( 1 ) wp2263.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2263 OF 1992 Narayan s/o. Sonaji Patil .. Petitioner (Deceased through L.Rs.) 1-A. Shaligram Narayan Patil Age. 45 years, Occ. Agri., 1-B. Bhagwan Narayan Patil Age. 41 years, Occ. Agri., 1-C. Eknath Narayan Patil, Age. 35 years, Occ. Agri., 1-D. Dwarkabai w/o. Narayan Patil Age. 65 years, Occ. Household, All are r/o. Village Sonale, Tq. Jamner, Dist. Jalgaon. 1-E. Dewalka w/o. Nana Patil Age. 28 years, Occ. Household, R/o. Village Bharadi, P/o. Nachankheda, Tq. Jamner, Dist. Jalgaon. Versus 1. Gangadhar s/o. Trimbak Belpatre .. Respondents Age. Major, Occ. Service, R/o. C/o. S.T. Depot, Jamner, At & Post. Jamner, Tal. Jamner, Dist. Jalgaon. 2. The Collector of Jalgaon, Tal. & Dist. Jalgaon. 3. The State of Maharashtra ( 2 ) wp2263.92 Mr. S.S. Kulkarni with Mr. V.T. Choudhari, Advocate for the petitioners. Mr. D.R. Kale, A.G.P. for respondent/State. CORAM : S.S. SHINDE, J. RESERVED ON : 08.03.2011 PRONOUNCED ON : 11.03.2011 J U D G M E N T :- 1. This petition is filed challenging the judgment and order passed by the Additional Commissioner, Nashik Division, Nashik, dated 30.07.1992 in Appeal No.LND-369/82, which is at annexure “F” to the petition. 2. It is case of the petitioner that the suit land is comprised in Survey No. 16, admeasuring 18 acres 6 gunthas and pot kharab 20 gunthas, assessed at Rs. 19.94 ps., situated at village Sheri, Tal. Jamner, Dist. Jalgaon. It is case of the petitioner that the suit land was allotted to the father of respondent No.1. i.e. Trimbak Supun Belpatre on an in-alienable and impartible tenure, by the Sub-Divisional Officer, Chalisgaon, in the year 1963. After death of Trimbak, his son i.e. respondent No.1 has entered into an ( 3 ) wp2263.92 agreement of sale of the suit land with the petitioner in the year 1963-64 and in view of the said agreement of sale, the petitioner was put in possession of the suit land in the year 1964-65. 3. According to the terms of agreement of sale on 21.06.1963, respondent No.1 has filed application to the Collector, Jalgaon for seeking permission to sell the suit land to the petitioner. The statement of respondent No.1 was recorded by the Circle Officer, Shendurni and in the said statement respondent No.1 has admitted that he has filed application on 21.06.1963 to the Collector, Jalgaon for permission to sell suit land to the petitioner. 4. It is case of the petitioner that the Collector, Jalgaon, suo moto started enquiry as to why the suit land should not be forfeited to the Government for breach of condition attached to the grant. According to the petitioner the order dated 06.08.1982 passed by the Collector, which is impugned in this petition is without taking into consideration the relevant provisions of the Maharashtra Land ( 4 ) wp2263.92 Revenue Code, 1966. It is further case of the petitioner that inspite of order dated 06.08.1982, the petitioner was continued to cultivate the land personally and he was paying rent equal to five times assessed per year. It is further case of the petitioner that he is in continuous possession of the suit land for 27 years. When he purchased the land, it was barren and un-cultivable land and he has converted said land into fertile land. He has spent thousands of rupees for improving quality of the suit land. Therefore, according to the petitioner the order dated 06.08.1982 passed by the Collector is not within reasonable time. The petitioner was put in possession as back in 1943 and agreement was also entered into in 1963. Therefore, said order cannot be sustained. The petitioner has taken as many as 11 grounds in the petition and relying on those grounds, it is prayed that the order passed by the Additional Commissioner, Nashik Division, Nashik dated 30.07.1992 may be quashed and set aside. 5. Respondent No.1 has filed affidavit-in-reply. It is stated in the reply that the suit-land comprised in S. No. ( 5 ) wp2263.92 16 admeasuring 18 acres 6 gunthas assessed at Rs. 19.94 Ps. situated at village Sheri was granted to the father of deponent Trimbak Supdu Belpatre on an inalienable and impartible tenure by the Sub-Divisional Officer, Chalisgaon, in the year 1943. It is stated in the affidavit-in-reply that the land was received by the deponent’s father in the year 1943 and it was cultivated by the deponent’s father till his death. After the death of deponent’s father the land was cultivated by the deponent personally. It is specifically denied in para 4 that the petitioner was continued to cultivate land personally and he was paying rent equal to 5 times assessment per year. It is stated that the mutation entry No. 205 itself is illegal and said entry is entered by the Revenue Officer, without any jurisdiction. It is contention of respondent No.1 that the entry reveals that under the order of Collector, Jalgaon, the suit-land was forfeited and respondent No.1 was granted land for 3 years on rent equal to 5 times assessment per year and, therefore, the said land is recorded in the name of the Government. It is further stated that, the entry reveals that the petitioner is in possession and therefore the possession could not be ( 6 ) wp2263.92 given to respondent No.1, is baseless statement in the record of mutation entry No. 205. It is further stated that since there was stay granted by the Commissioner, Nasik Division, Nasik, vide order dated 17.06.1983, the petitioner’s possession was continued in the suit-land. It is further stated that since 1968 till 1982 the petitioner was in possession on the basis of agreement of sale dated 21.06.1963, which was void ab-initio as per the Government directives issued from time to time. The suit-land was in possession of the petitioner unauthorizedly as it was leased to the respondent No.1’s father on an inalienable and impartible tenure by the Sub-Divisional Officer, Chalisgaon, Jalgaon Division, in the year 1943. Therefore, the agreement of sale was void and illegal and, therefore, the possession of the petitioner from 1964 to 1982 was unauthorised possession on the suit-land and it was forfeited by the Government on 06.08.1982. It is further stated that the appeal filed by the petitioner before the Additional Commissioner is also dismissed. Therefore, there are concurrent findings recorded by the authorities below, holding that the possession of the petitioner and also the ( 7 ) wp2263.92 agreement to sell was illegal. 6. It is specifically stated in the reply that the Collector, Jalgaon, in pursuance of the Government Resolution No. 6880/49 dated 20th December, 1950, directed that in cases where occupants belonging to non backward classes have violated any of the vital conditions attached to the new or restricted tenure, the Collector should forfeit the land and regrant it on the new and impartible tenure on payment of occupancy price, provided that the land is needed by the occupant for the maintenance of his family. It is further stated that the land was leased to respondent No. 1 by the Collector, Jalgaon as he was in need of the land. It is further stated that, it is stated in his statement recorded by the Circle Officer, Shendurni on 17.05.1982, that financial condition of the answering respondent is not sound and the land in question may be restored to him. Therefore, the Collector, Jalgaon has not committed any error while passing the order. It is further stated in para 10 of affidavit-in-reply that there is no other source of livelihood and the suit land is the only land for means of ( 8 ) wp2263.92 livelihood to the answering respondent. There is detailed affidavit-in-reply filed by respondent No.1, which is part of the record. Respondent No.1 has prayed for dismissal of the writ petition by vacating interim relief. 7. The learned Counsel appearing for the petitioner submitted that the order passed by the Collector, Jalgaon dated 06.08.1982, as well as order passed by the Commissioner, Nashik Division, Nashik, dated 30.07.1992 do not mention/state under which section and which statute the order is passed. Both the orders are completely silent on the said fact. Nor anywhere in title clause of the orders it is mentioned, under which law the power is exercised. Even it is not mentioned, whether the power exercised is statutory or inherent. The learned Counsel appearing for the petitioners invited my attention to the provisions of Section 59 of the M.L.R. Code and submitted that Section 59 of the Code does not prescribe any limitation for commencing eviction proceedings against the person. When no period of limitation is prescribed under the statute, the proceedings are to be initiated within reasonable period of time. But in ( 9 ) wp2263.92 the instant case the petitioner was put in possession of the land in the year 1963 and the proceedings were initiated after very long standing period of 19 years. It is further submitted that though the authorities were aware that the land is alienated to the petitioner by respondent No.1, they did not take any action for 19 years. In support of his contention that the action has to be initiated within the reasonable period, he placed reliance on the judicial pronouncement of the Hon’ble Supreme Court in the case of Ram Chand and Ors. V/s. Union of India (UOI) and Ors., (1994) 1 S.C.C.44, and in particular para 6 of the judgment. He placed reliance also on the judicial pronouncement in the case of Mohamad Kavi Mohamad Amin V/s. Fatmabai Ibrahim, 1997 (6) S.C.C.71. The Counsel also invited my attention to the judgments of this Court in the case of Radhu Gokul Gawali died through LRs. V/s. Mohan Kisan Gawali, 2007 (5) B.C.R. 93 and Gokulsingh Jamalsing Patil & Ors. V/s. Julalsingh Fattesingh Patil & Ors., 2009 (1) B.C.R. 856. Therefore, relying on these judgments, the Counsel for the petitioner would submit that if the action is not initiated within reasonable time, in that case, the impugned judgment and ( 10 ) wp2263.92 order cannot be sustained, since the proceedings are not initiated within reasonable time. Therefore, the Counsel for the petitioner would submit that this petition may be allowed. 8. On the other hand the learned A.G.P. appearing for the State would submit that the land was given to respondent No.1 in the year 1963 on in-alienable condition. Therefore, any transfer by respondent No.1 or any sale by respondent No. 1 was not permissible. The grant was on condition that the land is in-alienable. Therefore, according to the A.G.P., the possession of the petitioner is unauthorized and illegal. When the land cannot be transferred at all or cannot be alienated, there is no question of any agreement as such between respondent No.1 and the petitioner and if at all there is any agreement, the same is void ab-initio, since it is hit by the conditions laid down in the grant. Therefore, the learned A.G.P. would submit that the petition may be dismissed. 9. I have given due consideration to the submissions ( 11 ) wp2263.92 of Counsel appearing for the petitioners and also learned A.G.P. appearing for the State. It is not in dispute that the suit land was allotted to the father of respondent No.1 Trimbak Supun Belpatre on in-alienable and impartible tenure by the Sub-Divisional Officer, Chalisgaon in the year 1963. Therefore, the very allotment was on the basis of in- alienable condition. Therefore, contention of the petitioner that respondent No.1 has entered into agreement with him and pursuant to that he is in possession, is illegal. The land is a Government land which was allotted to the father of respondent No.1 and said land cannot be transferred or no agreement of sale should have been executed between the parties. Therefore, if there is any agreement to sell, same is void ab-initio and also possession of the petitioner is also illegal. Though, it is contended by the Counsel for the petitioner that the proceedings initiated by the Collector are suo-motu, however, it is required to be noted that it is case of the petitioner that the application was filed by respondent No.1 to the Collector, seeking permission for sale of the said land. Even according to the petitioner, such application was filed on 21.06.1963 and said application is ( 12 ) wp2263.92 pending with the Collector. In my opinion, once having been said that such application was filed by respondent No.1 with the Collector, seeking permission for sale of the suit land, in that case it cannot be said that the Collector has initiated suo-moto enquiry. If at all respondent No.1 or petitioner was aggrieved for non-disposal of the application of respondent No.1 dated 21.06.1963, seeking permission for sale of said suit-land, in that case it was open for respondent No.1 or the petitioner to challenge inaction of the Collector for not taking decision on application filed by respondent No.1. When the Collector did not act upon said application, necessary inference would follow that the authority is not favourable to the prayers in the said application. Therefore, it was open to the petitioner and also respondent No.1 to challenge said inaction of the Collector, Jalgaon. However, from the documents placed on record, it appears that no such efforts have been made by the petitioner. That apart, on the admission of the petitioner that application of respondent No.1 was pending with the Collector, it cannot be said that the Collector suo-motu initiated enquiry and ordered to forfeit said land. ( 13 ) wp2263.92 10. It is also required to be noted that Exh. “A” (page 13) which is part of the compilation is without mentioning the year. There are many blank spaces in the document and that creates suspicion about the case of the petitioner. No year is mentioned on Exh. “A”. There are many blank spaces left in the said statement of respondent No.1 at Exh.1, which was recorded by Circle Officer. From perusal of order of the Collector, it clearly appears that there is a reference in the said order to the correspondence by the Sub-Divisional Officer, Jalgaon, i.e. Correspondence ending No. Jamabandi, RR/939/82 dated 01.06.1982 and Govt. in Rev. & Forests Deptt. Resoln No. 688/49 dated 20.12.1950. Therefore, it is not that the Collector has suddenly decided something against the petitioner, when the petitioner himself knew that the said land is allotted to the father of respondent No.1 on in- alienable basis. He should not have entered into agreement to sell. The whole basis of the agreement to sell and possession is illegal. Said illegalities cannot be cured by accepting argument of Counsel for the petitioner that the Collector has passed the order after 19 years from the date ( 14 ) wp2263.92 of agreement to sell and same is not within reasonable time. From reading the documents, which are placed on record, it does indicate that there was correspondence inter-se between the authorities, and also application of respondent No.1 dated 21.06.1963, pending before the Collector for permission to alienate the suit-land. On perusal of document at Exh. “A”, it further appears that the Circle Officer has recorded statement of respondent No.1. Therefore, it is not that the Collector without application of mind has passed order dated 06.08.1982. The entire claim of the petitioner does not have any lawful/legal basis. Therefore, the judgments cited by the Counsel for the petitioner are of no avail in the facts of the case. This case entirely stands on different footing, for the reason that the suit-land belongs to the Government and was given to the father of respondent No.1 on in- alienable condition. Therefore, there was no question of any agreement for sale. 11. I have carefully perused the order passed by the Collector, Jalgaon. In the said order it is clearly mentioned that the suit-land was allotted to Trambak Supdu ( 15 ) wp2263.92 Belpatre on an inalienable and impartible tenure by the Sub- Divisional Officer, Chalisgaon, Division Jalgaon, in the year 1943. The land in question is transferred in the name of Gangadhar Trambak Belpatre after the death of his father. It is further mentioned that the suit land is cultivated by Gangadhar up to the year 1963-64 and thereafter it has been cultivated by Narayan Sonji Patil (petitioner herein). It is further stated that the transfer of land is in violation of vital condition of grant of land. 12. The order specifically mentions that the notices were issued to all interested parties i.e. Narayan Sonji Patil (petitioner herein) and Gangadhar Trambak Belpatre (respondent No.1 herein) by Tahsildar, Jamner, as to why the land should not be forfeited to the Government for breach of conditions attached to the grant. After giving opportunity of hearing to the petitioner and also to the respondent, the Collector has passed the order thereby forfeiting the suit- land. The Collector in his order further directed that the suit land should be leased out to Gangadhar Trambak Belpatre of Pahur for a period of three years on the rent equal to ( 16 ) wp2263.92 five times the assessment per year. After 3 years the Tahsildar should send proposal for restoration of land, if the leasee cultivates the land satisfactorily. 13. Therefore, the contention of the petitioner that all of sudden the order is passed, cannot be accepted. It has come in the order of the Collector that the notices were issued to the petitioner and also to all interested parties including respondent No.1 and thereafter, after giving them proper opportunity, the order dated 06.08.1982 is passed by the Collector. 14. The order of the Collector was challenged before the Additional Commissioner, Nashik Division, Nashik, by the petitioner herein by way of filing Appeal No. LND-369/92. The Additional Commissioner held that the land in question is held by the respondent on inalienable and impartible tenure, it cannot be transferred without prior permission of the competent authority. The respondent has made breach of the said condition thereby rendering the land to be forfeited to the Government and therefore with these reasonings the ( 17 ) wp2263.92 Additional Commissioner confirmed the order passed by the Collector. Therefore, there are concurrent findings recorded by the Collector and also by the Additional Commissioner, that the land in question held by the respondent on inalienable and impartible tenure cannot be transferred. In that view of the matter, the contention of the petitioner that the order passed by the Collector is passed all of sudden in the year 1982 cannot be accepted. 15. It is also relevant to refer to the Government Resolution No. 6880/49 dated 20th December, 1950 from the Government of Maharashtra, Revenue Department. The said resolution is placed on record by respondent No.1, which reads thus :- “RESOLUTION – In modification of the orders contain in paragraph (D) – 3 of Govt. Resolution No. 7907/39-III, dated the 26th August, 1947, Govt. is pleased to direct that in cases where occupants belonging to non backward classes have violated any of the vital conditions attached to the new or restricted tenure, the Collector should forfeit the land but re-grant it on the new and impartible ( 18 ) wp2263.92 tenure on payment of an occupancy price to be fixed by the Collector having regard to the circumstances of the grantee and the facts of the case, provided that the land is needed by the occupant for the maintenance of his family and also provided that the violation of the condition was the occupant’s first default unless the Collector considers that an out-right grant to the occupant is in-advisable and that it would be preferable to lease the land to him on ek sali basis on payment of rent to be fixed by the Collector having regard to the circumstances of the leassee for two or three years and thereafter to grant the occupancy of the land on the new and impartible tenure if the lessee proves satisfactory.” 16. Therefore, it cannot be said that the order passed by the Collector is without any basis. Therefore, in my opinion, viewed from any angle the agreement to sell as stated by the petitioner in the petition is void ab-initio and illegal. The possession of the petitioner on the suit- land is also unauthorized and illegal. Therefore, I do not find any substance in the writ petition. The writ petition is devoid of any merit. ( 19 ) wp2263.92 18. In the result, the writ petition is dismissed. Rule discharged. Interim relief stands vacated. [S.S. SHINDE,J.] snk/2011/MAR11/wp2263.92