Shaikh Salim Shaikh Nabi And Others v. The Maharashtra State Through Secretary And Others
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD WRIT PETITION NO. 2999 OF 2016
1) Shaikh Salim Shaikh Nabi Age 62 years, Occu. Service
2) Shaikh Shamim Shaikh Nabi Deceased through his LRs.
2A) Shaikh Yunus Shaikh Shamim Age 28 years, Occu. Labour 2B) Shaikh Anis Shaikh Shamim Age 25 years, Occu. Labour
3) Shaikh Chand Shaikh Nabi Age 42 years, Occu. Service
4) Shaikh Nazir Shaikh Nabi Age 39 years, Occu. Service All R/o Near Akhwindshaha Dargah Vasmath road, Parbhani .. Petitioners (Orig. Applicants)
Versus
1) The Maharashtra State Through Secretary, Revenue Department Mantralaya, Mumbai - 32
2) The Divisional Commissioner Aurangabad District Aurangabad
3) The Collector, Parbhani District Parbhani
4) The Deputy Collector, Atiyat Parbhani, District Parbhani
5) Shaikh Bashir S/o Mdar R/o Near Akshada Mangal Karyalay Bagwali Masjid, M.K.V. Corner Old Municipal Nak, Vasmat Road, Parbhani
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6) Mazaroddin A. Hamid R/o Masud Colony, Darga Road, Parbhani
7) Amirroddin A. Hamid R/o Masud Colony, Darga Road, Parbhani
8) Mhamad Bin Awaz R/o Station Road, Near Shahi Masjid Darga Road, Parbhani
9) Shaikh Suleman Shaikh Noor R/o Shankar Nagar, Behind Shivaji College, Near Masjid, Parbhani
10) Mhamad Akbar R/o Parbhani Tq. and Dist. Parbhani
11) Sherkha Mehatab Kha R/o Vishnu Nagar, Beside Kisan Bekari Vasmat Road, Parbhani
12) Javed Kha Abbas Kha R/o Gaddivan Mohalla Azad Corner Parbhani
13) Mohmad Amar Mohd. Jafar R/o Yusuf colony Tq. and Dist. Parbhani
14) Javed Kha Sattar Kha R/o. Javed Elektrician Shivajinagar Beside Rub Kata, Vasmat Road, Parbhani
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15) Sk. Ashpak Ali R/o Junagar Palika Naka Vasmat Road, Parbhani
16) Mirza Habib Baig R/o Motha Maroti Deshmukh Galli Tq. and Dist. Parbhani
17) Sk. Shafi Mohammad Isa R/o In front of Adv. Gafar Momin Gandhi Park, Tq. And Dist. Parbhani
18) Sk. Akhil Sk. Jafar R/o M.K.Vi Road Behind Collector Office, Parbhani Tq. and Dist. Parbhani
19) Ifkam Ur Ansari R/o Juna Naka Nagar Palika M.K. Vi Corner, Beside Bagwali Masjid Near Akshada Mangal Karyalay, Parbhani, Tq. and Dist. Parbhani
20) Ifkam Ur Ansari R/o Juna Naka Nagar Palika M.K. Vi Corner, Beside Bagwali Masjid Near Akshada Mangal Karyalay, Parbhani, Tq. and Dist. Parbhani
21) Moin Khan Khaja Khan Iphkam Ur Ansari Age Major, Occu. Business R/o Juna Naka Nagar Palika M.K. Vi Corner, Beside Bagwali Masjid Near Akshada Mangal Karyalay, Parbhani, Tq. and Dist. Parbhani
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22) Mahmad Khadir Ahmad Ajam R/o Juna Naka Nagar Palika M.K. Vi Corner, Beside Bagwali Masjid Near Akshada Mangal Karyalay, Parbhani, Tq. and Dist. Parbhani
23) Sk. Jalil S. Sk. Isa, R/o Juna Naka Nagar Palika M.K. Vi Corner, Beside Bagwali Masjid Near Akshada Mangal Karyalay, Parbhani, Tq. and Dist. Parbhani .. Respondents ...
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 ...
CORAM : SUNIL P. DESHMUKH, J.
DATE : 07-08-2018 ORAL JUDGMENT :
1.
Rule. Rule made returnable forthwith.
2.
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.
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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.
4.
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
6 WP- 2999-2016-J 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.
5.
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. 6.
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.
7.
Writ petition is disposed of.
8.
Rule made absolute accordingly.
[SUNIL P. DESHMUKH] JUDGE arp/ by Anil Rameshrao Pundlik Date: 2018.08.31 10:36:34 +0530 Anil Rameshrao Pundlik