1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1048 OF 1994 1. Pandhari S/o Keshav Sakhare Deceased – through L.Rs. : A) Kantabai W/o Pandharinath Sakhre Age : Major, Occ. Agriculture, R/o : Waghalwadi, Tq. Ambajogai, Dist. Beed. B) Govind S/o Pandharinath Sakhre Age : Major, Occ. Agriculture, R/o : Waghalwadi, Tq. Ambajogai, Dist. Beed. C) Dharmaraj S/o Pandharinath Sakhre Age : Major, Occ. Agriculture, R/o : Waghalwadi, Tq. Ambajogai, Dist. Beed. D) Bhagabai W/o Laxman More Age : Major, Occ. Agriculture, R/o : Waghalwadi, Tq. Ambajogai, Dist. Beed. E) Gangabai W/o Dattu Harale Age : Yrs., Occ. R/o : Waghalwadi, Tq. Ambajogai, Dist. Beed. 2. Rambhau S/o Keshav Sakhare Age : 50 Yrs., Occ. Agril., R/o : Waghalwadi, Tq. Ambajogai, Dist. Beed. 3. Raghunath S/o Keshav Sakhare Died – through legal representative Fulanbai W/o Raghunath Sakhare Age : 46 Yrs., Occ. 2 R/o : Waghalwadi, Tq. Ambajogai, Dist. Beed. 4. Dnyanoba S/o Keshav Sakhare Died – through legal representative Sham S/o Dnyanoba Sakhare Age : 19 Yrs., Occ. Agril., R/o : Waghalwadi, Tq. Ambajogai, Dist. Beed. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through Govt. Pleader, High Court, Hench at Aurangabad. 2. Dy. Collector (Atiyat), Ambajogai, Dist. Beed. 3. Dy. Collector ( L.R. ) Beed, Dist. Beed. 4. The Tahsildar Ambejogai, Tq. Ambajogai, Dist. Beed. 5. Sajedabegum D/o Mohd. Niyajuddin ( W/o Mohd. Khairuddin Khatib ) Died – through legal representative Ahmed Mohiuddin S/o Mohd. Khairuddin Age : Major, ( 55 Yrs. ), Occ. Agril. R/o : Ambejogai, Tq. Ambajogai, Dist. Beed. .... RESPONDENTS Mr. D.R.Bhadekar, Advocate for petitioner. Mr. K.G. Patil, Assistant Govt. Pleader for State. Mrs. M.A.Kulkarni, Advocate for respondent no. 4. 3 CORAM : B.R.GAVAI AND S.V.GANGAPURWALA, JJ. JUDGMENT RESERVED ON : 11/06/2010 JUDGMENT PRONOUNCED ON : 08/07/2010 JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. Heard Mr. Bhadekar, the learned counsel for the petitioner and Mrs. M.A. Kulkarni, the learned counsel for respondent no. 5. 2. The petitioner takes exception to the Judgment and Order passed by the Dy. Collector (Atiyat), Ambajogai dated 31/7/1993 in file No. 69 Inam – 7, by virtue of which he has ordered release of land S.No. 498 and 500 of Ambajogai in favour of Ahmad Moiuddin of whose present respondent no. 5 is legal heir. 3. The petitioners contend that the land S.No. 498 and 500 situated at Waghalwadi, Tq. Ambajogai, Dist. Beed are Inam lands granted through Muntakhab No. 1857 of 1349 Fasli. By the said Muntakhab, several lands including S.No. 498 and 500 were given as a grant. According to the petitioners, the said lands given, pursuant to the said Muntakhab, were community service Inam lands and as such stood abolished by virtue of the Hyderabad Abolition of Inam and Cash Grants Act ( For short, ‘ said Act ’ ). It was only in respect of these two lands i.e. S.Nos. 498 and 500, the proceedings under the Atiyat Enquiries Act were commenced and succession is sanctioned to Inamdar. 4. The petitioners claim to be the legal heirs of Apparao and 4 Keshav Narayan who were tenants over said lands since prior to 1952. The petitioners have placed on record the Pahani Patrak of the year 1952. According to the petitioners, they were dispossessed in the year 1969. 5. The petitioners further contend that as this Inam stood abolished, the said lands vests in the Govt. and the persons who were occupants on 1/7/1960 were entitled for occupancy rights on payment of the occupancy price. It is also their further contention that as the said Inam stood abolished, the provisions of Atiyat Enquiries Act are not applicable in view of Section 38 of the said Act. It is the case of the petitioners that the fact that the properties which were allotted by virtue of Muntakhab No. 1857 of 1349 Fasli, were community service Inams, is no longer ‘ res intigra ’ in view of the Judgment of the Division Bench of this Court in Writ Petition No. 2823 of 1981 decided on 13/8/1990. The said Writ Petition involved lands bearing S.No. 499 and 501 of Ambajogai given as grant vide same Muntakhab No. 1857 of 1349 Fasli. In the said Judgment, the Division Bench of this Court has held that the said lands are community service Inam lands. So also, the petitioners have relied on the Judgment of the learned Single Judge of this Court in Writ Petition No. 5366 of 2007 dated 17/7/2008, wherein the learned Single Judge relying on the earlier Judgment of the Division Bench has also held that land S.Nos. 435, 436 and 596 given as a grant vide Muntakhab No. 1857 of 1349 Fasli are community service Inam lands. 6. The respondents contend that these lands are service Inam lands and as such are not abolished by virtue of the operation of the said Act. They wee attached to the Institution Jama Masjid and as such were service Inam 5 lands. As the same were service Inam lands, the provisions of the Atiyat Enquiries Act were only applicable and the Dy. Collector (Atiyat) has jurisdiction to entertain the application of the present respondent and has rightly passed the impugned order. It is also their contention that in the year 1974, the Gazette was published pursuant to the provisions of the Waqf Act. Though these lands were initially not included in the Gazette but subsequently by Corrigendum issued on 14/9/2006, the said properties are declared as waqf properties and in view of the same, it will have to be held that the same are service Inam lands and the petitioners are estopped from saying that Atiyat Enquiries Act is not applicable. According to respondent no. 5, the petitioners are claiming through Keshav, whose name does not appear in the 7/12 extract up to 1969. He can not be said to be in possession on the notified date. According to respondent no. 5, petitioner nos. 1 to 4 have no concern with the suit lands. 7. We have heard the respective counsels at length. Mr. Bhadekar, the learned counsel for the petitioners strenuously submitted that once the Division Bench of this Court has held that the lands allotted by virtue of Muntakhab No. 1857 of 1349 Fasli were community service Inam lands and stood abolished and the said Judgment not having been challenged, will be binding on the present respondent no. 5. He further contended that consistently it has been held by various Judgments of the State Govt. that the lands allotted by virtue of Muntakhab No. 1857 of 1349 Fasli are community service Inam lands and have stood abolished and the occupants on the notified date were granted occupancy rights. All these facts conclusively establish that the lands S.No. 498 and 500 are community service Inam lands 6 and stood abolished and the petitioners are entitled for occupancy rights, so also, the Dy. Collector (Atiyat) would not have any jurisdiction to entertain any application and pass orders under the provisions of the Atiyat Enquiries Act. The said lands were taken under Govt. supervision in the year 1969 and on the said date, Keshav and Apparao were in possession of the property. According to him, as Keshav and Apparao were in possession on the notified date, the petitioners are entitled to the occupancy rights and under any circumstances, the Dy. Collector (Atiyat) could not have passed the impugned order directing to deliver the possession of the property in favour of Syed Moiuddin. 8. Per contra, Mrs. M.A. Kulkarni, the learned counsel for respondent no. 5 vehemently submitted that the subject lands are service Inam lands and as such they never stood abolished. The present respondent no. 5 or her predecessor Syed Moiuddin was not party to the Writ Petition No. 2823 of 1981. As such, the said finding is not binding on the present respondent no. 5. It is her further contention that the present respondent no. 5 has preferred Letters Patent Appeal against the order of the learned Single Judge in Writ Petition No. 5366 of 2007 and the same is pending. According to her, as Keshav was not in possession on the notified date and it was only Apparao, who was in possession, the present petitioners would not get any right or interest in the subject properties. It is further submitted that inter- alia they would not get any right to challenge the Judgment of the Dy. Collector (Atiyat). She has further submitted that the Dy. Collector (Atiyat) has taken into consideration all the relevant factors and thereafter has passed the impugned order. Mrs. Kulkarni further led emphasis on the fact that this 7 property is included in the Gazette published under the provisions of the Waqf Act and as such once the said property is published under the Gazette and the same is not challenged within the period of one year, the entry in the said Gazette becomes final and it would not be open for the parties to agitate regarding the said entry. She also further submitted that once the property is entered in the Gazette, then there is conclusive presumption that the said property is waqf property and is a service Inam land. On this count also, she submitted that the petitioners can not assail the impugned Judgment. 9. We have considered the documents on record and the arguments advanced by both the parties. The factum of the property being given as a grant vide Muntakhab No. 1857 of 1349 Fasli is not disputed. So also, it is not disputed that the said land is Inam land. The dispute between the parties is about the nature of the Inam. To determine the nature of the Inam, it is only the Dy. Collector ( Land Reforms ), who is competent authority. It is he, who alone can determine the nature of Inam. After the matter was admitted, this Court had directed that the enquiry in respect of occupancy rights by the Dy. Collector, Land Reforms, be continued. The Dy. Collector, Land Reforms had rejected the application of the present petitioners, against which the petitioners had preferred Appeal before the State Govt. and the Chief Minister who was also Minister (Revenue) by its Judgment and Order dated 24/5/2005 allowed the Appeal of the present petitioners, wherein it is held that the land S.Nos. 498 and 500 are community Inam lands and the occupancy rights be granted in favour of the petitioners. We are told by Mrs. Kulkarni that the said Judgment is challenged by way of Writ Petition before the learned Single Judge of this Court and the Judgment of the Hon’ble 8 Minister is stayed and the said Writ Petition is pending. 10. In the present petition, we are not concerned with the grant of occupancy rights. Whether the petitioners are entitled for grant of occupancy rights or not, is a subject matter of the Writ Petition pending before the learned Single Judge. As such, we would not dialect on the same. The question before us is, Whether the Dy. Collector (Atiyat) could have passed the order impugned in the present Writ Petition in wake of the earlier Judgments of this Court holding the lands to be the community service Inam lands and also holding that the said Inam stood abolished. In our opinion, once the Division Bench of this Court has held that the lands given as grant pursuant to the Muntakhab No. 1857 of 1349 Fasli are community service Inam lands, then the Dy. Collector (Atiyat) could not have passed the impugned order. He could not have assumed jurisdiction over the same. The arguments of Mrs. Kulkarni that the subject properties are included in the Gazette under the provisions of the Waqf Act and as such now it can not be agitated that the said lands are not service Inam lands, are not applicable in the present case because the petitioners are non muslims and as per the dictum of the Apex Court in the case of The Board of Muslim Wakfs, Rajasthan V/s Radha Kishan and others reported in AIR 1979 – SUPREME COURT – 289, it has been observed that a stranger, who is a non muslim and in possession of certain property, his right, title and interest therein can not be put in jeopardy, merely because the property is included in the list published under sub Section (2) of Section 5 of the Waqf Act and there would not be any final and conclusive presumption. 9 11. A dispute about the grant of occupancy right is also pending before the learned Single Judge of this Court and in the said proceedings, the nature of Inam would also be a matter of concern. The Dy. Director (Atiyat) is not entitled nor has the jurisdiction to determine the nature of Inam. In such circumstances, the Dy. Collector ( Atiyat ) could not have passed the order impugned in the present petition. The Dy. Collector ( Atiyat ) has exceeded his jurisdiction while passing the impugned order. In the said proceedings, the present petitioners were not made parties. The Dy. Collector ( Atiyat ) could not have exercised jurisdiction and passed the impugned order determining the share of the present respondent no. 5, that too in absence of petitioners who had interest in the said property. 12. In the light of above, the impugned order is quashed and set aside. It is made clear that we have not given any opinion in respect of the proceedings arising out of an application for grant of occupancy rights on the application of the present petitioners as the same would be subject to the decision of the learned Single Judge in the pending Writ Petition. 13. Rule is made absolute on above terms with no order as to costs. 14. In view of disposal of Writ Petition, all Civil Applications stand disposed of. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 1048.94 10