SHEIKH LAL Vs. MALHARI

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution by one Shaikh Lai Shaikh Budhan, the purchaser of 1 acre 4 gunthas of land from Field Survey No. 18, Village Pimpalgaonpeth, Taluka Sillod, District Aurangabad, from respondent No. 1 - Malhari Gangaram in whose favour the land was regranted in terms of section 5 (1) of the Bombay Inferior Village Watans Abolition Act, 19:6. The petitioner paid a sum of Rs. 4,000 and is in continuous possession of the property. Tahsildar Sillod, respondent No. 3 suo motu initiated action under section 59 of the Maharashtra Land Revenue Code on the ground that possession of the petitioner was illegal ; the transfer itself being illegal in view of non- compliance of conditions for transfer under section 5 (3) of the Act. Vide order Exhibit 'A' dated 11-5-1978 the petitioner was ordered to vacate the land and to restore the possession to respondent No. 1 Malhari. The Maharashtra Revenue Tribunal, Aurangabad by order dated 10th October 1978, Exhibit 'B' maintained the said order. Being aggrieved by these two decisions, the present writ petition has been filed.

(2.) Shri Patil, the learned Counsel for the petitioner very fairly did not dispute that before transfer neither sanction of the Collector was obtained nor an amount equivalent to 10 times the revenue as fixed by the State Government by an order was paid before the transfer requir- ed under section 5(3). However, he invited our attention to two judgments of this Court in (1) Special Civil Application No. 2177/78, 2319/78, 3322/78, 3323/78 and 2413/78 decided on 20-7-1979 in the case of Kondhalkar v. The State of Bombay, and (2) Writ Petition No. 261/40 decided on 17th June 1983 in the case of Anandrao Shankar v. Smt. Sindhu, decided at Aurangabad. The view takan is that considering the policy of the State to regrant the watan land to the ex-watandar on payment of Nazarana the granting of permission by the Collector was formal and it was not the intention of the legislature that a drastic step under section 59 (b) of the Maharashtra Land Revenue Code should be takan in the matter for non- compliance. Reference has been made to various Government circulars to regrant watan land to old tenure on receiving nazaraua thereby remov- ing the condition of non-transfer. In other words, it has been held that the sanction contemplated under section 5 (3) of the Act can be granted even subsequently. It is apparent that the respondent No. 1 had not moved the authorities for restoration of the land which Means the respondent No. 1 had never any intention to take back the land taking advantage of section 5 (3). The petitioner has paid a huge sum of Rs. 4,000 and is in possession of the property since 1974. Under these circumstances, in our judgment this is a pre-eminently fit case for receiving saction under section 3 by the Collector of the District. Needless to mention that the amount equivalent to 10 times the land revenue must also reach the coffers of the State Government. We do hope and expect the respondent No. 1 to make this payment. In the event of her failure to make the payment and to avoid any possibility of his taking undue advantage of the non-payment the petitioner is also free to deposit this amount with the State Government. The petitioner or respondent No. 1 are granted two months time to make the payment. The Collector, Aurangabad shall grant the permission to the transfer in question, on deposit of the said amount. On failure to deposit the amount, the petition shall stand dismissed and impugned orders shall stand.

(3.) Under these circumstances, the impugned orders under Exhi- bits 'A' and 'B' are quashed and set aside and the rule is made absolute in the above terms. There shall be no order as to costs.