The High Court disposed of a writ petition challenging an order sanctioning the exchange of service inam land. The Court held the petitioners lacked established succession rights and refused to adjudicate title disputes under writ jurisdiction, dismissing the plea.
The writ petition was disposed of. No costs. The civil applications were disposed of with respect.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 wp 2771.1996
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO. 2771 OF 1996
SK.KASAM SK. MAKTUM MUJAWAR AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Mrs. C. S. Deshmukh
Deshmukh Charuta Sunil Adv For Appellant Deshmukh
Charuta Sunil Adv
AGP for Respondents No. 1 to 3 : Mr. A. R. Kale
Advocate for Respondents 4(A-1) to 4(A-3) and 5-i
to 5-vi : Mr. Patil Milind M. (Beedkar)
Respondent No. 6 - served
Advocate for Respondents 7 : Mr. Pathan Yunus
Basheer
...
WITH
CA/8405/2013 IN WP/2771/1996
WITH CA/8406/2013 IN WP/2771/1996
...
CORAM: S. V. GANGAPURWALA &
MANGESH S. PATIL, J. DATE: 26th JULY, 2019
PER COURT:
1.The petitioners are assailing the order dated
05.01.1996 passed by respondent no. 2 giving
sanction to the exchange. By virtue of the said
exchange, the present respondents i.e. Sk. Rasool
Sk. Abdul Mujawar / original respondent no. 4 had
2 wp 2771.1996
exchanged the land from survey no. 4 of village
Chausala with private Survey No. 33 measuring 5
Acres and 8 Gunthas.
2. Mrs. Deshmukh, learned counsel for the
petitioners submits that the propositusis Sk.
Mohmmad Sk. Hussain. He had three sons Hanif,
Ranho and Maindu. The petitioners are from the
branch of Sk. Rasool Sk. Abdul Mujawar / original
respondent no. 4. The original respondent no. 4 is
from the branch of Hanif. They are all co-sharers.
The property is a service inam land. The
succession was sanctioned in favour of late Maindu
under order dated 12.03.1979 by the Deputy
Collector, Beed. The learned counsel submits that
Farid had 5 Aana share in land Survey No. 4 total
admeasuring 4 Acres and 19 Gunthas. 2 Acres land
is acquired by the Government and 2 Acres and 19
Gunthas remained. The petitioners are the co-
sharers. The same can be vouched from the 7/12
extract wherein names of all co-sharers are
recorded.
3 wp 2771.1996
3.The learned counsel further submits that even
the procedure as contemplated for exchange has not
been followed. The respondents have indulged in
activities contrary to the provisions of Section 6
of the Hyderabad Atiyat Enquiries Act, 1952. The
alienation and transfer of inam land is
prohibited. Despite this position, the descendants
of Hanif i.e. respondents have sold out or leased
several part of the inam land to various persons.
The respondents have no right to interfere with
the share of the petitioners. The learned counsel
further submits that respondent no. 2 does not
possess any authority to pass the impugned order.
The Wakf board also could not have consented for
the transfer. The Wakf land could not have been
allowed to be wasted in such a manner.
4. Mr. Patil, learned counsel for the contesting respondents submits that the petitioners do not have any right. The Virasat is sanctioned in the name of Sk. Rasool with equal Shikmis to Sk. Mohamad and Shaikh Amir under the order of the
4 wp 2771.1996
Deputy Collector, Beed on 31.10.1955. The learned counsel submits that the application for Virasat in the name of Sk. Shabbir is rejected on the ground of delay. The transfer was in the interest of the Wakf. The 2 Acres 19 Gunthas is in the residential area and in place of 2 Acres and 19 Gunthas the respondent has exchanged his private Survey No. 33 admeasuring 5 Acres and 8 Gunthas. Large property was surrendered by the respondent as against 2 Acres and 19 Gunthas. The Wakf member has considered interest of the Wakf and the 5 Acres 33 Gunthas would remain inam land for Dargah Chandan Shahwali, Chausala.
5. We have considered the submissions canvassed by the learned counsel for respective parties.
6. The land in question is undisputedly a
service inam land. In case of a service inam land the Virasat is to be sanctioned by the Deputy Collector (Land Reforms), as provided under the provisions of Hyderabad Atiyat Enquirties Act, 1952. We do not find succession in favour of the
5 wp 2771.1996
petitioners so as to hold that the petitioners
have a right in the inam land as shikmidars or in
whatsoever capacity. The succession, it appears,
was sanctioned in favour of Farid on 12.03.1979.
Subsequently, the legal heirs of Farid applied for
succession and that was denied. No succession has
been granted in favour of heirs of Farid. It also
does not appear that the order rejecting
application for succession though on the ground of
delay was assailed by the heirs of Farid. The
petitioners admittedly are claiming through Maktum
the brother of Farid. At no material point of time
it appears that succession was sanctioned in the
name of Maktum also. Mere entry in the 7/12
extract which also seems to have been deleted
would not give any right, title or interest to the
petitioners.
7.Even otherwise, in the writ jurisdiction it
would not be possible to consider the dispute
amongst the parties with regard to the title. We
would have considered the grievance of the
6 wp 2771.1996
petitioners had the petitioners being armed with the Virasat .
8.The order of the Wakf granting sanction to
the exchange appears to be on the premise that 2
Acres land out of Survey No. 4 at village Chausala
has been acquired by the Government for extension
of Gaothan. The remaining 2 Acres and 19 Gunthas
are adjacent to the Abadi and the Bus-stand,
there are more possibilities of encroachment in
future. As against said land Survey No. 4; land
admeasuring 5 Acres and 19 Gunthas has been
allowed to be exchanged and thus 5 Acres and 8
Gunthas from Survey No. 33 would remain the
property of the Dargah Chandan Shahwali of village
Chausala. The valuation of Survey No. 4 is
determined at Rs. 25,000/- per Acre by the
Tahsildar whereas the valuation of Survery No. 33
is determined by the Tahsildar at Rs. 33,000/- per
Acre. The said exchange, as such, cannot be said
to be detrimental to the interest of the Wakf.
9. If the petitioners have any rights in the
7 wp 2771.1996
property, then they can still insist upon their
rights in accordance with law in the land which
now vests with Dargah Chandan Shahwali of village
Chausala i.e. 5 Acres and 8 Gunthas from Survey
No. 33, of course, the same would be in accordance
with the provisions of the law.
10.In the light of above, the Rule is
accordingly disposed of.
11.Writ Petition is accordingly disposed of. No
costs.
12.In view of disposal of the writ petition, the
civil applications also stands disposed of.
[MANGESH S. PATIL, J.] [S. V. GANGAPURWALA, J.]
marathe
2 issues framed by the court
Whether the petitioners have any right in the service inam land to challenge the sanctioned exchange.
Whether the defect in succession title is justiciable in writ jurisdiction.
SK.KASAM SK. MAKTUM MUJAWAR AND OTHERS
THE STATE OF MAHARASHTRA AND OTHERS
S. V. GANGAPURWALA
MANGESH S. PATIL
As recorded by the court registry
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