1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 3809 OF 1991 *** Darul-Ulum Public Trust Education Society, through its Secretary, Hakeem Abdul Saleem R/o Nanded, District: Nanded. ... PETITIONER. Versus 1. Managing Committee, Anwarul Masajid Madina Nagar, Nanded through President Sk. Imam S/o Sk. Osman, R/o Madina Nagar, Nanded. 2. Omar alias Akbar Bin Abdul Aziz, Age: 65 years, Occdu.: Nil, R/o Darbar Masjid, Nanded. 3. Khawaja Pahilwan S/o Hussain Saheb, Age: 60 years, Occu.: Nil, R/o Madina Nagar, Nanded. 4. The Commissioner (Jamabandi), and Director of Land Records, Maharashtra State, Pune. 5. Deputy Director Land Records, Aurangabad Division, Aurangabad. 6. The Consolidation Officer, NANDED. 7. The District Inspector Land Record, City Survey, Nanded. ... RESPONDENTS *** Mrs. S. G. Chinchilkar, Advocate h/f Mr. C. G. Solshe, Advocate for the Petitioner. Mr. Balaji S. Shinde, Advocate h/f Mr. V. P. Latange, Advocate for Respondent No.1. 2 Mrs. V. S. Shinde, A.G.P. for Respondent Nos.4 to 7. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 9th FEBRUARY, 2011. ORAL JUDGMENT: 1. Heard Smt. Chincholkar holding for Advocate Mr. C. G. Solshe for Petitioner, Advocate B. S. Shinde, holding for Advocate Mr. V. D. Latange for Respondent No.1 and learned A.G.P. Mrs. Shinde for Respondent Nos. 4 to 7. 2. The dispute, in this petition, filed under Article 227 of the Constitution of India, pertains to order passed by Respondent No.4 on 30th August, 1991 in Case No. SVCR 770/S-2/1991. By said order, the authority found that suit land, which forms part of old Survey No.167 with City Survey No.12743, was not legally converted to Non-agricultural purposes and hence it had no jurisdiction to take cognizance of any request made for recording name of Petitioner as owner against it. Because of this, the said authority has, in exercise of powers under section 257 of Maharashtra Land Revenue Code, 1966, cancelled orders passed by lower authorities and has 3 directed the entries of ownership made against that city survey number, to be deleted and has further directed the parties to move Revenue Authorities for getting necessary entries entered in 7/12 extract. 3. Learned counsel for petitioner has urged that the description of suit property is not in dispute in present matter. A civil dispute was pending between Petitioner and Respondent No.1. The Respondent No.1 filed a suit for injunction and Petitioner filed written statement and also a counter claim and sought an injunction. The declaration of its title to said suit survey number was also sought by petitioner. The suit filed by Respondent No.1 came to be dismissed and the counter claim filed by Petitioner has been decreed. Regular Civil Appeal filed in the matter vide R.C.A. NO.153 of 1993 has also been dismissed by 3rd Additional District Judge, Nanded. Thereafter, a second appeal has been admitted by this Court and interim relief, staying the operation and effect of judgment of trial Court, is operating. 4. IN this background, learned counsel 4 contends that as ownership of petitioners is accepted by civil Court, the Respondent NO.2 could not have directed deletion of name of Petitioner from said city survey number. The order is, therefore, without jurisdiction. 5. Advocate Shri Latange has contended that in second appeal as operation and effect of judgment and decree passed in counter claim, is stayed, petitioner cannot be presumed to be the owner. He further states that City Survey Authority has found that it has no jurisdiction and, therefore, it has directed deletion of those entries. According to him, therefore, there is no merit in the petition. 6. Learned A.G.P. for Respondent Nos.4 to 7 has urged that the Respondent No.2 has, while taking cognizance of second appeal, filed under section 248 of M.L.R. Code found that interference in the matter under section 257 of M.L.R.Code was warranted. Hence, after issuing appropriate notices and giving opportunity of hearing, the impugned order has been passed. It is urged that the City Survey Authority (Respondent No.2) has noted that the 5 land has not been converted to Non- agricultural use and hence it has no jurisdiction in the matter. The land need to be treated as agricultural land and hence Revenue Authorities can only take relevant entries in relation to title. 7. In reply, learned counsel for petitioner has urged that the petitioner is running schools and colleges on the said land and the land is already included within municipal limits. The petitioners have also paid non-agricultural assessment because of provisions of section 126 of M.L.R.Code. 8. With the assistance of respective counsel, I have perused the impugned order. The fact that, jurisdiction under section 257 (3) of M.L.R.Code has been invoked after due opportunity to parties before him by Respondent No.4, is not in dispute. Provisions of section 126 of M.L.R.Code deals with the procedure for survey of lands in the village sites. It appears in Chapter VIII of M.L.R.Code and that chapter is concerning lands within the sites of villages, towns and cities. 6 9. The petitioners are relying upon receipt of payment of non-agricultural assessment to urge that the requisite permission to convert is already granted. The circumstances in which that receipt for period from 1971-72 onwards came to be issued are not on record. But, then, it appears that the lands are included within limits of municipal council and are actually put to non- agricultural purposes. Section 42 of M.L.R.Code contemplates a permission for non- agricultural use and section 43 puts restriction on use. Section 44 then contemplates a procedure for conversion of use of land from one purpose to another. Here, it is not in dispute that basically the lands are agricultural lands. If at any point of time the petitioners or any other predecessor in title has moved the competent authority (Collector) under section 42 of M.L.R.Code and obtained necessary orders of conversion, those orders are not produced on record. Those orders sanctioning such change of user are the primary evidence. The receipts, exhibiting payment of non-agricultural assessment only 7 support the fact of change of user. Such receipt by itself cannot be viewed as a substantive piece of evidence to gather legal sanction to such change. 10. The Respondent No.4, while hearing appeal, noted that lands have not been properly put to non-agricultural purpose and hence legally continue to be agricultural lands. Hence, he issued notice under section 257 (3) of the Code and gave opportunity of hearing to parties. The material produced has been looked into and thereafter a finding has been reached that the land legally continues to be a land for agricultural purpose. There is nothing on record, in this writ petition, to enable me to take a view to the contrary. Because of this finding, Respondent No.4 found that he could not have exercised the jurisdiction in relation to those lands and the parties needed to approach Revenue Authorities for getting their names added as owners in relevant revenue records. This consideration also, therefore, does not appear to be either erroneous or perverse. 11. The second appeal is already pending 8 before this Court and in it question of title is involved. The interim orders are operating and whatever judgment is delivered in that second appeal, same shall bind revenue authorities or city survey authorities. Hence, aspect of disputed ownership cannot be gone into, at this stage. 12. If petitioners want their names to be added in revenue records, or city survey records, they have to move competent authority with necessary documents. The production of receipt showing payment of non-agricultural assessment by itself is not sufficient for said purpose. However, considering the facts that petitioners are running educational institutions on the said land, since last several years, I find it appropriate to permit petitioners to move competent authority afresh with necessary documents. 13. If any such application is moved by petitioners or respondents, the same shall be looked into by competent authority in accordance with law and uninfluenced by the finding already reached by Respondent No.4. However, if the application is not accompanied 9 by any order passed either under section 42 or under section 44 of M.L.R. Code, Respondent No.4 shall not be required to reconsider the issue. In that event, the parties are given liberty to approach revenue authorities and to seek appropriate orders in the matter. 14. Needless to mention that, liberty given is subject to the orders which this Court may pass in pending second appeal. All orders passed in this matter by revenue authorities shall be subject to final order passed by this Court in second appeal. Writ petition is thus partly allowed. However, in the circumstances of the case, there shall be no order as to costs. 15. In view of this, civil application No. 991 of 2001 for effecting repairs/ construction is rendered infructuous and the same is disposed of accordingly. [B.P.DHARMADHIKARI, J.] Dated:-09/02/2011. ans/3809 10 WRIT PETITION NO.: 3809 OF 1991 Date of decision: 9th FEBRUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE