Bombay High Court
Ambaji Khandu Dangar Died Lrs Janardhan ... vs Sidramappa Babanappa Samshette Died ... on 20 August, 2024
2024:BHC-AUG:18657 (1) wp-6114-2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6114 OF 2017
Ambaji Khandu Dhangar,
Died through Legal Heirs
1. Janardhan s/o Ambaji Kele,
Age: 71 years, Occu: Agril,
R/o. Kasargaon, Tq. and Dist. Latur
2. Vasant s/o Ambaji Kele,
Age:- 65 years, Occu:- Agril,
R/o as above
3. Shrimant s/o Ambaji Kele,
Age:- 59 years, Occu:- Agril,
R/o as above
4. Prabhanjan s/o Ambaji Kele,
Age:- 51 years, Occu:- Agril,
R/o as above
5. Ayodhyabai Tulshiram Mane,
Age:- 51 years, Occu:- Agril,
R/o. as above
6. Champabai Dnaynoba Kalbande, (died)
Through her LRs.
6(A). Tukaram s/o Dnyanoba Kalbande
age-40 years, Occu: Agril,
R/o. Nandgaon, Tq. and Dist. Latur
6(B). Wamam s/o Dnyanoba Kalbande
Age-40 years, Occu: Agril,
R/o. Nandgaon, Tq. and Dist. Latur
7. Rajubai Khanu Chincholikar,
Age:- 62 years, Occu:- Agril,
R/o. Harwadi, Tq. Renapur, Dist. Latur
8. Kevalbai Manik Mule,
Age:- 54 years, Occu:- Agril,
R/o. Peth, Tq. & Dist. Latur
Versus
(2) wp-6114-2017.odt
1. Sidramappa Babanappa Samshette
Died through his legal heir
Babu Sidramappa Samshette
Age:- 61 years, Occu:- Agril,
R/o. Khulgapur, Tq. and Dist. Latur
At present Lad galli, Sursawali Road,
Opposite to Bharat Narke, Latur
2. The Divisional Commissioner,
Aurangabad. ..Respondents
....
Mr. P. D. Suryawanshi, Advocate for Petitioners.
R. R. Tandale, AGP for Respondent No.2.
Mr. V. D. Gunale, Advocate for Respondent No.1.
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 20th AUGUST 2024.
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. By the consent of the
parties, matter is taken up for final hearing at the stage of
admission.
2. The petitioners impugn order dated 05.01.2017 passed by
Divisional Commissioner, Aurangabad in Appeal No.79/2015,
thereby condoning delay of three years and three months caused in
filing Appeal under the provisions of Hyderabad Abolition of Inams
and Cash Grants Act, 1954 (for short 'Act of 1954').
3. Mr. Suryawanshi, learned Advocate appearing for the
petitioners submits that District Collector, Latur finally decided
proceeding in File No.11@Hkq&lw@buke@dkfo&37 vide judgment and
order dated 22.11.2011. The learned Advocate appearing for the
respective parties were heard, roznama was recorded that the
order passed by the Deputy Collector (Land Reform) dated
20.11.2010 is confirmed and Appeal of respondent no.1 is
dismissed. He would invite attention of this Court to the
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signatures of District Collector and learned Advocates appearing
for the respective parties on the roznama. As such, parties were
aware about the final decision taken by the District Collector. On
the same day, the learned District Collector separately passed
detailed order. However, respondent no.1 assailed order dated
22.11.2011 by filing Appeal dated 25.05.2015 before respondent
no.2. The said Appeal was accompanied with application for delay
condonation. The application sans sufficient cause to condone the
delay of more than three years. However, the Divisional
Commissioner making erroneous observations condoned the delay
vide impugned order dated 09.02.2017. He would, therefore, urge
that impugned order be quashed and set aside.
4. Per contra, Mr. Gunale, learned Advocate appearing for
respondent no.1 vehemently submits that District Collector has
passed separate order on Appeal, which was preferred alongwith
application for condonation of delay. He would further submit that
matter pertains to the rights of parties as regards to the
agricultural property. The decision on merit would not prejudice
any one. The learned Divisional Commissioner has exercised his
discretion, which need not be disturbed in Writ jurisdiction of this
Court.
5. Having considered submissions advanced, apparently issue
before this Court is as to whether respondent no.1 has made out
sufficient cause to condone the delay of almost three years and
three months in filing the Appeal against the order of District
Collector. The record shows that District Collector heard
respective parties on 22.11.2011 and recorded roznama of
proceeding wherein short reasons for not entertaining Appeal are
given and in operative part it is noted that order of the Deputy
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Collector (Land Reforms) is confirmed and Appeal is dismissed.
The proceeding is signed by the learned Advocates appearing for
the respective parties as well as District Collector. On the same
day District Collector separately passed two pages order dismissing
Appeal.
6. In this background, respondent no.1 approached Divisional
Commissioner, Aurangabad assailing order of District Collector in
Appeal filed under Section 2A(2)(ii) of the Act of 1954. The Appeal
was accompanied with application for condonation of delay. In
paragraph no.3 of the said application it is mentioned that the
appellant came to know about impugned order on 10.04.2015 and
he was not served with any notice or intimation from the Office of
the District Collector as regards to the decision dated 22.11.2011.
The paragraph no.5 of application states that the dispute pertains
to the immovable property and rejection of Appeal on technical
ground may defeat valuable right of the parties.
7. Apparently, such reasoning is contrary to the record. As
indicated above, roznama/proceeding clearly records that matter
was finally heard and Appeal filed by respondent no.1 is rejected.
The proceeding is signed by the learned Advocate appearing for the
petitioners. There is no other mode of communication of the final
orders passed in any proceeding before the District Collector. It
was for respondent no.1 to obtain certified copy, when decision was
pronounced in open Court and recorded in the proceeding in
presence of Advocates, who put their signatures acknowledging
communication of decision. In this background, there is absolutely
no reason to justify delay of three years and three months in filing
Appeal against the order of District Collector dated 22.11.2011.
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8. Although it is not expected to delve into the merits of the
matter while deciding the issue of delay condonation, it is
necessary to observe here that the petitioners are already held to
be tenants in possession of the disputed land since 1956. They
were held entitled to re-grant of the land and declaration of the
occupancy rights under Section 2-A of the Act of 1954. The
entitlement of the petitioners has been upheld by this Court as well
as Supreme Court of India. Thereafter, respondent no.1 filed fresh
proceeding seeking declaration of occupancy rights in terms of
Section 2-A(vi) read with Section 6(1)(A) of the Act of 1954 on the
ground that withdrawal of SLP with liberty entitles them to freshly
raise all issues in Appeal. Such assumption of respondents is
fallacious. In that view of the matter, even on merits respondent
no.1 could not make out any case.
9. The learned Divisional Commissioner condoned the delay
observing that from record of District Collector it cannot been seen
that parties were given notice of final decision dated 22.11.2011.
However, such observations are contrary to the record. As such,
delay is condoned on the basis of erroneous observations. In that
view of the matter, impugned order cannot be sustained in law.
Therefore, writ petition succeeds and allowed in terms of prayer
Clause (C).
10. Rule is made absolute in above terms.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/August-2024
