M/S. VEEKAYLAL INVESTMENT CO. PVT. LTD. vs. SHRI. BHALCHANDRA D. PATIL AND ORS.

2019:BHC-AS:4719
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WP5539.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5539 OF 2017
M/s.Veekaylal Investment Co. Pvt. Ltd. )
A company registered under the provisions)
of Companies Act, 1956, having Office at )
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1017/1018, Dalamal Tower, 10 Floor, )
211, Nariman Point, Mumbai 400 021 ) ….. Petitioner
Versus
1. Shri Bhalchandra D. Patil, )
Adult, Indian Inhabitant, )
R/o. Patilwadi, Opp.Krishna Tower, )
Chattrapati Shivaji Complex, Road No.2,)
Dahisar (West), Mumbai 400 068 )
2. Smt.Anandibai Anant Patil, )
Adult, Indian Inhabitant, )
R/o. Patil House, Pandurang Bhoir Road,)
Dahisar (West), Mumbai 400 068 )
3. Shri Narendra Anant Patil, )
Adult, Indian Inhabitant, )
R/o. Ramchandra Pawaskar Road, )
Nr.Goandevi Ground, Dahisar (West), )
Mumbai 400 068 )
4. Shri Prafull Anant Patil, )
Adult, Indian Inhabitant, )
R/o. Patil House, Pandurang Bhoir Road,)
Dahisar (West), Mumbai 400 068 )
5. Shri Vikas Anant Patil, )
R/o. Patil House, Pandurang Bhoir Road,)
Dahisar (West), Mumbai 400 068 )
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6. Shri Bharat Anant Patil, )
R/o. Patil House, Pandurang Bhoir Road,)
Dahisar (West), Mumbai 400 068 )
7. Shri Haji Ali Mohammad Kasum )
Since deceased per LRs :- )
a. Zulekabai (widow) )
Dawood Haji Alimohammad Haji )
Kasum Agboatwala )
b. Abubakar Dawood Agboatwala )
c. Salim Dawood Agboatwala )
d. Aziz Dawood Agboatwala )
e. Farida Dawood Agboatwala )
f. Yasin Dawood Agboatwala )
g. Shabbir Dawood Agboatwala )
h. Zuben Dawood Agboatwala )
i. Smt.Hawabai Mohammad Bilke )
j. Mumtaz Dawood Agboatwala )
All 7(a) to 7(j) Mumbai Haliya Memon)
Mohamaden, )
R/o. 269, Abdul Rehman Street, Mumbai )
k. Mohammad Siddiqui Haji Mohammad)
Patka, )
R/o.Zaveri Building, First Floor, )
11 Jail Street, Behind Agripada Police )
Station, Mumbai 400 011 )
l. Abdul Latif Haji Mohammad Siddiqui )
Patka, )
R/o. Ali Manor, First Floor, 8, )
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Malbar Hill, Mumbai 400 006 )
m. Firoz Haji Mohammad Siddiqui )
Patka, )
Mumbai R/o. Zaveri Building, )
First Floor, 11, Jail Street, )
Behind Agripada Police Station, )
Mumbai 400 011 )
n. Hamida Haji Mohammad Siddiqui,)
Patka )
Mumbai R/o. Zaveri Building, )
First Floor, 11, Jail Street, )
Behind Agripada Police Station, )
Mumbai 400 011 )
o. Hamubai (daughter) Haji Kasum, )
(wife of Abdul Haji Patka), )
R/o. 282, Abdul Rehman Street, )
Mumbai )
p. Farida Anwar Agboatwala (wife/widow)
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R/o.Ali Manor, 4 Floor, 8, )
Little Gibs Road, Malbar Hill, Mumbai)
q. Atiq Anwar Agboatwala, )
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R/o.Ali Manor, 5 Floor, 8, )
Little Gibs Road, Malbar Hill, Mumbai)
r. Fahim Anwar Agboatwala, )
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R/o.Ali Manor, 5 Floor, 8, Malbar Gibs)
Road, Malbar Hill, Mumbai )
s. Smt.Nabila Susail Khandwani, )
(daughter) )
R/o. 22/C, Khanwani House, )
Dargah Street, Mahim, Mumbai 400 016)
8. The Court Receiver, )
High Court, Bombay, Bank of India Building)
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Fort, Mumbai 400 001 )
9. The Tahsildar @ Agricultural Lands )
Tribunal, Borivali, Having office at )
Dr.N.R.Karode Marg, S.V. Road, )
Borivali (W), Mumbai )
10. The Collector (Mumbai Suburban )
District), having office at )
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Administrative Building, 10 Floor, )
Government Colony, Bandra (E), )
Mumbai – 400 051 )
11. State of Maharashtra, )
Through its Principal Secretary, )
Revenue Department, Mantralaya, )
Mumbai – 32. ) ….. Respondents
Mr.P.K.Dhakephalkar, Senior Advocate, a/w. Mr.Prasad S.Dani, Senior
Advocate, Mr.J.G.Reddy, i/b. Mr.Rajeev R.Sharma for the Petitioner.
Mr.R.P.Kadam, A.G.P. for the Respondent nos. 9, 10, 11.
Mr.V.A.Thorat, Senior Advocate, a/w. Mr.Vishwanath Patil,
Mr.Vinduprakash Pandey, Mr.Pramodkumar Pandya, i/b. Legal Edge
LLP for the Respondent no.2.
Mr.A.Y.Sakhare, Senior Advocate, a/w. Mr.Siddharth Karpe, Mr.Vivek
Tripathi, i/b. Mr.Pushparaj Singh for the Respondent no.3.
CORAM : R.D. DHANUKA, J.
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RESERVED ON : 12 OCTOBER, 2018
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PRONOUNCED ON : 5 FEBRUARY, 2019
JUDGMENT :
By this petition filed under Article 227 of the Constitution
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of India, the petitioner has impugned the order dated 28 April,2017
passed by the Maharashtra Revenue Tribunal in Tenancy Revision
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Application No. 23 of 2015 filed by the petitioner under section 76 of
the Maharashtra Tenancy and Agricultural Lands Act, 1948 rejecting
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the said revision application arising out of the order dated 5 February,
2015 passed by the collector, Mumbai Suburban District in appeal
under section 74 of the Maharashtra Tenancy and Agricultural Lands
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Act, 1948 confirming the order dated 2 December,2013 passed by the
learned Tahsildar (for short the said MTAL Act). Some of the relevant
facts for the purpose of deciding this petition are as under :-
2. The land in dispute is land bearing Survey No.318, Hissa
No.7A, area admeasuring 1 Acre 12 Gunthas situated at Village
Dahisar, Taluka Borivali (hereinafter referred to as the suit property).
It is the case of the petitioner that the suit property among various other
properties situated at Village Dahisar, Taluka Borivali totally
admeasuring approximately 644 acres land originally stood in the name
of and belonged to one Mr.Haji Ali Mohammed Haji Cassum. The
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said Mr.Haji Ali Mohammed Haji Cassum died on 7 November,1946.
After the death of the said Mr.Haji Ali Mohammed Haji Cassum, his
legal heirs filed administrative suit bearing no.3415 of 1947 in this
court for the administration of the entire estate of the said Mr.Haji Ali
Mohammed Haji Cassum.
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3. By an order dated 30 June, 1950, this court appointed the
court receiver in the said suit as receiver of the property of the said
Mr.Haji Ali Mohammed Haji Cassum with all powers under Order XL
Rule 1(d) of the Code of Civil Procedure, 1908. This court by an order
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dated 25 November, 1952 allowed the court receiver to sell the land
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admeasuring about 644 Acre situated at Village Dahisar, Taluka
Borivali by public auction.
4. It is the case of the petitioner that pursuant to the said
order passed by this court, the court receiver conducted an auction on
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29 March,1962 and confirmed the sale in favour of Mr.K.Lalchand on
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30 March,1962 in respect of the said land admeasuring 644 Acre.
Mr.K.Lalchand on behalf of the petitioner participated in the said bid
and submitted the highest bid in the sum of Rs.13,50,000/-.
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5. On 29 March,1962, the court receiver submitted a report
before this court and prayed that the court receiver be authorized to
accept the said offer of Rs.13,50,000/- on the terms and conditions
mentioned in the said offer letter and to complete the sale in favour of
the said Mr.K.Lalchand and/or his nominee or nominees. By an order
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dated 30 March,1962, this court allowed and authorized the court
receiver to accept the offer of Mr.K.Lalchand for the sum of
Rs.13,50,000/- for the entire land admeasuring 644 Acres situated at
Village Dahisar and further directed to complete the sale of the said
property in favour of the auction purchaser and/or his
nominee/nominees. It is the case of the petitioner that the said
Mr.K.Lalchand deposited the said amount with the court receiver in
respect of the purchase of the said Dahisar land inclusive of the suit
property.
6. It is the case of the petitioner that after demise of the said
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Mr.K.Lalchand, this court by an order dated 29 July, 1970 authorized
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the court receiver to execute one or more conveyances in respect of the
said lands at Dahisar in the name of nominee/s and the legal heirs of
the said Mr.K.Lalchand to be joined as confirming parties.
7. In the meanwhile Mr.Bhalchandra D.Patil and others i.e.
respondent nos. 1 to 6 herein claiming to be the tenants of the suit
property filed a tenancy application under section 32G of the Bombay
Tenancy and Agricultural Land Act, 1948 before the learned Tahsildar
and Agricultural Land Tribunal, Borivali in respect of the suit property
inter alia praying for their declaration as tenants and for fixing the
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purchase price of the suit property. On 29 July, 1970, the court
receiver executed about 144 conveyances. It is the case of the
petitioner that the formal conveyance for various survey numbers
including suit land is still pending due to various litigations between
the parties.
8. Sometime in the year 1970, the respondent no.1 and the
predecessor of the respondent nos. 2 to 6 jointly filed tenancy
application against the court receiver and Mr.Haji Ali Mohammed Haji
Cassum claiming to be tenants of 2 Acre and 20 Gunthas land adjacent
to the suit property.
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9. On 9 November, 1970 the learned Additional Tahsildar
recorded the statement of the respondents wherein the respondents
submitted that they had no other land except the one which was
mentioned in the then tenancy application and obtained the 32M
certificate of the MTAL Act in their favour.
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10. It is the case of the petitioner that the name of
Ms.Chauthubai Dharman Patil in the mutation entry no. 1566 and 1586
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dated 16 September, 1956 and 2 June, 1957 respectively as a
cultivator in respect of the suit land. The respondent nos. 1 to 6 are
claiming to be the legal heirs of the said Ms.Chauthubai Dharman
Patil. The name of the respondent nos. 1 to 6 appeared for the first
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time in the mutation entry no. 2030 and 4026 dated 20
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December,1960 and 6 May, 1968 respectively as legal heirs of the
said Ms.Chauthubai Dharman Patil.
11. It is the case of the petitioner that sometime in the year
1959, the said Tahsildar initiated suo-motu formal enquiry bearing no.
TNC/32G/18/59 under the provisions of MTAL Act which proceedings
were subsequently dropped in view of the fact that the suit property
was in custody of the court receiver. In the year 1978, the learned
Tahsildar again initiated suo-motu proceedings under section 32G of
the MTAL Act vide case no.106 of 1978.
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12. On 12 October, 1978, the petitioner preferred an appeal
before the learned Sub-Divisional Officer against the said order passed
by the learned Tahsildar. The said appeal however came to be
dismissed by the learned Sub-Divisional Officer on the ground that no
appeal against the interim order of the suo-motu passed by the learned
Tahsildar was maintainable. In the year 1980, the petitioner filed
revision application bearing no. 224 of 1980 before the Maharashtra
Revenue Tribunal. The Maharashtra Revenue Tribunal passed an order
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thereby allowing the said revision application however maintained the
order of the learned Tahsildar to proceed with the said suo-motu
enquiry vide case no.106 of 1978. It is the case of the petitioner that
the said enquiry however was never completed by the learned
Tahsildar. The respondent nos. 1 to 6 were parties to the said
proceedings.
13. It is the case of the petitioner that in the year 1984, the
respondent nos.1 to 6 entered into a Memorandum of Understanding
with one Nalini Tejura with respect of the suit property. The said
Memorandum of Understanding was however challenged by a party by
filing a proceeding. The parties filed consent terms in those
proceedings. The respondent nos. 1 to 6 had allegedly given
possession to Mr.Tejura. It is the case of the petitioner that the
respondent nos. 1 to 6 did not have any title over the suit land and to
enter into any such consent terms and to handover the alleged
possession to the said Mr.Tejura.
14. It is the case of the petitioner that sometime in the year
2012, the respondent nos. 1 to 6 again entered into a Memorandum of
Understanding with one developer i.e. Prisha Developers. The suit for
specific performance is pending before the City Civil Court at
Dindoshi between the respondent nos. 1 to 6 and Prisha Developers in
respect of the said land.
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15. On 26 June, 2013, the respondent nos. 1 to 6 filed a fresh
application under section 32G of the MTAL Act before the learned
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Tahsildar and Additional Land Tribunal, Borivali for the fixation of
purchase price of the suit property. In the said proceedings, the
respondent nos. 1 to 6 relied upon some mutation entries and
photocopies of the Khand receipt without bearing any dates and
description of the property in those receipts. It is the case of the
petitioner that those receipts were for the adjacent land for which the
proceedings under 32G of the MTAL were concluded in the year 1970 .
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16. On 29 July, 2013 , the statement of respondent no.1 was
recorded by the learned Tahsildar. It was stated by the respondent no.1
in the said statement that the suit property was mutated in the name of
one Moreshwar Dharman Patil without proving the nexus between the
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respondents and Moreshwar Dharman Patil. On 29 July, 2013, a
Panchanama was drawn by the learned Talathi. It was stated in the said
Panchanama that the suit property belonged to the said Mr.Moreshwar
Dharman Patil.
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17. On 2 August,2013, the learned Talathi submitted its
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report stating that the said mutation entry no.1585 dated 2 June, 1957
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was in the name of the said Mr.Moreshwar Dharman Patil. On 18
November,2013, the petitioner through its advocate filed written
arguments. Both the parties made their respective submissions before
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the learned Tahsildar. The case was closed for orders. On 2
December, 2013, the learned Tahsildar allowed the said application
filed by the respondent nos. 1 to 6 under section 32G of the MTAL Act
and fixed the purchase price.
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18. The petitioner filed an appeal against the said order dated
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2 December,2013 before the learned Collector. On 5 February,
2015, the learned collector dismissed the said appeal filed by the
petitioner and confirmed the order passed by the learned Tahsildar.
The petitioner thereafter filed a revision application (23 of 2015)
before the Maharashtra Revenue Tribunal impugning the said order
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dated 5 February, 2015 passed by the learned collector. The petitioner
filed its written arguments and list of authorities before the
Maharashtra Revenue Tribunal.
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19. On 28 April, 2017 the Maharashtra Revenue Tribunal
dismissed the said revision application bearing no. 23 of 2015 filed by
the petitioner and upheld the order passed by the learned collector on
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5 February,2015 and the order passed by the learned Tahsildar on 2
December,2013. The petitioner has impugned these orders by filing
this writ petition under Article 227 of the Constitution of India.
20. Mr.Dhakephalkar, learned senior counsel for the petitioner
invited my attention to the documents annexed to the writ petition,
averments made in the affidavits, the grounds raised in the writ petition
and also to the orders passed by the authorities below. He submits that
it was not the case of the applicants before the authorities that
Mr.Anant D.Patil or his widow was the tenant in respect of the suit
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property as on 1 April, 1957 i.e. the tillers day. The respondent had
not mentioned as to who was the tenant in respect of the suit property.
He invited my attention to the statement of Mr.Bhalchandra D.Patil
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recorded before the Additional Tahsildar on 9 November, 1970 in
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which the said Mr.Bhalchandra D.Patil allegedly stated that he was
cultivating the suit property since last 30 to 40 years. He came to be in
possession of the suit property. There was no Kabjedar according to
the said statement. He had stated that since he became the owner after
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1 April,1957, there was no question of giving any Khand.
21. Learned senior counsel invited my attention to the order
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dated 2 December,2013 passed by the learned Tahsildar under section
32G of the MTAL Act. He submits that the said application was filed
by Mr.Bhalchandra D.Patil, Smt.Anandibai Anant Patil and four others.
The said application was filed in respect of the several properties
including the suit property bearing no. 318/7, area ad measuring 1 Acre
34 Gunthas. The learned Tahsildar directed the Talathi to submit a
report. He submits that it appears that the learned Talathi thereafter
recorded the statement of the said Mr.Bhalchandra D.Patil and
submitted a report before the learned Tahsildar.
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22. By an order dated 2 December,2013, the learned
Tahsildar allowed the said application filed by Mr.Bhalchandra D.Patil
and six others and directed that the price of the suit property be fixed
under section 32G of the Act. He submits that the statement made by
the applicants in the said application before the Talathi was not on
oath. The name of Mr.Moreshwar Dharman Patil was mentioned in the
statement made by the respondent no.1 which was not on oath. The
name of Ms.Chauthubai Dharman Patil was not even mentioned. The
application filed by the said Mr.Dharam Patil and others did not even
state the name of Mr.Moreshwar D.Patil. In the year 2013, those
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applicants claimed tenancy prior to 1 April, 1957.
23. Learned senior counsel invited my attention to the report
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dated 2 August, 2013 submitted by the learned Talathi who allegedly
visited the suit land in the year 2013. Learned senior counsel placed
reliance on Rule 17(1) and (2) of the MTAL Rules, 1956 and would
submit that under the said provisions, Tahsildar was required to issue a
public notice in form no.8 upon party filing an application under
section 32G of the Act. The statement of such party was required to be
recorded on oath by the Tribunal. He submits that in this case the
statement was recorded by the Talathi first and thereafter public notice
was issued by the learned Tahsildar contrary to Rule 17(1) of the said
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Rules. He submits that the said notice was published on 26
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August,2013 whereas the statement was already recorded on 29 July,
2013 by the Talathi.
24. Learned senior counsel invited my attention to the order
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passed by the learned collector on 5 February,2015. He submits that
the said order passed by the learned collector is also totally perverse
and contrary to the provisions of section 32(F) and (G) and also rule
17(1) and 17(2) of the Rules. He submits that the court receiver is
admittedly not yet discharged from the suit property. The respondents
thus ought to have taken permission of this court to make the court
receiver as a party respondent to the original application filed before
the learned Tahsildar and the Agricultural Land Tribunal, Borivali.
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25. Learned counsel placed reliance on the judgment of
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Allahabad High Court in First Appeal No.181 of 1940 decided on 14
March,1944 in case of Sham Lal Gomatwala vs. Nand Lal and others,
AIR (31) 1944 Allahabad 220 in support of the submission that since
the court receiver was appointed in respect of the suit property, the
permission of the court was required to prosecute the said suit or to
implead the court receiver as a party respondent to the said application.
Learned senior counsel also placed reliance on the judgment of
Supreme Court in case of Shree Ram Urban Infrastructure Limited
vs. Court Receiver, High Court, Bombay, (2015) 5 SCC 539 and more
particularly paragraph (7) and would submit that the court receiver
being an officer of the court and as such cannot sue or be sued except
with permission of the court.
26. It is submitted by the learned senior counsel that the
respondents had merely relied upon the mutation entries before the
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authorities below which were much after the tillers day i.e. 1 April,
1957. He submits that the mutation entry does not create any title in
the property and has only presumptive value especially when no notice
was issued to the landlord. In support of this submission, learned
senior counsel placed reliance on the judgment of Supreme Court in
case of Hanmanta Daulappa Nimbal vs. Babasaheb Dajisaheb
Londhe, AIR 1996 SC 223 and more particularly paragraph (6) thereof
and submits that the entries in revenue records and payment of land
revenue without giving notice to the landlord cannot establish
possession of tenant.
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27. Learned senior counsel for the petitioner vehemently
placed reliance on section 32(F) (1) (b) (II) of the Act and would
submit that the respondents (original applicants) ought to have applied
for fixation of purchase price under section 32G of the Act within one
year from the death of their mother i.e. Ms.Chauthubai Dharman Patil
who was a widow. In support of this submission, learned senior
counsel placed reliance on the judgment delivered by the Full Bench of
this court in case of Vishnu Shantaram Desai vs. Smt.Indira Anant
Patkar, 1972 Mh.L.J. 124 and in particular paragraphs 5, 13, 14, 16 to
18, 25, 27 to 32 in support of the submission that if the tenant is a
widow, she has no right to purchase. The right under section 32G can
be exercised only by the successors in title of such widow within one
year from the date of death of such widow when her interest in the land
ceases to exist. In such a case, tenant widow cannot be deemed to have
purchased the land under section 32G of the Act.
28. It is submitted by the learned senior counsel that all the
authorities totally overlooked a crucial aspect in the matter that
respondent nos. 1 to 6 herein were claiming their successive rights in
the tenancy rights through their mother late Ms.Chauthubai Dharman
Patil who had never applied for declaration of tenancy in her lifetime
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and was widow on tillers date i.e. 1 April, 1957. The respondent nos.
1 to 6 admittedly had not filed any application under sexton 32G
within one year from the date of the demise of the late Ms.Chauthubai
Dharman Patil.
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29. It is submitted by the learned senior counsel that in this
case the predecessors in title of the petitioner had disputed the tenancy
and thus the learned Tahsildar ought to have directed the original
applicants to obtain their status under section 70(b) of the MTAL Act
before entertaining an application under section 32G of the Act. There
was an unexplained delay of 56 years in making such application under
section 32G by the respondent which could not have been condoned by
the authorities below. None of the 7/12 extract relied upon by the
respondents in respect of the suit property disclosed the name of
Ms.Chauthubai Dharman Patil. It was the case of the respondent nos.
1 to 6 themselves that on the date of filing an application under section
32G of the Act, the land in question was not capable of cultivation nor
they were interested in cultivating the land. He submits that since the
land prices had substantially risen, the respondents belatedly filed such
application under section 32G after 56 years.
30. It is submitted by the learned senior counsel that in the
year 1970, the respondents had adopted the proceedings under section
32G before the learned Tahsildar in respect to survey nos.63, 65, 66, 67
and 70 which was situated adjacent to the suit land. No proceedings
were however adopted in respect of the suit property by the
respondents. It was admitted by the respondent nos. 1 to 6 that they
had filed an application under section 32G of the Act for Survey
No.67, Hissa no.1, village Dahisar and Taluka Borivali being
application no.TNC/32G/Dahisar/18/70 and accordingly Tahsildar
accepted them as protected tenants and deemed purchaser of the suit
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land and issued a certificate under 32 M-Certificate on 11 November,
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1970 with respect to the said land.
31. It is submitted that the respondent nos. 1 to 6 were aware
that they were not in possession of suit property on the tillers day and
had thus not filed an application under section 32 G for about 56 years
along with other applications. He submits that the applications made
under section 32 G by the respondent nos. 1 to 6 were barred by law of
limitation.
32. Learned senior counsel invited my attention to the tenancy
application no.18 of 1970 filed by the respondent nos. 1 and 2 before
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the learned Tahsildar on 2 November, 1970. In the said application, it
was the case of the respondent nos. 1 and 2 that they were personally
cultivating the suit land as a protected tenants since last 30 – 40 years
and thus was entitled to purchase the suit land under section 32-G of
the BTAL Act of 1948. The evidence of the respondent nos. 1 and 2
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was recorded by the Talathi within one week i.e. on 9 November,
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1970. The learned Tahsildar had passed an order on 11
November,1970 declaring the respondent nos. 1 and 2 as protected
tenants and purportedly fixed the price. The entire exercise was done
within a short span without complying with the mandatory rules
required to be followed by conducting such enquiry.
33. It is submitted by the learned senior counsel that the
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respondent no.1 stated in his statement before the Talathi that before 1
April, 1957, the respondents had given Khand to the then court
receiver as after tillers date, the tenant had become the owner of the
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land. Similar statement was made by the respondent no.2 before the
learned Tahsildar in the said application. He submits that in the present
case, respondent nos. 1 to 6 claimed to be tenant of survey no.318,
Hissa no.7A which was never claimed and owned by them and were
never in actual and physical possession. The respondents had
produced the Khand receipt which were of the year 1960-62 which also
did not mention the survey number of the suit property on it.
34. It is submitted that all the authorities below totally
overlooked a crucial fact that the respondents had not proved the
relationship between the tenant and the landlord as contemplated under
the provisions of MTAL Act before the learned Tahsildar. The learned
Tahsildar have passed an illegal order under section 32-G and 32-M of
the Act. The suit property was admittedly in the custody of the court
receiver and the final conveyance is yet to be executed in favour of the
petitioner and/or its nominee/nominees. He submits that
Ms.Chauthubai Dharman Patil thus did not have any locus to purchase
the land without permission of the court receiver.
35. The next submission of the learned senior counsel is that
the suit land comes into the municipal limits of Bombay and being
reserved for non-agricultural and industrial development purpose. He
invited my attention to the judgment of this court in case of The
Municipal Corporation of Greater Bombay vs. Jankisonya and 6
nd
others delivered on 22 September, 1978 in Special Civil Application
No.2136 of 1972 and would submit that this court after considering
various notifications under section 88(1)(b) of the MTAL Act held that
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the provisions of the said MTAL Act were not applicable to the land
st
situated within the Greater Bombay and accordingly on 1 April, 1957,
the tenant did not get the right to purchase the disputed land and could
not initiate the proceedings under section 32G of the Act. He relied
st st th
upon the notifications dated 1 August 1956, 1 February 1957 and 29
March, 1957 in support of his this submission.
36. The next submission of the learned senior counsel for the
petitioner is that the receipt referred to and relied upon by the
respondent nos. 1 to 6 before the authority was false and fabricated.
The said receipt was allegedly issued by the office of the court receiver
in the year 1954 in favour of Ms.Chauthubai Dharman Patil. The said
receipt however bear the survey number for which the said receipt was
issued. The said receipt would show that Ms.Chauthubai Dharman
th
Patil was giving 6 part of the agricultural produced of the land to the
court receiver. He submits that the records produced by the
respondents themselves clearly show that the suit property was
uncultivable and was the grass land. The receipt thus obtained by the
respondent nos. 1 to 6 was manipulated and could not be relied upon.
37. Learned senior counsel for the petitioner submits that the
respondent nos. 1 to 6 were claiming their tenancy from the original
owner Mr.Haji Ali Mohammed Haji Cassum however they had not
produced even a single Khand receipt allegedly issued by the said
Mr.Haji Ali Mohammed Haji Cassum. The said Mr.Haji Ali
Mohammed Haji Cassum expired in the year 1946 and thereafter the
court receiver came to be appointed in the year 1950.
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38. It is submitted by the learned senior counsel that the
records in this matter clearly shows that the suo-motu proceedings
th
were initiated in respect of the property on 6 March,1959 in tenancy
case no. Ten.32G/Dahisar, 18/59 by the learned Tahsildar and ALT,
Borivali. It was held in the said proceedings that the proceedings were
precluded by the provisions of section 88-B(1) (d) of the Act and hence
th
the said proceedings were dropped on 10 August, 1959. He submits
that the said proceedings which were already dropped thus could not
have been adjudicated upon by the competent authority again on the
application of the same parties on the same ground. The learned
Tahsildar had again initiated suo-motu proceedings for enquiry vide
case no.106 of 1978.
39. It is submitted that the petitioner had preferred a revision
application before the Maharashtra Revenue Tribunal (224 of 1980)
against the order passed by the Sub-Divisional Officer. The Full Bench
th
of the Maharashtra Revenue Tribunal passed an order on 26
November,1981 thereby disposing of the said revision application and
directing that the learned Tahsildar can proceed with the enquiry. The
respondent nos. 1 to 6 were parties to the said proceedings. No steps
however were taken by the respondent nos. 1 to 6 for about 36 years
after remand of the matter by the Maharashtra Revenue Tribunal to the
learned Tahsildar. After expiry of the 36 years the respondent nos.1 to
th
6 filed fresh application under section 32 G on 28 June, 2013 which
was ex-facie barred by law of limitation and also res judicata .
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40. It is submitted by the learned senior counsel that the
respondent nos. 1 to 6 had already executed development agreement
st
dated 1 February, 1985 in favour of the third party. In suit no.4024 of
1990 which was filed by the said third party against the respondent
nos. 1 to 6, the parties thereto filed consent terms. Under the said
consent terms, the respondent nos. 1 to 6 had allegedly handed over the
vacant and peaceful possession of the suit property to the third party
and executed a letter of possession. The appellate authorities below
totally failed to consider this development before passing the
impugned order. The respondent nos. 1 to 6 had also entered into
th
Memorandum of Understanding dated 6 August,2012 with
Mr.Rajaram Bandekar. This document was also not considered by the
Maharashtra Revenue Tribunal.
41. Learned senior counsel submits that the finding of the
Maharashtra Revenue Tribunal that there was no violation of the
procedure followed by the lower authorities and that the impugned
order passed by the lower authorities were passed after considering the
material evidence on record is ex-facie perverse and contrary to the
documents available on record. Similarly the finding of the
Maharashtra Revenue Tribunal that the application filed by the
th
respondent nos. 1 to 6 on 28 June, 2013 was not barred by law of
limitation is also perverse and contrary to section 32 G and 32 F of the
nd
Act. The mutation entry dated 2 June, 1957 relied upon by the
authority was in the name of Ms.Chauthubai Dharman Patil which
establishes that the family of the respondent nos.1 to 6 was not in
actual and physical possession of the suit property on the tillers day.
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42. It is submitted that the respondents had failed to establish
their tenancy as on the tillers date and therefore the proceedings filed
under section 32 G for fixation of the purchase price was not at all
maintainable and was misconceived. He submits that the findings
rendered by the Maharashtra Revenue Tribunal on the applicability of
section 32 F(1)(b)(ii) of the BTAL Act is ex-facie perverse and contrary
to the said provision.
43. Mr.Sakhare, learned senior counsel for the respondent
no.3 on the other hand would submit that the authorities below have
recorded the concurrent findings in favour of the respondents which
cannot be interferred with by this court in this writ petition under
Article 227 of the Constitution of India. In support of this submission,
he invited my attention to the findings recorded by the learned
Tahsildar, by the learned collector and by the learned Maharashtra
Revenue Tribunal. He also placed reliance on the mutation entry
annexed at page 138 of the writ petition. He submits that the learned
collector had recorded the finding that the respondents had become
deemed purchaser on the tillers day and had upheld the findings of the
learned Tahsildar.
44. It is submitted by the learned senior counsel that the
Maharashtra Revenue Tribunal also confirmed the findings by the
learned Tahsildar and the learned collector impugning the impugned
order and has rightly held that Ms.Chauthubai Dharman Patil was
cultivating the land and was issued rent receipt by the court receiver.
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He submits that kami-jast patra relied upon by the respondents had
supported their case which document was not challenged by the
petitioner. The court receiver or the predecessor of the petitioner also
did not challenge the mutation entry recorded in favour of the
respondents. He submits that since the predecessor in title of the
respondents was cultivating the land as on the tillers date, the
predecessor in title automatically became the deemed purchaser in
respect of the suit land. The fixation of purchase price is a ministerial
st
subsequent act which was meticulously followed by his client on 1
April, 1957 itself. The predecessor of the respondents who was
cultivating the land became the protected tenant.
45. It is submitted that the proceedings for fixation of
purchase price under section 32 G has to be initiated suo-motu by the
authorities by complying with their duty. He submits that there was an
illiteracy prevailing in the villages in the year 1957. The provisions of
the MTAL Act being the welfare legislation Act has to be interpreted in
favour of the tenant. He submits that the names of the children of
Ms.Chauthubai Dharman Patil had been already reflected in the
mutation entry.
46. Insofar as the issue raised by the petitioner that the legal
heirs of Ms.Chauthubai Dharman Patil had not exercised the rights
under section 32 F(1)(b)(ii) within one year from the demise of
Ms.Chauthubai Dharman Patil is concerned, it is submitted by the
learned senior counsel for the respondent no.3 that the said
st
Ms.Chauthubai Dharman Patil herself was a tenant on 1 April, 1957
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and had acquired the tenancy rights in the suit property independently.
He submits that the records of such tenancy since 1954 were available
and were produced before the authorities. He submits that in the year
1959, the learned Tahsildar had initiated suo-motu proceedings in
respect of the suit land. The said proceedings were subsequently
dropped in view of the appointment of the court receiver. In the year
1978, those proceedings were once again commenced. He submits that
the respondents were thus not required to apply for fixation of purchase
price under section 32 G within one year from the date of death of
Ms.Chauthubai Dharman Patil.
47. Insofar as the issue as to whether section 32 G of the Act
were applicable to the Dahisar area or not, learned senior counsel
st
placed reliance on the notification dated 1 August,1956 published in
th
the Bombay Government Gazette dated 9 August,1956 issued by the
st
State Government, the schedule appended to the order dated 1
February,1957 passed under section 7 of the Bombay Land Revenue
rd
Code, 1879 thereby amending the Government order dated 23
th
December, 1954 by the State Government, notifications dated 28
th
March, 1957 and 29 March, 1957. He submits that by the said
th
notification dated 29 December,1957, the State Government had
specified the area mentioned in the schedule appended thereto as had
been reserved for non-agricultural and industrial development. He
submits that the village Dahisar was excluded from the said schedule.
48. Learned senior counsel placed reliance on the definition of
'Greater Bombay' defined in The Greater Bombay Laws and the
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Bombay High Court [Declaration of Limits] Act, 1945. The said
definition of 'Greater Bombay' under section 2(2) and proviso to
Schedule 'A' are extracted as under :-
2(2) 'Greater of Bombay” means the areas for the time
being specified in Schedule A.
SCHEDULE A
Areas comprised in Greater Bombay.
Part IV
The undermentioned villages of the Thane District :-
1. Akse 12. Gorai 23. Marve
2. Akurli 13. Goregaon 24. Maroshi
3. Arey 14. Kaneri 25. Mulund
4. Borivali 15. Kandivli 26. Nahur
5. Charkhop 16. Kurar 27. Pahadi
6. Chinchavali 17. Klerbad 28. Poisar
7. Dahisar 18. Magathane 29. Sai
8. Darivli 19. Malad 30. Shimpoli
9. Dindoshi 20. Malavni 31. Tulshi
10. Eksar 21. Mandapeshwar 32. Wadhawan
11. Gundgaon 22. Manori 33. Valnai
34. Yerangal
Provided that for the purpose of section 43-C of the
Bombay Tenancy and Agricultural Lands Act, 1948, the
expression “Greater Bombay” in the said section shall not
be deemed to include the villages specified in Part IV of
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this Schedule.
49. Learned senior counsel relied upon paragraph (4) of the
schedule A and the proviso thereto. The village Dahisar was included
in Part IV. It is submitted that in view of the said proviso to part (4), for
the purpose of section 43-C of the MTAL Act, the expression 'Greater
Bombay' in the said section shall not be deemed to include the villages
specified in paragraph (4) of the said schedule. He submits that in
view of the said proviso to Part IV of the said Act, the expression
'Greater Bombay' would not include those 34 villages including village
Dahisar and thus sections 31 to 32R of the said MTAL Act shall be
applicable to the village Dahisar also.
50. Insofar as the judgment of this court in case of The
Municipal Corporation of Greater Bombay vs. Jankisonya and 6
others (supra) relied upon by the learned senior counsel for the
petitioner is concerned, learned senior counsel for the respondent no.3
invited my attention to the paragraphs 5 and 9 of the said judgment and
would submit that the said judgment delivered by the learned Single
Judge of this court was based on the concession of law made by the
learned counsel for the tenants who had appeared in the said
proceedings and cannot be construed as the precedent. He submits that
various notifications issued by the State Government from time to time
referred to aforesaid was not brought to the notice of this court and
thus the judgment delivered by this court ignoring the notifications
issued by the State Government from time to time declaring that the
expression 'Greater Bombay' would not include those 34 villages
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including the village Dahisar and thus the said judgment being per-
incurium not binding on this court.
51. Learned senior counsel placed reliance on the mutation
th
entry no.1566 dated 16 September,1956 and mutation entry no.1586
nd
dated 2 June, 1957 and would submit that the name of Ms.Chauthubai
Dharman Patil was clearly recorded therein. He placed reliance on the
th
mutation entry no.2030 dated 20 December,1960 and would submit
that the names of the legal heirs of the said Ms.Chauthubai Dharman
Patil were clearly recorded in the said mutation entry.
52. Learned senior counsel for the respondent no.3 placed
th
reliance on the unreported judgment of this court dated 16 June, 1981
in case of M/s.Veekaylal Investment Pvt.Ltd. vs. Damodar Dharam
Patil & Ors. and in particular paragraphs 2, 3 and 7 and would submit
that this court had rejected the submission that section 88-B(1) (d) of
the MTAL Act applies to the disputed land because the management
thereof had been taken by the court receiver and as long as an
appointment of the court receiver continues, section 32 of the MTAL
Act will not apply. This court held that the said provision was not
applicable because the proceeding was not a suit to which the landlord
or the tenant was a party. The suit in which the receiver was appointed,
the landlord and the tenant were the parties.
53. Learned senior counsel submits that admittedly in this
case, suo-motu enquiry was initiated firstly in the year 1958 and
thereafter in the year 1978. He submits that in the year 1978, the
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learned Tahsildar had held that the objections raised by the landlord
can be decided at the stage of the final hearing. The said order passed
by the learned Tahsildar was confirmed by the Sub-Divisional Officer
and the Maharashtra Revenue Tribunal. However, there was no further
development in those proceedings.
54. It is submitted by the learned senior counsel that the
provision of section 32(G) of the MTAL Act is for fixation of purchase
price. He submits that three Courts have already rendered concurrent
findings in favour of the respondents and thus those findings cannot be
interfered with by this Court under Article 227 of the Constitution of
India. The proceedings were already initiated by the Authorities in the
year 1958 and 1978 suo moto however, was subsequently dropped. He
placed reliance on the rent receipt annexed at page 298 of the petition
and would submit that various such rent receipts were on record before
the Authorities below to show that the Court Receiver had issued those
rent receipts in favour of the purchasers of the respondents. Insofar as
the ground raised in the petition by the petitioner that the name of
Moreshwar Dharman Patil was shown as occupier of the property in
the statement made by the respondent no.1 is concerned, it is submitted
by the learned senior counsel that no such argument was advanced by
the petitioner before the Authorities. The petitioner thus cannot be
allowed to raise this issue for the first time in this writ petition.
55. Insofar as the alleged non-compliance of the procedure
prescribed under section 32(G)(i)(ii) is concerned, it is submitted by
the learned senior counsel that no such plea had been raised by the
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petitioner before any of the Authorities below nor such ground was
raised even before the Maharashtra Revenue Tribunal. The said
statement was made across the bar for the first time before the
Maharashtra Revenue Tribunal which argument was specifically
rejected by the Maharashtra Revenue Tribunal. He placed reliance on
section 32(G)(i) and (ii) and would submit that the said provision
applies which suo-motu powers are exercised by the Maharashtra
Revenue Tribunal for determination of the price of the land to be paid
by the tenants. Section 32(G)(iv) applies when the tenant applies for
determination of the price of land. He submits that the submission of
the alleged non-compliance or Rule 17 has been also urged for the first
time by the petitioner before this Court. No such argument was
advanced before the two Authorities. He submits that under section
32(G)(i), the duty is cast on the Tribunal to issue notice and to
determine the price of land to be paid by the tenants after the tiller's
day by publishing a public notice in the prescribed form in each village
within its jurisdiction calling upon all the tenants, all the landlords and
all other persons interested to appear before the Tribunal on a specific
date.
56. Learned senior counsel distinguished the judgment of this
Court in case of Jaiwant Narayan Maind (supra) relied upon by the
learned senior counsel for the petitioner and would submit that the
facts before this court in the said judgment were totally different. He
submits that the petitioner cannot be allowed to take any undue
advantage of the illiteracy of the respondents. He relied upon the
findings of fact rendered by the Maharashtra Revenue Tribunal in
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paragraph 11 of the order passed by the Maharashtra Revenue Tribunal
holding that the proceedings initiated under the provisions of section
32(G) were suspended and kept in abeyance and thus it was not
possible for the tenants to purchase the suit land. He submits that the
said findings being not perverse, cannot be interfered with by this
Court. He submits that the Maharashtra Revenue Tribunal has rightly
held that since the proceedings under the provisions of section 32(G)
were kept in abeyance, the question of giving notice by the tenants
under the provisions of section 32(F)(b) did not arise.
57. Insofar as the statement of the respondent no.1 annexed at
Exhibit “C” to the affidavit in rejoinder filed by the petitioner stating
that the respondent no.1 was not in possession of any portion of the
suit land is concerned, it is submitted by the learned senior counsel for
the respondent no.3 that no such document was produced by the
petitioner before any of the Authorities or before the Maharashtra
Revenue Tribunal and thus the petitioner cannot be allowed to rely
upon the said document for the first time.
58. Mr.V.A. Thorat, learned senior counsel for the respondent
no.2 submits that under section 32 of the MTAL Act, the legal fiction
is created about deemed purchase of the land by a permanent tenant
and other tenant cultivating the land personally. He placed reliance on
section 4 of the Act, which provides that a person lawfully cultivating
the land along with another person shall be deemed to be a tenant. He
submits that this provision is very wide. A person satisfying the
condition of section 4 of the Act becomes a deemed tenant on tiller's
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day, whereas section 32(G) provides only for determination of the
purchase price.
59. Insofar the submission of the learned senior counsel for
the petitioner that the respondents ought to have exercised their right
of purchase within one year from the date of the death of the deceased
Smt.Chauthubai Dharman Patil and not beyond such period is
concerned, it is submitted by the learned senior counsel that the said
provision under section 32(F)(i)(b) and (ii) would not apply to the facts
of this case in view of the fact that the said Smt.Chauthubai Dharman
Patil herself was already a tenant on the tiller's day.
60. Learned senior counsel place reliance on section 32(G)(3)
and would submit that even if the tenant fails to appear or makes a
statement that he is not willing to purchase a land, the Tribunal is
empowered to pass an order in writing declaring that such tenant was
not willing to purchase the land and that purchase was ineffective. He
submits that under section 32(MM) of the Act, the Tribunal is
empowered to give extension of time to make payment of purchase
price to the tenants.
61. Learned senior counsel placed reliance on section 3(10) of
the Maharashtra General Clauses Act, 1904 which defines “City of
Bombay” i.e. the area within the local limits of the ordinary original
civil jurisdiction of the Bombay High Court of Judicature immediately
before the date on which the Greater Bombay Laws and the Bombay
High Court (Declaration of Limits) Act, 1945, came into force. He also
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relied upon the definition of “Greater Bombay” under section 3(21) of
the said Act. He placed reliance on various notifications already
referred to aforesaid issued by the State Government from time to time
insofar as village Dahisar is concerned. He submits that none of the
notification applied to the lands in village “Dahisar”. The village
Dahisar was not part of Greater Bombay before commencement of
Greater Bombay Laws and Bombay High Court (Declaration of
Limits) (Amendment) Act, 1956. The expression “Greater Bombay”
also is defined under the provisions of Greater Bombay Laws and
Bombay High Court (Declaration of Limits) Act, 1945 under section
2(2) of the said Act which means the area for the time being specified
in Schedule -A.
62. Learned senior counsel relied upon the notification dated
st
1 February, 1957 and would submit that the said notification uses the
expression “The area comprised in Greater Bombay immediately
before the date of the commencement of the Greater Bombay Laws
(Amendment) Act, 1956. He submits that the village Dahisar
accordingly came to be included in Greater Bombay by virtue of the
st
Amendment Act, 1956. However in the notification dated 1 February,
1957, it is crystal clear that the notification did not apply to the lands
included in that part but only applies to the area immediately before the
date of Amendment Act, 1956. He submits that the said notification
st
dated 1 February, 1957 was itself not applicable.
63. Learned senior counsel placed reliance on Schedule-A of
Greater Bombay Laws and Bombay High Court (Declaration of
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Limits) Act, 1945 and would submit that the village Dahisar came to
be included in Greater Bombay by virtue of part-IV of Schedule-A of
the Act by the Act 57 of 1956. He strongly placed reliance on proviso
to part-IV and would submit that the said proviso clearly excluded
newly added area including the village Dahisar from the operation of
section 43(1) of MTAL Act. He submits that the provisions of MTAL
Act are applicable to the land situated in the village Dahisar even if the
said village Dahisar is included in Greater Bombay.
64. Insofar the judgment of this Court in case of The
Municipal Corporation of Greater Bombay vs. Jankisonya & 6 Ors.
(supra) relied upon by the petitioner is concerned, it is submitted by the
learned senior counsel that the said judgment did not take into
consideration the proviso to part-IV of Greater Bombay Laws and
Bombay High Court (Declaration of Limits) Act, 1945 and clause 1 of
st
the notification of 1 February, 1957 which excludes the area included
in Greater Bombay by virtue of the Amendment Act, 1956. He submits
that the said judgment was even otherwise based on the concession of
law made by the learned counsel for the tenant and the said judgment
being per-incuriam is not a binding precedent upon this Court. He also
placed reliance on the judgment of the Hon'ble Supreme Court in case
of Assam State Electricity Board etc. vs. Assam Electricity Shanti
Conductor Pvt. Ltd. LEX (SC) 2012 7 26.
65. It is submitted by the learned senior counsel that section
43(C) of the MTAL Act does not apply to the municipal or cantonment
area. It is submitted that section 43(C) has to be read with the proviso
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to part-IV. He submits that section 31 to 32-R thus would apply even to
Dahisar area because of proviso to part-IV of the 1945 Act. Learned
senior counsel placed reliance on section 88-A-I of the MTAL Act and
would submit that the said provision clearly protects the tenants. The
said provision does not apply to the village Dahisar.
66. Learned senior counsel placed reliance on the judgment of
the Hon'ble Supreme Court in case of Navinchandra Ramanlal vs.
Kalidas Bhudarbhai, AIR 1979 SC 1055 and in particular paragraphs
11 to 15. He submits that by operation of law, the landlord is divested
of his ownership on the tiller's day if the tenant complies with the
conditions of section 32-G on the tiller's day. The delay, if any, of the
tenant for fixation of price does not enure to the benefit of the landlord.
67. It is submitted by the learned senior counsel that the
respondents had produced the rent receipts before the authorities as
well as before the Maharashtra Revenue Tribunal showing the name of
Smt.Chauthubai Dharman Patil and also payment of rent by the said
Smt.Chauthubai Dharman Patil prior to the tiller's day. He placed
reliance on various judgments relied upon by Mr.Sakhare, learned
senior counsel for the respondent no.3. He submits that the Court
Receiver, High Court, Bombay had issued various rent receipts in
favour of the predecessor in title of the respondent no.2.
68. Mr.Dhakephalkar, learned senior counsel for the petitioner
in rejoinder submits that none of the conditions prescribed under
section 32-G of the MTAL Act were satisfied by the predecessor in title
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of the respondents or even by the respondents. He submits that the
insofar as land survey no.818 Hissa no.7A (part) is concerned, the said
land was not claimed by the respondents in any other proceedings. No
averments were made by the predecessor in title of the respondents or
the respondents in any of the pleadings that a lease was created in their
favour, when was such lease created in favour of the predecessor of the
respondents, no document showing the lease in favour of the
predecessor of the respondents was produced. The first mutation entry
produced by the respondents was of the year 1956.
69. It is submitted that the learned Tahsildar had sent the
matter to the learned Talathi for making an enquiry and to submit a
report which was totally illegal. The onus was on the respondents to
prove that an interest in the land was created in their favour. He
invited my attention to the application made by the respondents before
the learned Tahsildar under section 32-G in the year 2013. It is
submitted that no procedure was followed by the Tahsildar at all before
passing the impugned order holding that the predecessor in title of the
respondents was a tenant. No evidence was led before the Tahsildar by
any of the respondents. There was thus no question of any cross-
examination of any of the respondents before the learned Tahsildar.
The mutation entry does not prove any title.
70. Insofar as the rent receipts relied upon by the respondents
is concerned, it is submitted by the learned senior counsel that no such
rent receipts were produced in respect of the land in question. The
rd
receipt dated 3 December, 1954 produced by the respondents did not
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mention the survey number of the land in question. This Court thus has
to take into consideration these admitted facts and shall hold that the
impugned order passed by the Tahsildar was without following any
procedure prescribed under the provisions of MTAL Act and Rules
framed therein He relied upon sections 69 to 70 of the MTAL Act in
support his submission.
71. It is submitted by the learned senior counsel that no notice
was issued by Talathi before conducting any enquiry and submitting
the report. The said notice was received by the petitioner only after
such report was submitted by Talathi to the Tahsildar. It is submitted by
the learned senior counsel that in the proceedings filed under section
32-M of the MTAL Act by the respondents, the respondents could not
claim the land in question.
72. Learned senior counsel for the petitioner once again
placed reliance on section 32-F(b)(ii) of the MTAL Act and would
submit that in view of non-obstante provision, the successors in title of
the widow Smt.Chauthubai Dharman Patil were required to file an
application within one year from the date of the death of the said
Smt.Chauthubai Dharman Patil which admittedly was not filed by the
respondents. The tiller's day was shifted to the date of the death of the
widow tenant. The said Smt.Chauthubai Dharman Patil had expired in
the year 1960. The date of the death of the husband of the said
Smt.Chauthubai Dharman Patil was not disclosed.
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73. Learned senior counsel strongly placed reliance on the
judgment delivered by the Full Bench of this court in case of Vishnu
Shantaram Desai (supra) and more particularly paragraphs 5, 13, 14,
16, 25 and 28 to 32. It is submitted that the judgment of this Court in
case of Jaiwant Narayan Maind (supra) would apply to the facts of
this case. He submits that the unreported judgment delivered by this
Court in case of The Municipal Corporation of Greater Bombay vs.
Jankisonya & 6 Ors. (supra) would squarely apply to the facts of this
case. He also responded to the submissions made by Mr.Sakhare,
learned senior counsel for the respondent no.3 and Mr.Thorat, learned
senior counsel for the respondent no.2 on the issue as to whether the
village Dahisar was included within the territory of Greater Mumbai or
not and the effect thereof on the applicability of various provisions of
MTAL Act and reiterated his earlier submission.
74. Learned senior counsel placed reliance on the judgment of
the Hon'ble Supreme Court in case of Hanmanta Daulappa Nimbale
vs. Babasaheb Dajisaheb Londhe, (1995) 6 SCC 58 and in particular
paragraph 6 and would submit that the mutation entry cannot be
considered as a proof of possession unless a notice was given to he
other side before making those entries. He submits that no such
procedure was followed by the authorities while recording the name of
the respondents in any of the mutation entry referred to and relied upon
by the respondents during the course of their arguments. He submits
that the findings of the two authorities and also of the Maharashtra
Revenue Tribunal being perverse can be interfered by this Court in
this petition filed under Article 227 of the Constitution of India.
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REASONS AND CONCLUSIONS :-
75. This Court shall first decide the issue as to whether
provision of Section 32 of the MTAL Act applies to the agricultural
lands situated in Dahisar village or not. It is not in dispute that the
land which is the subject matter of this petition fall within the territory
of Dahisar village.
76. Learned senior counsel appearing for the parties invited
my attention to various notifications issued by the then Government
of Bombay in this regard. Section 3(21) of the Maharashtra General
Clauses Act, 1886 defines “Greater Bombay” as under :-
“Greater Bombay shall mean the area specified in Schedule
A to the Greater Bombay Laws and the Bombay High Court
(Declaration of Limits) Act, 1945.”
77. Expression “Greater Bombay” is also defined under
Section 2(2) of the Greater Bombay Laws and the Bombay High
Court (Declaration of Limits) Act, 1945 which reads thus :-
“Greater Bombay means the area for the time being
specified in Schedule A.”
78. In exercise of powers under Section 88(1)(b) of the
st
MTAL Act, by notification dated 1 August 1956, the Government of
Bombay declared that the said Act shall not be exempted from the
provisions of Sections 65, 66, 80A and 82 to 87. The Government of
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Bombay specified the area of Greater Bombay as being reserved for
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non-agricultural and industrial development. On 1 August 1957, the
Government of Bombay amended the Government Order, Revenue
rd
Department dated 23 December 1954. The Government of Bombay
specified the area comprised in Greater Bombay immediately before
the date of the commencement of the Greater Bombay Laws and the
Bombay High Court (Declaration of Limits) (Amendment) Act, 1956.
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79. On 29 March 1957, in exercise of powers conferred by
clause (b) of Section 88 of the MTAL Act, the Government of
Bombay specified the area mentioned tin Schedule appended thereto
as being reserved for non-agricultural and industrial development. In
the Schedule to the said notification, the village Dahisar was
excluded.
80. Part IV of the Greater Bombay Laws and the Bombay
High Court (Declaration of Limits) Act, 1945 provided a list of 34
villages of Thana District. The village Dahisar was included at Serial
No.7 of the said Part IV. The proviso to Part IV provided that for the
purpose of Section 43C of the MTAL Act, the expression “Greater
Bombay” in the said section shall not be deemed to include the
villages specified in Part IV of the said Schedule.
81. Section 43C of the MTAL Act provided that certain
provisions of the said Act do not apply to municipal or cantonment
areas. Section 43C(1) provided that nothing in Sections 31 to 32R
(both inclusive), 33A, 33B, 33C and 43 shall apply to lands in the
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areas within the limits of Greater Bombay subject to proviso that if
any person has acquired any right as a tenant under the said MTAL
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Act on or after 28 December 1948, the said right shall not be
deemed to have been affected by the Bombay Tenancy and
Agricultural Lands (Amendment) Act, 1952 or by the Amending Act,
1955, notwithstanding the fact that either of the said Acts has been
made applicable to the area in which such land is situated.
82. A perusal of Part IV of Schedule A of the the Greater
Bombay Laws and the Bombay High Court (Declaration of Limits)
Act, 1945 which has to be read with the definition of “Greater
Bombay” under Section 2(2) of the the Greater Bombay Laws and
the Bombay High Court (Declaration of Limits) Act, 1945 clearly
indicates that the village Dahisar was included in Part IV. In my view,
in view of proviso to Part IV to Schedule A of the said Act, for the
purpose of Section 43C of the MTAL Act, the expression “Greater
Bombay” in the said section shall not be deemed to include the
villages specified in Part IV of the said Schedule. It is thus clear that
in view of the said proviso to Part IV of the said Act, the expression
“Greater Bombay” would not include those 34 villages including the
village Dahisar.
83. In my view, in view of Section 43C of the MTAL Act
which has to be read with Part IV of Schedule A and definition of the
Greater Bombay Laws and the Bombay High Court (Declaration of
Limits) Act, 1945, Sections 31 to 32R of the said MTAL Act would
apply to those 34 villages including the village Dahisar. Admittedly
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the application in question made by the respondent nos.1 to 6 for
fixation of price of the land was under Section 32G of the MTAL Act.
The said provision thus invoked by the respondents and the benefits
of the said provision would be available to the agricultural lands
situated in Dahisar village by virtue of above referred notifications.
84. In so far as the judgment of this Court in the case of the
Municipal Corporation of Greater Bombay Vs. Jankisonya & 6 Ors.
(supra) strongly relied upon by the learned senior counsel for the
petitioner is concerned, a perusal of the said judgment clearly
indicates that this Court did not consider the provisions of the Greater
Bombay Laws and the Bombay High Court (Declaration of Limits)
Act, 1945 and proviso to Part IV thereto and clause (1) of the
st
notification dated 1 February 1957 which excluded the area included
in Greater Bombay by virtue of the Greater Bombay Laws and the
Bombay High Court (Declaration of Limits) (Amendment) Act, 1956.
85. A perusal of the judgment and more particularly paragraph
9 thereof clearly indicates that the learned counsel for the tenants had
conceded before this Court that the lands situated within the area of
Dahisar were exempted from the operation of the provisions of the
MTAL Act. In my view, this concession made by the learned counsel
for the tenants before this Court in the said matter was factually
incorrect and contrary to Part IV Schedule A of the Greater Bombay
Laws and the Bombay High Court (Declaration of Limits) Act, 1945
to be read with proviso thereto. Be that as it may, the said judgment
having been delivered by this Court based on an erroneous concession
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of fact and law made by the tenants and in ignorance of the proviso
to Part IV of Schedule A and also in ignorance of notification dated
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1 February 1957 cannot be considered as a binding precedent on this
Court and is per incuriam. In my view, reliance thus placed by the
learned senior counsel for the petitioner on the said judgment is totally
misplaced.
86. Mr.Dhakephalkar, learned senior counsel for the
petitioner could not point out from the said judgment of this Court in
the case of the Municipal Corporation of Greater Bombay Vs.
Jankisonya and 6 Ors. (supra) that the proviso to Part IV of
Schedule A of the Greater Bombay Laws and the Bombay High
Court (Declaration of Limits) Act, 1945 was considered by this Court
in the said judgment and also could not dispute that the said judgment
was based on the concession of fact and law made by the learned
counsel for the tenants as recorded in paragraph 9 of the said
judgment.
87. This Court in the said judgment has considered the
st
notification dated 1 August 1956 and had accordingly held that the
provisions of the MTAL Act were made non-applicable to the lands
st
situated within Greater Bombay and thus on 1 April 1957, the
tenants did not get the right to purchase the disputed land and that no
proceedings could be initiated under Section 32G of the MTAL Act.
In my view, Mr.Thorat, learned senior counsel for the respondent no.2
and Mr.Sakhare, learned senior counsel for the respondent no.3 are
right in their submission that the judgment of this Court in the case of
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the Municipal Corporation of Greater Bombay Vs. Jankisonya and
6 Ors. (supra) cannot be considered as a binding precedent on this
Court and is per incuriam.
88. Having accepted the submission made by the learned
senior counsel for the respondent nos.2 and 3 that in view of Section
43C, Sections 31 to 32R (both inclusive) shall apply to the lands in
village Dahisar, this Court shall now consider whether the
respondents had complied with the conditions under Section 32G of
the MTAL Act or not in respect of the suit land and whether any
interference in this writ petition under Article 227of the Constitution
of India with the order passed by the learned Tahsildar, learned
Collector and the Maharashtra Revenue Tribunal is warranted or not.
89. It is vehemently urged by Mr.Dhakephalkar, learned
senior counsel for the petitioner that Smt.Chauthubai Dharman Patil
expired in the year 1960. The husband of the said Smt.Chauthubai
Dharman Patil had already expired prior to the date of her death. It is
the case of the petitioner that the said Smt.Chauthubai Dharman Patil
being a widow could not have made any claim for tenancy of the said
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agricultural land as on the tillers day i.e. on 1 April 1957 and the
said date was postponed for a period of one year from the date of her
death. Learned senior counsel strongly placed reliance on Section
32F(b)(ii) of the MTAL Act in support of the submission that in view
of the said provision, successor-in-title of the widow shall have right
to purchase the land under Section 32G only within the one year from
the date on which interest of the widow tenant in the land ceases to
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exist. He submits that the application made by the respondent nos.1 to
6 who according to those respondents were claiming through the said
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Smt.Chauthubai Dharman Patil was on 26 June 2013 after expiry of
53 years and thus the said application was ex facie barred by
limitation prescribed under the said provision.
90. A perusal of the order passed by the Maharashtra Revenue
Tribunal on this issue indicates that the tribunal has rejected the
arguments advanced by the petitioner on an erroneous premise that in
the present case, the proceedings for fixing purchase price was initiated
way back in the year 1959 in case no. TNC/32 G 18/59 by Tahsildar
and A.L.T.Borivali which was subsequently dropped since the suit land
was under management of the court receiver. The proceedings were
initiated suo-motu by the Tahsildar for enquiry under section 32 of the
MTAL Act which was numbered as case no. 106 of 1978 wherein both
the parties filed their reply.
91. The Tribunal has also erroneously held that the petitioner
herein had not filed any document on record to show that the petitioner
had challenged the rights of respondents or tried to get negative
declaration under section 70(b) of the MTAL Act to the effect that the
said persons were not the tenant in the suit land or initiated any
proceeding to obtain possession of the said property. In my view, this
finding of the Maharashtra Revenue Tribunal is totally perverse. The
respondent nos.1 to 6 who claimed tenancy were required to file a
proceeding under section 70(b) of the said Act and not the owner of the
said land for a negative declaration that the person who was claiming
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to be the tenant was not a tenant in the suit land. The finding of the
tribunal is ex-facie contrary to section 70(b) of the said Act.
92. A perusal of paragraphs 11 and 12 of the impugned order
passed by the tribunal indicates that the tribunal has held that in the
enquiry under section 32 G in the year 1959, then Tahsildar had
concluded that since the court receiver has been appointed, enquiry
under the provisions of section 32 G could not be proceeded with and
as such, the proceedings were kept in abeyance and thus there was no
question of giving any notice by the tenant under the provisions of
section 32 F (b) of he said Act. It is further erroneously held that since
the proceedings initiated under the provisions of section 32 G were
suspended and kept in abeyance, it was not possible for the tenant to
purchase the suit land and therefore the submission of the petitioner
herein regarding requirement of giving notice under section 32 F
cannot be accepted.
93. It is also erroneously held by the tribunal that section 88 B
(1) (d) of the Act bars when the title of the property is in dispute
whereas in the present case, there is no dispute in respect of the title of
the property and suit was only for administration of the estate of the
original landlord. It is clear beyond reasonable doubt that the
Maharashtra Revenue Tribunal has not rejected the submission made
by the petitioner that the application made by the respondent nos. 1 to
6 was ex-facie barred by limitation in view of the respondent nos. 1 to
6 not having applied for determination of purchase price under section
32 G within one year from the date of demise of the Ms.Chauthubai
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Dharman Patil but has been rejected on the ground that since the Court
Receiver, High Court, Bombay was appointed in respect of the said
property, the tenant could not have issued any notice under section 32
F(b) of the Act.
94. In my view, the impugned findings rendered by the
Maharashtra Revenue Tribunal are also perverse on the ground that the
Court Receiver has not been discharged in respect of the said property
till today and thus the Maharashtra Revenue Tribunal could not have
held that in view of the appointment of the court receiver, the
respondent nos. 1 to 6 were not required to give any notice or that it
was not possible for the tenant to purchase the suit land. The Court
Receiver has not been discharged even till today. I am thus not inclined
to accept the submission made by Mr.Sakhare, learned senior counsel
for the respondent no.3 and also Mr.Thorat, learned senior counsel for
the respondent no.2 that since the said Ms.Chauthubai Dharman Patil
herself was allegedly a tenant prior to her death, the provisions of
section 32 F (b) (ii) of the MTAL Act would not apply to the facts of
this case. The respondent cannot be allowed to urge any submission
contrary to the arguments advanced before the authorities below as
well as before the MRT and also the findings rendered by those
authorities.
95. The Full Bench of this court in case of Vishnu Shantaram
Desai (supra) has construed the provisions of section 32 F of the
MTAL Act in great detail. It is held by the Full Bench of this court that
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section 32 provides for automatic statutory transfer of ownership to the
tenant by operation of law on the Tillers' day or on the postponed date
however if the conditions of this section are fulfilled. Such a tenant is
not required to do any act or to give any intimation before he is
deemed to have purchased such land. To achieve this result, neither the
consent of the landlord nor of the tenant is required or contemplated. It
is by a deeming provision that such a tenant is made a statutory
purchaser of the land held by him as a tenant.
96. It is also held in the said judgment that the right of a
tenant to be deemed to have purchased land under s. 32(7) is, however,
subject to the other provisions of this section and the provisions of the
next succeeding sections. Section 32G prescribes the procedure to be
followed for determining the price of land to be paid by the tenants.
Section 32(1) provides for publication of a public notice in the
prescribed form in each village within its jurisdiction to be issued by
the agricultural land tribunal within its jurisdiction calling upon (a) all
tenants who under section 32 are deemed to have purchased the lands;
(b) all landlords of such lands and (c) all other persons interested
therein to appear before it on the date specified in the notice. The
Tribunal is enjoined to record in a prescribed manner the statement of
the tenant whether he is or is not willing to purchase the land held by
him as a tenant.
97. Sub-section (4) of section 32 (G) provides for
determination of the purchase price payable by a tenant after holding
an enquiry whether a tenant is willing to purchase the land or not. The
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said sub-section further provides that in the event of failure of the
recovery of the purchase price as arrears of land revenue, the purchase
shall be ineffective and the land shall be at the disposal of the Tribunal
under section 32P. In paragraph (16) of the said judgment, it is clearly
held that the right of a tenant to be deemed to have purchased the land
under section 32 is also subject to section 32F. In paragraphs 17 and
18 of the said judgment, it is held by the Full Bench of this court that
sub-section (1) of section 32F of the said Act start with non-obstante
clause which clearly shows that it is common to clauses (a) and (b)
which deals with disability of various persons. Clause (b) of the said
section 32(F) prescribed the period within which the tenant has to
exercise his right to purchase the land under section 32 when the tenant
is under disability. Clause (b) of section 32F is complete by itself.
98. It is held that there is nothing in the language of Clause (b)
to suggest that it is in the nature of a proviso to clause (a). It is not
possible to take the view that its provisions will not be attracted unless
a landlord is also under disability. Each of clause (a) and (b) is
complete by itself and can apply independently of each other. It is
held that section 32 F does not create a right to purchase land in a
tenant independently of the provisions of Section 32. It is explicit from
the language of clauses (a) and (b) of sub - section (1) of section 32 F
that it provides for the period within which a tenant has to exercise his
right to purchase conferred upon him by Section 32.
99. It is held that in a case covered by Section 32 - F there
also results a statutory transfer of ownership in favour of a tenant, but
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such transfer of ownership in favour of a tenant is not automatic. Sub -
section (1A) of this section enjoins upon a tenant desirous of exercising
the right conferred on him under sub - section (1) to give an intimation
in that behalf to a landlord and the Tribunal in the prescribed manner
within the period specified in that sub - section. The said sub-section
prescribes the time within which and the manner in which a tenant
desirous of exercising his right to purchase has to give an intimation.
When such an intimation is given, he is deemed to have purchased the
land because by sub - section (2) thereof, provisions of Section 32 to
32E (both inclusive) and Sections 32 - G to 32 - R(both inclusive)
shall, so far as may be applicable, apply to such purchase.
100. The Division Bench answered the question 'whether
section 32 - F confers a right to purchase the land upon a tenant in
addition to the right conferred by Section 32' in negative. It is held that
when conditions laid down in Section 32 - F exist, there is no
automatic statutory purchase of land by a tenant under Section 32.
However, where a tenant is under disability if he is deemed to have
purchased land under Section 32 on the tillers' day or on the postponed
date, then a question of exercise of a right by a tenant to purchase land
under Section 32 - F cannot possibly arise. There is no question of
exercising a right to purchase land by a tenant under Section 32 - F, if
he is already deemed to have purchased the land under Section 32.
101. It is held that in a case covered by Section 32 - F,
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provisions of Section 32 apply only after an intimation is given as
contemplated by Section 32 - F (1A) and this is evident from the
language of sub - section (2) of the said section. The provisions of
sections 31 and section 32 are not in pari materia . Though under
section 32(1), the right to purchase land is generally given to every
tenant, its provisions are made subject to the other provisions of the
section and the provisions of the next succeeding sections. The two
sections do not confer independent rights or opportunities to purchase
land upon a tenant. Section 32 - F prescribes a special procedure for
exercise of a right to purchase land conferred upon a tenant by Section
32 when either a landlord or a tenant or both of them are under
disability. He has to give an intimation under Section 32 - F (1A) and
then the provisions of Sections 32 to 32 - E both inclusive and 32-G
and 32 - R (both inclusive) apply to such purchase.
102. In paragraphs 30 to 31 of the said judgment, the Full
Bench of this court considered the fact that on the tillers' day the
tenants of the land were a widow and two minor sons respectively. It is
held that in view of the provisions of clause (b) of section 32 F, the
right to purchase under Section 32 can be exercised by the successor -
in - title of the widow within one year from the date on which her
interest in the land ceases to exist. In such a case, a tenant - widow
cannot be deemed to have purchased the land under Section 32. It is
held that the period so prescribed for termination of tenancy by the
successor in title cannot be extended merely because there existed a
dispute as regards who is her successor in title.
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103. This court held that under sub - section (1A) read with
Section 32 - F (1) (a), it was obligatory upon the sons of deceased
tenant who was widow to give intimation of their desire to purchase
land to the landlord and the Tribunal within a period of one year from
the expiry of the period during which the successor in title of widow
could have terminated the tenancy under Section 31. The sons of the
deceased widow had failed to exercise their right to purchase within
the time prescribed. The Full Bench of this court upheld the decision
of the Maharashtra Revenue Tribunal holding that the tenants failed to
exercise their right to purchase and the land had to be disposed of in
accordance with the provisions of Section 32 - P of the Act.
104. The principles of law laid down by the Full Bench of this
court in case of Vishnu Shantaram Desai (supra) squarely applies to
the facts of this case. In my view the respondent nos. 1 to 6 not having
exercised their alleged right within the period of one year from the date
of death of Ms.Chauthubai Dharman Patil and not issuing any notice
within time contemplated, they could not have exercised their so called
right after a period of limitation prescribed under section 32F(b)(ii). In
my view, the findings rendered by the Maharashtra Revenue Tribunal
is perverse and contrary to the said provisions.
105. The only submission of the learned senior counsel for the
respondent nos. 2 and 3 during the course of their argument was that
since the said Ms.Chauthubai Dharman Patil was already a tenant prior
st
to her death and prior to the tiller's day i.e. 1 April, 1957, the legal
heirs of the said Ms.Chauthubai Dharman Patil were not required to
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issue any notice under section 32F(b)(ii) of the said Act or that the said
provisions were not applicable to the respondent nos. 1 to 6. A perusal
of the record clearly indicates that the respondent nos. 1 to 6 did not
produce any rent receipt in the name of Ms.Chauthubai Dharman Patil
in respect of the land in question showing payment of any rent alleged
to have been made by her to the original owner. No description of the
land in question was mentioned in the purported receipt relied upon by
the respondent nos. 1 to 6.
106. Insofar as the property card produced by the respondent
nos. 1 to 6 before the learned Tahsildar is concerned, even the said
property card would not indicate that the same was in respect of the
land in question. If the learned Tahsildar would have followed the
requisite procedure under the provisions of the said Act and the rules,
the petitioner would have an opportunity to deal with any such alleged
document or to cross examine the person whose statements were
allegedly recorded by the learned Tahsildar and ALT in the
proceedings filed under section 32-G of the said Act, the entire order
passed by the learned Tahsildar, learned Collector and the Maharashtra
Revenue Tribunal are thus without any evidence on record proving the
alleged tenancy of the said Ms.Chauthubai Dharman Patil or the
respondent nos. 1 to 6 in respect of the land in question at all.
107. A perusal of the record further indicates that the alleged
claim of tenancy of the respondent nos. 1 to 6 was disputed by the
petitioner. Under section 70(b) of the Act, it was a duty and function
of the Mamlatdar to decide whether a person is a tenant or a protected
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tenant or a permanent tenant or not. In my view, since no such
application was made by the respondent nos. 1 to 6 under the said
provisions, the respondent nos. 1 to 6 could not have applied for
determination of the price of the land before the Tahsildar under
section 32G of the Act. In my view, the entire proceedings thus filed
by the respondent nos. 1 to 6 under section 32 G directly before
adjudication of the issue of tenancy under section 70(b) of the Act was
not maintainable and was without jurisdiction. It is not the case of any
of the respondents that the alleged tenancy of Ms.Chauthubai Dharman
Patil or the respondent nos. 1 to 6 was admitted by the petitioner. The
burden of proof was on respondent nos. 1 to 6 to prove that they were
the tenants under section 70-B of the Act. The Hon'ble Supreme Court
in case of Mussamiya Imam Bax Razvi vs. Rabari Govindbhai
Ratanbhai AIR 1969 SC 439 has held that section 70(b) imposes a
duty on the Mamlatdar to decide whether a person is a tenant but the
said sub-section does not cast a duty upon him to decide whether a
person was or was not a tenant in the past.
108. Insofar as the judgment of the Hon'ble Supreme Court in
case of Navinchandra Ramanlal (supra) relied upon by Mr.Thorat,
learned senior counsel for the respondent no.2 is concerned, the
Hon'ble Supreme Court in the said judgment has held that under
section 32 of the said Act the transfer of the ownership of land was by
operation of law from the landlord to the tenant and the title to the land
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which vested in the landlord on 1 April, 1957 i.e. the tillers day vest
in the tenants by operation of law. The Hon'ble Supreme Court
adverted to an earlier judgment in case of Sri Ram Ramnatain Medhiv
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vs. State of Maharashtra, AIR (1959 SC 459) in which it was held by
the Hon'ble Supreme Court that the title of the landlord to the land
vests immediately to the tenant on the tillers day and there is a
complete purchase or sale thereof as between the landlord and the
tenant. It is only by such a declaration by the Tribunal that purchase
becomes effective. If the tenant commits default in payment of such
price either in lump-sum or by installment as determined by the
Tribunal, section 32(4) declares the purchase to be ineffective but in
that event the land shall then be at the disposal of the Collector to be
disposed by him in the manner provided therein.
109. It is further held that the tenant gets a vested interest in the
land defeasible only in the event of the tenant failing to appear or
making a statement that he is not willing to purchase the land or
committing default in payment of the purchase price thereof as
determined by the tribunal. It is held that the tenant gets a vested
interest in the land defeasible only in either of those cases. A perusal
of the said judgment of the Hon'ble Supreme Court clearly indicates
that the tenant before the Hon'ble Supreme Court in that case was not
a widow who cannot exercise right under section 32(G) of the said Act
during her life time. The legal heirs and the representatives of the
widow who was a tenant on the date of tillers day only can apply for
determination of the purchase price within one year from the date of
the death of such widow who was a tenant. There is no dispute about
the principles laid down by the Hon'ble Supreme Court in case of
Navinchandra Ramanlal (supra) and in case of Sri Ram Ramnatain
Medhiv (supra). In this case, neither the tenancy of Mrs.Chauthubai D.
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Patil was proved nor the respondent nos.1 to 6 applied for fixation of
price within one year from the date of death of Ms.Chauthubai D. Patil.
110. The Hon'ble Supreme Court in case of Hanmanta
Daulappa Nimbal vs. Babasaheb Dajisaheb Londhe, (1995) 6 SCC
58 has held that the entries in the revenue records cannot establish
lawful possession when no notice was given to the respondent before
making those entries. The alleged payment of land revenue to the
Government through Talathi also would not show acquiescence by the
landlord. It is not the case of the respondent nos.1 to 6 that when the
name of the said Mrs.Chauthubai Dharman Patil was alleged to have
entered in the revenue record in respect of the suit land, any notice
was issued to the original owners or to the petitioner. In my view, the
learned Talathi, learned Collector or the Maharashtra Revenue Tribunal
thus could not have placed reliance on the said mutation entries
allegedly in respect of the suit land in the name of Mrs.Chauthubai D.
Patil. The principles of law laid down by the Hon'ble Supreme Court in
case of Hanmanta Daulappa Nimbal (supra) would apply to the facts
of this case. I am respectfully bound by the said judgment.
111. Learned senior counsel for the respondent nos.1 to 6 did
not dispute that Bhalchandra D. Patil had made a statement before the
th
Additional Tahsildar on 9 November, 2010 alleging that he was
cultivating the suit property since last 30 to 40 years and allegedly
came in possession of the suit property. According to the said
statement, there was no Kabjedar in respect of the suit land. He had
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also stated that since the date of becoming the owner after 1 April,
1957, there was no question of giving any Khand. Learned senior
counsel also did not dispute that the said Bhalchandra D. Patil had
also made an application under section 32(G) of the said Act in respect
of several properties adjoining the suit land. In the statement of the
said Bhalchandra D. Patil he had clearly admitted that he was not a
tenant of any other land.
112. A perusal of the record further indicates that the learned
Tahsildar instead of making an enquiry himself, he had directed the
Talathi to make an enquiry and to submit a report. Learned Tahsildar
accepted the said report behind the back of the petitioner. No
procedure for conducting an enquiry prescribed under the said Act and
Rules had been followed by the learned Tahsildar. Learned Talathi
thereafter recorded the statement of Bhalchandra Patil an submitted a
report which report was accepted by the learned Tahsildar without
following the procedure and without complying with principles of
natural justice.
113. It is not in dispute that the learned Tahsildar had adopted
the proceedings under section 32(G) of the Act in the year 1970 in
respect of a land bearing survey nos.63, 65 to 67 and 70 which was
adjoining to the suit land. No proceedings were however, adopted in
respect of the suit property by the respondents or by the Tahsildar. The
respondent nos.1 to 6 filed an application under section 32(G) of the
said Act for survey no.67, Hissa no.1, at village Dahisar. Learned
Tahsildar accepted the respondent nos.1 to 6 as the protected tenants
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and issued a certificate under section 32(M) of the said Act on 11
November, 1970 in respect of those lands.
114. The respondent nos.1 to 6 however, did not apply under
section 32(G) of the said Act also in respect of the suit land at that
point of time. Learned Tahsildar had initiated suo-motu proceedings in
th
respect of the suit property on 6 March, 1959 in Tenancy Case
No.TEN.32G/Dahisar/18/1959. It was held in the said proceedings that
the proceedings were precluded by the provisions of section 88-B(1)
th
(d) of the said Act and thus the said proceedings were dropped on 10
August, 1959. In the year 1978, learned Tahsildar once again initiated
an enquiry suo-motu vide Case No.106/1979. The petitioner had
preferred a Revision Application before the Maharashtra Revenue
Tribunal (224 of 1980) against the order passed by the learned Sub-
Divisional Officer. The Full Bench of the Tribunal passed an order on
th
26 November, 1981 disposing of the said revision application and
directing the learned Tahsildar to proceed with an enquiry.
115. It is not in dispute that no steps were taken by the
respondent nos.1 to 6 for about 36 years after remand of the matter
before the learned Tahsildar. After expiry of 36 years, the respondent
nos.1 to 6 filed a fresh application under section 32(G) of the said Act
th
on 28 June, 2013. In my view, since the earlier proceedings which
were either dropped or no steps were taken by the learned Tahsildar
upon remand of the proceedings by the Maharashtra Revenue Tribunal,
the respondent nos.1 to 6 could not have filed a fresh application under
section 32(G) of the said Act after expiry of 36 years. The said
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application is ex-facie barred by law of limitation and thus could not
have been entertained by the learned Tahsildar. Learned Collector as
well as the learned Maharashtra Revenue Tribunal ought to have
interfered with the perverse order passed by the learned Tahsildar.
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116. A perusal of the record further indicates that on 1
February, 1985, the respondent nos.1 to 6 have already executed a
development agreement in favour of a third party. The respondent
nos.1 to 6 and the said third party have filed the consent terms in Suit
No.4024 of 1990 when the respondent nos.1 to 6 allegedly handed over
vacant and peaceful possession of the suit property to a third party by
executing a letter of possession. It is thus clear that when the
respondent nos.1 to 6 filed an application under section 32(G) of the
th
said Act on 28 June, 2013, the respondent nos.1 to 6 were not in
possession of the suit land nor were cultivating the suit land. Learned
Tahsildar, learned Collector and the learned Maharashtra Revenue
Tribunal totally overlooked these admitted facts.
117. Insofar as the submission of Mr.Sakhare, learned senior
counsel for the respondent no.3 that since the findings recorded in
favour of the respondent nos.1 to 6 by the learned Tahsildar, learned
Collector and the learned Maharashtra Revenue Tribunal rendered
being concurrent findings, thus this Court cannot interfere with such
concurrent findings are concerned, in my view since the findings
rendered by the learned Tahsildar, learned Collector and the learned
Maharashtra Revenue Tribunal are totally perverse, this Court has
ample power to interfere with such perverse findings though they are
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concurrent under Article 227 of the Constitution of India. The finding
of the Maharashtra Revenue Tribunal that the Court Receiver had
issued a rent receipt in favour of Mrs.Chauthubai D. Patil in respect of
the suit land is also ex-facie perverse and contrary to the document
produced by the respondent nos.1 to 6.
118. Insofar as an unreported judgment of this Court in case of
M/s.Veekaylal Investment Pvt. Ltd. (supra) relied upon by Mr.Sakhare,
learned senior counsel for the respondent no.3 is concerned, a perusal
of the said judgment clearly indicates that in that matter the respondent
nos.1 to 3 had made an application not only under section 70(B) of the
said Act but also had subsequently filed an application under section
32(C) of the said Act. It was conceded on behalf of the petitioner in
that matter that there was no need of conveyance executed in their
favour either by the Court Receiver or by any other authority or
person. This Court held that the fact that in a suit between the legal
heirs of the tenant a Court Receiver is appointed, that cannot in law
affect the tenancy rights of the tenants. The Court Receiver is after all
an officer of the Court and the Court cannot be intended to have
terminated or extinguished or adversely affected the tenancy rights of
the respondents who were not parties even to the suit in question and
those rights were otherwise well protected by the provisions of the
Tenancy Act.
119. This Court in the facts and circumstances of that case held
that there was no merit in the submission that section 88(B)(1)(d) of
the Act applies to the disputed lands because the management thereof
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had been taken by the Court Receiver and as long as the appointment
of the Court Receiver continues, section 32 of the Tenancy Act will not
apply. In my view, the facts before this Court in this judgment were
totally different. There was no issue raised in the said matter whether
the legal heirs of the widow who was a tenant could have made an
application under section 32(G) of the Act after expiry of one year
from the date of the death of such widow tenant or not. The judgment
of this Court in case of M/s.Veekaylal Investment Pvt. Ltd. (supra)
thus would not assist the case of the respondents and is clearly
distinguishable in the facts and circumstances of this case.
120. Insofar as the submission of the learned senior counsel
that the petitioner had not raised any plea that no procedure was
followed by the learned Tahsildar or the learned Collector as
prescribed under the said Act and Rules is concerned, in my view, this
submission of the learned senior is factually incorrect. Be that as it
may, the fact remains that neither the learned Tahsildar followed the
mandatory procedure while conducting an enquiry on issuance of
notices, recording of statement etc. It was the duty cast on the
Tahsildar to issue notice to the owner and thereafter to determine the
price of the land to be paid by the tenants and to satisfy himself before
determination of price that the conditions under section 32 of the Act
were fully satisfied by the tenants. In this case, the authorities were
also required to determine whether the respondent nos.1 to 6 had
proved their tenancy under section 70(B) of the act or not in view of
the petitioner raising a dispute in respect of the claim of the tenancy of
tenancy by the respondent nos.1 to 6 which was admittedly not done.
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121. In my view, since the orders passed by the learned
Tahsildar, confirmed by the learned Collector and also by the
Maharashtra Revenue Tribunal are totally perverse and contrary to law,
the petitioner has made out a case for interference with those orders in
this writ petition filed under Article 227 of the Constitution of India.
122. I therefore, pass the following order :-
a). The Writ Petition No.5539 of 2017 is allowed in
terms of prayer clause (b). Application filed by the
respondent nos.1 to 6 for fixation of purchase price is
dismissed.
b). There shall be no order as to costs.
(R.D. DHANUKA, J.)
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