1 wp3909.91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3909 OF 1991 Nasibkhan s/o Jamalkhan Age 80 years, Occ. Agriculture R/o. Bazar Sawangi, Tq. Khultabad District Aurangabad ...Petitioner Versus 1 Mahadu Bandu Patil, (Died through L.Rs.) 1-a Trimbak Mahadu Bobde Patil, 2 Smt. Venubai w/o Baburao Amrit (Died through L.Rs.) 2-a Murlidhar Baburao Age 25 years, Occ. Agriculture R/o. Kanakshil, Tq. Khultabad District Aurangabad 2-b Mithu s/o Punjaba Age 40 years, Occ. Labour R/o. Kanakshil, Tq. Khultabad District Aurangabad 3 Deochand s/o Chudaman Age 50 years, Occ. Agriculture, R/o. Kanakshil, Tq Khultabad District Aurangabad 4 Trimbak s/o Sonaji (petition abated) 5 Ayub Khan s/o Dilawar Khan, Age 30 years, Occ. Labour R/o. Wawangi, Tq. Khultabad District Aurangabad 6 The State of Maharashtra Through the Government Pleader, High Court 2 wp3909.91 7 Officer on Special Duty Revenue and Forests Department, Bombay ...Respondents ..... Mr. M.D. Joshi, advocate for respondent Nos. 1-a and 2-a. Mr. K.J. Ghute Patil, A.G.P. for respondent Nos. 6 and 7. ..... CORAM: S. S. SHINDE, J. DATED: 29.11.2010 JUDGMENT :- 1 This petition is filed with following prayers;- “A) That this petition may kindly be allowed. B) The decision passed by the N.T. Dt. 6.10.64 in case no. may kindly be upheld and the decision passed by the Principal Secretary on Special duty be kindly set aside and quashed. C) It may be declared that the petitioner is “Kabir e Khadim” of the land survey No.37 and 38 of the village Kanakshil, Taluka Khultabad, District Aurangabad under the Hyderabad Inam Abolition Act 1954 and therefore, entitled to the benefits accruing therein. D) Pending hearing and final disposal of this writ petition, the respondents may kindly be restrained from obtaining any compensation amount as a result of acquisition of the land in question, which proceedings (acquisition) have 3 wp3909.91 been initiated of the instance of the State of Maharashtra (respondent No.7). E) Cost of the petition may kindly be awarded. F) Any other relief may kindly be awarded to which the petitioner is entitled.” The facts, as disclosed in the petition, are as under:- 2 It is the case of the petitioner that he was in possession of the land in dispute i.e. survey Nos. 37 and 38 situated at village Kanakshil, Tq. Khultabad and before him his father Jamal khan s/o Mahtabkhan had remained in possession thereof for last more than 90 years or so. The dispute in between the parties had started on account of mischief by the then Patwari who had shown name of the respondents as tenants under the Hyderabad Tenancy and Agricultural Lands Act. When the petitioner made an application on 13.5.1963 before the Tahsildar, Khultabad, he came to know about the said mischief played by Patwari. The petitioner made an application for cancellation of said record of entries made in favour of the respondents and accordingly there was decision passed by the then Tahsildar on 27.4.1963, whereby entries of cultivation of the respondents were cancelled. The next stage of the dispute was application submitted by the petitioners on 13.5.1963 contending that the land survey Nos. 37 and 4 wp3909.91 38 situated at village Kanakshil, Tq. Khultabad, District Aurangabad were possessed by his father Jamalkhan s/o Mahtabkhan and that he had accrued rights, “Khabize Khadim” within the meaning of Hyderabad Inam Abolition Act 1954. 3 It is further case of the petitioners that the respondents were summoned in the proceedings initiated by the then Tahsildar, Khultabad Mahal against the respondents who contended by their written statement that father of the petitioner was neither Inamdar nor “Khabize Khadim”. It was further contended that the petitioner also did not accrue any right of “Khabize Khadim” under Inam Abolition Act. On the contrary, they were in possession as tenants in the year 1955-56. In short, the locus standi of the petitioner has been challenged by the respondents before the Tahsildar No. MIA-WS- II/512/33. 4 The Naib Tahsildar (Revenue) had rendered his decision on 6.10.1964 declaring that the petitioner is “Khabize Khadim” within the meaning of Inam Abolition Act and therefore, he accrued rights under the Act as “Khabize Khadim”. Against the said decision, only few of the respondents had filed appeal on 20.1.1965 after expiry of period of limitation prescribed for filing the appeal to the State Government. The petitioner objected to 5 wp3909.91 the appeal being entertained after expiry of period of limitation. Then the Officer on Special Duty heard objection raised by the advocate for the petitioner. But without applying his mind and without assigning any reason as to why appeal was entertained, even though the same was time barred, the said appeal was registered as appeal No. MIA/3965/2307-L. The appellate court reversed the decision of the Naib Tahsildar, Khultabad and the appellants to the said appeal were declared to be joint occupant under Section 6 of the Inam Abolition Act along with Bhaurao Amrit, Deochand Chudaman and Trimbak Sonaji. The petitioner herein then filed the Special civil Application No. 102 of 1965 before this Court at Bombay. This court was pleased to set aside the decision of the appellate Court dated 6.8.1965 and directed the State Government to decide the matter afresh in view of the observations contained therein. 5 It is the case of the petitioner that at this juncture the petitioner expected that he would be given hearing in the appeal before the State Government at proper time after decision passed by the High Court. However, no hearing was given. It is further contention of the petitioner that the State Government appears to have passed decision on remand from the Hon'ble High Court on 22.8.1968 behind the back of the petitioner. It further appears that the Government by last mentioned decision dated 22.8.1968 in the Government Memorandum 6 wp3909.91 No. MIA.3965/2307-L reaffirmed the decision earlier passed on 6.8.1965. It is further case of the petitioner that he was making correspondence about the pendency of appeal before the State Government after remand from the High Court. At his instance the date of hearing was fixed on 16.1.1989. Accordingly the petitioner remained present in the office of the Secretariate on 16.1.1989, where it was given to understand that the matter stood adjourned and that the next date would be communicated later on. 6 It is further case of the petitioner that hearing was not given to the petitioner though the letter received from the Revenue and Forest department mentions that the applicant present and heard in person. It is further case of the petitioner that before the date of hearing i.e. 16.2.1989 there have been earlier two dates on which the petitioner also remained present and the petitioner wanted to demonstrate before the Presiding Officer of the Court that he had come to Bombay from interior village in district Aurangabad, he cannot afford any more visits before him in his behalf on account of heavy expenses for to and fro. However, the same request of the petitioner was not considered. It is further stated by the petitioner that he received a communication from the Secretary that the State Government has passed order on 31.3.1989. 7 wp3909.91 Accordingly, by the said decision given by respondent No.7 on 31.3.1989, which according to the petitioner received on 11.5.1989, the petitioner has filed this writ petition under Article 227 of the Constitution of India. 7 When this matter was called out for final hearing on 16.7.2010, none appeared for the petitioner on the said date. Therefore, the matter was listed for hearing again on 25.11.2010. However, on that also none appeared for the petitioner. Counsel for the respondents and the learned A.G.P. submitted that the writ petition is not maintainable. However, the matter was adjourned to today i.e. 29.11.2010 to enable the counsel for the petitioner to cause his appearance and argue the matter. However, even today, none appears for the petitioner. Hence, with the assistance of the learned counsel for the contesting respondents and the learned A.G.P., I have gone through the grounds taken in the petition and the annexures thereto. 8 Upon perusal of the affidavit in reply filed by respondent No.2(a), it appears that the petitioner herein did not challenge the decision dated 22.8.1968 of the State Government. In pursuance to the order passed by this Hon’ble court in earlier round of litigation i.e. Special Civil Application No. 102 of 1966, the case was sent to the government 8 wp3909.91 for reconsideration by order dated 9.3.1967. Thereafter the State Government reconsidered the dispute and decision was conveyed by the Government Memorandum No. HIA 3965/L dated 22.8.1968 to the parties. Therefore, what appears from perusal of the annexures to the writ petition that in pursuance to the order passed by this Court on 9.3.1967, the State Government has taken decision in the matter on 22.8.1968. This decision of the State Government, after matter was remanded back to the State Government, was not challenged by the petitioner. It is not in dispute that the earlier decision taken by the State Government on 6.8.1965 has been reiterated in its decision dated 22.8.1968. In short, the decision taken by the State Government on 22.8.1968 attained the finality and the petitioner herein did not challenge the said decision. When this fact was brought to the notice of the Principal Secretary, Revenue (Appeals and Revision), by order dated 31.3.1989, the concerned Principal Secretary, closed the file. It is observed that the Government has already carried the order of the High Court by reconsidering the whole matter. In the above circumstances, there was no point in conducting this proceeding further and instead the present proceeding need to be closed as requested by the counsel for the respondents. The Principal Secretary ordered accordingly. 9 It further appears from the affidavit in reply filed on behalf of the 9 wp3909.91 State government that the land in dispute was acquired for percolation tank and the compensation amount is to be paid to the respondents or the occupants of the land. They were given notice by the Land Acquisition Officer for compensation and with malafide intention the petitioner herein has filed this petition to deprive the respondents from getting the compensation. The petitioner herein has not filed any documents to get the claim for compensation. 10 Therefore, from entire proceeding it appears that the decision dated 22.8.1968 taken by the State government has not been challenged by the petitioner herein. Therefore, the said decision has attained finality. The instant attempt of the petitioner is nothing but a futile exercise in the light of decision dated 22.8.1968. It is not in dispute that this Court has entertained Special civil Application No. 102 of 1966 and this court on 9.3.1967 sent the matter back to the Government for reconsideration and in due regard to the orders passed by this court, the Government has re-considered its earlier decision dated 6.8.1965 and had taken final decision on 22.8.1968. In fact, the petitioner should have challenged the order dated 22.8.1968 passed by the State Government. Therefore, this writ petition is devoid of any merits. The order dated 22.8.1968 has attained finality. The Principal Secretary, Revenue, (Appeals and Revision) has rightly closed the file since the challenge was to the earlier decision of State Government dated 22.8.1968, which has attained finality. 10 wp3909.91 11 Taking over all view of the matter, in my opinion, no case is made out to interfere in the impugned order. Hence, writ petition is devoid of any merits and the same stands dismissed. Rule discharged. Interim relief, if any, stands vacated. Petition is disposed of accordingly. *****