Bombay High Court
Mohd. Khwaja Habibuddin S/O ... vs State Of Maharashtra, Through ... on 29 March, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.7159 OF 2014
Mohd. Khwaja Habibuddin s/o.
Khwaja Moinuddin, Aged 46 years,
Occupation : Business,
R/o. Amberpeth, Hyderabad (Telangana),
Through Constituted General Power of Attorney
Syed - Haji Ali Karim Ali,
Aged 66 years,
Occupation : Pensioner,
R/o. Teacher Colony, Binba Gate,
Chandrapur (MH). : PETITIONER
...VERSUS...
1. State of Maharashtra,
Through Collector, Chandrapur (MH).
2. Sub-Divisional Officer, Rajura,
Tah. Rajura, (Distt. Chandrapur).
3. Tahsildar (Encroachment) Rajura,
Tah. Rajura, Distt. Chandrapur.
4. President, Agricultural Land Tribunal,
Rajura, through Tahsildar Rajura,
Tah. Rajura, (District Chandrapur) and
5. Deo Gangu Pendor (deceased),
through his legal heirs.
6. Manik Deo Pendor (Son)
7. Bhimabai Dharma Madavi (daughter)
5 to 7 all R/o. Belgaon, Tal. Korpana,
Distt. Chandrapur. : RESPONDENTS
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Mr. C.B. Dharmadhikari, Advocate for the Petitioner.
Mr. S.B. Ahirkar, Assistant Government Pleader for the Respondent
Nos.1 to 3.
Mr. Shrikant Deo, Advocate for the Respondent Nos. 6 and 7.
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CORAM : S.B. SHUKRE, J.
th
DATE : 29
MARCH, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard
finally by consent of learned Counsel appearing for the parties.
2. The order challenged in this petition is the order passed
by the Tahsildar (Encroachment), Rajura on 28.3.2006 passed
under Section 38(1) of the Hyderabad Tenancy and Agricultural
Lands Act, 1950, (in short, "Hyderabad Tenancy Act") whereby the
respondent No.5 has been declared to be a protected tenant and
entitled to purchase the subject land.
3. This order has been challenged on four grounds, namely,
order has been passed without having any jurisdiction, order has
been passed against a dead person, order has been obtained by
perpetrating fraud and the order has been passed without following
the procedure laid down under the Hyderabad Tenancy Act.
4. Learned counsel for the legal heirs of respondent No.5
submits that so far as jurisdictional objection is concerned, it would
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be for the respondent Nos.1 to 4 to clarify as the revenue authority
would be competent to speak something in that regard. He submits
that it is quite likely that even though erstwhile Rajura Taluka has
been bifurcated in the year 1992 into two talukas viz. Rajura and
Korpana, it is quite likely that Korpana Tahsildar may not have been
still empowered to exercise jurisdiction under Section 38 of the
Hyderabad Tenancy Act. He submits that the date of consent letter
being what it is, is a matter of record.
5.
Learned Assistant Government Pleader for the
respondent Nos.1 to 4 submits that an appropriate order may be
passed.
6. It is seen from the impugned order that the entire basis
of the order is the consent letter dated 4.4.2006 allegedly issued on
behalf of father of the petitioner by his power-of-attorney holder.
This consent letter is of 4.4.2006 and whereas the order impugned
herein has been passed on 28.3.2006. It is manifestly clear that the
order has been obtained by misleading the authority. I do not
understand as to how the Tahsildar Rajura has allowed himself to
be misled by consent letter, which could not have been in existence
on 28th March, 2006. This will be a matter of investigation to be
made by appropriate authority. Suffice it to say for the purposes of
this petition, such an order cannot be sustained in the eye of law.
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7. As regards the other objections, same could be taken by
the petitioner as and when occasion arises before the appropriate
authority.
8. In the circumstances, this petition deserves to be allowed
and it is allowed accordingly.
9. The impugned order dated 28.3.2006, passed by the
Tahsildar (Encroachment), Rajura is quashed and set aside.
10. The application filed under Section 38(1) of the
Hyderabad Tenancy and Agricultural Lands Act, 1950 stands
dismissed.
11. The certificate dated 17.6.2006 issued in pursuance of
the order dated 28.3.2006 is also quashed and set aside.
12. Liberty is granted to the legal heirs of respondent No.5
to initiate fresh proceedings seeking declaration of their being
protected tenant, if same are maintainable in law.
13. All contentions of the parties are kept open.
14. Rule is made absolute in these terms. No costs.
JUDGE
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