Writ Petition No.755 of 1993

20th July, 2010

Petitioner Counsel: Mrs. M. D. THUBE-MHASE
Respondent Counsel: Mr. N. H. BORADE,Mr. S. V. CHANDOLE,Mr. V. G. SAKOLKAR

Cases Cited:
Sheikh Lal Vs. Malhari, 1984 Mh.L.R. 191 [Para 9]

JUDGMENT

JUDGMENT :- Challenge in this petition is to judgment and order rendered by learned Deputy Collector (Land Reforms), Udgir, in the proceedings under section 59 of the Maharashtra Land Revenue Code, 1966.

2. Subject matter of the dispute is agricultural land bearing Survey No.69/1 (now consolidated as Gut No.77), admeasuring 23 acres 9 gunthas, situated at village Nalegaon, under the then Ahmedpur Tahsil and now under Chakur Tahsil.

3. There is no dispute about the fact that the land in question was an inferior. One Rama was the original inamdar. The inam was abolished on 1st February, 1962 as provided under the Bombay Inferior Village Watans Abolition Act, 1958. The inam land was re-granted in favour of the inamdar on payment of occupancy price. The inamdar deposited occupancy price vide the challan on 5th February, 1965. The petitioners lateron purchased two (2) fragments out of the inam land, one comprising of 7 acres area and another comprising of 3 acres 20 gunthas area under two (2) different sale-deeds executed by the inamdar. There is no dispute about the fact that prima facie permission was not obtained for effecting the sale transactions. Since both the sale-deeds were executed by the inamdar without prior permission of the competent authority, proceedings were initiated under section 59 of the Maharashtra Land Revenue Code, 1966 (for short, "the MLR Code"), for removal of the petitioners from the said land. It appears that such suo motu proceedings were dropped for the reason that the competent authority came to the conclusion that the relevant provisions of the Bombay Inferior Village Watans Abolition Act, 1958 (for short, "the Bombay Watans Abolition Act") were not breached by the petitioners. One year thereafter, the competent authority again suo motu initiated the proceedings for summary eviction of the petitioners on the ground that they were in an unauthorised possession of the two (2) parcels of the land which could not be alienated in their favour by the inamdar without prior permission of the competent authority. By order dated 2nd August, 1979, restoration of the possession was ordered by the Tahsildar. That order was challenged by the petitioners. The petitioners were eventually dispossessed from the said lands. They had preferred writ petition No. 711-A/1982 and writ petition No.118/1983. A Division Bench of this Court disposed of the said writ petitions by order dated 28th August, 1990. The Deputy Collector, Udgir was directed to hear the parties and decide the appeal afresh. It was thereafter that the appeal was de novo \i0 heard and decided by the Deputy Collector (Land Reforms). This de novo decision, whereby the appeal came to be dismissed, is under challenge by way of the present petition.

4. Heard learned counsel for the parties.

5. Question involved in the present petition is :

"Whether the petitioners are liable to be evicted from the lands in question in pursuance to the proceedings under section 59 of the MLR Code ?"

6. Section 59 of the MLR Code provides for a speedy remedy of summary eviction under certain circumstances. Section 59 reads as follows :

"59.Summary eviction of person unauthorisedly occupying land :- Any person unauthorisedly occupying, or wrongfully in possession of any land-

(a) to the use or occupation of which by reason of any of the provisions of this Code he is not entitled or has ceased to be entitled, or

(b) which is not transferable without the previous permission under sub-section (2) of Section 36 or by virtue of any condition lawfully annexed to the tenure under the provisions of Section 31, 37 or 44, may be summarily evicted by the Collector."

7. Perusal of section 59 would make it explicit that sub-clause (a) of section 59 would be attracted in case it is proved that use or occupation of the land, under any specific provision of the MLR Code, is prohibited and the person is not entitled to utilize the same. Sub-clause (b) of section 59 is attracted when there is non-transferability attached due to section 36(2) or any particular condition lawfully annexed to the tenure under section 31, 37 or 44. The petitioners' case does not fall within the ambit of section 59(a). There is no dispute about the fact that the petitioners were legally entitled to claim occupancy rights as provided under section 5(3) of the Bombay Watans Abolition Act. Section 5(3) reads as follows :

"5. (1)****

(2) ****

(3) On or after the commencement of the Bombay Paragana and Kulkarni Watans (Abolition), the Bombay Service Inams (Useful to Community) Abolition, the Bombay Merged Territories Miscellaneous Alienations Abolition, the Bombay Inferior Village Watans Abolition and the Maharashtra Revenue Patels (Abolition of Office) (Amendment) Act, 2000 (hereinafter, in this section, referred to as "the commencement date"), the occupancy of the land regranted under sub-section (1) may be transferred by the occupant for agricultural purpose, and no previous sanction or no objection certificate from the collector or any other authority shall be necessary for such transfer. After such transfer, the land shall be continued to be held by such transferee occupant on new and impartiable tenure (Occupant Class II), in accordance with the provisions of the Code :

Provided that, any such occupancy held on new and impartiable tenure (Occupant Class II) may, after the commencement date, be converted into old tenure (Occupant Class I) by the occupant by making payment of fifty per cent of the amount of current market value of such land to the Government, and after such conversion, such land shall be held by the occupant as Occupant Class I, in accordance with the provisions of the Code;

Provided further that, if on the commencement date, any such occupancy has already, with the prior permission of the Collector or any other competent authority on payment of the appropriate amount as Nazarana, been transferred for non-agricultural use, such transfer of occupancy shall be deemed to have been made under the first proviso and the land shall be deemed to be held by the occupant as an Occupant Class I, in accordance with the provisions of the Code, with effect from the date of such transfer;

Provided also that, if on the commencement date, any such occupancy has already, without prior permission of the Collector or any other competent authority and without payment of the amount equal to fifty per cent, of the current market value of such land, as Nazarana, been transferred for non-agricultural use, such transfer may be regularised on payment of an amount equal to fifty per cent, of the current market value of such land for non-agricultural use as Nazarana, and an amount equal to fifty per cent, of such Nazarana as a fine, and on such payment, the occupant shall hold the land as an Occupant Class I, in accordance with the provisions of the Code."

8. Let it be noted that the occupancy right is not required to be determined by the authority. It is already fixed by the Government under a resolution. The occupant may get declaration of occupancy rights on payment of ten (10) times of the assessment by way of Nazarana. In this context, summary eviction of a person can be ordered only when such a person has absolutely no concern, whatsoever, with the land in question. A person in occupation of the land, whose rights are yet to be determined and who is expecting decision of his rights, cannot be regarded as an unauthorised occupant. The grant of the permission to allow transfer of such land would become a procedural matter after the occupant has complied with the main condition of depositing the Nazarana . The petitioners did not deposit the amount of Nazarana as required under the Government Resolution dated 11th September, 1968.

9. In "Sheikh Lal Vs. Malhari and others", 1984 Mh.L.R. 191, a somewhat similar fact situation was noticed by the Hon'ble Division Bench of this Court. A Division Bench of this Court held that the sanction contemplated under section 5(3) of the Bombay Watans Abolition Act can be granted even subsequently and, therefore, the occupant in possession of the land, in contemplation of such grant of sanction under section 5(3) of the Bombay Watans Abolition Act cannot be regarded as an unauthorised possessor. The relevant observations may be usefully quoted as below :

"Shri. Patil, the learned Counsel for the petitioner very fairly did not dispute that before transfer neither sanction of the Collector was obtained nor an amount equivalent to 10 times the revenue as fixed by the State Government by an order was paid before the transfer required under section 5(3). However, he invited our attention to two judgments of this Court in (1) Special Civil Application No.2177/78, 2319/78, 3322/78, 3323/78 and 2413/78 decided on 20-7-1979 in the case of Kondhalkar Vs. The State of Bombay, and (2) Writ Petition No.261/80 decided on 17th June, 1983 in the case of Anandrao Shankar Vs. Smt. Sindhu, decided at Aurangabad. The view taken is that considering the policy of the State to regrant the watan land to the ex-watandar on payment of Nazarana the granting of permission by the Collector was formal and it was not the intention of the legislature that a drastic step under section 59(b) of the Maharashtra Land Revenue Code should be taken in the matter for non-compliance. Reference has been made to various Government circulars to regrant watan land to old tenure on receiving nazarana thereby removing the condition of non-transfer. In other words, it has been held that the sanction contemplated under section 5(3) of the Act can be granted even subsequently. It is apparent that the respondent No.1 had not moved the authorities for restoration of the land which means the respondent No.1 had never any intention to take back the land taking advantage of section 5(3). The petitioner has paid a huge sum of Rs.4,000 and is in possession of the property since 1974."

10. The very inception of action under section 59 of the MLR Code, in the present case, is improper and incorrect. The petitioners could not be regarded as persons in unauthorised possession. At the most, their lawful rights were in inchoate position. The petitioners had forwarded the amount of Nazarana by way of challan bearing No.194. It is obvious that their possession was referable to rights which were required to be determined. It need not be reiterated that the sanction contemplated under section 5(3) of the Bombay Watans Abolition Act could be granted subsequently. Instead of granting such sanction, the petitioners were ousted from the land without having regard to the intention of the Legislature. The Act itself aims at removal of the Watandari and simultaneously to give helping hand to the poor cultivators who could claim benefit of section 5 (3). In this view of the matter, the impugned judgment and order as rendered by the Deputy Collector, Udgir must go.

11. It may be mentioned that one of the objections raised was regarding maintainability of the petition on the ground that alternate remedy of appeal and revision was available. Unfortunately, no such objection seems to have been raised when the petition was admitted. At such a belated stage, it would be improper to relegate the petitioners to the alternate remedy after about seventeen (17) years. It will not be in the interest of justice to relegate the petitioners to seek alternate remedy when it is conspicuous that the summary eviction is quite unlawful action and falls outside the pale of section 59 of the MLR Code.

12. In the result, the petition is allowed. The impugned judgment and order is set aside. The possession of the petitioners shall be restored after period of eight (8) weeks and the action under section 5(3) of the Bombay Watans Abolition Act shall be taken and completed by that time. No costs.

Petition allowed.