wp9157-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9157 OF 2010 Shri Eknath Chimaji Jagatap & Ors. .. Petitioners Versus The State of Maharashtra & Ors. .. Respondents Mr.A.V.Anturkar with S.B.Deshmukh for petitioners Mr.S.D.Daigude for respondent No.6 Mr.N.P.Deshpande, AGP for respondent Nos. 1 to 4. CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd JUNE 2011. P.C.: 1] This petition under Articles 226 and 227 of the Constitution of India is directed against the order passed by the Minister of Revenue, Government of Maharashtra. By the said order under challenge, he has dismissed two applications and set aside the order of the SDO dated 2nd May 2008 as well. 2] The petitioners have approached this Court on the basis that the immovable properties more particularly described wp9157-10.doc 2 in para 1 of this petition are subject to the provisions of Bombay Inferior Village Vatan Abolition Act (For short Abolition Act). According to the petitioners, the properties/ lands have been dealt with and in that behalf, they invited the attention of the Court to the fact that one Popat Mulay claiming to be power of attorney holder of petitioner, without obtaining prior permission of the Collector or without furnishing Nazrana as provided under section 5(3) of the Abolition Act, has executed sale deeds in favour of number of persons. The petitioners tried to locate the authority given to the said Mulay and an order dated 10th May 1991 allegedly regularising these transactions on payment of Nazarana which came to be passed. 3] It is the case of the petitioners that acting upon the so called order of 10th May 1991, the mutation entries have been made and these entries in favour of non Vatandar were challenged by them before the SDO. He made an order thereon on 2nd May 2008 cancelling the said entries and inserting the names of Vatandars and their legal heirs. wp9157-10.doc 3 4] Aggrieved by this order, an appeal was preferred by Mulay before the Additional Collector. The petitioners' grievance is that without any opportunity of being heard the stay was granted by Additional Collector. Ultimately, it is stated that the petitioners approached the Divisional Commissioner who passed an order dated 6th June 2008. The Revenue Minister granted stay. The petitioners filed a revision application challenging the order dated 6th June 2008. Thus, the grievance of the petitioners is that the order of 2nd May 2008 has been interfered with by the so called power of attorney holder. The petitioners' revision application was then heard by the Minister of Revenue and he was pleased to dismiss the same by an order dated 25th August 2009. A review application was filed which review application is stated to be pending. However, the petitioners have approached this Court. 5] The only controversy which was dealt with till date wp9157-10.doc 4 was whether there was an order passed on 10th May 1991 at all. Mr.Anturkar would urge that despite several orders of this Court that controversy is not settled. The Commissioner has not stated before this Court in clearest terms that there is any such order and the original is available in the Commissioner's record. Mr.Anturkar submits that what has been now placed before the Court is a copy of the said order but even that does not appear to be the genuine as the Annexure to the affidavit of the Commissioner would disclose the difference in the font type and size. Therefore, this Court should not proceed on the basis that any such order regularising the transactions has been passed. 6] It is unfortunate that considerable time of this Court had been taken on account of serious lapses by the authorities in filing affidavits and producing records on time. Now, an affidavit has been filed by Mr.Dilip Band, Divisional Commissioner, Pune in which he states that the petitioners were Vatandars and they had given power of attorney to Mulay. wp9157-10.doc 5 The said Mulay applied for regularising the sale transactions to the Additional Collector. By an order dated 10th May 1991, the transaction was regularised and he annexed a true copy of the said order. According to him, the original copy of the order is at page 19 of the File No.1 containing office copies in the office of Tahsildar, Haveli, Dist. Pune. 7] Prima facie, from a reading of this affidavit and the affidavits filed by respondent No.6 and the other contesting respondents, it is clear that the petitioners are raising a claim on the basis that the sale deeds are executed by a person who had no authority at all. In other words, the said Mulay is not the power of attorney holder of the petitioners. They are, therefore, impugning the transactions undertaken by Mulay and the deeds and documents executed by him. Nothing, including the orders impugned and the observations made therein, prevents them from approaching the Civil Court and seeking declaration of their right, title and interest in the immovable properties in question. wp9157-10.doc 6 8] Equally, prima facie, the controversy as to whether any order dated 10th May 1991 has at all been made, can also be made the subject matter of the said proceedings. It is not as if, the civil court is powerless to consider this aspect inasmuch as when Mr.Mulay is acting on the basis of the power of attorney and on the strength of an order allegedly passed on 10th May 1991, then, the competent court must give opportunity to all parties to lead evidence and then decide as to whether any such order can be said to have been made. Even if a copy thereof is produced whether that is admissible in evidence or not are matters, which must be decided by the competent court on the basis of the materials produced before it. 9] In the light of the fact that there are disputed questions of fact involved and essentially matter revolves around right, title and interest of petitioners in the immovable property, the petition is disposed of by observing that no findings and conclusions in the impugned order shall bind the wp9157-10.doc 7 competent court from adjudicating the dispute and rendering such findings thereon as are permissible in law. 10] Needless to state that when this Court has made observations with regard to available remedies to the petitioners, it does not mean that this Court has expressed any opinion on the issue of maintainability of the proceedings or on the issue of limitation. All contentions in that behalf are also kept open. (S.C.DHARMADHIKARI, J)