Shaikh Abdul Razak v. The State Of Maharashtra

1 wp 7984.18 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 7984 OF 2018 Shaikh Abdul Razak S/o Shaikh Ahmed,Age : 69 Years, Occu. : Business,R/o Survey No. 408/1, Income Tax Colony,Old Jalna, Tq. and Dist. Jalna... Petitioner Versus 1.The State of Maharashtra, Through its Secretary,Urban Development Department,Mantralaya, Mumbai – 32.Urban Development Department,Mantralaya, Mumbai – 32. 2.The Collector, Jalna,Tq. and Dist. Jalna.Tq. and Dist. Jalna. 3.The Tahsildar,Jalna, Tq. and Dist. Jalna.Jalna, Tq. and Dist. Jalna. 4.Shaikh Yunus Shaikh Ahmed,Age : 51 Years, Occu. : Business,R/o Sanjay Nagar, Lane No. 21,Baijipura, Aurangabad.Age : 51 Years, Occu. : Business,R/o Sanjay Nagar, Lane No. 21,Baijipura, Aurangabad. 5.Salim Abdul Rashid Hamdule,Age : 45 Years, Occu. : Business,R/o Zafar Khan Chawl, AdjoiningSaraswati Bhavan School,Old Jalna, Tq. & Dist. Jalna.Age : 45 Years, Occu. : Business,R/o Zafar Khan Chawl, AdjoiningSaraswati Bhavan School,Old Jalna, Tq. & Dist. Jalna. 6.M/s Sumer Industries,Sumersingh Khushalshingh Thakur,Age : 32 Years, Occu. : Business,R/o Rana Bhavan, Chhatrapati Colony, Old Jalna, Tq. andDist. Jalna. 2 wp 7984.18 7.Shaikh Abdul Rashid Abdul Gaffar,Age : 45 Years, Occu. : Labour,R/o Near Railway Station, Ambad Road, Jalna,Tq. and Dist. Jalna. 8.Sayyed Salim Sayyed Ahmed @Shaikh Salim Shaikh Gulam Ahmed,Age : 45 Years, Occu. : Labour,R/o Near Railway Station, Ambad Road, Jalna,Tq. and Dist. Jalna. 9.Taluka Inspector of Land Record,Jalna, Tq. and Dist. Jalna.Jalna, Tq. and Dist. Jalna. 10.The Talathi,Sajja Jalna City, Jalna,Tq. and Dist. Jalna.Sajja Jalna City, Jalna,Tq. and Dist. Jalna. 11.The Circle Inspector,Jalna City, Tahsil Office,Jalna, Tq. and Dist. Jalna.Jalna City, Tahsil Office,Jalna, Tq. and Dist. Jalna. 12.The Sub Divisional Officer,Jalna, Tq. and Dist. Jalna.Jalna, Tq. and Dist. Jalna. 13.The Director of Land Records,Pune, Tq. and Dist. Pune.Pune, Tq. and Dist. Pune. 14.Shaikh Firozlala Shaikh Chunnumiya Tamboli,Age : 50 years, Occu. : Agril. & Business,R/o Gitanjali Colony,Aurangabad Road, Jalna. 15.Wasim Shaikh Dadamia Shaikh,Age : 52 Years, Occu. : Business,R/o Rahemanganj, Tq. andDist. Jalna. 3 wp 7984.18 16.Shehnazbi W/o Shaikh Salim, Age : 60 years, Occu. : Household, 17.Zublabi W/o Shaikh Shafiq, Age : 64 Years, Occu. : Household, Respondent Nos. 16 and 17 Both R/o Behind Moti Masjid, Jalna,Tq. and Dist. Jalna. .. Respondents Shri R. N. Dhorde, Senior Advocate i/by Shri R. L. Kute, Advocate for the Petitioner. Shri S. R. Yadav Lonikar, A.G.P. for the Respondent Nos. 1 to 3, 9to 13. Shri D. R. Kale, Advocate h/f Shri Umakant P. Chavan and Mr. R. M. Sayyed, Advocate for the Respondent No. 4. Shri R. M. Sayed, Advocate h/f Shri M. G. Mustafa, Advocate for the Respondent Nos. 5, 14 and 15. Shri Kshitij H. Surve, Advocate for the Respondent Nos. 6 to 8.Shri Bhargav B. Kulkarni, Advocate for the Respondent Nos. 16 and 17. Shri S. B. Bakariya and Shri S. S. Kazi, Advocates for the Intervenors. CORAM : S. G. MEHARE AND SHAILESH P. BRAHME, JJ. CLOSED FOR JUDGMENT ONJUDGMENT PRONOUNCED ON :16.01.2025:20.02.2025. JUDGMENT (Per Shailesh P. Brahme, J.) :- .Rule. Rule is made returnable forthwith. Heard both sidesfinally at the admission stage. 2.The petitioner is invoking jurisdiction of this Court underArticle 226 and 227 of the Constitution of India for challengingpreparation of PR card of land Sy. Nos. 408/1 and 408/2 situated 4 wp 7984.18 Shri Kshitij H. Surve, Advocate for the Respondent Nos. 6 to 8.Shri Bhargav B. Kulkarni, Advocate for the Respondent Nos. 16 and 17. Shri S. B. Bakariya and Shri S. S. Kazi, Advocates for the Intervenors. CORAM : S. G. MEHARE AND SHAILESH P. BRAHME, JJ. CLOSED FOR JUDGMENT ONJUDGMENT PRONOUNCED ON :16.01.2025:20.02.2025. JUDGMENT (Per Shailesh P. Brahme, J.) :- .Rule. Rule is made returnable forthwith. Heard both sidesfinally at the admission stage. 2.The petitioner is invoking jurisdiction of this Court underArticle 226 and 227 of the Constitution of India for challengingpreparation of PR card of land Sy. Nos. 408/1 and 408/2 situated 4 wp 7984.18 at Jalna and action of the respondent No. 9/Taluka InspectorLand Records, Jalna. He is seeking prohibitory orders againstthe respondents from changing record of land Sy. No. 408/2 anddisturbing his peaceful possession. He is further seekingdirection to initiate action against the Taluka Inspector LandRecords and other erring officers for preparation of fabricatedand bogus PR cards of Sy. Nos. 408/1 and 408/2. 3.The subject matter of the writ petition is part of originalland Sy. No. 408 situated at Jalna, Tq. and Dist. Jalna and moreparticularly as follows : 4.It is the case of the petitioner that original owner of Sy.Nos. 408/1 and 408/2 was Khanderao Deshpande, who had sold3A 25G to the petitioner’s grandfather which was numbered asSy. No. 408/2. Remaining 3A 24G land was sold to Ramji Umaji,which was numbered as Sy. No. 408/1. Ramji Umaji furtheralienated it to Bhanekhan. Petitioner’s grandfather Shaikh Amirwas tenant of Bhanekhan of land Sy. No. 408/1. Lateron, he wasissued with purchase certificate on or about 04.03.1963. 5.There is a checkered history of litigation of the subjectmatter. To decide the controversy, it is suffice to mention thatpetitioner’s brother Shaikh Yunus had filed suit R.C.S. No. 381 of 5 wp 7984.18 2002 for administration of estates in respect of land Sy. No. 408/2.It was decreed on 28.03.2007. Being aggrieved, petitioner hadfiled R.C.A. No. 83 of 2007. It was dismissed. Then SecondAppeal No. 322 of 2013 was filed, which was also dismissed andspecial leave petition against that was also dismissed by theSupreme Court. The respondent No. 4 is yet to execute thedecree. 6.The respondent No. 7 had filed R.C.S. No. 275 of 2005 fordeclaration and injunction on the basis of sale deed executed byBanekhan in his favour for land Sy. No. 408/1. It was dismissedfor default. After gap of considerable period the respondent No. 7challenged mutation entry No. 3947 of land Sy. No. 408/1. Thedelay caused in preferring appeal was condoned by the SubDivisional Officer. Being aggrieved, the petitioner preferred WritPetition No. 8168 of 2013, which is still pending. 7.It is further case of the petitioner that at the instance ofrespondent No. 7 Sy. No. 408/1 bearing CTS No. 9667/B and atthe instance of the respondent No. 6 Sy. No. 408/2 bearing CTSNo. 9669/A bogus PR cards were prepared. The said action waschallenged by the petitioner by preferring Writ Petition No. 1872of 2011. The Deputy Superintendent of Land Records filed replyadmitting the mistake. By order dated 17.07.2013, consideringthe reply and considering the statement on oath that enquiry forpreparation of PR card was under way, the petition was disposedof with a direction to conclude the enquiry. 6 wp 7984.18 7.It is further case of the petitioner that at the instance ofrespondent No. 7 Sy. No. 408/1 bearing CTS No. 9667/B and atthe instance of the respondent No. 6 Sy. No. 408/2 bearing CTSNo. 9669/A bogus PR cards were prepared. The said action waschallenged by the petitioner by preferring Writ Petition No. 1872of 2011. The Deputy Superintendent of Land Records filed replyadmitting the mistake. By order dated 17.07.2013, consideringthe reply and considering the statement on oath that enquiry forpreparation of PR card was under way, the petition was disposedof with a direction to conclude the enquiry. 6 wp 7984.18 8.In furtherance of the directions, the DistrictSuperintendent of Land Records passed an order on 20.12.2013setting aside PR cards of 9669/A and 9669/B. Being aggrieved,the respondent No. 7 had filed Appeal No. 85 of 2015 before theDeputy Director of Land Records. Appeal was dismissed videorder dated 16.11.2015, but he was granted liberty to submitapplication for getting PR cards of land Sy. No. 408/1 and 408/2before the Deputy Superintendent of Land Records, Jalna. 9.Accordingly, the respondent No. 7 submitted an applicationbefore the District Superintendent of Land Records. Then orderwas passed on 05.12.2015 directing to prepare PR card of Sy. No.408/1 in the name of the respondent No. 7 by giving subsequentCTS No. 14447 and that of Sy. No. 408/2 in the name of therespondent No. 6 by giving subsequent CTS No. 14448. In viewof these directions, the respondent No. 9/Taluka Inspector ofLand Records prepared PR cards. This action is questioned bythe petitioner. 10.Learned senior counsel Mr. R. N. Dhorde instructed by Mr.R. L. Kute, learned counsel for the petitioner submits thatimpugned action of the respondent No. 9 and preparation of PRcards are against the principles of natural justice. No notice wasissued to the petitioner. The previous orders and the record werenot placed before the authority. It is submitted that order dated05.12.2015 was not in existence and the entire conduct of therespondent No. 9 and other officers is suspicious andobjectionable. For that purpose our attention is adverted to the 7 wp 7984.18 orders passed in Writ Petition No. 7984 of 2018. 11.He would further submit that the affidavit in reply and theorder passed in Writ Petition No. 1874 of 2011 were overlooked.On the earlier occasion same mischief was played by therespondent Nos. 7 and 8 in collusion with the revenue officers,which was rectified by cancelling PR cards vide order dated20.12.2013 passed by the District Superintendent of LandRecords. 12.It is further contended that, PR card of Sy. No. 408/1 ofCTS No. 14447 as well as Sy. No. 408/2 of CTS No. 14448 arepalpably bogus because PR cards for those CTS numbers are inthe name of Mrs. Rekha Kataria in respect of different property.It has been revealed by affidavit in reply of the State Governmentthat original copy of order dated 05.12.2015 is not available and aphoto copy is placed on record creating doubt about the orderdated 05.12.2015. 13.Learned senior counsel further submits that it is brazenfraud in preparing PR cards of subject matter of the writ petitionwhen the respondent Nos. 6 and 7 have no title. He furthersubmits that the writ petition is maintainable as it is notnecessary to resort to alternate remedy. He would furthersubmit that action is necessary against the respondent No. 9 andother erring officers for their indulgence in preparing bogus PRcards repetitively. He relies on following judgments of theSupreme Court. 8 wp 7984.18 I.State of H. P. and others Vs. Gujrat Ambuja Cement Ltd. and another reported in AIR 2005 SC 3936.and another reported in AIR 2005 SC 3936. II.Harbanslal Sahnia and another Vs. Indian Oil Corporation Ltd. and others reported in AIR 2003 SC 2120. III. 8 wp 7984.18 I.State of H. P. and others Vs. Gujrat Ambuja Cement Ltd. and another reported in AIR 2005 SC 3936.and another reported in AIR 2005 SC 3936. II.Harbanslal Sahnia and another Vs. Indian Oil Corporation Ltd. and others reported in AIR 2003 SC 2120. III. Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in AIR 1999 SC 22. IV. T. Vijendradas and another Vs. M. Subramanian and others reported in 2008(1) All M. R. 446 (SC).others reported in 2008(1) All M. R. 446 (SC). V.Ganpatbhai Mahijibhai Solanki Vs. State of Gujrat and others reported in AIR 2009 SC (Supp.) 986.others reported in AIR 2009 SC (Supp.) 986. VI.Karunakaran Vs. V. padmini and others reported in AIR 2017 SC 20562017 SC 2056 VII.Dr. Vijay Kumar Kathuria Vs. State of Haryana and others reported in AIR 1983 SC 622.reported in AIR 1983 SC 622. 14.The respondent Nos. 4 and 14 have contested the petitionby contending that it involves disputed question of facts and law.There is alternate efficacious remedy available to the petitioner.It is further contended that the respondent No. 4 is armed withdecree passed in R.C.S. No. 381 of 2002, which is confirmed uptoSupreme Court. He was not party to Writ Petition No. 1874 of2011 as well as to the proceeding before the DistrictSuperintendent of Land Records, who passed order dated20.12.2013. He is the joint owner of the writ lands. It iscontended that, the petitioner is falsely representing that he isthe owner of the writ land. He had sold his share to therespondent No. 14 by sale deed dated 19.01.2018. The interim 9 wp 7984.18 relief granted on 18.06.2018 was not brought to his notice. It issubmitted that the petition is not maintainable and liable to bedismissed. 15.The respondent No. 6 to 8 are the contesting parties whohave filed the affidavit in reply. They have denied all thecontentions and the allegations of the petitioner. It is contendedthat, the writ petition is not maintainable. There are disputedquestions of facts. The petitioner does not have any title over thewrit land. The petitioner’s Spl. C. S. No. 175 of 2009 wasdismissed by the competent Civil Court on 27.03.2019. He isagitating same contentions before this Court. The PR cardswhich are sought to be challenged are prepared in pursuance ofthe order dated 05.12.2015 passed by the Deputy Superintendentof Land Records. As per the liberty given to the respondent No. 7by the Deputy Director of Land Record vide order dated16.11.2015, application was made him seeking preparation of PRcard and accordingly, the CTS record has been mutated in thename of respondent Nos. 6 and 7. 16.It is specifically contended that the respondent No. 7 is theowner of Sy. No. 408/1 and the respondent No. 6 is owner of Sy.No. 408/2. The respondent No. 6 purchased Sy. No. 408/2 videsale deed dated 12.06.2009 from Maheboobbee. It is furthercontended that, before recording the writ land in the name of therespondent Nos. 6 and 7 measurements were conducted.Previously, CTS Nos. 9669/A and 9669/B were shown to be partof Sy. No. 411, however, it was found to be government land. The 10 wp 7984.18 mistake is rectified by order dated 05.12.2015. The propertieswere recorded in the name of the answering respondents subjectto action U/Sec. 44 of the Maharashtra Land Revenue Code.Lastly, it is prayed that there is no substance in the petition andthe same is liable to be dismissed. 10 wp 7984.18 mistake is rectified by order dated 05.12.2015. The propertieswere recorded in the name of the answering respondents subjectto action U/Sec. 44 of the Maharashtra Land Revenue Code.Lastly, it is prayed that there is no substance in the petition andthe same is liable to be dismissed. 17.The respondent No. 5 has also contested the petition who ispurchaser of the land from the respondent No. 4. He adopts thesubmissions of the respondent No. 4. It is contended that, thereare disputed questions of fact and the writ petition is notmaintainable and it is liable to be dismissed. He relies on thejudgment of the Supreme Court in the matter of Jacky Vs. Tiny@ Antony and othersreported in AIR 2014 SC 1615 and thejudgment of the Full Bench of this Court in the matter of MotilalLhamdeo Rokde and others Vs. Balkrushna Baliram Lokhande sincedeceased through L.Rs. Chandan Balkrishna Lokhande and othersreported in 2020(1) Mh. L. J. 110. He would further submit thatorder dated 05.12.2015 was appealable, but no appeal waspreferred. 18.Learned counsel Mr. Bhargav Kulkarni appearing for therespondent Nos. 16 and 17 adopts the submissions of therespondent Nos. 4 and 14. He would submit that, they are thepurchasers, but they were not aware of the orders dated18.07.2018. There are disputed questions of facts and the writpetition is liable to be dismissed. 11 wp 7984.18 property cards prepared by the respondent No. 9. Therespondent No. 1 has filed affidavit in reply stating that theoriginal order of 05.12.2015 was not available and photo copy isproduced. The petitioner has doubted the existence of orderdated 05.12.2015. The photo copy bears signature of theauthority. The respondent No. 8 had applied for the copy on09.12.2015 and he was issued with the said copy by the office ofDeputy Superintendent of Land Records. The said order wasappealable U/Sec. 247 of the Maharashtra Land Revenue Code(for short “M. L. R. Code”). 20.The petitioner has not challenged order dated 05.12.2015passed by the Deputy Superintendent of Land Records, Jalna.The said order has been placed on record. The petitioner isconfronted to the order during the course of hearing. The P.R.cards which are under challenge in the petition also refer to sameorder. Even one of the respondents raised objection but noendeavour has been made by the petitioner to challenge the saidorder. The petition challenging PR card of the writ land cannotbe entertained unless order dated 05.12.2015, on the basis ofwhich the property extract cards are prepared is challenged. Thepetitioner has alternate efficacious remedy under the M. L. R.Code to challenge the order dated 05.12.2015. We are unable togrant any relief to the petitioner, when the order dated05.12.2015 is still in tact. 21.The petitioner is claiming ownership over Sy. No. 408/1 and408/2, which is hotly disputed by the respondents. There are 12 wp 7984.18 rival claims by the parties over the ownership and the possessionof the subject matter. The respondent No. 4 had filed R.C.S. No.381 of 2002 for administration of the estate which was decreedand the decree is confirmed upto the Supreme Court. The saiddecree is yet to be executed. The petitioner had also filed Spl. C.S. No. 175 of 2009 challenging the sale deed dated 12.06.2009executed by Maheboobbee to the respondent No. 6 and for therelief of injunction. It was dismissed by decree dated 27.03.2019.No appeal has been preferred against the same. The respondentNo. 5 had also filed R.C.S. No. 258 of 2019 for injunction anddeclaration. It was dismissed on 22.10.2021 and appeal againstit bearing R.C.A. No. 40 of 2022 is still pending. 12 wp 7984.18 rival claims by the parties over the ownership and the possessionof the subject matter. The respondent No. 4 had filed R.C.S. No.381 of 2002 for administration of the estate which was decreedand the decree is confirmed upto the Supreme Court. The saiddecree is yet to be executed. The petitioner had also filed Spl. C.S. No. 175 of 2009 challenging the sale deed dated 12.06.2009executed by Maheboobbee to the respondent No. 6 and for therelief of injunction. It was dismissed by decree dated 27.03.2019.No appeal has been preferred against the same. The respondentNo. 5 had also filed R.C.S. No. 258 of 2019 for injunction anddeclaration. It was dismissed on 22.10.2021 and appeal againstit bearing R.C.A. No. 40 of 2022 is still pending. 22.The parties have been litigating over the record of rightsand there are multiple orders passed by the authorities underthe M. L. R. Code. Though the decrees have been passed, thepetitioner is disputing title and possession of the subject matter.Under these circumstances, this Court is not in a position to holdthat the petitioner is the owner of the subject matter of the writpetition. It would be upto the litigating sides to get adjudicatedtheir right to tile and possession from the competent Courts. 23.The respondents have rightly contended that there aredisputed questions of facts. There is a checkered history oflitigation between the parties. Few proceedings are still pendingbefore the Civil Court. It is also informed by the petitioner thatWrit Petition No. 8168 of 2013 is pending in this Court, which isemanating from challenge to the mutation entry No. 3947. We 13 wp 7984.18 have also come across the submissions of the respondentschallenging very existence of certificate U/Sec. 38 of theHyderabad Tenancy and Agricultural Lands Act. Thus, we findthat intricate questions of facts are involved in the present caseand we cannot accept the claim of the parties before us. 24.For the reasons mentioned above, we pass following order. O R D E R A.The Writ petition stands dismissed. However, thepetitioner shall be at liberty to challenge the order dated05.12.2015 passed by the Deputy Superintendent of LandRecords, Jalna before the competent forum as is permissible inlaw. B.Rule stands discharged. There shall be no order as to cost. [ SHAILESH P. BRAHME, J. ] [ S. G. MEHARE, J. ] 25.After pronouncement of the judgment, Mr. Kute, learnedcounsel appearing for the petitioner prays for continuation of theorder of interim relief, which was granted on 18.07.2018. 26.Mr. D. R. Kale, learned counsel appearing for respondentNo. 4 opposes the prayer of the petitioner. 27.We have already recorded that the petitioner chose not to 14 wp 7984.18 challenge the order dated 05.12.2015 in the present petition. Theimpugned P.R. cards were founded on the said order which is notchallenged in the petition. We have even granted liberty to thepetitioner to approach before appropriate forum. Under thesecircumstances, the petitioner would be at liberty to claim theinterim relief before the competent forum. Therefore, the requestis rejected. [ SHAILESH P. BRAHME, J. ] [ S. G. MEHARE, J. ] bsb/Feb. 25