1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1996 OF 1991. 1. Bhagwat S/o Chandar Bhandare, Age 37 years, Occ.Agri., R/o Karadkhed, Tq.Udgir, Dist. Latur. 2. Anantcharya S/o Vithalacharya Joshi (Died through L.Rs.) 2A. Balkrishna Govindrao Joshi, Age 50 years, Occ.Service, R/o Shamnagar House No.680, Raghvendra Nivas Latur. 3. Devidas S/o Babacharya Joshi, Age 55 years, Occ.Retd.Militaryman, Occ. & R/o as above. ... Petitioners. Versus 1. The State of Maharashtra. 2. Collector of Atiyat, Latur, Dist. Latur. 3. Vinayakbua S/o Govindbua, Devtalkar, Age major, R/o Deotala, under Sambhu Umberga, Dist. Latur. ... Respondents. ... Mr.D.R.Bhadekar, advocate for the petitioners. Mr.N.H.Borade, A.G.P. for the Respondents Nos.1 to 3. 2 ... CORAM : V.R.KINGAONKAR,J. Date : 09.02.2010. ORAL JUDGMENT 1. By this petition, the petitioners impugn judgment and order rendered by learned Additional Collector, Latur, in an inquiry (File No.1981/ROR/A-5), whereby the agricultural land bearing S.No.129 to the extent of 4 Hectare 54 Ares (ll acres 14 gunthas) was directed to be deleted from certificate issued U/s 38-G of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (For short, HT & AL Act) holding that it is an inam land. 2. Originally, land S.No.129 was declared U/s 38-G of the HT & AL Act, in favour of Vithalacharya and Chandar S/o Narsu to the extent of only a part thereof. The competent revenue authority held that they were tenants in cultivating possession of the said land and were, therefore, entitled to purchase the same U/s 38(G) of the HT & AL Act. The tenancy issue was further inquired into by the Tahsildar. On 3 consideration of the relevant material, the Tahsildar found that land to the extent of 14 acres 8 gunthas i.e. 8 Annas share was in possession of Vithalacharya Joshi as a tenant, whereas remaining 8 Annas consisting of 14 acres 8 gunthas was in possession of Chandar as a tenant. Consequently, he declared them as owners U/s 38(G) to the extent of respective 8 Annas share as mentioned above and directed that the relevant record may be rectified. The petitioners Nos.1 and 2 are the successors of said Chandar and Vithalacharya Joshi. It appears that the learned Deputy Collector, Udgir, directed attachment of the land S.No.129 admeasuring 12 acres 9 gunthas, on the premise that it was Khalsa inam. The deceased petitioner No.2 Anantacharya, who was the son of said Vithalacharya Joshi challenged the order rendered by the Deputy Collector, by filing an appeal (File No.1972/REV/A-8). The appeal was partly allowed by an order dated 26.6.1973. The RDC, Osmanabad, remanded the matter to the Sub- Divisional Officer for deciding the same afresh and after giving due opportunity to all concerned 4 to adduce the necessary evidence. 3. The proceedings were again started by issuance of publication dated 17.7.1981 for auction of the land S.No.129 along with other land on assumption that it was an inam land. The Tahsildar, Udgir, called the cultivators to bid for giving of the said lands inclusive of S.No. 129 on Eksala Laoni basis (Annual cultivation on rental basis). The petitioner challenged the said order by filing an appeal which came to be dismissed and thereafter they filed revision application which also came to be dismissed. 4. Heard learned counsel and learned A.G.P. 5. It is pertinent to note that the Tahsildar, Udgir, had held in the earlier proceedings that there was mistake while issuing declaration U/s 38(G) and that Vithalacharya Joshi and Chandar were separately cultivating half shares, admeasuring 14 acres 8 gunthas each, which could be declared in their favour U/s 38(G) 5 of the HT & AL Act. The very same authority again included the land S.No.129 in the list of lands to be auctioned for yearly cultivation amongst the other lands, on the assumption that it was part and parcel of the inami lands. It has come on the record that there is no Muntakhab or any document to show that the land in question or any part thereof was dedicated for rendering services to a tomb (Samadhi) situated in the said land. The Additional Collector, ignored the earlier directions of the Residency Deputy Collector, Osmanabad in File No.1972/REV/A-8. Mr.Bhadekar, submits that after the remand, the SDO, Udgir, did not conduct any inquiry as regards nature of the inam. He would submit that the petitioners were not served with any notice about such inquiry. There appears no reply affidavit filed by the Respondents Nos.1 and 2 in respect of compliance of the directions of the appellate authority in the context of necessity to conduct inquiry and to decide the matter afresh. 6. What appears from the record is that all of a sudden the land was included in the list 6 of other lands and public notice was issued regarding auction to be held for cultivation on annual basis. The petitioners could not be deprived of opportunity to put forth their claims on tenancy basis. There is no document, as stated earlier, to show that any particular services were required to be rendered to the Samadhi nor there is evidence on record to show that the Samadhi is a place of pilgrimage where large number of devotees do throng or any annual fair is held. It is undisputed that the place of Samadhi is not shown in any record as a religious trust. Obviously, the impugned order seems to be improper. Unless there is positive evidence to show that the land in question was dedicated for rendering services to the Samadhi and, therefore, was a service inam, and unless the previous record regarding declaration of the said land U/s 38(G) was duly rectified after proper inquiry, the action to take over the land for the purpose of giving it on annual cultivation basis, is uncalled for. 7. In "Syed Samiullah S/o Habibullah and 7 another Vs. State of Maharashtra and others" 1999 (3) Mh.L.J.966, this Court held that where the tenants were cultivating the inam lands, security is granted to such cultivators on payment of rent. This Court held that the tenants need not be deprived of the land on the ground that it was prima facie a inam land. Considering the foregoing reasons, I find it difficult to subscribe to the observations made by the learned Additional Collector. The impugned judgment and order appears to be erroneous, particularly, when it did not precede with inquiry regarding nature of the inam and the nature of possession of the petitioners. Considering these aspects, I deem it proper to set aside the impugned order. 8. In the result, the petition is allowed. The impugned order is set aside. Rule is made absolute accordingly. No costs. It is, however, made clear that the competent authority is at liberty to conduct necessary inquiry whether land S.No.129 or any part of the same is original inam land and that whether there was error while 8 declaring the same in favour of Vithalacharya Joshi and Chandar S/o Narsu to the extent of some part thereof. (V.R.KINGAONKAR,J.) asp/office/wp199691