AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.261 OF 2006 IN WRIT PETITION NO.5767 OF 2006 ALONG WITH LETTERS PATENT APPEAL NO.262 OF 2006 IN WRIT PETITION NO.5441 OF 2006 ALONG WITH LETTERS PATENT APPEAL NO.263 OF 2006 IN WRIT PETITION NO.5440 OF 2006 1. Smt. Alka Vasant Khomane, residing at Pimpale Nilakh, Pimpri, Pune. ) ) ) 2. Smt. Anandibai Maruti Ramoshi @ Chavan. ) ) 3. Bharat Maruti Ramoshi @ Chavan (since deceased, through his legal heirs) ) ) ) 3A. Smt. Sangita Bharat Chavan ) 3B. Mast. Sachin Bharat Chavan (since minor, through his natural Guardian – No.(3A) above). ) ) ) AJN 2 3C. Mast. Subhash Bharat Chavan, (since minor, through his natural Guardian – No.(3A) above). ) ) ) 3D. Ms. Nutan Bharat Chavan (since minor, through his natural Guardian – No.(3A) above). Nos.2 and 3(A) to 3(D) residing at Warjegaon, Taluka Haveli, Dist. Pune. ) ) ) ) ) ) 4. Smt. Lata Rambhau Jadhav residing at Warje, Taluka Haveli, District Pune. ) ) ... Appellants Versus 1A. State of Maharashtra through the Secretary Revenue & Forest Department. ) ) ) 1B. The Additional Commissioner, Pune Division, Pune - 411 001. ) ) 1C. The Collector, Pune – 411 001. ) 1D. The Tahsildar, Haveli, District Pune. ) ) 2. Smt. Patasibai Kundanmal Sancheti (since deceased through her heirs). ) ) ) 2A. Surajmal Kundanmal Sancheti, residing at House No.176, Matru Chhayya, Kothrud, Pune – 411 029. ) ) ) ) AJN 3 2B. Smt. Champabai Harakchand Kolan, residing at A/1, Mahavir Darshan Building, Alandi Devachi, Taluka Khed, District Pune. ) ) ) ) 3. Chandrakant Kundanmal Sancheti, residing at House No.176, Matru Chhayya, Kothrud, Pune - 411 029. ) ) ) ) 4. Namdeo Bahiruji Lonkar, residing at 6/4, Matru-Smriti, Near Ganpati Temple, Kondhawa Khurd, Pune – 411 048. ) ) ) ) 5. Gulabchand Govindchand Pavecha (since deceased, through his legal heirs). ) ) ) 5A. Dipchand Gulabchand Pavecha, residing at Survey No.686, Amar- Deep, Bibwewadi, Pune – 411 037. ) ) ) ) 6. Popatlal Devichand Dugad, residing at 686/21, Padmashree, Bibwewadi, Pune – 411 037. ) ) ) 7. Pannalal Bhivraj Nahar (since deceased, through his legal heirs). ) ) 7A. Ashok Pannalal Nahar, residing at Om-Pawan, 12, Prem Nagar Co- operative Housing Society Limited, Near Pushpamangal Karyalaya, Bibwewadi, Pune – 411 037. ) ) ) ) ) ) AJN 4 8. Harakchand Dhanraj Kolan (since deceased, through his legal heirs). ) ) 8A. Sham Harakchand Kolan. ) 8B. Sanjay Harakchand Kolan, both Nos.8(A) and 8(B) residing at A/1, Mahavir Darshan Building, Alandi Devachi, Taluka Khed, District Pune. ) ) ) ) ) 9. M/s. Aditya Builders, a Partnership Firm through its partners - ) ) ) 9A. Shantilal Bhikchand Katariya ) 9B. Satish Katariya ) 9C. Sachin Lodha, All Nos.9(A) to 9 (C) residing at 619, Sadashiv Peth, Bajirao Raod, Pune – 411 030. ) ) ) ) Ms. Indrayani M. Koparkar for the appellants. Mr. Sandeep D. Paigude for respondent 5A. Mr. V.V. Tulzapurkar, senior counsel i/b Mr. G.S. Godbole for respondents 3, 4, 6, 7A, 9, 9A, 9B, 9C. Mr. S.R. Nargolkar, A.G.P. for the State. CORAM : SMT. RANJANA DESAI & SMT. ROSHAN DALVI, JJ. DATE ON WHICH THE JUDGMENT AJN 5 RESERVED : 12TH FEBRUARY, 2008. DATE ON WHICH THE JUDGMENT PRONOUNCED : 26TH FEBRUARY, 2008. JUDGMENT : (Per Smt. Ranjana Desai, J.) 1. In these three letters patent appeals, judgment and order dated 12/10/2006 delivered by learned Single Judge of this court disposing of three writ petitions is under challenge. The facts involved in all these three letters patent appeals are the same. They can be disposed of by a common order and, hence, this common order. 2. Before we deal with the rival contentions, we must note that we were informed by learned counsel that there were settlement talks between the appellants and the contesting respondents and the contesting respondents had, without prejudice to their contentions, offered certain amount to the appellants. We, therefore, asked the appellants' counsel whether the appellants are prepared to settle the dispute at the offered amount. Learned AJN 6 counsel for the appellants told us that the appellants are not willing to settle the dispute. Hence, we have proceeded with the hearing of the appeals on merits. 3. The facts which can be gathered from the pleadings of the parties, from the record and from the written arguments of the appellants are as under : The appellants belong to Ramoshi caste. Their predecessor Maruti Ramoshi alias Chavan was an occupant of Ramoshi Watan lands covered by the Bombay Inferior Village Watans Abolition Act, 1958 (for short, “the Watan Act”). The lands bear Survey Nos.109, 110, 111. They are situated at Village Warje, Taluka Haveli, District Pune. We shall refer to them as “the said lands”. 4. The appellants' case rests on certain provisions of the Watan Act. Section 5(1) of the Watan Act provides for re-grant of Watan land to holders of Watan. On payment of occupancy price at the rate mentioned therein, the Watan land is re-granted to holders and AJN 7 the Watandars are deemed to be the occupants within the meaning of the Maharashtra Land Revenue Code (for short, “the Code”) in respect of such lands. We shall advert to this provision in more detail at appropriate stage. 5. The appellants' case is that to provide economic justice to weaker sections of the society, the Government re-granted the said lands to the appellants' predecessor under section 5(1) of the Watan Act on payment of occupancy price equal to three times of the amount of the full assessment of the said lands and the said lands were granted on new tenure to the appellants' predecessor. 6. According to the respondents, thereafter, the predecessor of the appellants paid ten times the amount of the full assessment and the said lands were re-granted to him on old tenure and he became occupant Class-II as per provisions of the Code and this is reflected in the mutation entry No.959 dated 5/11/1965. The appellants deny this case of the respondents. AJN 8 7. The appellants contend that according to section 5(3) of the Watan Act, the occupancy of the land re-granted under section 5(1) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on such amount as the State Government may, by general or special order, determine. If the transfer of occupancy is done in breach of this condition, then the transferee is an unauthorized occupant within the meaning of section 37 of the Code. 8. According to the appellants, by practicing fraud on their predecessor, respondents 2 to 8 purchased the said lands by sale deeds purported to have been executed and registered on 3/3/1966 and 8/8/1966. They were executed without taking prior permission of the Collector as contemplated under section 5(3) of the Watan Act. This, according to the appellants, is illegal as prior permission as contemplated under section 5(3) of the Watan Act is mandatory. AJN 9 9. The appellants, therefore, filed a civil suit being Special Civil Suit No.868 of 1988 (RCS No.2428 of 2000) in the Court of Civil Judge, Senior Division, Pune for a declaration that the said sale deeds are illegal and bad in law. In 2003, the appellants amended the suit and took up contentions based on section 5(3) of the Watan Act that prior permission of the Collector was necessary before sale. In that suit, the appellants filed an application for interim injunction restraining the respondents from disturbing their possession. That application was rejected on 28/11/2003. The appellants filed Misc. Appeal No.49 of 2003 and Misc. Appeal No.405 of 2005. These appeals were dismissed by the District Court on 31/7/2004. 10. The appellants field Writ Petition No.6870 of 2004 challenging the order rejecting the application for interim relief. By order dated 10/1/2005, learned Single Judge of this court rejected the said writ petition. He observed that the only contention advanced on behalf of the appellants is that considering section 5 (3) of the Watan Act, third party interest could not have been AJN 10 created in the said lands. Learned Single Judge observed that the effect of an invalid transfer under section 5(3) is that under section 9, it is open to the Collector to resume land from the unauthorized holder. Considering the fact that earlier application for injunction was rejected, learned Single Judge rejected the writ petition. 11. Thereafter, the appellants filed Writ Petition No.5161 of 2004 challenging the constitutional validity of the third proviso of section 6 introduced in the Watan Act by Maharashtra Act No.XXI of 2002 whereby the Collector is empowered to regularize the transactions effected in breach of the Watan Act upon payment of 75% of the current market value which includes fine. On this petition, Rule was issued on 2/7/2004. Prayer for interim relief was refused. This court has however made regularization of the transaction subject to the final decision of the petition. 12. According to the appellants, the transaction of sale was not regularized. They contend that without regularizing the transaction, non agricultural permission (NA permission) was given to the AJN 11 respondents though they are unauthorized occupants. This is contrary to section 44 of the Code. 13. In the circumstances, the appellants filed four applications seeking various reliefs. On 12/1/2006 they filed application under section 5(3) of the Watan Act read with section 59(b) of the Code before the Collector to evict the respondents on the ground that they had purchased the said lands without permission. On 18/2/2006, the Collector rejected the said application. The said decision was challenged by the appellants by filing RTS Appeal No.49 of 2006. That appeal was dismissed by the Additional Commissioner by order dated 30/5/2006. 14. On 11/2/2005, the appellants filed application under section 5 (3) of the Watan Act read with section 9 thereof. That application was rejected on 31/1/2006. Being aggrieved by this order, the appellants filed Revision Application No.48 of 2006. By order dated 30/5/2006, the Additional Commissioner, Pune Division, Pune rejected the said application. The appellants filed Writ AJN 12 Petition No.5767 of 2006 challenging orders dated 30/5/2006 passed by the Additional Commissioner in Appeal No.49 of 2006 and in Revision Application No.48 of 2006 and order dated 18/2/2006 passed by the Collector, Pune. The said petition was dismissed by learned Single Judge of this court by the impugned order dated 12/10/2006. Being aggrieved by the said judgment and order so far as it pertains to dismissal of Writ Petition No.5441 of 2006, the appellants have filed Letters Patent Appeal No.262 of 2006. 15. On 25/8/2005, the appellants filed an application being RTS Application No.48 of 2006 under section 43 of the Code to the Collector, Pune for preventing the respondents from carrying on excavation in the said lands. On 26/12/2005 the Collector rejected the said application. The appellants filed RTS Appeal No.117 of 2005 before the Additional Commissioner, Pune Division, Pune on 31/12/2005. The Additional Commissioner, Pune dismissed the said appeal. Being aggrieved by the said order, the appellants filed Writ Petition No.5767 of 2006. By the impugned order, learned AJN 13 Single Judge dismissed the said petition. Being aggrieved by the said order to the extent it dismisses the said petition, the appellants have filed Letters Patent Appeal No.261 of 2006. 16. On 7/4/2004, the respondents applied to the Collector for NA permission. The appellants by their letter dated 10/2/2005 objected to the grant of NA permission to the respondents on the ground that the sale deeds of the said lands effected by the purchaser were illegal. On 18/8/2005 the Collector rejected the objections and granted the NA permission on the ground that in the record of rights, the said lands stood in the name of the respondents. The appellants filed Appeal No.110 of 2005 under section 247 of the Code challenging this order. The said appeal was dismissed by the Additional Commissioner, Pune Division, Pune on 30/5/2006. The appellants preferred Writ Petition No.5440 of 2006 challenging the said order. By the impugned order, learned Single Judge dismissed the said writ petition. Letters Patent Appeal No.263 is filed challenging the said order to the extent it dismisses Writ Petition No.5440 of 2006. AJN 14 17. Mr. Tulzapurkar, learned senior counsel has raised a preliminary objection to the maintainability of the letters patent appeals. He submitted that though in the title of the writ petitions, the petitioners have indicated that the petitions are filed under Articles 226 and 227 of the Constitution, in fact, the prayers and averments made in the petitions indicate that they are filed under Article 227 of the Constitution. He submitted that in all the writ petitions, the appellants have challenged orders of quasi judicial authorities which are amenable to the supervisory jurisdiction of this court. He also drew our attention to the impugned order and pointed out that the learned Single Judge has also stated that he was exercising his jurisdiction under Article 227 of the Constitution. In this connection, Mr. Tulzapurkar relied on the judgments of the Supreme Court in Umaji Keshao Meshram & Ors. v. Smt. Radhikabai & Anr., AIR 1986 SC 1272 and Sushilabai Laxminarayan Mudliyar & Ors. v. Nihalchand Waghajibhai Shaha & Ors. 1993 Supp. (1) SCC 11. He also relied on the judgment of the Division Bench of this court in Kondiba Dhondiba AJN 15 Dalvi since deceased by his legal representatives Chandrabhagabai Kondiba Dalvi & Ors. v. Narayan Namdeo Nanware, 2000 (Supp) Bom.C.R. 844. Mr. Tulzapurkar submitted that therefore, the writ petitions having been filed under Article 227 of the Constitution of India, letters patent appeals challenging orders passed therein are not maintainable. The letters patent appeals will have to be dismissed on that ground alone. 18. Ms. Koparkar, learned counsel appearing for the appellants, however, submitted that it is clearly stated in the title of the writ petition that they are filed under Articles 226 and 227 of the Constitution. The petitioners have asked for quashing of NA permission. Hence, the petitions will have to be treated as petitions under Article 226 of the Constitution and as such Letters patent appeals are maintainable. 19. Preliminary objection raised by Mr. Tulzapurkar needs to be adverted to at the outset. The title of the petition indicates that the appellants have invoked Articles 226 and 227 of the Constitution of AJN 16 India. However, learned Single Judge has in the impugned order expressed that the appellants have not made out any case for interference under Article 226 of the Constitution of India. He has, therefore, treated the writ petitions as having been filed under Article 227 of the Constitution of India presumably because the appellants have challenged the orders of quasi judicial authorities which are in his view covered by the power of superintendence of the High Court. 20. It is true that in Ratnagiri District Central Co-operative Bank Limited v. Dinkar Kashinath Watve, 1993 Supp. (1) SCC 9, the Supreme Court has observed that the determining factor is the real nature of the principal order passed by the Single Judge which is appealed against and neither the mentioning in the cause title of the application of both the articles nor the granting of ancillary orders thereupon made by the Single Judge would be relevant and, in each case, the Division Bench may consider the substance of the judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised in the matter his AJN 17 jurisdiction under Article 226 or under Article 227 of the Constitution. The Supreme Court has further observed that in the event, in his judgment, the learned Single Judge himself had mentioned the particular Article of the Constitution under which he was passing his judgment, in an appeal under clause 15 against such a judgment, it may not be necessary for the appellate bench to elaborately examine the question of its maintainability. This view is quoted with approval by the Supreme Court in its later judgment in Sushilabai's case (supra). But, in the same judgment, the Supreme Court has quoted its observations in Umaji's case (supra) that where the facts justify a party in filing an application either under Articles 226 and 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the court ought to treat the application as being made under Article 226. Hence, though Mr. Tulzapurkar' s arguments on maintainability appear to be attractive, in the facts of this case, we prefer not to go into that aspect. We shall, therefore, go to the merits of the case. AJN 18 21. On merits Ms. Koparkar, learned counsel for the appellants submitted that though there is a mutation entry in favour of the respondents on which the respondents have placed heavy reliance, under section 157 of the Code, presumption as regards its correctness stands rebutted in view of letters dated 8/4/2002 and 10/3/2005 issued by the Tahsildar's office which say that the papers pertaining to mutation entries 959 and 983 regarding the conversion of land to old tenure are not available. She submitted that therefore there is no record to establish the authenticity of the mutation entries. Learned counsel submitted that the said lands were never transferred to old tenure. The respondents became unauthorized occupants. Their possession became wrongful under section 37 of the Code. Therefore, NA permission ought not to have been granted and they should have been prohibited from carrying out unauthorized non agricultural activities and they are liable to be evicted being unauthorized occupants from the said land as per section 59(b) of the Code. AJN 19 22. Learned counsel further submitted that the NA permission is granted by the Collector as per the provisions of the Code. Section 44 thereof contemplates the requirements for grant of NA permission. It indicates that an occupant of an unalienated land or a superior holder of alienated land or a tenant of such land is entitled to apply for NA permission. She pointed out that under section 44(2)(b), the Collector may return the application, if it is not made by the occupant or superior holder or as the case may be and sub-section (2)(c) also contemplates due enquiry prior to the grant or refusal of permission. 23. Learned counsel further pointed out that the suit filed by the appellants for declaration and permanent injunction is pending in the Civil Court. In Writ Petition No.6870 of 2004 challenging the rejection of temporary injunction to the appellants, this court has passed order on 10/1/2005 observing that if the transfer is invalid, it is open for the Collector to resume the said land from the unauthorised holders. Thus, pendency of the civil suit should not have come in the way of the Collector in exercising his power. AJN 20 Learned counsel submitted that under section 5(3) of the Watan Act, prior permission of the Collector is necessary before Watan lands can be transferred. Permission is mandatory. Sale deeds executed by the predecessor of the appellants without prior permission of the Collector are therefore void. 24. Learned counsel further pointed out that the appellants have filed Writ Petition No.5161 of 2004 challenging the amendment of the Watan Act whereby the Collector is empowered to regularize the transaction effected in breach of the provisions of the Watan Act. The said writ petition is admitted. The regularization of transactions in question is made subject to the outcome of the said writ petition by this court by its order dated 2/7/2004. The transaction has yet not been regularized. The NA permission cannot be granted to the appellants because they are unauthorized occupants. Such a course of action would be contrary to the scheme of section 44 of the Code. Learned counsel pointed out that the respondents were party to the said writ petition. She submitted that order dated 2/7/2004 binds them and, therefore, AJN 21 activities which are being carried out by the respondents on the suit property are illegal. Learned counsel, therefore, urged that the operation of order under challenge giving permission for non agricultural use of the said lands be stayed and the respondents be restrained from performing non agricultural activities on the said lands. In this connection, learned counsel relied on the judgments of the Supreme Court in Murlidhar Kesekar v. V.P. Barde, 1995 (2) BCJ SC 465 and Shri Manchegauda etc. v. State of Karnataka, (1984) 3 SCC 301. Reliance was also placed on the judgment of the Supreme Court in Papaiah v. State of Karnataka & Ors., (1996) 10 SCC 533 where alienation of land done without prior permission of the authority was held to be void. Learned counsel pointed out that in this case, the Supreme Court has held that in rural India land provides an economic status to the owner and the State is, therefore, under constitutional obligation to honour this right. It is submitted that learned Single Judge has erred in not appreciating the legal and factual submissions and, hence, the impugned order be set aside. AJN 22 25. There is no dispute about the fact that the said lands are Watan lands and after coming into force of the Watan Act, Watans were abolished and the said lands were resumed by the Government. It is accepted by the appellants that their predecessor paid three times assessment and as per section 5(1) of the Watan Act, the said lands were re-gratned to the appellants' predecessor on new tenure. According to the appellants, the said amount was paid on 22/2/1961. 26. The respondents rely upon a certified copy of the Mutation Entry No.959 dated 5/11/2005 which states that the appellants' predecessor paid three times assessment on 3/8/1962 and the said lands were re-granted to him by the Mamlatdar on new tenure. As per section 29 of the Code, the appellants' predecessor became occupant Class II. Relying on the same entry, it is further contended by the respondents that on 27/9/1965 the appellants' predecessor paid 10 times assessment and the said lands were re- granted to him on old tenure. He thus became occupant class I. The mutation entry states that the said lands have been re-granted AJN 23 on old tenure and the order is in the file. It is the contention of the respondents that being occupant class I as per section 29 of the Code, the appellants' predecessor could hold the said lands without any restriction on right to transfer. He could sell the said lands and, therefore, sale deeds executed by him with the respondents are valid. 27. The appellants' case is that there is no record to establish that the said mutation entry is authentic. The appellants rely upon letters dated 8/4/2002 and 10/3/2005 issued by the Tahsildar's Office which say that mutation entries regarding the conversion of the said lands to old tenure is not available. According to the appellants, their predecessor was never re-granted the said lands on old tenure. It is contended that Mamlatdar could never have re- granted the said lands because power to re-grant vests only with the Collector. According to the appellants as per section 5(3) of the Watan Act, the occupancy of the lands re-granted under sub- section (1) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector. In this case, AJN 24 the Collector's sanction was not obtained before execution of the sale deeds and therefore the said sale deeds are void. 28. As against this, Mr. Tulzapurkar has drawn our attention to GR dated 8/6/1963 issued by the Government of Maharashtra which states that the Government of Maharashtra has appointed all Mamlatdars and Tahsildars to perform the functions and exercise the powers of the Collector under sections 5,