1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4697 of 2006 1. Subhash s/o Vishvanath Gavali age 60 years, occup. Agril. r/o Nimbalkar Galli, Osmanabad. 2. Laxmans/o Vishvanath Gavali, Age 55 years, occup. Service r/of Nimbalkar Galli,Osmanabad 3. Ram s/o Vishvanath Gavali, age 50 years, occup. Agril. r/o Nimbalkar Galli,Osmanabad. 4. Sanjay s/o Viswanath Gavali, age 45 years, occupation Agril. 5. Ajay s/o Viswanath Gavli, age 40 years, occup. Agril. r/o Nimbalkar Galli, Osmanabad. 6. Lata d/o Vishwanath Gavali, age 53 years, occup. Household, r/of Nimbalkar Galli,Osmanabad. Petitioners 2 versus 1. Hanmant s/o Vitthal Gadave age 40 years, occupation Agrl. r/o Shingoli, Taluka Osmanabad. District Osmanabad. 2. Mahadeo s/o Vitthal Gadave, age 30 years, occup. Agril., r/o Shingoli, Tq.Osmanabad, District Osmanabad. 3. Sudamati w/o Vitthal Gadave age 60 years, occup. Household, r/of Shingoli, Taluka Osmanabad, District Osmanabad. 4. Hirabai w/o Narayan Diwane age 45 years, occup. Household, r/of Shingoni, Taluka and Dist. Osmanabad. 5. Anita w/o Vishwas Bhutekar, age 42 years, occup. Household, r/of Shingoni, Taluka and Dist. Osmanabad. 6. The Upper Tahsildar (Land Reforms/ Tenancy) Head Office, Osmanabad and Chairman, Agricultural Lands Tribunal, District Osmanabad. ..Respondents 3 Shri S.S.Chaudhary, Advocate, for appellant. Shri M.P.Kale, Advocate for Respondent Nos.1 to 5.Shri K.M. Suryawanshi, AGP, for Respondent No.6. CORAM: P.R. Borkar, J. DATE: 17th June 2009. ORAL JUDGMENT 1. This is a writ petition filed under Articles 226 and 227 of the Constitution of India, for quashing and setting aside the ownership certificate dated 31.3.2006 bearing outward No. 2006/KUL/KAVI/60 and the certificate dated 1.4.2006 bearing outward No.2006/KUL/KAVI/60 issued in favour of Respondent Nos. 1 to 6. This writ petition is placed for hearing along with writ petition No.3113 of 1990 and I would be referring to some of the documents produced therein. 2. Some of the facts regarding which there is no more dispute are that present Respondent Nos. 1 to 5 are legal representatives of Vithal s/o Eknath Gadve, who was Respondent in Writ Petition No.3113 of 1990. Vithal claimed to be tenant of survey No.85, admeasuring 26 Acres 38 gunthas situated at village Shingoli, Taluka and District Osmanabad and therefore on his application, proceedings were taken up before 4 Additional Tahsildar for issuance of ownership certificate under the Hyderabad Tenancy and Agricultural Lands Act, 1950. The Additional Tahsildar, passed an order on 18.5.1987 and held that Vitthal Eknath Gadve was not in possession of the property; that he was not cultivating land nor he had deposited any installment of purchase price and since he was defaulter, no purchase/sale certificate could have been issued in his favour. 3. Being aggrieved by the said judgment and order dated 18.5.1987 of the Additional Tahsildar, said Vithal Gadve filed appeal before the Deputy Collector (Land Reforms) Osmanabad, bearing file No.88/TNC/A-4. The appeal was dismissed by judgment delivered on 15.5.1989. The Deputy Collector observed that survey No.85 was transferred with effect from 1.2.1957 in the name of father of appellant Vithal in view of provisions under Section 38-E of the Hyderabad Tenancy and Agricultural Lands Act. Purchase price was fixed at Rs.480/= and the purchaser was to deposit the amount in five installments. The first of such installment was due on 1.4.1960 and the last installment was due on 1.4.1964. However, father of Vithal Gadve deposited only Rs.96/- on 25.8.1961 and in spite of notices issued on 13.12.1966, 28.6.1971, 15.11.1973, 23.6.1975, 21.6.1978, he did not deposit the 5 amount. He deposited balance amount on 8.1.1987 and, therefore, since the amount was not deposited in time, he was treated as defaulter. It was also held that it was a fallow land. 4. Against the judgment of the learned appellate authority-Deputy Collector, Vithal filed revision before the Maharashtra Revenue Tribunal (M.R.T. for brevity’s sake), Aurangabad, bearing case No. 43/B/1989. The Tribunal allowed the revision vide judgment and order dated 6.4.1990 and set aside the orders passed by Additional Tahsildar and Deputy Collector. 5. The said order of the Tribunal came to be challenged by present writ petitioners and two others, by filing Writ Petition No.3213 of 1990. Vithal Gadve was the sole Respondent. The said writ petition No.3213 of 1990 is pending in this court since 1990. 6. Pending consideration of said writ petition No.3213 of 1990, present Respondent Nos. 1 to 5, who are legal heirs of Vithal Gadve, filed application dated 14.3.2006 before the Additional Tahsildar, Osmanabad bearing file No.___/06, a copy of which is at Exh.P-4 in this Writ Petition. Present Respondent Nos. 1 to 4 stated about decisions by Additional Tahsildar and Deputy Collector in appeal, so also decision of the MRT 6 and requested that in view of decision of the MRT and since they were heirs of Vithal who died on 22.9.2004, ownership certificate be issued in the name of Respondent Nos. 1 to 5. It is clear that although writ petition was pending since 1990 and Vithal Gadve had died on 22.9.2004, in the application dated 14.3.2006 submitted before the Additional Tahsildar, no reference to Writ Petition No.3213 of 1990 was made. It appears from Exhibits 55 and 56 that the Additional Tahsildar (Tenancy) and A.L.T., Osmanabad, issued ownership certificates as per 38(6) of the Hyderabad Tenancy and Agricultural Lands Act, in favour of Respondent Nos. 1 to 5 on 31.3.2006 and 1.4.2006. Thus, it is clear that the ownership certificates were issued pending consideration of writ petition No.3213 of 1990 in this court in which the decision of MRT was challenged without disclosing pendency of the writ petition. 7. Heard Shri S.S.Chaudhary and Shri M.P. Kale, learned Advocates for appellant and Respondent Nos.1 to 5 respectively, and Shri K.M.Suryawanshi, learned A.G.P.for Respondent No.6. 8. Perused the reply affidavit filed by Respondent No.6 Additional Tahsildar. It is stated therein that since there was no stay, the ownership certificates were issued. In other words, knowing pendency of writ petition No.3213 7 of 1990, learned Additional Tahsildar thought it fit to issue the ownership certificates after lapse of 16 years. In absence of plea by Respondent No.6 that he was not aware of pendency of writ petition No.3213 of 1990, issuance of the certificates was totally undesirable. When the decision of M.R.T. has not attained finality in view of pendency of Writ Petition No.3213 of 1990, Tahsildar’s act was illegal. Respondent Nos. 1 to 5 have not filed any reply affidavit. 9. In the result, this writ petition will have to be and is accordingly, allowed in terms of prayer clause (B). Both the certificates dated 31.3.2006 and 1.4.2006 issued by Additional Tahsildar are quashed and set aside as the matter is subjudice before the High Court and the rights of the parties are yet not finally decided. However, it is made clear that the rights of the parties will be decided in writ petition No.3213 of 1990. In the circumstances, parties to bear their own costs. (P.R.BORKAR, J.) pnd/oo wp4697.06