1 WRIT PETITION NO. 1003 OF 1997. IN THE HIGH COURT OF JUDICATURE, AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO. 1003 OF 1997. 1] Amrutrao S/o Shankarrao Deshmukh, Age 67 years, Occu.- Agriculture, R/o.-Parli-V, Tq-Parli-Vaijyanath, District Beed. 2] Dhananjay Amrutrao Deshmukh, Age 35 years, Occu.- Agri. & Service, R/o.-Parli Vaijyanath, Tq-Parli-Vaijyanath, District Beed. ......... PETITIONERS. // VERSUS // 1] Laxman S/o Tulshiram Pawar, Age 70 years, Occu.-Business & Agri., R/o.-Gangakhed, Tq-Gangakhed, District Parbhani. (DIED- Per Legal Heirs) 1-A] Chandrakant S/o Laxman Pawar, Age 66 years, Occu.- Retired, R/o-.Jaibhavani Nagar, Aurangabad. 1-B] Santosh S/o Laxman Pawar, Age 60 years, Occu.- Service, R/o.-Chikalthana, Aurangabad. 1-C] Dinesh S/o Laxman Pawar, Age 54 years, Occu.-Retired, R/o.- Parli-Vaijyanath, District Beed. (Through G.P.A. Holder for 1-A to 1-C) Sitaram S/o Nivrutti Chafekanade Age 72 years, Occu.- Nil, R/o.-Kailash Nagar, Behind Bagga Tyres, Jalna Road, Aurangabad. 2 WRIT PETITION NO. 1003 OF 1997. 2] The Additional Divisional Commissioner, Aurangabad. 3] Dy. Collector, (Land Reform), Beed, District Beed. 4] Sub Divisional Officer, Ambajogai Sub Division, Ambajogai, Tq.Parli-Vaijyanath, District Beed. 5] The Tahasildar, Parli-V, Tq. Parli-Vaijyanath, District Beed. 6] Talathi, Village Parli-Vaijyanath, Tq. Parli-Vaijyanath, District Beed. 7] Krishna S/o Tulsiram Pawar, (DIED- Per Legal Heirs.) 7-A] Haribai W/o Krishna Pawar, Age 62 years, Occu.-House and Agril., R/o.-Parli-Vaijyanath,District Beed. At present at Latur (Through G.P.A.) Shri Ajay Shantilal Jain(Lunked) Age 32 years, Occu.-Business, R/o.-Parli-Vaijyanath, District Beed. 7-B] Vilas S/o Krishna Pawar, Age 39 years, Occu.-Business, R/o.-Jamkhed, district Ahmednagar, (Through G.P.A. as above) 7-C] Smt. Mukta W/o Kailas Pawar, Age 39 years, Occu.-Household & Agril., R/o.-Lovarwada, Tq. Parli-Vaijyanath, District Beed (Through G.P.A. as above), 3 WRIT PETITION NO. 1003 OF 1997. 8] Gopal S/o Tulsiram Pawar, Age 73 years, Occu.-Pensioner, R/o.- Gangakhed, District Parbhani. (Through G.P.A.) Shri Rajabhau S/o Baburao Bagwala, Age 43 years, Occu.- Agril, Parli-Vaijyanath,District Beed. .......... RESPONDENTS. _________ Adv. Sachin S. Deshmukh for Petitioners. Adv. P. R. Patil with S.W. Mundhe for Respodts.1A to 1C. Adv. Bhadekar for Respodts. 7 for Respodts. 7A to 7C , 8. Adv. Mrs. V.A. Shinde, Learned AGP for Respodts. 2 to 6. _________ CORAM : B.P.DHARMADHIKARI, J. Date of reserving the judgment : 6/5/2011. Date of Pronouncing the judgment : 6/6/2011. J U D G M E N T 1---------------By this Petition filed under Art. 227 of the Constitution of India the challenge is to orders dated 7/2/1997 passed by Respodt. 2- Additional Divisional Commissioner in case no. 1997/Rev/R/15 & also to order dated 27/11/1996 of Respodt. 3- Additional Collector (Land Reforms) in Appeal with number 1993/CD/1/Appeal/46 which was assailed in said Revision. Consequential orders of Talathi dated 21/3/1997 implementing these orders are also assailed. It will be first proper to note facts in which these orders came to be passed & then the background facts which give rise to this challenge. 2---------------Perusal of R-3's order dated 27/11/1996 shows that deceased R-1 Laxman herein was the Applicant/Appellant before said authority. The proceedings began before R-4 Sub- 4 WRIT PETITION NO. 1003 OF 1997. divisional Officer, Ambajogai. The report dated 2/8/1996 submitted by SDO Ambajogai came to be accepted by that order & mutation entries 1821, 1888 & 1927 certified on 3/9/1981, 26/9/1982 & 18/5/1983 of village Parli to the extent it related to land survey no. 499EE , area 3 acres ,were cancelled. The revenue authorities were directed to recover occupancy price from Laxman & to mutate his name against said land. Petitioners revision under S. 257 of Maharashtra Land Revenue Code,1966 (MLR Code) against it was dismissed on 7/2/1997 holding that they have no locus & documents relied upon by them had no legal sanctity. 3----------------An earlier order of same SDO now needs to be mentioned. Deceased Laxman had instituted case no. 87/ROR/1543 aggrieved by very same mutation entries of land 499EE and SDO had vide order dated 29/5/1990 canceled these entries. Petitioner Amrutrao filed revision under S. 257 of MLR Code with the Additional Commissioner who on 5/5/1992, quashed & set aside the same. Petitioners claim that subsequent orders by revenue authorities are in derogation of this order dated 5/5/1992. 4-----------------There is no dispute that on 12/8/1980 Second Appeal 79 of 1972 filed by these petitioners viz. Dhananjay & Amrut Deshmukh came to be allowed & decree passed by District Court in Regular Civil Appeal was set aside entirely in so far as survey no. 499 EE is concerned. These Petitioners/Appellants were defendants 5 & 6 in Civil Suit 24/1967 instituted by Shri Patwardhan , the original inamdars. Three lands involved in that litigation included survey no.499AA & 499E with present land ie survey no. 499EE. Suit no. 24 of 1967 was filed by Govindrao Patwardhan and defendant no. 7 Nalinibai who later on was transposed as plaintiff no. 2. In Second Appeal, it was not in dispute that the three suit lands were inam lands or madat mash ie personal inam or grant of the said plaintiffs. Land survey no. 499EE was 5 WRIT PETITION NO. 1003 OF 1997. leased out by them in 1922 to one Tulshiram Pawar who was father of Laxman for establishing/running a Gin-- a cotton processing unit. The contention of plaintiffs (inamdars) viz. Patwardhans was that they were entitled to restoration of possession moment the ginning business was closed down or wound up as lease stood forfeited in that event. Plaintiffs claimed that possession 499EE was demanded from Tulshiram and during talks in this respect, Tulshiram died. His heirs ie defendants 1 to 3 in Suit encroached upon 499AA & 499E also. In 1964, these heirs leased out the lands to defendants 5 & 6 ie present petitioners. Trial Court held that Tulshiram had died in 1957 & rights of plaintiffs to inam land was abolished. Hence, they had no title to file suit & accordingly, that suit came to be dismissed. In Regular Civil Appeal, it was found that legal heirs of Tulshiram (defendants 1 to 3 in suit) could not be said to be tenants who could have leased out lands to petitioners and plaintiff inamdars ie Patwardhans were entitled to grant of occupancy rights of these 3 lands from Government under the assumption that there were no tenants on lands. This Court in Second Appeal found that it was necessary for First Appellate Court to find out whether lease of Tulshiram came to an end at any point of time & if yes, to determine that point of time. This Court found that neither heirs of Tulshiram (defendants 1to 3 in suit) nor present petitioners (defendants 5 & 6 therein) could show any right to survey nos. 499AA & 499E and hence, modified the Appellate Decree & granted plaintiffs the possession of their share in these two lands. About survey no. 499EE, this Court held that after death of Tulshiram, his heirs/sons became tenants and they continued in possession till 1964, when the said land was let out to petitioners by them. Thus on crucial date ie 1/7/1960 relevant for grant of rights as occupant under the Hyderabad Abolition of Inams & Cash Grants Act,1954 (which came into force on 20/7/1955) , these legal heirs were tenants entitled to become occupants of the same as per S. 5 of this Hyderabad Abolition of Inams & Cash Grants Act,1954 ie 1954 Act. Second Appeal filed by defendants 5 & 6 -- present 6 WRIT PETITION NO. 1003 OF 1997. petitioners was therefore allowed and suit of plaintiffs was dismissed to the extent of 499EE. Judgment of this Court dated 12/8/1980 was then questioned by plaintiffs in Civil Appeal no. 6772 of 1983 and the same came to be dismissed by Hon. Apex Court on 10/3/1999. 5----------------It is not in dispute that question as to party in actual possession of survey no. 499 EE is pending consideration in RCS 315/1987 ( 336/1982) before competent civil court & on 18/12/1987 it appears to have directed parties to maintain status-quo until further orders. In present petition, this Court granted status-quo on 5/4/1997 & it has been continued while issuing “Rule”. 6----------------Adv. Sachin S. Deshmukh for Petitioners has contended that after the issue was finally settled by this Court in second Appeal & its judgment was confirmed by Hon. Apex Court in Civil Appeal 6772/1983, it was improper on part of revenue authorities to ignore it and order name of sons of deceased Laxman Pawar to be recorded in Record of rights & to order recovery of occupancy price from them. This Court has found present petitioners only entitled to & to be in possession of land survey no. 499EE. Various mutation entries taken in pursuance thereof, therefore, needed to be left undisturbed. SDO whose first attempt to unsettle those mutation entries had once met with failure, could not have thereafter, suo motu, exercised any powers and such powers are not conferred upon SDO at all. He has invited attention to various applications moved after High Court judgment dated 12/8/1980 in Second Appeal & orders of revenue authorities on it. Orders of Hon. Apex Court & Judgment dated 12/8/1980 are read out to substantiate these contentions. 7------------------He has also pointed out that RCS 123 of 1965 was filed on 25/6/1965 by heirs 7 WRIT PETITION NO. 1003 OF 1997. of Tulshiram Pawar against petitioners for permanent injunction to protect their possession on all three lands & how it was compromised vide compromise at Exh. 81 and petitioners possession was accepted. He further states that as amount of Rs. 4500/ specified in the compromise decree dated 25/22 June 1965/1966 has never been paid, the heirs of Tulshiram are not entitled to claim possession at all. Compromise at Exh. 35B dated 31/8/1965 in that suit is also pointed out to show how deceased Respondent Laxman who happened to be plaintiff no. 1 in RCS 123 of 1965 accepted agreement with & sale-deed in favour of petitioners by the head or Karta of hindu joint family of Pawars and withdrew himself from prosecution. 8--------------------According to him after adverse High Court judgment dated 12/8/1980, the Inamdars ie Patwardhan family filed fresh application registered as case no. 80-HIA making claim under S. 2A of 1954 Act for recognition as occupant & holder of survey no. 499EE and on 29/11/1980, legal heirs of Tulshiram Pawar filed their say accepting that claim & entitlement. On 23/12/1980, petitioners also filed application before the Collector and claimed ownership of survey no. 499EE relying upon the High Court judgment. Judgment of Deputy Collector therein dated 30/6/1981 is also pointed out to show how the petitioners came to be recognised as occupant of survey no. 499EE & its implementation vide ME 1821 dated 3/9/1981. Determination of purchase price on 23/6/1982 at their instance is also pointed out with consequential ME 1888 dated 26/9/1982 accordingly about possession. Orders obtained by them on 19/1/1983 relaxing the condition of inalienability & consequential ME 1927 dated 18/5/1983 is relied upon to show how the judgment dated 12/9/1980 in Second Appeal was fully implemented. Further changes recorded in ROR ie form no. 7,7A & 12 is also shown to this Court. Attention is invited to orders dated 30/3/1991 in appeal no. 81/WTN/Appeal/12 by the Additional Commissioner rejecting the Inamdars challenge to above mentioned judgment 8 WRIT PETITION NO. 1003 OF 1997. of Deputy Collector dated 30/6/1981. It is urged that said authority has found all steps initiated in furtherance of the judgment dated 12/8/1980 in Second Appeal. 9------------------Shri Desmukh argues that during pendency of appeal no. 81/WTN/Appeal/12 before the Additional Commissioner, SDO suo-motu took cognisance of grievance of Laxman as revision under S. 257 of MLR code in case no. 87/ ROR/1543 and canceled all the three mutation entries taken as per orders of his superiors without hearing the petitioners & though he lacked the powers. This order was set aside in by Additional Commissioner in case no. 1990/REV/R/34 by allowing petitioners' challenge to it on 5/5/1992. Inspite of this Laxman again approached Additional Collector in fresh revision 93/CD-1-Appeal/46 under S. 257 of MLR Code & according to learned Counsel, said authority recorded findings directly in conflict with the judgment of this Court & concluded that agreement/sale by heirs in favour of petitioners is not legal. It acted only on erroneous assumptions & presumptions. It therefore ordered cancellation of all three mutation entries and to recover occupancy price form Laxman. Rejection of petitioners' revision on 7/2/1997 is alleged to be arbitrary and unreasoned. It is stated that said order came to be passed on very first day of filing it and without looking into grounds raised in revision. Thus there is failure to exercise the jurisdiction by that authority. Consequential orders of Talathi are therefore alleged to be bad & unsustainable. 10---------------He relies upon 2002 BCR (S-1) 561 –Vinaykumar Kacharulal Abad vs. Hon. Minister, Revenue & Forest and 2003 BCR(4) 374 – Sambappa Babappa Teli vs. State of Maharashtra to explain the scope of jurisdiction available to the revisional authority. He, prays for allowing the petition & to maintain or restore the position accepted by this Court in Second Appeal. 9 WRIT PETITION NO. 1003 OF 1997. 11-------------------Adv. P. R. Patil with S.W. Mundhe for Respodts.1A to 1C ie Lrs of deceased Laxman Pawar has at the thresh-hold submitted that dispute here is only in relation to revenue entries or mutation and all orders passed by either the Additional Collector(Land Reforms) or the Additional Divisional Commissioner impugned herein are subject to adjudication in pending civil suit. Judgment reported at 1993 B.C.J. 431-- Rohidas Vithal Patil vs. Sub-Divisional Officer (Revenue), Nandurbar is relied upon to urge that this Court should refuse to interfere in writ jurisdiction. Order of Hon. Apex Court in Civil Appeal 6772/1983 dated 10/3/1999 is heavily relied to contend that it finds Lrs of deceased Laxman viz. present Respondents 1A to 1C in possession on 1/7/1960. Judgment in Second Appeal by this Court is also cited for said purpose & to point out that heirs of Tulshiram are declared tenants therein. It is stated that inamdar Patwardhans could have procured title only upon failure of said heirs to deposit occupancy price & not till then. Paragraph 62 in (2004) 12 SCC 645—Palitana Sugar Mills (P) Ltd. vs. State of Gujrat is cited for pointing out binding effect of these findings. The 3 entries of mutations sought by present petitioners by approaching revenue authorities are contrary to these judgments & misleading. The issues were already finally concluded against them by the highest Court and demand or expectation for hearing thereafter is misconceived. Their present petition is also dishonest or fraudulent. (2007) 4 SCC 221—A.N. Papayya Sastry vs. Government of Andhra Pradesh is pressed into service for outright dismissal of petition with heavy costs. About change in stand of Laxman, (2009) 6 SCC 194 – Sneha Gupta vs. Devi Sarup & Another (para-45) is shown with contention that there can not be any estoppel against statute in such matters. 12-------------------Adv. Bhadekar for Respodts. 7 for Respodts. 7A to 7C , 8 has adopted the 10 WRIT PETITION NO. 1003 OF 1997. arguments of Adv. Patil. In addition, he invites attention to S. 3 of 1954 Act read with its S.5 to argue that the land survey no. 499EE vests absolutely with State Government and only 4 categories of persons are entitled to get it. Here, as Laxman S/o Tulshiram Pawar being found in possession on 1/7/1960, was “occupant” entitled to its allotment, after his death, his LRs are therefore rightly held eligible therefor. The impugned orders holding petitioners not possessing requisite locus are therefore in accordance with law. The occupancy price could not be paid by or recovered from petitioners and hence, mutation entries procured by them have been rightly deleted & name of those LRs is correctly added. The direction to recover occupancy price from them is also as per said 1954 Act. Petitioners came in possession after 1964 and hence, neither judgment of Hon. Apex Court nor of this Court recognise them as occupants. He further states that this Court in Second Appeal has only mentioned compromise entered between some of the parties before it and alleged compromise in RCS 123 of 1965 does not figure in it. Not only this, alleged document of understanding with Laxman did not ripen into any decree & Exh. 81 is the only decree in that suit. 13-----------------Adv. Mrs. V.A. Shinde, Learned AGP for Respodts. 2 to 6 also supports the arguments of the Respondents. She relies upon the Full Bench judgment of this Court in 1965(67) Bom. L.R. 521—Dattatraya Sadashiv Dhond vs. Ganpati Raghu Gaoli to explain the scheme of 1954 Act. According to her significance of possession on or of date 1/7/1960 in the scheme of 1954 Act was not required to be gone into by this Court in S.A. 79 of 1972. The impugned orders passed by the Additional Collector or Additional Commissioner rightly look into this aspect and reach a correct decision. 14-----------------Questions which “may” arise for adjudication in the light of facts noted above 11 WRIT PETITION NO. 1003 OF 1997. can now be summarized below:-- 1—Whether judgment in S.A. 79 of 1972 dated 12/8/1980 decides any “lis” about status as “occupant” between petitioners & deceased Laxman ie members of Pawar family? 2— Whether entitlement of petitioners as “occupant” under S.2A of 1954 Act is adjudicated upon in present matter? 3—Whether non-participation by Laxman in Civil Suit 24/1967, not filing second appeal against adverse first appeal verdict or then not approaching Hon. Apex Court against adjudication dated 12/8/1980 by this Court in Second Appeal in any way prejudices the rights of Laxman? 4—Whether status of “occupant”under 1954 Act can be determined by the Civil Court? 5—Whether orders of Additional Collector or Additional Commissioner impugned in this petition is second adjudication overlooking the orders of the the Additional Commissioner on 5/5/1992 quashing & setting aside the same earlier orders of SDO dated 29/5/1990 canceling the 3 mutation entries? 6—Whether defences like waiver or estoppel or then not seeking vindication within reasonable time are available in present matter against Laxman? 7—Whether “occupant” like Krishna Pawar & Laxman Pawar or other members of their family who sold away rights in survey no. 499EE before verification of their status as such can be conferred the said status with advantageous flowing therefrom ? 8—What is the effect of absence of State Government as party in Suit 34/1967 leading to Second Appeal 79/1972? 9----Whether Appeal or Revision against the orders of Deputy Collector dated 30/6/1981or 27/11/1996 is decided on 30/3/1991 or 7/2/1997 by competent Appellate Authority as per S.2A of the 1954 Act? It at-once becomes clear that arguments touching all these facets are not advanced by the parties before this Court. Hence, I have used the word “may” above. 15----------------What is the purpose of 1954 Act and jurisdiction of machinery created 12 WRIT PETITION NO. 1003 OF 1997. thereunder must first be found out. Full Bench decision to which Learned AGP invited attention is considered little later in AIR 1967 Bom. 136-- “Thakur Niranjansingh, Petitioner v. Bhagatrai and another, Opponents ” & I find that consideration sufficient for present purposes. It is observed by the Division Bench there :-- “-3. Sections 5 and 6 of the Act, which deal with the grant of occupancy rights in an inam land, came into force on 1-7-1960. It has therefore, been held by a Full Bench of this High Court in Dattatraya Sadashiv v. Ganpati Raghu (1965) 67 Bom LR 521 that the material date for determining who is entitled to the rights of an occupant is 1-7-1960 and not 20-7-1955. The section applicable in the present case is Section 6. Sub-section (1) of Section 6 states that in the case of an occupied land comprised in an inam other than land to which the provisions of Section 5 apply : "(a) Where such land is in the possession of the inamdar, or kabiz-e-kadim or of a permanent tenant or tenant holding from the inamdar, then such inamdar, kabiz-e-kadim, permanent tenant or tenant shall, in respect of the land which is in his possession, be primarily liable to the State Government for the payment of land revenue and shall, subject to the provisions of sub-sections (2), (3), (4) and (5), be entitled to all the rights and be liable to all the obligations as an occupant in respect of such land under the Land Revenue Act, 1317 Fasli and the rules made thereunder." Under this section the petitioner will therefore, be entitled to occupancy rights if he was in possession of the land as a tenant on 1-7-1960. 4. In the present case the date of vesting, that is, the date which the lands vested in the State after the abolition of the inam is 20-7-1955.The lands were leased to the petitioner in April 1957. The question for determination therefore, is whether the opponent could have leased the lands to the petitioner after the lands had vested in the State on 20-7-1955.Sub-section (1) of Section 3 of the Act provides : "Notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a Civil Revenue or Atiyat Court, and with effect from the date of vesting all inams to which this Act is made applicable under sub-section (2) or sub-section (2-A) of Section 1 of this Act shall be deemed to have been abolished and shall vest in the State." Sub-section (2) of this section states that save as expressly provided by or under the provisions of this Act and with effect from the date of vesting, the following consequences shall ensue, namely : "(b) all rights, title and interest vesting in the inamdar....... in respect of the inam land other than the interests expressly saved by or under the provisions of this Act .......shall cease and be vested absolutely in the' State free from all encumbrances." Except Section 33, there is no other provision in the Act which saves any interest which vested in an inamdar before the date of vesting. Section 33, which saves the mutual rights and obligations of an inamdar and his tenant, has no application in the present case, because there was no tenant on the lands on the date of vesting 20-7-1955. On this date, under Section 3 all rights, title and interest in the lands vesting in the opponent ceased and vested absolutely in the State free from all encumbrances. The opponent then lost all his rights in the lands, including his right to their possession. No 13 WRIT PETITION NO. 1003 OF 1997. interest of any kind was left in him. 5. In 1956 the Act was amended by the Hyderabad Abolition of Inams (Amendment) (Act, 1956 with retrospective effect from 20-7-1955, S. 4 of this Act is in the following terms : "Notwithstanding anything contained in the principal Act, with effect from the date of publication of that Act in the official Gazette and till the commencement of the provisions mentioned in Cl. (b) of sub-section (3) of S. 1 of that Act, the full land revenue payable in respect of every inam abolished and vesting in the Government under Section 3 of that Act, shall be recovered from the inamdar of such inam as if he were the occupant of such land and, on the commencement of the said provisions of that Act, it shall be recovered in accordance with those provisions". The principal Act, that is, the Hyderabad Abolition of Inams and Cash Grants Act, 1954, was published in the Official Gazette on 20-7-1955. The provisions mentioned in Cl. (b) in sub-section (3) of Section 1 came into force on 1-7-1960. Section 4 of the amending Act makes the inamdar liable to pay land revenue in respect of the inam land from 20-7-1955 till 1-7-1960. The liability to pay land revenue imposed on the inamdar necessarily implies the right in him to continue in possession of the land upto 1-7-1960, for unless he was to derive some benefit from the land,