1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1802 OF 1991 Nagubai W/o Eknath Zade(died) Through L.Rs. 1/A Smt. Rahibai W/o Nivrutti Dhere, Age : 45 years, Occ : Household, R/o Kakramba, Taluka Tuljapur, Dist. Osmanabad. 1/B Smt. Vanmalabai W/o Manikrao Thorat(Died) Through L.Rs. 1/B1 Pandurang S/o Manik Thorat, Age : 39 years, Occ : Service, R/o Kakramba, Tq. Tuljapur, Dist. Osmanabad. PETITIONERS -VERSUS- 1. Babaji S/o Bhoja Kadam (Died) Through L.Rs. 1/A Dashrath S/o Babaji Kadam, Age : 32 years, Occ : Agril., R/o Tuljapur, Dist. Osmanabad. 1/B Umaji S/o Babaji Kadam(Died) Through L.Rs. 1/B1 Tanaji Umaji Kadam, Age : 35 years, Occ : Agri., 1/B2 Anandabai Umaji, Age : 60 years, Occ : Household, 1/B3 Sheela Swarupchand Dabhade, Age : 30 years, Occ : Household, All Residents of Tq. Tuljapur, Dist. Osmanabad. 2. The Dy. Collector, L.R. Osmanabad 3. The Maharashtra Revenue Tribunal, Aurangabad. 4. The State of Maharashtra, Through Govt. Pleader. RESPONDENTS 2 ..... Mr. Prashant Deshmukh, Advocate for petitioners. Mrs. V.A. Shinde, A.G.P. for respondent nos.2 to 4. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 10th January, 2011. ORAL JUDGMENT : By this Petition filed under Article 227 of the Constitution of India, the petitioner has questioned the order passed by the Maharashtra Revenue Tribunal, Aurangabad on 3rd April, 1991 in appeal under Section 90 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (Hereinafter referred to as 1950 Act). 2. Facts in brief show that the land survey no.45 gut no. 141 admeasuring 28 Acres situated at village Kakramba, Tq. Tuljapur were earlier Madat Mash Inam, owned by one Saraswatibai W/o Ganpatrao as Inamdar. This land was alleged to be let out to one Nivrutti S/o Maruti and it appears that occupancy rights were granted in his favour as per the provisions of Hyderabad Inam (Abolition and Cash Grants) Act, 1950. Nivrutti then mortgaged this land to Co-operative Land Development Bank, Tuljapur. He failed to repay the loan and hence, Bank put the said land to auction. Present petitioner purchased those lands and after following prescribed procedure under the Maharashtra Co- 3 operative Societies Act, 1960, necessary sale certificate was issued in her favour on 25.08.1971. 3. In 1988, the petitioner moved Collector under Section 136 of the Maharashtra Co-operative Societies Act, 1960 and prayed for recovery of possession. The Collector, Osmanabad issued notice to Nivrutti to show cause and ultimately, it appears that on 28.11.1988 regularised the purchase by petitioner. Thereafter application for recovery of possession was decided on 31.08.1990 and Tahsildar, Tuljapur was directed to evict respondent and deliver possession to petitioner. It is to be noted that meanwhile, in 1976, the lands were sold by Ex-Inamdar Saraswatibai to present respondent-Babaji Kadam and Babaji Kadam continues in possession even today. 4. The Collector decided application for restoration of possession on 31.08.1990 and that decision was challenged by Babaji by filing appeal under Section 90 of the Hyderabad Tenancy Act before M.R.T.. M.R.T. has allowed that appeal and set aside the directions issued by Collector. The lands were declared as Government lands available for disposal in accordance with Maharashtra Land Revenue Code. 4 5. In this background, Advocate Mr. Deshmukh contends that the auction was open auction and petitioner was highest bidder. After depositing that amount sale certificate was issued and because of bar contained under Section 41 and Section 48 of the Hyderabad Tenancy Act, the sale was also regularised in accordance with provisions of Section 49 by the Deputy Collector. According to him, this proceeding for regularisation were taken up suo-moto. After regularisation, as the petitioner had title to disputed lands and Babaji could not have purchased that land from anybody, possession was rightly directed to be delivered to the petitioner. The contention is, all these steps for restoration of possession are as per the provisions of Section 136(2) of the Maharashtra Co-operative Societies Act, 1960 and hence challenge thereto in appeal under Section 90 of the Hyderabad Tenancy Act is misconceived. Order of M.R.T. is therefore without jurisdiction. 6. Learned A.G.P. on the other hand has supported the impugned order. She points out that Inam were abolished and hence, Saraswatibai ceased to be owner of the disputed land. The sale deed alleged to have been executed by her in favour of Babaji is therefore illegal and void. Tenant-Nivrutti was given occupancy rights but those occupancy rights were then cancelled on 22nd 5 October, 1968. That cancellation was not assailed by Nivrutti at any point of time. Thereafter Babaji was permitted to cultivate for year 1970-71 on Ek Salana Lagan i.e. for one year and he continued in possession only in that capacity. It is urged that purchase by him on 27.12.1976 is, therefore, of no relevance. 7. Learned A.G.P. states that as occupancy rights of Nivrutti were determined in 1968, he could not have created any mortgage in favour of Land Development Bank and that mortgage is bad. Auction of alleged mortgaged land and its purchase by petitioner is, therefore, also irrelevant. In this background, according to her, M.R.T. has correctly appreciated position and the order delivered by it does not call for any interference. 8. Mr. Deshmukh in reply has urged that Ek Salana Lagan in favour of Babaji does not confer on Babaji any right, title or possession. Application before the Collector was under Section 136 of the Maharashtra Co-operative Societies Act and as sale transaction was validated, the petitioner has been rightly placed in possession of the lands. He invited my attention to Section 136(2) (a) to urge that it permits Collector to remove any person who is in possession without proper authorisation and to restore possession of such purchaser. He, therefore, again reiterated his contentions 6 that order passed by the Collector under Section 136(2)(a) could not have been assailed in the proceedings under the Hyderabad Tenancy Act, 1950 before the M.R.T. 9. The facts considered by M.R.T. show that after abolition of Inam, Smt. Saraswatibai ceased to be owner and tenancy rights were given to Nivrutti in 1968. Those occupancy rights were then cancelled on 22nd October, 1968 and thereafter Ek Salana rights were given to Babaji Kadam. The person who created mortgage namely Nivrutti was, therefore, not in possession in 1970-71 when the property was either auctioned or when sale certificate was given to petitioner. It appears that on 25.08.1971, Babaji Kadam was in possession. He also did not raise any objection to auction or issuance of sale certificate. The land continued in possession of Babaji Kadam and on 27.12.1976, he obtained the sale deed in relation to the same from Saraswatibai. 10. The petitioner who had sale certificate since August, 1971 did not take any steps for recovery of possession till 28.06.1989. The proceedings for validation of sale in his favour were concluded by the Deputy Collector of Land Records on 28.11.1988 and that purchase by him in auction was validated as per the provisions of Section 49 of the Hyderabad Tenancy Act, 7 1950. The copy of the order produced along with the Petition does not show on which date this proceedings of validation was initiated. However, the copy of the order passed on proceedings for recovery of possession shows date of institution as 28.06.1986 and date of disposal as 31st August, 1990. Therefore, from 1971 till 20.06.1986, the petitioner an auction purchaser has permitted by Babaji to continue in possession of the agricultural lands purchased by him. He has thereafter taken recourse to provisions of Section 136(2)(a) and sought recovery of possession by contending that because of sale certificate in his favour, he was entitled to it. 11. Facts pointed out by learned A.G.P. which reveals creation of Ek Salana right in favour of Babaji and his possession thereafter even on 28.06.1986 and thereafter till today do not appear to be either incorrect or wrong. Petitioner has not disputed the same here. 12. However, all these developments clearly show that impugned order passed by the Deputy Collector on 31.08.1990 is not under the provisions of Hyderabad Tenancy Act, 1950. Not only this the said order also does not specifically show that the Deputy Collector has exercised powers under Section 136(2) of the 8 Maharashtra Co-operative Societies Act, 1960. In appeal filed before the M.R.T. no objection about maintainability of the appeal was taken on this ground. 13. This Court is therefore faced with the situation in which it is apparent that tenant namely Nivrutti had no locus to deal with that lands after 22nd October, 1968. Sale of disputed land in mortgage allegedly created by him for recovery of loan borrowed from Co-operative Bank, therefore can not be sustained even by this Court. The M.R.T. has correctly found that after 1968, the land has been restored back to the State Government and State Government has to allot it in accordance with the provisions of Maharashtra Land Revenue Code. I do not find anything wrong with the consideration of controversy by M.R.T. The facts clearly show that the order challenged in appeal was passed under the Maharashtra Co-operative Societies Act and the impugned directions were issued by the M.R.T. in appeal under the Hyderabad Tenancy Act, 1950., The direction prima facie is without any authority and jurisdiction. However, in the facts, if same is set aside, it results in restoration of order, which again can not be stated to be legal and correct. Petitioner has permitted Babaji to continue in possession without any objection from 1971 till 1986 and he has not demonstrated exercise of any ownership rights till 9 1986. He can not be said to be a diligent person. Had he acted timely, he could have recovered the amount deposited with Co- operative Bank back from it. 14. At the same time, the petitioner can not be blamed as he is not party to situation necessitating auction. He has participated in public auction and offered highest bid which was accepted. He also got sale certificate in his favour. After obtaining the sale certificate, he choose not to proceed against Babaji and and has not done anything and waited for about 18 years. Hence, I am not inclined to exercise any discretion in his favour. 15. Hence, interest of justice will be met by directing the State Government to proceed with allotment of the said land in accordance with Maharashtra Land Revenue Code by giving appropriate preference to the petitioner in view of the amount deposited by him with Land Development Bank while purchasing the same. 16. With these directions, the Writ Petition is disposed of. Rule made absolute accordingly. No costs. 17. As the Petition is already disposed of, pending Civil 10 Applications, if any, are rendered infructuous and same are accordingly disposed of. (B.P. DHARMADHIKARI) JUDGE gas/wp1802.91