( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 984 OF 1988 1. Syed Rasool s/o Syed Babu Since deceased, by Lrs. 1A. Syed Niyaz s/o Syed Rasool, R/o Islampura (Bangla), Parali Vaijnath, Dist. Beed. 1B. Syed Khalil s/o Syed Rasool, R/o as above. 1C. Syed Yajaz s/o Syed Rasool, R/o as above. 1D. Syed Nissar s/o Syed Rasool, R/o as above. 1E. Aminabi w/o Syed Rasool, R/o as above. 2. Sk. Dastgir s/o Sk. Raja, R/o Parli-Vaijnath, Tq. Ambajogai, Dist. Beed. 3. Sk. Mira s/o Sk. Raja, R/o as above. 4. Narhari s/o Sadashiv Chounde, Since deceased, by L.Rs. 4A. Smt. Chaturabai w/o Narhari Chounde 4B. Manik Narhari Chounde Both r/o Parli-Vaijnath, Dist. Beed. 4C Shivaji Narhari Chounde Since deceased by L.Rs. 4C-i. Smt. Shalini Shivaji Chounde 4C-ii. Sachin s/o Shivaji Chounde 4C-iii Nitin s/o Shivaji Chounde All r/o Parli-Vaijnath, Dist. Beed. 4D. Vasant Narhari Chounde, R/o Parli-Vaijnath, Dist. Beed. 5. Gangadhar s/o Sonappa Chounde 6. Nagnath s/o Sonappa Chounde R/o as above. PETITIONERS ( 2 ) VERSUS 1. The State of Maharashtra through the Additional Commissioner, Aurangabad. 2. The Deputy Collector of Land Reforms, Ambajogai, District Beed. 3. Mohd. Abdul Hamid s/o Mohd. Abdul Waheed Siddiqui (petition abated as against this respondent as per order dated 05-06-2006) 4. Md. Fasiyoddin Gulam Jaffter Since deceased, by L.Rs. (1) Najibuddin s/o Fasiyoddin (2) Salimuddin s/o Fasiyoddin (3) Kalimoddin s/o Fasiyoddin (4) Ziauddin s/o Fasiyoddin (5) Moizoddin s/o Fasiyoddin (6) Zakiuddin s/o Fasiyoddin (7) Raiyoddin s/o Fasiyoddin (8) Ayazuddin s/o Fasiyoddin All r/o 1-9-63, Budhi Lane, Parli-Vaijnath, Dist. Beed. 5. Md. Valyoddin Gulam Gaus, R/o Ambajogai, Dist. Beed. RESPONDENTS ..... Mrs. M.A. Kulkarni, advocate for the petitioners. Mr. V.B. Ghadge, A.G.P. for the respondent/State. Mr. S.M. Kulkarni, advocate for respondents No. 4 (1) to 4 (8). ..... [CORAM : V.R. KINGAONKAR, J. ] [DATE : 6th May, 2010] ( 3 ) ORAL JUDGEMENT : 1. By this petition, the petitioners challenge order dated 20th January, 1987, rendered by the Deputy Collector, Ambajogai in File No. 74/Inam-BD/1987 and an attachment order dated 4th September, 1974 passed in pursuance thereto. By the impugned orders, the learned Deputy Collector directed taking over of three (3) parcels of agricultural lands bearing Survey No. 391, Survey No. 392 and Survey No. 397 in the custody of the Government and to auction them for annual lease (Ek Sala Lavni). 2. The three (3) parcels of lands referred to above are service inam lands dedicated to the religious services to be rendered to Masjid, Ambaves situated at Parali (Vaijnath). Mohammad Abdul Waheed s/o Bashiroddin was the Inamdar and holder of the Muntakhab. He died on 6th June, 1964. No application was filed for succession after his death till 7th April, 1973. The deceased respondent No. 3 – Mohammad Abdul Hamid claimed to be son of the deceased Inamdar i.e. Mohammad Abdul Waheed and filed proceedings on 7th April, 1973 for grant of ( 4 ) succession. The learned Deputy Collector noticed that the conditions enumerated in the Atiyat Grant were not followed by holder of the Muntakhab and his successor. So, notice was given to the deceased respondent No. 3 and by order dated 4th September, 1974, the learned Deputy Collector directed to take over the said lands covered by the Atiyat Grant. The petitioners preferred an appeal No. 87/CD/Appeal/Atiyat/5. The Collector, Beed dismissed their appeal on 30th October, 1987. They preferred second appeal No.1987/Atiyat/A/31 which came to be dismissed by order dated 30th May, 1988, passed by the learned Additional Commissioner, Aurangabad Division. Thus, the competent authorities held that there was breach of the conditions enumerated in the Grant and as such, the lands were liable to be taken into Government custody. The competent authorities held that the Inamdar transferred possession of the lands and there was no endeavour made to seek the succession certificate. Consequently, the action was taken as provided under section 5 of the Hyderabad Atiyat Enquiries Act, 1952. It appears that in the execution of such orders, the above mentioned lands were directed to be taken over in the custody of the ( 5 ) Government. 3. Heard learned counsel for the parties and learned A.G.P. 4. The main contention raised by Mrs. Kulkarni, learned counsel appearing for the petitioners, is that the land Survey No. 391, was being cultivated by the petitioner NO. 1 and his forefathers since more than 100 years, the land Survey No. 392 was in possession of the petitioners No. 5 to 8 since the time of their ancestors whereas land Survey No. 397 was in possession of the petitioners No. 2 to 4 since the time of their forefathers and as such, their tenancy rights could not be affected by the impugned orders. It is argued that the bar of section 6 of the Hyderabad Atiyat Enquiries Act, 1952 (for short, “the Atiyat Act”) will not apply to the present case because the leases were granted by the Inamdar before commencement of the Atiyat Act. It is further argued that unless rights of the Inamdar were decided, the lands could not have been resumed. Reliance is placed on certain observations in “Mahadu Punjaba ( 6 ) Dhage & others v. Prabhakar Trimbak Joshi & others” 2000 (2) Bom.C.R. 817. Per contra, learned counsel Mr. Kulkarni S.M. contended that the petitioners cannot challenge auction proceedings because the deceased Inamdar had no authority to create the lease rights after 1952 and that the petitioners failed to prove creation of lease-hold rights before commencement of the Atiyat Act. He seeks to rely on certain observations in “Mehmooda Begum w/o Mohd. Abdul v. State of Maharashtra and others” 2000 (1) Mh.L.J. 40. 5. At this juncture, it would be useful to re- produce the prayers made in the petition. The main prayers in the petition are as follows : (c) The impugned order dated 20.1.87 passed by Deputy Collector, Ambajogai in file No. 74/Inam/BD/1687 be set aside by issue of writ of certiorari or any other appropriate writ, order or direction. (d) The order of attachment dated 4-9-74in File No. 74/Inam/BD/1687 be quashed by issue of ( 7 ) writ of certiorari or any other writ, order or direction. 6. Perusal of the petition and the prayers will indicate that the subsequent orders rendered by the Collector on 30th October, 1987 and the Additional Commissioner on 30th May, 1988 in the exercise of appellate jurisdiction, are not challenged by the petitioners. The said orders (Exh-D and Exh-E) go to show that the petitioners’ contention that they were in possession of the lands for more than 100 years as tenants had been repelled by the appellate authorities. The petitioners alleged that the question of possession was considered by the civil Court in a suit (R.C.S. No. 286/1989). That is the litigation initiated after passing of the orders in the enquiry under the Atiyat Act. It appears that somewhere in 1976, a litigation was initiated by the petitioners. However, that record is not available. The subsequent observations of the civil Court in the suit (R.C.S. No. 286/1989), have no bearing on the issue. The decisions of the Atiyat Court are final in view of section 13 of the Atiyat Act. The scheme of ( 8 ) the Atiyat Act would show that the enquiry regarding succession of the Atiyat Grant would fall within exclusive jurisdiction of the Atiyat Court. Section 10 (2) of the Atiyat Act reads as follows : “10. (1) ***** (2) All original cases pending in the Court of Nazim Atiyat on the appointed date shall be transferred to the Court of the concerned Atiyat Collector, and all original cases pending on that date in the Court of Atiyat Collector which as from that date fall within the jurisdiction of the Atiyat Deputy Collector shall be transferred to the Court of the concerned Atiyat Deputy Collector, and on such transfer, the Atiyat Collector or the Atiyat Deputy Collector, as the case may be, shall dispose of such cases as if they had been filed in his own Court. If the Atiyat grant involved in any such case falls within the jurisdiction of the Court of more than one Atiyat Collector or Atiyat Deputy Collector, as the case may be, the Board of Revenue shall determine the Court of the Atiyat Collector or Deputy Collector to which such case shall be transferred. The order of the Board of Revenue in this behalf shall be final and no appeal or revision shall lie therefrom.” ( 9 ) 7. What appears from the record is that the learned Collector and the Additional Commissioner rendered concurrent findings to the effect that the deceased respondent No. 3 was having share to the extent of 3 acres 2/3 pai, but had failed to file the claim for grant of succession within the period of three months after death of the original Inamdar. One of the conditions of the Grant is that within period of three months of the death of the Inamdar, the claim for succession ought to be put forth. That was not done by the deceased respondent No. 3. The petitioners could not establish with satisfactory evidence that they were tenants inducted by deceased Mohammad Abdul Waheed Siddiqui prior to commencement of the Atiyat Act. It is difficult to say, therefore, that they could be considered as lawful tenants. They did not adduce any evidence to show that rent amount was paid to the original Inamdar or crop share was given to the Inamdar prior to the commencement of the Atiyat Act. Needless to say, in the exercise of writ jurisdiction, it is not permissible to re-appreciate evidence and to record a finding that the petitioners ( 10 ) were inducted as tenants before commencement of the Atiyat Act. In “Mahadu Punjaba Dhage & others” (supra), a Division Bench of this Court noticed that the inam land was in possession of the tenant (Punjaba) since 1948. It is observed : “The State Government gets a right to resume the Atiyat Grant by following the provisions of section 5 of the said Act. But, here, there was no enquiry under section 5 of the said Act and, therefore, there was no question of resuming the Grant by the Government. The Grant was not resumed. On the contrary, it was contemplated to appoint some other Archak or Pujari to render the services to the deity. So, when there was no assumption of the grant, the Government had no authority to take the land in possession or to dispossess Punjaba, the tenant of the land.” Perusal of the above observations would show that the fact situation in case of “Mahadu Punjaba Dhage” stands on altogether different footings. In the present case, ( 11 ) the grant was directed to be resumed. In the present case, enquiry was held under section 5 of the Atiyat Act. It was found that the Inamdar committed breach of the conditions enumerated in section 5 of the Atiyat Act. Moreover, there is no specific challenge to the orders passed by the appellate authorities. It appears that only executory orders are being challenged by the petitioners. 8. Considering the factual and legal position, I do not find any substance in the writ petition. Hence, the petition is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp984-88