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Bombay High Court
Babamiya S/O Ahmed Shah Inamdar, … vs Tahsildar, Beed, State Of … on 6 March, 2002
Equivalent citations: 2002 (5) BomCR 619, (2002) 1 BOMLR 310
Author: D Karnik
Bench: D Karnik


JUDGMENT

D.G. Karnik, J.

1. By this Writ Petition, the petitioner challenges
the Notice dated 9th August 1987 issued by the
Tahsildar, Beed, on the ground that the notice is issued
without authority of law.

2. In the impugned Notice dated 9th August 1987
(which is signed on 10th August 1987), it is mentioned
that the land bearing S.No.4, admeasuring 7 acres and 7
gunthas is held as Inam by Dargah Hurmen Shah, Beed. It
is further mentioned that the land is presently under
the supervision of the Government. It is alleged in the
Notice that the petitioner has made encroachment on one
acre ten gunthas in a portion of this land bearing
S.No.4. The Notice, therefore, directs the petitioner
to remove the encroachment, failing which, it is stated
that the encroachment would be removed by the
Government.

3. Section 50 of the Maharashtra Land Revenue Code
confers power on the Collector to abate or remove any
encroachment made on any land or property vested in the
State Government. Thus, the necessary condition for
exercising powers under Section 50 is that the land or
property must vest in the State Government. Under
Section 50, the Collector has no power to remove
encroachment made on the private property of a private
person.

4. The learned Assistant Government Pleader,
appearing for the Government, could not specify any
source of power for removal of the encroachment other
than Section 50 of the Maharashtra Land Revenue Code.
Section 50 is clearly not applicable as admittedly the
land does not belong to the Government.

5. It is the contention of the petitioner that there
is no encroachment made by him. Assuming, without
admitting, that there is an encroachment, the said
encroachment cannot be removed summarily in the manner
it is sought to be done by the impugned notice because
the encroachment is not on the Government land or
property. In the circumstances, the order passed by the
1st respondent – Tahsildar on 9th August, 1987 at
Exhibit-G to the petition has to be quashed.

6. Hence, the order of the 1st Respondent dated 9th
August 1987 at Exhibit-G to the petition is quashed and
set aside. Rule is made absolute accordingly. No order
as to costs.


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