1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 6710 0F 2008 Kisan s/o Nana Ingale, Age: 60 years, Occu.: Agri., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER AND WRIT PETITION NO.: 6711 OF 2008 Madhukar S/o Abasaheb Kulkarni, Aged: 70 years, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER AND WRIT PETITION NO.: 6712 OF 2008 Vijayabai W/o Prakash Suryawanshi, Aged: 45 years, Occu.: Household, R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER AND WRIT PETITION NO.: 6713 OF 2008 Mohan S/o Pandurang Ingale, Aged: 65 years, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER AND WRIT PETITION NO.: 7219 OF 2008 Prabhu S/o Nana Ingale, Aged: 70 years, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. AND WRIT PETITION NO.: 7220 OF 2008 Ankush S/o Shankar Pawar, Aged: 47 years, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER AND WRIT PETITION NO.: 7221 OF 2008 Rajaram S/o Nana Ingale, Aged: 67 years, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER AND WRIT PETITION NO.: 7222 OF 2008 Rangnath S/o Nana Suryawanshi, Aged: 66 years, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER. AND WRIT PETITION NO.: 7223 OF 2008 Murli S/o Vishnu Dixit, Aged: 45 years, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONER AND WRIT PETITION NO.: 7224 OF 2008 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 1. Shahu S/o Bhagwat Suryawanshi, Aged: Major, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. 2. Sudhakar S/o Bhagwat Suryawanshi, Aged: 48 years, Occu.: Agril., R/o Sanja, Tq. & Dist. Osmanabad. ... PETITIONERS VERSUS 1. The State of Maharashtra. Through its Secretary, Revenue & Forest Department, Mantralaya, Mumbai-32. [Copy to be served on Govt, Pleader, High Court of Bombay, Bench at Aurangabad]. 2. The Collector, Osmanabad, Dist. Osmanabad. 3. The Special Land Acquisition Officer, P.T. & MIW No.1 at Osmanabad. Collector Office Premises, Osmanabad. 4. The Assistant Charity Commissioner, Osmanabad, Dist. Osmanabad. 5. The President, Shriram Mandir Devashtan Trust, Kasba Tadwale (K), Tq. Osmanabad, Dist. Osmanabad. ... RESPONDENTS [IN ALL THESE WRIT PETITIONS] *** Mr. P. K. Joshi, Advocate for the Petitioners. Mr. K. B. Chaudhari/ K.J. Ghute Patil, D. V. Tele, D. R. 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Korde and Smt. V. A. Shinde, A.G.P. for the Respondent / State in respective writ petitions. Mr. S. S. Jadhavar, Advocate for Respondent No.5. *** CORAM: S. B. DESHMUKH & SHRIHARI P. DAVARE, JJ. DATED: 3rd NOVEMBER, 2009. ORAL ORDER [Per Deshmukh, J.] 1. We have heard learned counsel appearing for the respective parties. 2. Rule, made returnable forthwith and heard finally by consent of the parties. 3. This group of writ petitions, we are disposing of, by this common order, for the reason that the petitions involve identical questions of fact and law. 4. The petitioners, in all these petitions are claiming to be the tenants, under the provisions of Hyderabad Tenancy and Agricultural Lands Act, 1950 [hereinafter referred to as the Act of 1950, for short]. We are not recording the area of land independently cultivated by each/ every petitioner 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. for the reason, there is no dispute among the parties. Respondent Nos.1 to 3 in this group of writ petitions, are the State of Maharashtra and its authorities. Respondent No.4 is formal party i.e. Assistant Charity Commissioner. Respondent No.5 is the President of Shriram Mandir Devasthan Trust [hereinafter referred to as trust]. The trust is being registered in accordance with the provisions of Bombay Public Trust Act, 1950. The petitioners, in all these writ petitions, sought writ of mandamus, against Respondent Nos.1 to 3, directing them to make payment of fifty per cent amount of compensation along with interest thereon, to the petitioners, as per the Award dated 29th May, 2007, passed by the Respondent No.3. On behalf of the petitioners, our attention is invited to the order passed by the Officer on Special Duty [Appeals and Revision], Revenue and Forest Department, Mantralaya, Mumbai-32. This order seems to have been passed by the Officer on Special Duty on 1st December, 1981. Copy of this order is produced on record along with every writ petition. Name 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. of the petitioners/ tenants and serial number is different. However, State and one more person Mr. Kalyan Gosavi, Archak, on behalf of the Trust, were parties before the Officer on Special Duty. From this order, it reflects that by and large, petitioners/ tenants have not paid rent of the respective land cultivated by them only for two years i.e. 1973-74 and 1974-75. Reason, was that, those two years they faced scarcity in the area, could not cultivate the land and were unable to make the payment of rent. Counsel appearing for the Petitioners also points out notice under subsections (3) and (4) of Section 9 of the Land Acquisition Act, copy of which is placed on record. Part of the land owned by the Respondent No.5 and cultivated by the petitioners/ tenants, at the relevant time, was being acquired for the public purpose by the State Government. Award came to be passed by the Respondent No.3. The Respondent No.1 State, has taken a policy decision by passing a Government Resolution for apportionment of the compensation. Copy is on record. It is the Government 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Resolution bearing No.DEV-3505/330/PK-47/L-4 dated 26th June, 2006. By this Government Resolution, the State has modified its earlier decision dated 29th October, 1975. By this Government Resolution, it has been resolved that in case of acquisition of the land, from Devasthan, fifty per cent amount of the compensation to be paid to the Devasthan concerned and fifty percent to be paid to the respective tenants. 5. Petitioners, claim fifty per cent of amount of compensation. Petitioners were required to approach this Court by filing writ petition NO.3133 of 2007. Copy of the order, passed by this Court is Annexure-G. This order is passed by the learned Division Bench of this Court on 28th March, 2008. On behalf of the State, statement was made by learned A.G.P., on instructions from Special Land Acquisition Officer, who was present in the Court, that appropriate order in accordance with law will be passed within four months from that day. Statement was accepted. Accordingly, order was passed by this Court in that writ 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. petition and writ petition came to be disposed of. 6. The Special Land Acquisition Officer passed an order on 25th July, 2008, copy of the order is on record. It is Exhibit-III [page 85]. The Special Land Acquisition Officer / Respondent No.3, by this order passed on 25th July, 2008, directed deposit of fifty per cent amount of compensation with the State of Maharashtra for the reason, according to him, the Petitioners/ tenants have not complied with the condition laid down in the letter dated 27th March, 2008. 7. On behalf of State, it has been contended that the order passed by the Special Land Acquisition Officer dated 27th March, 2008 is not challenged. Reply affidavit has been filed on behalf of Respondent Nos.1 to 3. In this reply affidavit, a statement is made that the petitioners/ tenants have not complied with the decision rendered by the Officer on Special Duty dated 1st December, 1981 and, thereafter, their tenancy deemed to have been terminated from the date of amount of rent was due. This affidavit 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. seems to have been sworn in by Mr. Ankush Bhanudas Pinate, Special Land Acquisition Officer on 21st February, 2009. Thus, order passed by the Special Land Acquisition Officer on 25th July, 2008 has been justified by filing this affidavit and dismissal of the petitions is sought on behalf of the State. 8. We have also heard learned counsel Mr. S.S.Jadhavar who appears for trust/ Respondent No.5 in all these petitions. 9. There is no dispute that Respondent No.5 is a trust registered under the provisions of Act of 1950. There is also no dispute that the Respondent No.5 holds around 1200 Acres of land. Cultivation of the land by the Petitioners as tenants is not seriously disputed. In this group of writ petitions, we are not supposed to decide any issue pertaining to the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950. Acquisition of the land, for public purpose, is an admitted fact. Passing of the Award by the Special Land Acquisition Officer is also 10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. an admitted fact. Apportionment of the amount of compensation is a matter of Government Resolution, produced on record. There is no serious dispute to the claim of the petitioners that they are protected tenants cultivating specific portion of the land hold by the Respondent No.5. . Contention raised on behalf of the Respondent Nos.1 to 3 is pertaining to alleged irregular payment of the rent by the tenants. For this proposition, reliance is placed on the communication dated 27th March, 2008 which is Annexure R-1, produced on record, along with the affidavit by the Special Land Acquisition Officer. This seems to be a communication under the signature of Desk Officer, Revenue and Forest Department, addressed to District Collector, Osmanabad. This communication is important. At the out set, this is not a quasi judicial order passed by the authority to which petitioners were party at any point of time. It is also not the case of the State that this communication was informed to the petitioners. It does 11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. reflects from this communication that the Petitioners were not heard by this officer i.e. the Desk Officer of Revenue and Forest Department. Reason for addressing this communication to the District Collector was the letter of District Collector dated 20th February, 2008. In fact, some clarification/ guidance was sought by the District Collector, Osmanabad from the State Government regarding payment of compensation to the tenants, in view of the order passed by the learned Division Bench of this Court in Writ Petition No.3133 of 2007. Thus, direction given by the Desk officer, Revenue and Forest Department, to the District Collector, Osmanabad cannot be said to be binding on the individual persons, in the facts and circumstances of the present case. This ground cannot be set up on behalf of the State to turn down the petition filed on behalf of the petitioners. Petitioners' rights have been cristalised in the order dated 1st December, 1981, copy of which is on record. Learned counsel Mr. Joshi, on behalf of the petitioners, on instructions, made a statement that there was 12 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. non payment of rent to Respondent No.5 only for two years i.e. 1973-74 and 1974-75, at the relevant time. Reason assigned is scarcity which can be accepted. Apart from this non payment of rent for the said two years, learned counsel submits that the payment of rent has been made by the tenants regularly. The order passed by the Special Land Acquisition Officer dated 1st December, 1981 cannot be said to be sustainable. Order dated 25th July, 2008 passed by the Special Land Acquisition Officer is perverse, in the facts of the present case. On this ground, petitioners legitimate claim, to get fifty per cent amount of the compensation, cannot be turned down. . Status of tenant and tenancy of a person can be terminated in accordance with the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950. Indisputably the landlord or competent authority under the Act of 1950 has not terminated the tenancy of the present petitioners. Even it is not the case set up on behalf of the State Government. A statement made in affidavit in reply, 13 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. para 5, that the tenancy of the petitioner is deemed to have been terminated from the date of amount of rent was due, simply has to be discarded being unknown to the provisions of the Act of 1950. 10. In our considered opinion, petitions need to be allowed. Fifty per cent amount of compensation, to the petitioners, in view of the Government Resolution dated 26th June, 2006 needs to be paid. 11. In the result, writ petitions are allowed in above terms. Amount of compensation i.e. fifty per cent to be paid to the Petitioners within a period of eight weeks from today. Rule accordingly is made absolute in above terms with no orders as to costs. [SHRIHARI P. DAVARE,J.] [S.B.DESHMUKH, J.] Dated:03/11/2009. ans/6710