was of Rs.15/-. The entries in the 7/12 extracts go to show that the land in question was never exempted from payment of land revenue. There is no material on record to infer that exemption was granted to Shriramchandra Devasthan from payment of the land revenue or any other revenue payable to the Government. 7. The impugned order is rendered by the leaned Assistant Collector in the exercise of powers available under clause (3) of Section 8 of the Exemptions From Land Revenue (No.l) Act, 8 1863. Section 8 of the said Act deals with lands held by the religious and charitable institutions. Clause (3) reads as follows : "Clause 3rd :- It is, however, hereby declared that lands held on behalf of religious or charitable institutions wholly or partially exempt from the payment of land-revenue, shall not be transferable from such institutions either by assignment, sale (whether such sale be judicial, public or private) gift, devise or otherwise howsoever, and no nazrana shall be leviable on account of such lands." A plain reading of above provision goes to show that the lands held by religious or charitable institutions, which are exempted partially or fully, from the payment of land revenue are covered by clause (3). In other words, lands which were never partially or wholly exempted from the payment of land revenue are not covered under clause(3) of Section 8. The impugned order 9 of the learned Assistant Collector shows that the sale transaction was held as illegal and inoperative only because the land was granted by the Government and could not be transferred without permission of the competent authority. The learned Assistant Collector, held that the land was endowment property of Shriramchandra Devasthan and therefore, it was not owned by Devasthan. Though the Sanad depicts that the endowment was to be continued, yet, the recitals of the Sanad go to show that there was no judi nor any salami was payable and there was no exemption granted in respect of the payment of the land revenue. The land was shown as Trust property in the record of the Charity Commissioner which was prepared U/s 19 of the BPT Act. At no point time in the past the entries in the P.T. register had been challenged by the revenue authorities. There was no whisper about ownership of the Government when the mutation entry was sanctioned in favour of Shriramchandra Mandir Devasthan. It was for the first time when the transfer of the land was effected that the Assistant Collector, suo-motu entertained the 10 Revision Petition No.2231/1990. The action was taken after lapse of considerable years. The entry was recorded in the register of Public Trusts vide Rule 5 of the relevant Rules, on 6.7.1953 when the charitable trust was registered. The said entry in the register of Public Trusts is not challenged at any point of time nor it was cancelled. 8. In "Kacharu Lakhu Aher Vs. Masjid Mandwad Deosthan and others" 1990 Mh.L.J.440, a Single Bench of this Court observed as follows : "7. Under section 8, sub-section (3) there is a prohibition on the transfer of lands held on behalf of religious or charitable institutions which are partially or wholly exempt from payment of land revenue. In the present case, however,full land revenue is payable in respect of this land. It is not clear whether in 1861 when the Sanad was granted this land was wholly or partially exempt from 11 the payment of land revenue. I will, however, assume that initially the land was so exempt. There is no material on record to show how and when this exemption was withdrawn by the Government and the lands were assessed to full land revenue. On the record of rights, at all times material to this dispute, there is no exemption, complete or partial, from payment of land revenue in respect of this land. The prohibition against transfer, therefore, under section 8 sub-clause (3) can not apply to the suit land." The legal position is quite clear. The prohibition enumerated under clause (3) of Section 8 would be applicable only when there is reliable and tangible material on record to show that the land was exempted from payment of the land revenue, either partly or fully. There is prima facie some logic at bottom of the clause (3) of Section 8. When certain exemption is 12 granted while granting the Sanad then it is quite clear that the Government land is given on the basis of certain concession. Therefore, there is no irrevocable transfer of ownership in favour of the grantee. Hence, such a person can not transfer the land without prior permission of the competent authority. It need not be reiterated that the material on record does not indicate grant of particular exemption in respect of payment of land revenue, either wholly or partially, as a condition for granting of the Sanad. In this view of the matter, the learned Assistant Collector could not have cancelled the mutation entry and ordered taking over of the land in question. 9. For the reasons aforestated, I have no hesitation in holding that the impugned judgment and order rendered by the Assistant Collector is improper, illegal and unsustainable. Hence, the petition is allowed. The impugned judgment and order is set aside. Rule made absolute 13 accordingly. No costs. (V.R.KINGAONKAR,J.) asp/office/wp79491