1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.253 OF 2010 IN WRIT PETITION NO.755 OF 1993 Hawagi s/o Ram Birajdar, R/o- Nalegaon, Tq-Ahmedpur, Now Chakur, Dist-Latur. ...APPELLANT. VERSUS 1) Bhagwantrao @ Bhagwan @ Bhagwat s/o Mahadu Munjane, since deceased by L.Rs. 1A) Smt. Rukhminbai w/o Bhagwantrao Munjane, 1B) Ankush s/o Bhagwantrao Munjane, 1C) Madhavrao s/o Bhagwantrao Munjane, 1D) Nilkant s/o Bhagwantrao Munjane, 1E) Suryakant s/o Bhagwantrao Munjane, All R/o- Nalegaon, Tq-Chakur, Dist-Latur, 2) The State of Maharashtra, 3) Collector, Latur, 4) Deputy Collector, (Land Reforms), Latur, 2 5) The Tahsildar, Ahmedpur, presently at Chakur, Dist-Latur. ...RESPONDENTS. ... Shri.V.D. Salunke Advocate for Appellant. Mrs. M.D. Thube-Mhase Advocate for Respondent Nos.1-A to 1-E. Shri.S.D. Kaldate, A.G.P. for Respondent Nos. 2 to 5. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. RESERVED ON : 14TH SEPTEMBER, 2010. PRONOUNCED ON : 16TH SEPTEMBER, 2010 ORDER [PER NARESH H. PATIL, J.] : 1. Heard learned counsel for the parties. 2. Shri. V.D. Salunke, learned counsel appearing for the Appellant submitted that the learned Single Judge placed reliance on the provisions of Section 5 (3) of the Bombay Inferior Village Watans Abolition Act, 1958 ( for short "the Act of 1958"). The Writ Petition was not 3 maintainable as there was statutory remedy of appeal, which was not resorted to by the Respondent/ original Petitioner. The Letters Patent Appeal is maintainable. In support of his submissions, the learned counsel placed reliance on the Reported Judgment in the case of Midnapore Peoples Co-op. Bank Ltd. and others vs. Chunilal Nanda and others, 2006 (5) Supreme Court Cases, Page 399. 3. Learned counsel for the Appellant further submitted that for the first time the reliance is placed on the provisions of Section 5(3) of the Act of 1958. The Respondent did not initiate any proceedings for regularization. As the land was restored to the Appellant, the only remedy to the Respondent was to file Civil Suit. In support of his submissions, the learned counsel also placed reliance on the following Reported Cases: i) Jain Shwetambar Sthanak vs. Chintamani Bajirao 4 Naiknavare and others, 1984 B.C.I. (O) Page 68, ii) Dadu Rau Yelavade (dead) by his Heirs and LRs., vs. Himmat Rasul Patel, A.I.R. 1992 S.C. Page 1093, iii) Lotan Ramchandra Shimpi and others vs. Shankar Ganpat Kayasth and others, 1994 (4) Bom. C.R. Page 575. 4. Per contra, Mrs. Thube-Mhase, learned counsel appearing for the Respondents submitted that the Letters Patent Appeal is not maintainable as the learned Single Judge was exercising powers under Article 227 of the Constitution of India. The Appellant had executed the sale deed in favour of the Respondent after acceptance of consideration which has not been challenged by the Appellant so far. Inspite of acceptance of consideration amount, the Appellant is agitating the issue of restoration on technical pleas, which 5 are not tenable. The sale deed executed in favour of the Respondent is valid even today. As the Respondent deposited 13 times assessment of revenue during the proceedings, the regularization of the transaction is deemed to have been completed. Rest is the formality remained with the revenue officers to be completed. The learned counsel further submitted that the Appellant did not file any reply to the Writ Petition and raise issue of alternate remedy. Even if alternate remedy was there, after more than 15 years, the Respondent cannot be relegated to the alternate remedy when the High Court had admitted the Petition. The learned counsel, in support of her submissions, placed reliance on the following Judgments: i) National Textile Corporation (SM) Ltd. vs. Devraj Chandrabali Pai, 2006 (1) ALL M.R. Page 494. ii) Judgment dated 20th July, 6 1979 delivered by the Division Bench of the Bombay High Court (CORAM: B.N. DESHMUKH C.J. & D.N. MEHTA, J.) in Special Civil Application No.2177 of 1978 and batch of Applications. iii) Sheikh Mohammed Sheikh Gulab vs. Additional Commissioner, Aurangabad Division, Aurangabad and others, 1997(2) Mh. L.J. Page 450, iv) Sheikh Lal vs. Malhari and others, 1984 M.H. L.R. Page 191, v) Narendra Patra vs. Shiba Narayan Taldi and another, A.I.R. 1995 Orissa, Page 45. 5. We have perused the relevant orders and the order passed by the learned Single Judge. The learned Single Judge had referred to the provisions of Section 5(3) of the Act of 1958. We find that this provision was amended even in the 7 year 2008 by renumbering the same as Section 5 (3) (a) and 5(3)(b), by way of Amendment Act of 19 of 2008. 6. The Division Bench of this Court (CORAM: B.N. DESHMUKH, C.J. & D.N. MEHTA, J.) in Special Civil Application No.2177 of 1978 and batch of Applications, by Judgment and Order dated 20th July, 1979 had even considered the provisions of Section 5(3) and the scheme of the Act of 1958. In the light of the authoritative pronouncement of the Division Bench, we are of the view that the learned Single Judge rightly appreciated the facts and applied provisions of law. In the light of the fact that the revenue assessment was deposited during the proceedings by the Respondents, the grant of permission by the Authorities was formal. 7. There is another feature of the matter that in the light of the amended provisions of Section 5(3)(a) and 5(3)(b) of the Act of 1958, the Respondent could seek protection and 8 regularization. 8. As the Writ Petition was admitted on 18th March, 1993, in the facts of the case, we are not impressed by the argument that the Respondent shall be relegated at this stage to resort to alternate remedies. In the facts of the case, the Writ Petition was maintainable and the learned Single Judge rightly exercised the powers conferred on the Writ Court. There is no merit in the Appeal, it is liable to be dismissed. The Letters Patent Appeal is accordingly dismissed. [K.K. TATED, J.] [NARESH H. PATIL, J.] asb/SEPT10/lpa253.10 9. After pronouncement of the Order, Shri. V.D. Salunke, the learned counsel appearing for the Appellant prayed for continuation of stay granted by the learned Single Judge in Writ Petition No.755 of 1993 for a further period of three weeks. Mrs. Thube-Mhase, the learned 9 counsel for the Respondents has opposed for the same. 10. Considering the submissions advanced, interim relief granted earlier by the learned Single Judge in Writ Petition No.755 of 1993 is continued for a period of three weeks from today. [K.K. TATED, J.] [NARESH H. PATIL, J.] asb/SEPT10/lpa253.10