 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR WRIT PETITION NO: 4758/2008 (Kedarnath Gangadhar Agrawal and others vs. State of Maharashtra and others) --------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. ................................................................................................................................... CORAM: D.D.SINHA & A. P. BHANGALE , JJ. DATED: 30th March, 2009. *** Heard Mr.R.L. Khapre, learned counsel for the petitioners and Mrs. Bharati Dangre, learned Additional Government Pleader for Respondents . 2. At the outset, Mr. Khapre, learned counsel for the petitioners has admitted that in the present Writ Petition, the petitioners are restricting their challenge to the Prayer Clause (E). It is contended that the Division Bench of this Court rendered the judgment dated 30th September, 2008 in a bunch of Writ Petitions and concluded the issue by quashing and setting aside Clause (1) of the Government Resolution dated 9.6.2007. So far as Clause (2) of the said Government Resolution is concerned, the challenge raised in the petition in this regard, was held to be without merit. Similarly, so far as clause (3) of the said GR is concerned, the Division Bench in paragraph 46 has observed thus:  “46. In so far as Clause (iii) of the said Government Resolution is concerned, it is an opportunity provided to the land holders of allotment of land on ownership right basis subject to paying specified amount of ownership right of the existing market value of the land. Once again, this would apply to the occupants who are not covered by occupants Class-I category. They would get ownership rights and would be reckoned as occupants Class-I, on payment of specified amount and has complying with other formality. The option was available only for two years from the date of Resolution. That the period has already expired. It is for the State Government to consider whether to extend the period provided in sub-clause (b) of clause (3) of Resolution. We express no opinion in that behalf. Suffice it to observe that we find no merit in the challenge, clause (3) of the stated Resolution. 3. Learned Counsel for the petitioners further contended that the Division Bench in paragraph 42 has observed thus: “42. According to the petitioners inso far as Berar Land Revenue Code 1928 is concerned, Section 56 thereof provided that subject to personal law, the rights of the occupant shall be permanent and transferable and on his death shall pass by inheritance, bequest or survivorship, as the case may be. According to the petitioners they were enjoying the lands in question as Bhumiswami. It was argued that, that right was protected by the subsequent legislation of Madhya Pradesh Land Revenue Code, 1954 ( Section 152) or for that matter, MLRC (Section 336, 337).  Indeed, if the holder of the land possessed permanent and transferable right in the property, he would fall within the definition of “occupant Class-I” within the meaning of Section 29 of the MLRC. Whether he is covered by the definition of occupant Class-I or not, is a question of fact to be examined by the appropriate authority on the case to case basis.” 4. Counsel for the petitioners also brought to our notice the observations made by the Division Bench in paragrpah 52 which reads thus: “52. The petitioners shall approach the appropriate authority within eight weeks from the date of this decision. We make it clear that the present decision governs only the subsisting lease at the relevant time of transfer. In case, the transfers have been effected after the expiry of lease period, it is for the appropriate authority to consider whether such transfer is legitimate and in any case, could be regularized. All questions in that behalf will have to be considered on its own merit. In the event, the appropriate authority finds that the occupant is unauthorised occupant, it will be free to take such action as may be permissible in accordance with law. The question where applications for renewal of leases are pending with the Government or the appropriate authority, whether they are legitimate occupants or otherwise, is also an issue which will have to be considered by the appropriate authority on its own merits and in accordance with law.” 5. Counsel for the petitioners further submitted that the observations of the Division  Bench in so far as Clause (4) of the Govt. Resolution are concerned they are as follows:- “47. Insofar as challenge to Clause (4) of the Resolution which deals with holding land on lease and the annual lease rent, we have already held that the same is just, fair and in larger public interest. 6. Counsel for the petitioners has contended that in view of the above-referred observations of the Division Bench, it is necessary for the Collector, Akola, before issuing the impugned communication/ order dated 10th March, 2008 to conduct necessary inquiry in order to find out if the holder of the land possess permanent and transferable right in the property and whether he would fall within the definition of “occupant Class-I” within the meaning of Section 21 of the Maharashtra land Revenue Code,1966. It is submitted that the Collector without conducting inquiry, issued the impugned communication and demanded the amount of unearned income/ annual lease rent etc. It is contended that if the land holder falls within the definition of “occupant Class-I” in that event, the impugned order as well as demand made thereunder, would not survive in view of the above referred decision of this Court. It is, therefore, submitted that the impugned order may be quashed and set aside and matter may be remanded back to the Collector for conducting necessary inquiry in the light of the observations  made by the Division Bench of this Court in the above-referred decision, in order to find out whether the land holder falls within the definition of “occupant Class-I”. 7. Mrs. Bharati Dangre, learned Addl. Government Pleader, does not dispute the factual aspect of the matter. It is contended that in view of the above-referred observations made by the Division Bench of this Court, it is necessary to conduct inquiry to determine the status of the land-holder in view of the relevant facts and circumstances. If the land holder falls within the definition of “occupant Class-I” in that event, the consequences would be different. 8. Considered the contentions canvassed by the respective counsel. It is not in dispute that before issuing the impugned order/ communication, the Collector did not conduct inquiry in order to find out whether the land holder was “occupant Class-I”. It is no doubt true that the impugned order is dated 10.3.2008; whereas the judgment of this Court is dated 30th September, 2008; however, since the issue stands concluded by the decision of this Court and in view of the specific observations made by the Division Bench of this Court in this regard, we are of the view that it will be appropriate to remand the matter back to the Collector for the purpose of reconsidering the issue whether the land-holder falls within the ambit of  definition of “occupant Class-I” within the meaning of Sec. 29 of the Code of 1966 on the basis of relevant facts and circumstances. Having recorded decision on this issue one way or the other, the Collector shall take further steps in accordance with law and procedure applicable in this regard. 9. For the reasons stated hereinabove, the impugned order/communication dated 10th March 2008 is hereby quashed and set aside. The matter is remanded back to the Collector, Akola for reconsideration of the issue as referred to herein- above and fto take decision accordingly. JUDGE JUDGE sahare