Babamiya S/O Ahmed Shah Inamdar, ... vs Tahsildar, Beed, State Of ...
2002 Latest Caselaw 276 Bom

JUDGMENT

D.G. Karnik, J.

1. By this Writ Petition, the petitioner challenges the Notice dated 9th August 1987 issued by the Tahsildar, Beed, on the ground that the notice is issued without authority of law.

2. In the impugned Notice dated 9th August 1987 (which is signed on 10th August 1987), it is mentioned that the land bearing S.No.4, admeasuring 7 acres and 7 gunthas is held as Inam by Dargah Hurmen Shah, Beed. It is further mentioned that the land is presently under the supervision of the Government. It is alleged in the Notice that the petitioner has made encroachment on one acre ten gunthas in a portion of this land bearing S.No.4. The Notice, therefore, directs the petitioner to remove the encroachment, failing which, it is stated that the encroachment would be removed by the Government.

3. Section 50 of the Maharashtra Land Revenue Code confers power on the Collector to abate or remove any encroachment made on any land or property vested in the State Government. Thus, the necessary condition for exercising powers under Section 50 is that the land or property must vest in the State Government. Under Section 50, the Collector has no power to remove encroachment made on the private property of a private person.

4. The learned Assistant Government Pleader, appearing for the Government, could not specify any source of power for removal of the encroachment other than Section 50 of the Maharashtra Land Revenue Code. Section 50 is clearly not applicable as admittedly the land does not belong to the Government.

5. It is the contention of the petitioner that there is no encroachment made by him. Assuming, without admitting, that there is an encroachment, the said encroachment cannot be removed summarily in the manner it is sought to be done by the impugned notice because the encroachment is not on the Government land or property. In the circumstances, the order passed by the 1st respondent - Tahsildar on 9th August, 1987 at Exhibit-G to the petition has to be quashed.

6. Hence, the order of the 1st Respondent dated 9th August 1987 at Exhibit-G to the petition is quashed and set aside. Rule is made absolute accordingly. No order as to costs.