ANANT VISHNU MULEY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Challenge in present writ petition is to the order dated 2/4/1998 passed by respondent No 1 State of Maharashtra allowing an appeal under section 248 of Maharashtra Land Revenue Code, 1966 (referred to as "Code" hereafter) filed by present respondent No 4. Respondent No 4 Waman is related to Petitioners as Uncle. According to Petitioners their deceased mother Nalinibai leased out a plot to an Oil Company by name Esso (now Hindustan Petroleum Company) and respondent No 4 was appointed by said oil company as its dealer to run petrol pump erected on said plot. By Impugned order respondent No 1 has ordered cancellation of allotment and renewal of said plot in favour of deceased Nalinibai and directed the same to be given to respondent No 4 by treating his possession after expiry of lease in favour of deceased mother as encroachment and directing its regularisation as per provisions of Code. This court has while admitting writ petition stayed this direction and said interim order continues to operate even today. As respondent No 4 is above 75 years of age and the senior citizen, matter has been listed for final hearing from category of senior citizen.

(2.) Plot No 91 situated at Subashchandra Road, Nagpur ad measuring 10678.75 square feet forms subject matter of present petition. It was leased out initially to Pioneer Insurance Company Ltd Nagpur vide 3 different lease deeds executed by Secretary of State for India on 21/9/1932 for area ad measuring 918.75 square feet for period of about 16 years, 3000 square feet for about 13 years and for 6760 square feet also for about 13 years. These lease deeds were to expire on 31/3/1948, 3/10/1945 & 3/10/1945 respectively. Petitioners state that said Insurance Company was having a building on this land and lease was for commercial cum residential purpose. Pioneer Insurance Company executed sale deed on 14/12/1950 in favour of deceased mother and she got lease hold rights and she was placed in possession of entire property. She thereafter applied for renewal to respondent No 3 Collector who passed the order on 24/5/1960 and renewed lease in favour of deceased Nalinibai for 30 years. Collector observed that plot ad measuring 4270 square feet was being used for commercial purpose and could be used for that purpose while remaining plot ad measuring 5490 square feet was used for residential purpose and could be used for that purpose. After about six years respondent No 4 Waman was inducted as the tenant in portion of leased property and said tenancy continued till 1968 when he surrendered tenancy rights in favour of deceased Nalinibai only. Petitioners state that respondent No 4 discontinued payment of rent in view of this surrender. On 1/4/1968 Nalinibai executed agreement with Esso Standard Eastern Company and inducted it as tenant in portion of leased property. This Esso Company then appointed respondent No 4 as its dealer and Petitioners state that respondent No 4 in a suit filed by deceased mother for recovery of rent denied relationship of landlord and tenant between him & Nalinibai. Respondent No 4 also filed a suit for partition and possession claiming ownership on various properties owned by deceased mother but this suit registered as Special Civil Suit 154/1969 was dismissed on 31/7/1973. First Appeal 16/1974 challenging this dismissal preferred by respondent No 4 was also dismissed by Single Judge of this Court on 2/3/1984 and his LPA before Division Bench was also dismissed. It is contended that though respondent No 4 Waman continued in physical possession, its nature underwent change after surrender from tenant to dealer of Esso. Petitioners point out agreement of dealership between Esso Company and respondent No. 4 for this purpose.

(3.) I have heard Advocate Uday Dastane for Petitioners and Advocate Sunil Manohar for respondent No 4. Learned AGP Shri Dhote has appeared for respondents 1to 3.