A. P. BHANGALE, J. :-

1. Rule. Rule, returnable forthwith by consent of respective counsel.

2. Heard learned counsel for the petitioners and respondents.

3. By this Writ Petition filed under Article 226 of the Constitution of India, the petitioners prayed for quashing and setting aside the order dated 18th May, 2004 passed by the Sub-Divisional Officer, Chandrapur in Revenue Case No. 22/RTS-64/2003-2004 of Mouza Kortimakta, Tahsil Ballarpur, Dist. Chandrapur, and further sought for quashing and setting aside the order dated 6-2-2006 passed by the Additional Collector, Chandrapur in R. A. No. 36/RTS-64/2004-2005 Mouza Kortimakta, Tahsil Ballarpur, Dist. Chandrapur.

4. It is the case of the petitioners that land S. No. 10 admeasuring 1.80 hectares (about 4.45 acres) situated at village Kortimakta, Tah-Ballarpur, Dist. Chandrapur has been reserved and was in use for burial and cremation ground by the villagers since last more than 50 years. The deceased father of respondent No. 3, being landless, was allotted a piece of land S. No. 41 (admeasuring 1. 14 Hectares) by the Government. Respondent No.3 took disadvantage of proximity of said land with land S. No. 10 reserved for cremation and burial ground and encroached upon it. On 4-10-2000 villages Panchayat Kortimakta had passed a Resolution, requesting the State to remove the encroachment from land S. No. 10. Although copy of Resolution was sent to Tahsildar, Ballarpur, no action was taken by the State. As many as 165 members of Gram Sabha met and resolved unanimously on 26-11-2004 that the said encroachment by respondent No.3• from S. No. 10 be vacated with a request to Tahsildar, Ballarpur.

5. Respondent No.3, in the meantime, moved an application to get the entry "masanvat" of burial and cremation ground deleted from the revenue record of Land S. No. 10. The Sub-Divisional Officer, Chandrapur, on the basis of report of Tahsildar, Ballarpur, directed deletion of the entry "Masanvat" (cremation ground) and to insert names of legal heirs of Kashinath Sakharam Thamke in V.F. 7 x 12 record, land S. No. 10 area 1 H 80R, Villagers of Kortimakta made representation to the Addl. Collector, Chandrapur against the order passed by S.D.O. Chandrapur. But he rejected the representation by order dated 6-2-2006 on the ground that Revision as well as Appeal was not tenable. The villagers had made efforts through the local MLA and also approached the concerned authority for removal of encroachment, but the Authority remained inactive to protect the public property from being converted into private property, thus, affecting the rights of petitioners, by deleting the entry of burial and cremation ground, the respondent No. 1 has allotted the land S. No. 10 to respondent No.3. The impugned order passed SDO without sanction of the Collector under section 22 of the Maharashtra Land Revenue Code, 1966 (in short "the Code") was illegal and without jurisdiction as SDO; also ignored section 38 of the Code by describing the respondent No.3 as a lessee. The report of Tahsildar made behind the back of villagers, could not have been acted upon to delete the entry "masanvat" as larger interest of society/public was ignored while respondent No. 1 favoured private interest of respondent No. 3 while passing impugned order.

6. Respondent No.1-SDO in the affidavit-in-reply admitted that the land S. No. 10 admeasuring 4.45 acres (old S.No. 1/2) was never allotted to the father of respondent No.3 for agricultural purposes. However, the Revenue record shows that respondent No. 3 made encroachment over the said land for agricultural purposes. No certificate is available in the revenue record to show that S. No. 1/2 (old) admeasuring 4.50 acres was allotted to deceased father of respondent No.3.

7. According to respondent No.1, late father of respondent No.3, was a landless person and was allotted S. No. 1/1 D, area 3.50 acres assessed at Rs. 3.00 for agricultural purposes in Revenue Case No. 28/5/1957-58 of village