Allowed

Shaikh Salim Shaikh Nabi and Others v. the Maharashtra State through Secretary and Others

Bombay HC7 Aug 2018WP/2999/2016

Case brief

AI extract

What is this about?

Single judge Writ Court set aside Deputy Collector's impugned order rejecting succession application and refusal to condone delay. The court found the authority exceeded power by deciding merits when sent back for deficiencies. Case restored to Tahsildar dated 27-07-2012 for further procedure.

What did the court decide?

Impugned order dated 30-01-2016 set aside; matter restored to stage of communication dated 27-07-2012 to Tahsildar for further proceedings.

Shaikh Salim Shaikh Nabi and Others Vs the… — Succession and Inheritance | Bombay HC (2018)

¶1

1 WP- 2999-2016-J

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

WRIT PETITION NO. 2999 OF 2016

¶4

1. Shaikh Salim Shaikh Nabi

¶5

Age 62 years, Occu. Service

¶6

1. Shaikh Shamim Shaikh Nabi Deceased through his LRs.

¶7

2A) Shaikh Yunus Shaikh Shamim Age 28 years, Occu. Labour

¶8

2B) Shaikh Anis Shaikh Shamim Age 25 years, Occu. Labour

¶9

1. Shaikh Chand Shaikh Nabi Age 42 years, Occu. Service

¶10

1. Shaikh Nazir Shaikh Nabi Age 39 years, Occu. Service

¶11

All R/o Near Akhwindshaha Dargah Vasmath road, Parbhani .. Petitioners (Orig. Applicants) Versus

¶12

1. The Maharashtra State Through Secretary, Revenue Department Mantralaya, Mumbai – 32

¶13

1. The Divisional Commissioner Aurangabad District Aurangabad

¶14

1. The Collector, Parbhani District Parbhani

¶15

1. The Deputy Collector, Atiyat Parbhani, District Parbhani

¶16

1. Shaikh Bashir S/o Mdar Age Major, Occu. Business

¶17

R/o Near Akshada Mangal Karyalay

¶18

Bagwali Masjid, M.K.V. Corner Old Municipal Nak, Vasmat Road, Parbhani

¶19

2 WP- 2999-2016-J

¶20

1. Mazaroddin A. Hamid

¶21

Age Major, Occu. Business

¶22

R/o Masud Colony,

¶23

Darga Road, Parbhani

¶24

1. Amirroddin A. Hamid

¶25

Age Major, Occu. Business

¶26

R/o Masud Colony,

¶27

Darga Road, Parbhani

¶28

1. Mhamad Bin Awaz

¶29

Age Major, Occu. Business

¶30

R/o Station Road, Near Shahi Masjid

¶31

Darga Road, Parbhani

¶32

1. Shaikh Suleman Shaikh Noor

¶33

Age Major, Occu. Business

¶34

R/o Shankar Nagar,

¶35

Behind Shivaji College, Near Masjid, Parbhani

¶36

1. Mhamad Akbar Age Major, Occu. Business R/o Parbhani Tq. and Dist. Parbhani

¶37

1. Sherkha Mehatab Kha Age Major, Occu. Business R/o Vishnu Nagar, Beside Kisan Bekari Vasmat Road, Parbhani

¶38

1. Javed Kha Abbas Kha Age Major, Occu. Business R/o Gaddivan Mohalla Azad Corner Parbhani

¶39

1. Mohmad Amar Mohd. Jafar Age Major, Occu. Business R/o Yusuf colony Tq. and Dist. Parbhani

¶40

Javed Kha Sattar Kha Age Major, Occu. Business R/o. Javed Elektrician Shivajinagar Beside Rub Kata, Vasmat Road, Parbhani

¶41

3 WP- 2999-2016-J

¶42

1. Sk. Ashpak Ali

¶43

Age Major, Occu. Business

¶44

R/o Junagar Palika Naka

¶45

Vasmat Road, Parbhani

¶46

1. Mirza Habib Baig

¶47

Age Major, Occu. Business

¶48

R/o Motha Maroti

¶49

Deshmukh Galli

¶50

Tq. and Dist. Parbhani

¶51

1. Sk. Shafi Mohammad Isa Age Major, Occu. Business R/o In front of Adv. Gafar

¶52

Momin Gandhi Park,

¶53

Tq. And Dist. Parbhani

¶54

1. Sk. Akhil Sk. Jafar

¶55

Age Major, Occu. Business

¶56

R/o M.K.Vi Road Behind Collector

¶57

Office, Parbhani

¶58

Tq. and Dist. Parbhani

¶59

1. Ifkam Ur Ansari

¶60

Age Major, Occu. Business

¶61

R/o Juna Naka Nagar Palika

¶62

M.K. Vi Corner, Beside Bagwali Masjid

¶63

Near Akshada Mangal Karyalay,

¶64

Parbhani, Tq. and Dist. Parbhani

¶65

1. Ifkam Ur Ansari

¶66

Age Major, Occu. Business

¶67

R/o Juna Naka Nagar Palika

¶68

M.K. Vi Corner, Beside Bagwali Masjid

¶69

Near Akshada Mangal Karyalay,

¶70

Parbhani, Tq. and Dist. Parbhani

¶71

1. Moin Khan Khaja Khan Iphkam

¶72

Ur Ansari Age Major, Occu. Business

¶73

R/o Juna Naka Nagar Palika

¶74

M.K. Vi Corner, Beside Bagwali Masjid

¶75

Near Akshada Mangal Karyalay, Parbhani, Tq. and Dist. Parbhani

¶76

4 WP- 2999-2016-J

¶77

Mahmad Khadir Ahmad Ajam Age Major, Occu. Business R/o Juna Naka Nagar Palika

¶78

M.K. Vi Corner, Beside Bagwali Masjid Near Akshada Mangal Karyalay, Parbhani, Tq. and Dist. Parbhani

¶79

Sk. Jalil S. Sk. Isa, Age Major, Occu. Business R/o Juna Naka Nagar Palika

¶80

M.K. Vi Corner, Beside Bagwali Masjid Near Akshada Mangal Karyalay, Parbhani, Tq. and Dist. Parbhani .. Respondents

¶81

Mr. S.V. Chandole, Advocate h/f. Mr. Arvind Deshmukh, Advocate for petitioners Mr. S.N. Kendre, AGP for respondent-State Mr. A.D. Kasliwal, Advocate for respondents no. 5 to 10

¶82

CORAM : SUNIL P. DESHMUKH, J. DATE : 07-08-2018

¶83

ORAL JUDGMENT :

¶84

Rule. Rule made returnable forthwith.

¶85

After having heard learned counsel for the parties, it transpires that proceedings pursuant to Hyderabad Atiyat Inquiries Act 1952, for succession had been initiated at the instance of petitioners initially before the collector, however, since the delay in approaching was more than 3 years and such a delay was not amenable to be considered by the collector and the matter has to be considered by the commissioner pursuant to provisions of rule 12 of Hyderabad Atiyat Inquiries Rules, 1952.

¶86

5 WP- 2999-2016-J

¶87

Accordingly, the matter had been made over by the collector to the divisional commissioner, Aurangabad, however, he had found certain discrepancies in the proposal and for removal of the deficiencies, the matter had been sent back to collector's office. Accordingly, some proceedings followed in respect of the same before tahsildar. During the pendency of those proceedings before subordinate authorities, objections came to be filed by present respondents no. 5 to 23. Objections to the application for succession by present petitioners had been purportedly put forth. Ignoring that the office of collector had communicated to the deputy collector about the discrepancies and to proceed with the same, however, the deputy collector passed impugned order dated 30-01-2016, wherein purporting to decline succession to present petitioners along with rejection of application for condonation of delay.

¶88

It appears, in the process, the authority has exceeded its power. Needless to refer that the order is also faulty on two other counts. Authority proceeded with giving decision on the merits and also refusing to condone delay. The two aspects are incompatible. If one rejects condonation of delay, merit ought not to be gone into and if merits are to be considered that could be possible only upon condonation of delay. In any case, obviously, while the brief to the office had been in respect of removal of

¶89

6 WP- 2999-2016-J

¶90

discrepancies, the deputy collector appears to have overtraded his brief while the matter had been sent back by divisional commissioner, to the collector for removal of deficiencies, and went on to decide merits and delay while the rules do not invest him with such power.

¶91

In view of this clearly emerging position, the impugned order is untenable and deserves to be set aside and is accordingly set aside and the matter is restored to the stage at which it had been resting in respect of communication dated 27-07-2012, to the Tahsildar. The proceedings shall be proceeded with further accordingly from that stage onwards.

¶92

It is needless also further to refer to that it is open for present respondents no. 5 to 23, to take up their contentions before appropriate forum.

¶93

Writ petition is disposed of.

¶94

Rule made absolute accordingly.

¶95

[SUNIL P. DESHMUKH] JUDGE

¶96

arp/

¶97

Digitally signed Anil by Anil Rameshrao Rameshrao Pundlik Pundlik Date: 2018.08.31 10:36:34 +0530

Shaikh Salim Shaikh Nabi and Others v. the Maharashtra State through Secretary and Others

Case brief

What is this about?

What did the court decide?

Shaikh Salim Shaikh Nabi and Others v. the Maharashtra State through Secretary and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vidhyadhar Ambadas Kasle Vs Babu Vitthal Kasle and Others

MD Sarwar Subhansab Shaikh Vs M/S Kunal Roadways through Its Proprietor and Another

Mohan Eknath Pawar Died Thr. Lrs Nilawati Mohan Pawar and Others Vs Baburao Ganpati Pawar and Others

Vaijnath Sambnaik Gajre and Another Vs Kisan Chokhoba Gaikwad

Madhav Sakharam Shinde and Another Vs the State of Maharashtra and Others

Udaysingh Vitthalrao Dalvi Vs Pallavi Udaysingh Dalvi, Next Friend Kalidas Kisanrao Gore