Sukhdeo S/O Rajaram Shejul vs The State Of Maharashtra Through ...
2022 Latest Caselaw 2352 Bom

                                        1               WP 1558.21.odt




IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         NAGPUR BENCH AT NAGPUR

             WRIT PETITION NO. 1558 OF 2021


Sukhdeo s/o Rajaram Shejul,
Aged about 50 years,
Occ : Agriculturist,
R/o. Ekata Nagar, Risod,
Tq. Risod, Dist. Washim.                    ..     Petitioner


                         .. Versus ..


1. The State of Maharashtra,
   through its Secretary,
   Department of Revenue and Forest,
   Mantralaya, Mumbai-32.

2. The Collector,
   Washim, Dist. Washim.

3. The Sub-Divisional Officer,
   Washim, Dist. Washim.

4. The Tahsildar, Risod,
   Tq. Risod, Dist. Washim.

5. The Municipal Council, Risod
   Through its Chief Officer, Risod,
   Tq. Risod, Dist. Washim.                 ..    Respondents



              ..........
Shri Rahul N. Ghuge, Advocate for the petitioner,
Mrs. M.H. Deshmukh, Assistant Government Pleader for respondent
nos.1 to 4,
Mrs. A.A. Joshi, Advocate for respondent no.5.
              ..........
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       CORAM : A.S. CHANDURKAR AND SMT. M.S. JAWALKAR, JJ.
       DATED : 09.03.2022.


ORAL JUDGMENT (Per : A.S. Chandurkar, J.)



         Rule.   Rule made returnable forthwith.      Heard the learned

counsel for the parties.



2.       The challenge herein in this writ petition is to the order dated

11.02.2021 passed by the Collector, Washim thereby allotting the land

ad-measuring 0.13 R from field Survey No.3 to Municipal Council,

Risod for its commercial use.    It is the case of the petitioner that his

father was granted Bhumiswami Rights with regard to three lands ad-

measuring 0.60 R, 80 x 80 sq. ft. and 100 x 100 sq. ft. This was by

issuing From-G Certificate pursuant to such adjudication in revenue

proceedings. The petitioner, after the death of his father, sought

mutation entries to be taken in that regard. According to the petitioner,

as per the reports submitted by the Tahsildar and thereafter Sub-

Divisional Officer, it has been recommended that the mutation entries

be taken in favour of the petitioner on the basis of allotment of the

lands to his father.



3.      On 13.1.2021, the Naib Tahsildar, after verifying the entire

record, submitted his report in which it is stated that from land bearing
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Survey No.3, after excluding 80 x 80 sq. ft. land to which the petitioner

was claiming right, the other land could be allotted to the Municipal

Council for commercial use.          However, 21.1.2021, the Tahsildar

submitted another report to the Collector stating therein that the

objection raised by the petitioner was without any justification. On

that basis, the Collector has been pleased to allot 0.13 R land to the

Municipal Council which includes the portion ad-measuring 80 x 80 sq.

ft. which concerns the petitioner.



4.       The learned counsel for the petitioner submits that in view of

allotment of aforesaid three lands to the petitioner's father and

specially the land ad-measuring 80 x 80 sq. ft. it was not permissible for

the Collector to have allotted that plot to the Municipal Council. The

petitioner was not heard before such order of allotment was passed

which affected his rights. The right of hearing was necessary in view of

the fact that the earlier recommendations made by the revenue

authorities were in favour of taking mutation entries in the name of the

petitioner. He referred to the affidavit-in-reply filed by the respondent

nos.2 to 4 in which it was admitted that the plot ad-measuring 80 x 80

sq. ft. was also the subject matter of allotment to the Municipal Council.

It is thus submitted that since the father of the petitioner was allotted

the aforesaid land by granting Bhumiswami Rights, it was not open for

the Collector to have allotted that land to the Municipal Council.
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5.       The learned counsel for the respondent no.5-Municipal

Council has submitted that pursuant to the order of allotment, the

requisite amount has been deposited and the Municipal Council is

entitled to utilise the plot ad-measuring 0.13 R of land for commercial

purposes. It would be open for the petitioner to seek an alternate land

if he had any right in that regard.



6.       The learned Assistant Government Pleader for the respondent

nos.1 to 4 has referred to the affidavit-in-reply filed by said respondents

and the stand taken therein that the land ad-measuring 80 x 80 sq. ft.

was allotted to the petitioner's father by issuing Form - G in the year

1980.



7.       We have heard the learned counsel for the parties and

perused the documents on the record.



8.       The reports prepared by the Tahsildar and thereafter Sub-

Divisional Officer recognise the fact that the father of the petitioner has

been allotted the plot ad-measuring 80 x 80 sq. ft. along with

Bhumiswami Rights. Even the affidavit-in-reply filed by the Naib

Tahsildar dated 12.5.2021 endorses that fact.    The Municipal Council

having need of the land for commercial use sought allotment of the

same. The Collector has thus been pleased to allot 0.13 R of land for
                                               5                    WP 1558.21.odt



commercial use. The petitioner does not challenge the decision to allot

the land to the respondent no.5. However, since the plot ad-measuring

80 x 80 sq. ft. is included in 0.13 R i.e. allotted to the Municipal

Council, he submits that the order dated 2.2.2021 has been passed

without hearing the petitioner to that extent.         The rights of the

petitioner are prejudiced to that extent.



9.          We find that the matter requires re-consideration by the

Collector to the extent of allotment of 80 x 80 sq. ft. land from 0.13 R

of land to the Municipal Council. It would be necessary to consider the

allotment of that land to the petitioner's father and his rights therein

before making such allotment. In that view of the matter, the following

order is passed :

                           ORDER

(i) The petitioner is permitted to make a representation

to the Collector seeking exclusion of the land ad-measuring

80 x 80 sq. ft. with regard to which G - Form has been issued

to the petitioner's father from 0.13 R land that has been

allotted to the Municipal Council.

(ii) The Collector shall consider the earlier reports of the

Tahsildar and the Sub-Divisional Officer and after granting

opportunity of hearing to the petitioner as well as the Chief

Officer of the Municipal Council, shall take a decision with 6 WP 1558.21.odt

regard to the claim made by the petitioner with regard to the

land in question. It would be open for the Collector to

consider, whether any alternate land can be offered to the

petitioner in view of allotment of 0.13 R land to the Municipal

Council.

iii) The entire exercise be completed within a period of

three months from the date the petitioner submits the

representation. The representation be submitted within a

period of fifteen days. The order of status-quo passed on

06.08.2021 shall continue to operate till any decision is taken

by the Collector.

(iv) Insofar as the prayer for taking mutation entries in

accordance with Form - G are concerned, the Naib Tahsildar in

his affidavit in para 32 has indicated that such direction could

be issued to take mutation entries in the Revenue Record in

the name of petitioner's father. We accordingly direct so.

(v) With these directions, the writ petition is disposed

of. Rule accordingly. No costs.

[SMT. M.S. JAWALKAR, J.] [A.S. CHANDURKAR, J.] Gulande

Signed By:ABHIMANYU SHANKARRAO GULANDE Private Secretary High Court Nagpur Signing Date:10.03.2022 14:45