1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1218 OF 1993 1. Mohd. Murad Ali S/o Mohammed Ismail Adult, Agriculturist, R/o Bhokar, Dist.Nanded. 2. Mohd. Hamed Ali S/o Mohd.Ismail Adult, Occ : & resi: as of no.1 above 3. Mohd.Iftekar Ali S/o Mohd.Ismail Adult, Occ : & resi.as of no.1 above. 4. Mohd.Ahmed Ali S/o Mohd.Ali Adult, Occ.Agril., R/o Bhokar, Dist.Nanded 5. Gausia Begum W/o Wahab Ali Adult, Occ : Household, R/o H.No.9/11/316/2, New Quila Golkonda, Hyderabad, Hyderabad, A.P. 6. Mujeeb Begum Hamad Bin Mather Adult, Occ : Household, r/o H.No.9.11.385/1, Jinsi Bazar, Hyderabad. 7. Najeeb Begum Ali Abdullah Adult, Occ : Household, R/o As above No.2. 8. Haseena Begum-Khaleel Occ : Household, R/o as above. 9. Habeeb Ali Wahab Ali Occ : Business, R/o as above. 10. Meher Begum Md.Muktashi Occ : Household, R/o as above. 11. Safia Begum Ali Sageer Abdullah Occ : Household, R/o as above. 2 12. Mohammed Ali Wahab Ali Occ : Plumber, r/o as above. 13. Razia Begum d/o Wahab Ali Occ : Household, r/o as above. 14. Mumtaz Begum d/o Wahab Ali Occ : Household, U/g of mother (i.e. Razia Begum w/o Wahab Ali) r/o as above. 15. Fateema Begum d/o Wahab Ali Occ : Household u/g of mother (i.e. Razia Begum w/o Wahab Ali) 16. Zaker Ali Mohammed Ali Occ : Agril., R/o Bhokar, Dist.Nanded. ..PETITIONERS -VERSUS- 1. Smt.Devkabai W/o Tukaram, Adult, Occ : Household, r/o Bhokar, Dist.Nanded. 2. Smt.Savitribai W/o Sahebrao, Adult Occ : Household, r/o c/o Tukaram Haldekar at post. Mendka, Tq.Bhokar, Dist.Nanded. 3. Miss.Surekha d/o Sahebrao, Minor u/g of mother respondent no.2-above. 4. Sunderabai w/o Sakharam Pundkar Age : 22 years, Occ : Household, R/o Batala, Tal.Bhokar, Dist.Nanded 5. Sumanbai d/o Tukaram, Adult, Occ : Household, r/o Bhokar, Dist.Nanded 6. Kamlabai d/o Tukaram, Minor 7. Sanjayabai d/o Tukaram, minor, 8. Baby d/o Tukaram, minor Nos.6 to 8 above u/g of mother the respondent no.1 Devkabai Tukaram. 3 9. Smt.Devkabai Khandu Adult, Occ. Household, r/o Karandi, Tq.Hadgaon, Dist.Nanded 10. Nagabai W/o Narayan, Adult, Occ : Household, r/o Bhoker, Dist.Nanded. ..RESPONDENTS ......... Mr. P.G. Godhamgaonkar, advocate for petitioners. Mr.P.M. Yelnoorkar holding for Mr.M.P. Harjule, advocate for respondent nos.1 to 10. ......... (CORAM : V.R.KINGAONKAR,J.) DATE : 18 th August, 2010. ORAL JUDGMENT : 1. By this Petition, the petitioners challenge the judgment and order rendered by the learned Additional Divisional Commissioner, Aurangabad in appeal no.90/WTN/A/16, whereby the appeal preferred by the petitioners was dismissed and judgment rendered by the learned Deputy Collector (L.R.), Nanded was confirmed. 2. The petitioners contention, interalia, in both the Courts below, was that originally the land in question was held by one Abumiya as Inamdar thereof. The petitioners alleged that their father by name Mohamed Ali was the successor of the suit land. 4 There was some dispute regarding succession. While the dispute was being considered by the Competent Authority under the Atiyat Enquiries Act, in between 1940-1953, the suit land was taken over by the Government in its custody. The suit land was being auctioned for the purpose of cultivation during the relevant period. The petitioners' further contention was that one Shankar had taken the suit land for cultivation. The occupancy rights were erroneously and illegally conferred on said Shankar. He was predecessor in title of the respondents. They asserted that in the proceedings initiated by them for grant of occupancy rights, they were granted the occupancy rights being the successors of the Inamdar. They submitted that it was Madadmash Inam, and therefore, they were entitled to hold the same as successors of the Inamdar. They contended that they were entitled to get their rights declared as Inamdars under Section 2-A (1) of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. Their application for grant of occupancy right was, however, rejected and that the same order is confirmed by the impugned judgment and order rendered by the Additional Divisional Commissioner. Hence, the Petition. 3. Heard the learned counsel for the parties. 4. The contention of the learned counsel for the 5 petitioners is that the tenancy rights or occupancy rights can not have been derived by the respondents in view of the fact that the land was Madadmash Inam. He would submit that the learned Additional Divisional Commissioner and the learned Deputy Collector (L.R.) failed to notice that the enquiry was required to be held in relation to scope of Section 2-A of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. It is argued that both the authorities were influenced by the observations by the High Court rendered in Writ Petition No.1419 of 1979 and the fact that it is the same judgment was confirmed by the Apex Court while dismissing the S.L.P.. It is contended that the Judgment in Writ Petition No. 1419 of 1979 was rendered in ignorance of the fact that the land in question was Madadmash Inam and that tenancy could never been created by the deceased Inamdar. 5. It is difficult to countenance the contention raised by the learned counsel for the petitioners. Perusal of the judgment in Writ Petition No.1419/1979 goes to show that the respondents claimed to be the representative of deceased Shankar. They had challenged the orders of the tenancy Court in the proceedings under Section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, whereby their summary eviction was sought. It does not appear that the learned Single Judge did not notice the question 6 about the nature of Inam and scope of Section 2-A(1) of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. The learned Single Judge observed that:- "It is in pursuance of this objection that the learned Naib Tahsildar passed an order on 31.12.1964 and set aside the declaration granted in favour of Shankar Tukaram under the Inams Act, relating to Survey no. 108. Mr.Harjule strenuously urged before me that once the occupancy certificate was conferred, there was a finality attached to it and it could not be challenged by a separate objection petition. My attention was invited to Section 2A of the Hyderabad Abolition of Inams Act and particularly, sub-section (4) thereof which states that the decision of the State Government under sub-section (1), or sub-section (2) in appeal, or under sub-section (3) and subject thereto the decision of the officer, shall be final. The scheme of the Act shows that whenever any question arises regarding a point involved in sub-section 2A(1) the competent authority appointed by the State Government shall decide that question. Sub-section (2) says that any decision by the appointed authority is subject to appeal to the State Government. Sub- Section (4) points out that the decision of the said authority (when no appeal is filed), or the decision of the State Government (if appeal is filed) shall be final. In view of this position, once it is admitted that occupancy rights were conferred on the predecessor of the Petitioners, that conferral was final and there 7 was no scope for setting aside that conferral." 6. Not only that but the learned Single Judge further proceeded to observe that the orders of the Tenancy Tribunal were improper. It is pertinent to notice that the learned counsel for the petitioners relied upon the observations in "Mohd. Yunus V. Mohd. Mustagim and others" {AIR 1984 SC 38). In the given case, the Apex Court observed :- "A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art.227. The supervisory jurisdiction conferred on the High Courts under Art.227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the fact of the record, much less an error of law." 7. Now if the same principle is considered and the ratio of the Apex Court is duly considered then the limitations in the exercise of jurisdiction available under Article 227 of the Constitution of India will have to be made applicable to the present fact situation. It is difficult to say that the judgment rendered in Writ Petition No.1419 of 1979 was `per incurium' because it does not 8 appear that the same was rendered in ignorance of Section 2-A of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. The judgment rendered in ignorance of law is the only one which could be regarded as `per incurium' but the said doctrine has no application in the present facts situation. 8. The concurrent judgments of both the Tenancy Courts reveal that the relevant contentions were duly considered. It is true that the finding has been recorded by the learned Additional Divisional Commissioner that the land in question was Madadmash i.e. personal Inam, which was granted to a particular independent i.e. Shri.Abumiya. The petitioners having lost earlier round of litigation, now can not be allowed to turn volta-face and submit that the respondents could not have been granted right of occupancy due to abolition of the Inam. It appears that the Naib Tahsildar granted occupancy right of the suit land in favour of the grand- father of the respondents on 27.09.1961. In the teeth of such orders and the result of earlier round of litigation, which had gone upto the Apex Court, I do not find any substance in the present Petition. 9. For the reasons aforestated in the exercise of the supervisory jurisdiction available under Article 227 of the 9 Constitution of India, I do not find it essential to interfere with the impugned judgment and order. The Petition is dismissed. The Rule discharged accordingly. No Costs. (V.R.KINGAONKAR) JUDGE gas/wp1218.93