Bombay High Court
Jitendra Murlidhar Kesekar vs Nannyabai Alias Nanibai Hari Pawar And ... on 5 February, 2024
2024:BHC-AUG:2576
WP 8987/22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
23 WRIT PETITION NO. 8987 OF 2022
Jitendra Murlidhar Kesekar
VERSUS
Nannyabai Alias Nanibai Hari Pawar And Others
...
Advocate for the Petitioner : Mr. Dixit Satyajeet S.
AGP for Respondent/State : Mrs. P.R. Bharaswadkar
Advocate for Respondents 1 to 10, 9, 18 & 19 : Mr. K.N. Shermal
...
CORAM : ARUN R. PEDNEKER, J.
Dated : February 05, 2024
PER COURT :-
1. The learned counsel for the petitioner, on instruction, seeks leave of
this Court to withdraw the writ petition.
2. Writ petition is dismissed as withdrawn.
3. The learned counsel for the respondents submits that at para 25, in
the proceedings between the parties, before the Hon'ble Supreme Court
i.e. in the case reported as 1995 AIR SCW 2224 (Murlidhar Dayandeo
Keskar Vs. Vishwanath Pandu Bardu & Anr.), the Hon'ble Supreme Court
has given following direction :-
'25. It is seen that prior permission for alienation of the
land was a condition precedent. Before permission is given,
the competent authority is enjoined, by operation of Article
46 of the Constitution, to enquire whether such alienation is
void under law or violates provisions of the Constitution and
whether permission could be legitimately given. In that
behalf, the competent authority is enjoined to look to the
nature of the property, subject-matter of the proposed
conveyance and pre-existing rights flowing thereunder and
whether such alienations or encumbrances violate
provisions of the Constitution or the law. If the answer is in
the positive, then without any further enquiry the
permission straightaway would be rejected. Even in case
the permission is granted, it would be decided on the anvil
of the relevant provisions of the Constitution and the law.
In this case, the authorities, though had not adverted to
the aspect of the matter, broadly refused permission on the
ground that the assigned land cannot be permitted to be
sold or converted to non-agricultural use. The action
refusing permission, therefore, is in consonance with the
Constitutional scheme in Part IV of the Directive Principles.
The agreement is, therefore, void under S. 23 of the
Contract Act as opposed to public policy vide judgment in
DTC v. DTC Mazdoor Congress, 1990 (suppl.) 1 SCR, 192,
by one of us Ramaswamy, J. with whom Sawant and Ray,
JJ. agreed by separate but concurring judgment and the
permission was rightly refused to be given for alienation.
The possession is unlawful. Section 53-A of Transfer of
Property Act is not attracted. The appellant's possession
continues to be unlawful and he is not entitled to any
improvement made on the lands. The Collector is directed
to resume the lands immediately and assign the same to
the legal representatives of first respondent, if found
eligible or to any other eligible tribal.'
4. The learned counsel for the respondent submits that the Collector
has not yet acted on the direction of the Supreme Court 'to resume the
land forthwith' and to assign the same to the legal representatives of first
respondent if found eligible or to any other eligible respondent. The
Collector to act forthwith in terms of the directions of Hon'ble Supreme
Court.
5. The learned AGP is directed to bring the above directions of Hon'ble
Supreme Court in the case cited above to the notice of Collector.
6. The Civil M.A. No. 30/2014 is pending for long period of time. The
learned Civil Judge, Senior Division, Sangamner is directed to decide the
legal heirship proceeding bearing Civil M.A. No. 30/2014 expeditiously and
in any event within six months from today.
( ARUN R. PEDNEKER, J. )
ssc/
