W.P. 1774/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1774/2010 Ahmed Bin Abud Chous, Age : 74 years Occu. Business, Chairman, Institute of Anjuman-Ishat-e-Talim, Beed, Tq. & Dist. Beed. ..Petitioner. Versus 1 The State of Maharashtra, through Addl. Collector, Beed. 2 Syed Moizuddin Inamdar, Age : 59 years, Occu. Business, R/o Nalband Galli, Near Masjid, Balbhim Chowk, Beed. 3 The District Wakf Officer, Beed. 4 Maharashtra State Wakf Board, Through its Chief Executive Officer, Panchakki, Aurangabad. ...Respondents. Mr. A.P. Bhandari, Advocate for the applicant. Mr. N.H. Borade, A.G.P. for respondent State. Mr. C.V. Thombre, Advocate for respondent No.2. Mr. M.W.B. Khan, Advocate for respondent No.3. Mr. Y.B. Pathan, Advocate for respondent No.4. CORAM : A.V. NIRGUDE, J. DATED : 28th April, 2011. ORAL JUDGMENT: 1. Heard. 2. Rule. Rule returnable forthwith. By consent of parties, the petition is taken up for hearing for final disposal. 3 This writ petition is filed challenging the order dated 21/12/2009 passed by the Additional Collector (Atiyat), Beed in 2005/CD/1/Appeal/Kavi/1171. The learned Additional Collector, in W.P. 1774/2010 2 2004 initiated proceeding under section 6 of the Atiyat Inquiry Act, against various persons, on the complaint filed by respondent No.2, alleging that the petitioner and others are in unauthorised possession of land survey No. 95 admeasuring 14 acres 19 gunthas -a inam property. The learned Additional Collector, ultimately passed final order in the said proceeding on 27th September, 2004 and directed that above mentioned lands which is in possession of the various persons, including the petitioner should be resumed by the Government etc.. The petitioner is an Education Society / Public Trust. It is common ground that this Education Society / Public Trust in 1972 or so, took two acres 35 gunthas land out of survey no. 95 for establishing their School / College etc. from the Inamdar etc.. They admittedly continued in possession but kept the land vacant. On 29th January, 2005 the petitioner moved an application to the Additional Collector for setting aside the ex-parte order dated 27th September, 2004 and to hear them again on merits. The said application came to be rejected. Against that, the petitioner filed writ petition before this Court and this Court directed the Additional Collector to hear the petitioner on the application, seeking setting aside of the ex-parte order and also seeking condonation of delay which was caused in making the application. The learned Additional Collector thereafter passed the impugned order on 21/12/2009 and rejected the petitioner’s application. The learned Additional Collector did not discuss the merits of the case at all. He simply brushed aside the application saying that the reasons mentioned in the application seeking condonation of the delay, are not proper and believable with out recording reasons as W.P. 1774/2010 3 why he came to such conclusion. In my view, the impugned order is grossly erroneous and illegal. The learned Additional Collector should have realised that the petitioner or the person who was before him, was trying to protect interest of the Education Society / Public Trust. He should have further realised that the Education Society / Public Trust was not given notice of the proceeding and therefore, they were entitled to hearing on merits. I am aware that in the original proceeding, the name of the original petitioner Ahmed Bin Abud is mentioned but it is not mentioned that he was representing the interest of the Education Society / Public Trust. Apparently, the notice was issued to him in his personal capacity. But when the matter came before the Court, all along the original petitioner Ahmed Bin Abud represented to this Court that he was trying to protect interest of the Education Society / Public Trust as its Chairman. In view of this, the writ petition should succeed. But, I must mention that it is necessary to direct the Additional Collector to give hearing to all the Trustees of the Education Society / Public Trust so that no person representing the Education Society / Public Trust would be able to challenge the order on the ground that he was not heard. ORDER Rule is made absolute in terms of following terms. a) The order dated 21/12/2009 passed by the Additional Collector (Atiyat), Beed in 2005/CD/1/Appeal/Kavi/1171 is set aside only to the extent of the land in possession of the petitioner Society. b) The delay caused in making the application W.P. 1774/2010 4 seeking setting aside of the order is also allowed. c) The Additional Collector (Atiyat), Beed shall now issue notices to all the Trustees of the Education Society / Public Trust whose names are mentioned in the record of the Charity Commissioner and then decide the case afresh. e) The application shall be disposed of as far as possible within three months from the communication of this order to the Additional Collector (Atiyat), Beed. The petitioner Education Society / Public Trust shall not change the present status of the land in question till the disposal of the case before the Additional Collector (Atiyat) . [A.V. NIRGUDE, J.] ts k/2011/April28/wp1774.10/ok