WP 3939/10 1 SSK/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3939 OF 2010 Shri Sadnand Sitaram Dhere & Ors. ....Petitioners Versus The State of Maharashtra & Ors. ...Respondents WITH WRIT PETITION NO. 4340 OF 2010 Bandopant Laxman Patil ....Petitioner Versus State of Maharashtra & Ors. ....Respondents Mr. P. S. Dani i/b. Mr. Prashant Bhavake, Advocate for the Petitioner in Writ Petition No.3939 of 2010 and for Respondent Nos.4(1,2,3 & 5) and 5(2 & 3) in Writ Petition No.4340 of 2010. Mr.S.S. Patwardhan i/b. Mr. Chetan G. Patil for the Petitioner in Writ Petition No.4340 of 10 and for Respondent No.5 in Writ Petition No.3939 of 2010. Mr. S. D. Rayrikar, AGP for Respondent Nos.1 to 3 in Writ Petition No.4340 of 2010. CORAM : R. V. MORE, J. DATED : 16th AUGUST, 2010. P.C.: Heard learned Counsel for the respective parties. 2. Rule. By consent, Rule made returnable forthwith and taken up for hearing, since short point is involved. WP 3939/10 2 SSK/6 3. Both the writ petitions arise out of an order passed by the Officer on Special Duty (Appeal and Revision)/Additional Chief Secretary (Revenue) on 9th March, 2010. 4. Brief facts giving rise to these petitions are as follows: The Petitioners (hereinafter referred as Dhere and Bhogulkar) in writ petition no.3939 of 2010 applied to the Government for allotment of land admeasuring about 11 Acres and 30 Guntas out of Survey No. 496(hereinafter called as the said land). The Government in pursuance of this application, by an order dated 15th June, 1962 allotted the said land to Dhere and Bhogulkar on certain terms and conditions. One of the relevant condition was that Dhere and Bhogulkar shall cultivate the said land themselves. 5. The Petitioner in writ petition no.4340 of 2010 (hereinafter referred as Bandopant Patil) filed an application on 3rd April, 1978 before the Revenue Minister pointing out that Dhere and Bhogulkar in contravention of the allotment order leased out the said land to him and as such he is in possession of the said land as lessee. Bandopant Patil also made request to cancel the allotment in favour of Dhere and Bhogulkar and allot the said land to him. By an order dated 7th April, 1978, the Government informed Bandopant Patil that his application is under consideration. The Government, thereafter by an order dated 7th November, 1978 directed the Collector, Kolhapur to send Bandopant Patil’s proposal through Divisional Commissioner for allotment. The Collector by an order passed on 7th September, 1979 was pleased to resume the said WP 3939/10 3 SSK/6 land to Government on the ground that Dhere and Bhogulkar have breached the conditions of allotment order. The Collector further directed the Tahsildar to lease out the said land to Bandopant Patil till the decision of the Government. This order was confirmed by the Additional Commissioner, Pune Division, Pune. Dhere and Bhogulkar thereafter, preferred a revision before the State Government. The Officer on Special Duty (Appeal and Revision)/Additional Chief Secretary (Revenue) disposed of the revision by the impugned order, whereby the order of the Collector, so far as it relates to the resumption of the said land to government, came to be confirmed. However, the Collector’s order directing the Tahsildar to lease the said land to Bandopant Patil came to be set- aside. In these circumstances, both the above petitions are filed by Dhere and Bhogulkar and Bandopant Patil, respectively. 6. Mr. Dani, learned Counsel for the Petitioner in writ petition no.3939 of 2010 contended that the said land was being cultivated by Dhere and Bhogulkar through Bandopant Patil. Bandopant Patil was merely a Manager. Mr. Dani, learned Counsel, disputed the lease deed allegedly executed by Dhere and Bhogulkar in favour of Bandopant Patil. He submitted that the said lease is executed by fraud. He also submitted that the Lower Authorities have not considered his arguments in this regard. He lastly submitted that Bandopanth Patil had already filed an application under section 70(b) of the B.T. and A.L.T Act which came to be dismissed and after dismissal of the said application, he cannot claim to be lessee of the said land. WP 3939/10 4 SSK/6 7. Mr. Patil, learned Counsel for the Petitioner in writ petition no.4340 of 2010 on the contrary contended that the said land was given on lease by Dhere and Bhogulkar to Bandopant Patil and thereafter, he applied to the Government for allotment of the said land to him. The allotment was claimed on several grounds including the ground that Dhere and Bhogulkar were guilty of breach of conditions of the allotment order. He further submitted that on Bandopant Patil’s proposal, the Government gave direction to the Collector to send the said proposal through Divisional Commissioner. This proposal was already sent by the Collector and the same was pending before the Government and in this circumstances, the Collector rightly passed the order, which order could not have been interfered by the Officer on Special Duty (Appeal and Revision)/Additional Chief Secretary (Revenue). Mr.Rayrikar, learned Counsel for the Government submitted that Dhere and Bhogulkar breached the conditions of allotment order and therefore, the land was rightly resumed to the Government. He submitted that the possession of Bandopant Patil also could not have been protected and therefore, the impugned order is rightly passed. 8. Having considered the submission of the learned Counsel for respective parties and having gone through the impugned orders, I find that the relevant question is, whether Bandopant Patil was cultivating the said land as the Manager/Servant of Dhere and Bhogulkar or he was cultivating the said land as lessee of Dhere and Bhogulkar. If Dhere and Bhogulkar proves that Bandopant Patil was cultivating the said land as their Servant/Manager and the alleged lease deed is fraudulently obtained by him, in that case, the resumption WP 3939/10 5 SSK/6 order would be illegal. However, this issue cannot be decided in writ jurisdiction and same would be required to be decided by the Court of competent jurisdiction. 9. So far as Bandopant Patil is concerned, his proposal for allotment of the said land is pending before the Government. The Collector after taking into consideration his proposal and has made an interim arrangement, thereby directing the Tahsildar to lease out the said land to Bandopant Patil during the pendency of consideration of the said proposal before the Government. In these circumstances, the Officer on Special Duty (Appeal and Revision)/Additional Chief Secretary (Revenue) cannot dispossess Bandopant Patil by the impugned order. In the light of the above observations, the petition is disposed of, by passing the following order: 1. Dhere and Bhogulkar, the Petitioners in writ petition no.3939 of 2010 are at liberty to approach the Civil Court of competent jurisdiction to get adjudicated their claim that Bandopant Patil-Petitioner in writ petition no.4340 of 2010 is cultivating the said land in the capacity of Manager/Servant and the alleged lease deed was obtained fraudulently by him. 2. The impugned order, so far as it relates to the resumption of the said land to the Government is concerned, same WP 3939/10 6 SSK/6 shall be subject to the final outcome of the suit. 3. The impugned order, so far as it relates to quashing and setting-aside of the Collector’s Order directing the Tahsildar to lease the said land to Bandopant Patil is concerned, same is quashed and set-aside. However, the Collector’s order as well any decision that may be taken by the Government on Bandopant Patil’s proposal for allotment of the said land will be subject to the final outcome of the suit that may be filed by Dhere and Bhogulkar in pursuance of Clause (1) of the Order. 4. In order to enable Dhere and Bhogulkar to approach the Civil Court, the parties to the petitions shall maintain status-quo regarding the suit property for a period of eight weeks from today. 5. It is made clear that all the points and contentions except those mentioned above are expressly kept open to be agitated by both the parties before the Civil Court. (R. V. MORE, J.)