1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5684/1996 1] Shri Bhagwat S/o Narayan Shinde age major, Occ-Agriculture R/o Ishal, Tq. Kej, Dist.Beed. 2] Shri Pandit s/o Namdeo Shinde age major, Occ-Agril R/o as above 3] Shri Govind S/o Tukaram Shinde age major, Occ-Agril R/o as above. .. PETITIONERS VERSUS 1] The State of Maharashtra (through Government Pleader High Court,Bench at A’bad) 2] The Addl.Divisional Commissioner Aurangabad Division,Aurangabad 3] The District Collector, Beed. 4] Shri Mohan s/o Shankarrao Kaldate age major, Occ-Agril R/o Village Isthal, Tq. Kej 2 Dist.Beed. .. RESPONDENTS .... Shri S.B.Bhapkar holding for Shri V.B.Nayak,Adv.for petitioners Shri D.R.Kale,AGP for Respondents 1 to 3. S/Shri D.J.Choudhari and B.N.Patil,Advs.for Respondent no.4 .... CORAM : R.K.DESHPANDE,J. DATE : 10/8/2010. ORAL JUDGMENT: 1] This Writ Petition challenges the order dated 28/10/1996 passed by the Additional Commissioner, Aurangabad Division, Aurangabd in Revision Petition No.1995-Rev-R-17 confirming the order dated 24/3/1994 passed by the District Collector, Beed. The District Collector, Beed by his order dated 23/24-3-1994, allotted the land in question, which admeasures 16 Aar, to the respondent no.4 Shri Mohan Shankarrao Kaldate on the ground that he is the owner of the adjacent land. The allotment is made under Section 35 of the Maharashtra Land Revenue Code read with the provisions of Maharashtra Land Revenue (Disposal of Government Land) Rules, 1971. This order has been confirmed by the Additional Commissioner, Aurangabad by his order dated 28/10/1996. Hence, both these orders are the subject matter of challenge in the instant Writ 3 Petition. 2] Notice in this matter was issued on 18/12/1996. The matter was dismissed in default and ultimately it was restored by an order dated 16/6/2007 with the costs of Rs.2500/- which the learned counsel for the petitioner submits that it has been paid. The learned A.G.P. Shri D.R.Kale appears for respondents 1 to 3. The learned counsels for the parties submit that the matter is pending since 1996 and hence it can be decided finally. Hence Rule. Rule made returnable forthwith. Matter is heard finally by consent of the learned counsels for the parties. 3] The petitioners claim to be the owners of Survey Nos.48 and 50 of village Isthal, Tq. Kaij, Dist,Beed, whereas the respondent no.4 is the owner of survey no.68 situated at the same village. The petitioners submitted application in the year 1993 under Section 35 of the Maharashtra Land Revenue Code for allotment of land in question. They claimed that the land in question was the part and parcel of Survey Nos.48 and 50 owned by the petitioners which was acquired by the State Government. Subsequently, this portion of the land remained idle as the road was constructed at some distance from the land in question and hence, he claimed restoration of the land as contemplated by sub-section (4) of Section 35 of the Maharashtra Land Revenue Code. 4 4] The respondent no.4 also filed application dated 16/3/1994, for allotment of land in question by claiming that he is the owner of the adjacent land which is survey no.68 and has got a preferential right. He submits that there are no other land owners who are adjacent to the land in question and therefore, the land be alloted to him under Section 35 of the Maharashtra Land Revenue Code. 5] The Collector, Beed by the order dated 23/24-3-1994 allotted the land in question to the respondent no.4 upon certain terms and conditions on the ground that the land in question is adjacent to Survey No.68, which is owned by the respondent no.4 and hence upon considering the report the land was allotted to respondent no.4. 6] This order of the Collector was challenged by the petitioner by filing Revision under Section 257 of the M.L.R.Code before the Additional Commissioner, Aurangabad. It was registered as Revision No.1995-Rev-R-17. It was decided on 28/10/1996 by confirming the order dated 23/24-3-1994 passed by the Collector, Beed. It was held that the land in question was not required by the Government and the respondent no.4 was the person holding survey no.68 which was adjacent to the land in question and hence, the allotment in his favour was legal and proper. 5 7] The learned counsel for the petitioner Shri S.B.Bhapkar holding for Shri Nayak, has urged that the land alloted to respondent no.4. was part and parcel of Survey Nos.48 and 50 and in terms of provisions of 35 (4) of the M.L.R.Code, he had submitted application in the year 1993 for allotment/restoration of land in question. He submits that application filed by respondent no.4 was subsequent to the application filed by the petitioners as it was dated 16/3/1994. According to him, the authorities below have failed to consider the claim of the petitioners. According to him, the land of the petitioners is adjacent to the land in question and at any rate it was being part and parcel of survey nos.48 and 50, the same should have been alloted to the petitioners. He submits that both the authorities have ignored the application filed by the petitioners and no findings are recorded in respect of claim of the petitioners and the allotment has been made in favour of the respondent no.4, without considering the claim of the petitioners. 8] Shri Choudhari, the learned counsel for the respondent no.4 on the other hand, has refuted the contentions raised by the petitioners. He submits that the land in question was neither part and parcel of Survey Nos.48 and 50 nor the land of the petitioners is adjacent to the land in question. He submits that the authorities below have recorded a finding of fact that 6 the land owned by the respondent no.4 is the only adjacent land to the land in question and hence, the said finding of fact need not be disturbed in Writ Petition under Articles 226 and 227 of the Constitution of India. He further submits that the order of the Collector has already been implemented, the respondent no.4 has taken possession of the land and the same is under his cultivation. He further made reference to certain civil proceedings. 9] After going through the orders passed by the authorities below which are impugned in the present Petition, it is apparent that the claim of the petitioners has not been considered. The admitted position is that the petitioners have filed application which was prior in point of time, for allotment of land in question as required by Section 35 of the M.L.R. Code. The question whether the land in question was acquired or that it was part and parcel of Survey Nos.48 and 50 or that the respondent no. 4 was the only adjacent land holder, are all the questions which are required to be gone into and decided by the authorities below in accordance with the provisions of Section 35 read with the relevant provisions of the M.L.R.(Disposal of Government Land) Rules, 1971. None of these aspects are considered by the authorities below. The orders passed therefor, suffer from total non application of mind to relevant aspects of the matter and the claim of the petitioners. The order impugned therefore, cannot be sustained and the matter will have to be remanded 7 back to the authorities concerned. 10] In the result, the instant Writ Petition is allowed. The order dated 23/24-3-1994 passed by the Collector, Beed and the order dated 28/10/1996 passed by the Additional Commissioner, Aurangabad, are hereby quashed and set aside. The matter is sent back to the Collector, Beed for considering the rival claims of the petitioners and the respondent no.4, in accordance with law. The Collector while deciding such claim, shall provide the parties concerned an opportunity of being heard in the matter and even to place on record their written submissions. Rule is made thus absolute in these terms. No order as to costs. So far as the question of possession of the respondent no.4 over the land in question is concerned, the same shall be governed by the orders passed in the civil proceedings. 11] All Civil Applications are disposed of in view of the fact that the Petition has been allowed. [R. K. DESHPANDE, J.] umg/wp5684-96