M.N. Chandurkar, J.
1. This petition arises out of a proceeding for summary eviction of the respondents under section 53 of the Maharashtra Land Revenue Code (hereinafter referred to as the 'Code') from Survey No. 14- an agricultural land (area 40 acres, and 4 gunthas) of Village Lohgaon, Taluka Paithan, District Aurangabad.
2. It is not now in dispute that the petitioners Tukaram and Bajirao (since deceased), predecessors in -title of the present petitioners were declared entitled to get occupancy status in respect of the filed in question under section 61(1) of the Hyderabad Abolition of Inams and Cash Grant Act, 1954 (hereinafter referred to as the 'Inam Abolition Act'). This order was made on 7th October, 1961 and accordingly, the occupancy price has been deposited in two instalments by the petitioners on 1-3-66 and 10-2-68 respectively. An application came to be made on 18th December, 1968 by the petitioners for summary eviction of the respondents who had unsuccessfully claimed to be entitled to get the occupancy status. In the reply filed before the Collector, the present respondents denied that the land was ever cultivated by the petitioners either before or after the crucial date which was 1st July, 1960 and that they could not, therefore, be dispossessed given occupancy right, and secondly, they could, therefore, not claim possession. Now, the arguments, in this petition have proceeded substantially on the footing that the persons in whose favour occupancy status was declared, were not in possession when that declaration was made, though at the final stage of the arguments, one of the contentions raised was that the petitioners having been dispossessed after the grant of the occupancy status, the proper remedy lay in approaching the Civil Court for eviction of the present respondents. It may be stated that the present respondents claimed to be the original Inamdars and there is no dispute that they are now in possession.
3. The Assistant Collector held that the respondents were wrongfully occupying the land which had vested in the State and were, therefore, liable to be evicted. The Additional Collector, Aurangabad confirmed this order while dismissing the appeal filed by the respondents.
4. The respondents then filed a second appeal before the Commissioner, Aurangabad Division. The Commissioner took the view that the provisions of section 53 of the Code were restricted to a case where the land vested in the Government and continued to be so vested, and since the occupancy status was granted to the petitioners, the land could not be said now to be vested in the State. The Commissioner further observed that since the land was regranted to the tenants-in-occupation, it meant that at the time of conferment of occupancy rights, the present petitioners were in possession and they must have been, therefore, dispossessed thereafter. Consequently, he held that the remedy of summary eviction provided by section 53 was not the proper remedy. The appeal was accordingly allowed. This order is challenged by the petitioners, in this petition.
5. Mr. Dabir, appearing on behalf of the petitioners, contends that the respondents were in possession without any right and therefore, were in unauthorised occupation and proceedings for summary eviction could properly be taken against them. On the other hand, it was vehemently contended by Mr. Agarwal appearing for the respondents that the land having been already granted in the name of the petitioners in occupancy rights, it cannot be said to be a land which continued to vest in the State and, therefore, section 53 of the Code was not attracted. Section 53(1) of the Code reads as follows:---
'53(1). If in the opinion of the Collector any person is unauthorisedly occupying or wrongfully in possession of any land or foreshore vesting in the State Government or is not entitled or has ceased to be entitled to continue the use, occupation or possession of any such land or foreshore by reason of the expiry of the period of lease or tenancy or termination of the lease or tenancy or breach of any of the conditions annexed to the tenure, it shall be lawful for the Collector to evict such person.'
It is not enough for the purpose of the present case to read section 53 by itself because the operation of section 53 is brought in by the provision of section 6(1)(b) of the Inams Abolition Act. Section 6(1) deals with occupancy rights in respect of occupied land to which section 5 does not apply and it is not in dispute that the grant in favour of the petitioners was under the provisions of section 6(1) because they were tenants holding from the Inamdars.
6. Now, it has been amply established on record and it has not been disputed that the occupancy status has been granted to the petitioners and it is the consistent case of the respondents that the petitioners were never in possession. It is also not in dispute as already pointed out that the present respondents claim for grant of occupancy status has been rejected throughout any there is no manner of right in their favour to be in possession of the land in question. Section 6(1)(b) provides that the land which is not in possession of the Inamdar or Kabiz-e-Kadim or permanent tenant or tenant holding from the Inamdar and in respect of which neither the Inamdar nor the Kabiz-e-Kadim nor the permanent tenant, nor the tenant is primarily liable for payment of land revenue, shall be at the disposal of the Government and any person in possession of such land shall be deemed to be in unauthorised occupation of Government land and shall be liable to be evicted therefrom in accordance with the provisions of Land Revenue Act, 1317 (Fasli). The consequence of the Abolition Acts is that when the Inams are abolished, in case where the land is in possession of the persons who fall within section 5 or 6, occupancy status is granted to them and the State does not take any steps to take back possession from them. Under section 3(1) of the Act, on the abolition of the Inams, all the Inams statutorily, get vested in the State, and the effect of such vesting, inter alia, is that all rights, titles and interests vesting in the Inamdar, Kabiz-e-Kadim, permanent tenant or tenant in respect of the Inam land including interests in communal lands, cultivated and uncultivated lands (whether assessed or not), waste lands, pasture land, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State free from all emumbrances. It is in order to give effect to this right of the State to obtain possession of land which is not settled under section 5 or 6 in the occupancy rights, that under section 6(1)(b) a provision is made for eviction of persons who are in unauthorised occupation. As already pointed out, it has been argued in this case throughout that though the land was granted in occupancy rights to the petitioners, they were not in possession. The consequence of grant of occupancy rights is that the grantee becomes the occupant and he becomes entitled to all the rights and is liable to all obligations as an occupant in respect of the land under the Land Revenue Act, 1317 (Fasli). One of the consequence of status of occupant is that there is a liability to pay land revenue. It can never be contemplated by law that if a person who is granted occupancy status is not given possession, he will still become liable to pay land revenue. In order, therefore, to give full effect to the provisions of section 6, it will have to be held that the vesting which had taken place as a result of the provision of section 3 continued until the State was in position to hand over possession to the person who is entitled to it as a result of the grant of occupancy status if, at the time of the grant, the said person is not in possession. The land will, therefore, continue to vest both in title and possession with the State. Even otherwise, a person who has not been granted occupancy status and will not be, therefore, liable to pay the land revenue to the State, must be deemed to be unlawfully accompanying the Government land, as contemplated by section 6(1)(b). He will, therefore, incur the liability of summary eviction under the provisions of the Code. The relevant Land Revenue Code at the time when the application was made was the Maharashtra Land Revenue Code because, the Hyderabad Land Revenue Act stood repealed. It is, therefore, difficult to entertain the contention that the provisions of section 53 did not apply to the instant case.
7. At the concluding stage of the arguments, it was contended that the Commissioner had found that the petitioners must have been dispossessed after the grant of the occupancy status. It is a finding which has been recorded for the first time at the stage of second appeal which the Additional Commissioner was not entitled to do and this we say without going into the question whether the contention raised on behalf of the petitioners that a second appeal was not maintainable, should be accepted or not. It is difficult to entertain a contention at the instance of the respondents that the petitioners were dispossessed after the grant of occupancy status when their positive case before the Assistant Collector was that the petitioners were never in possession. Their case is that they have been throughout in possession and at this stage of the litigation, it will not be permissible to allow them to agitate this question since all the parties have proceeded on the footing that the petitioners were not in possession when the occupancy status was granted to them. As already pointed out that the respondents challenge as to the occupancy status of the petitioners has failed and the question as to whether that status was legally granted to them or not, cannot be now gone into. Consequently, there does not seem to be any infirmity in the proceeding taken at the instance of the petitioners under section 53 of the Code. The Assistant Collector and the Collector were, therefore, right in holding that the respondents were liable to be evicted from the land in question. The order passed by the Additional Commissioner which is extremely summary is nature in, therefore, quashed.
8. In the result, the petition is allowed and the rule is made absolute with costs.