Bombay High Court
Omprakash S/O Shamraoji Pokale vs Shriram Gaushala Through Its Managing ... on 30 September, 2016
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.6927 of 2015
1. Omprakash son of Shamraoji Pokale,
aged about 52 years,
occupation - cultivator,
2. Bharat son of Shamraoji Pokale,
aged about 47 years,
occupation - cultivator,
3. Sharad son of Shamraoji Pokale,
aged about 42 years,
occupation - cultivator,
4. Manohar son of Shamraoji Pokale,
aged about 37 years,
occupation - cultivator,
5. Kishor son of Shamraoji Pokale,
aged about 34 years,
occupation - cultivator,
all residents of Bilanpura,
Achalpur City,
Tq. Achalpur,
Distt. Amravati. ..... Petitioners.
[org. Respdts./Applicants before MRT]
Versus
Shriram Gaushala,
Achalpur
[Registered Trust bearing
Registration No. E-20/Amravati]
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Shriram Gaushala,
Achalpur, Tq. Achalpur,
Distt. Amravati, through
its Managing Trustees:-
1. Rajesh Radheshyam Khandelwal,
aged - major,
President,
2. Anilkumar Madangopalji
Chaudhary,
aged - major,
Vice-President,
3. Bhagwan Girdharilal Agrawal,
aged - major,
4. Pradeep Ishwarlal Rawat,
aged - major,
5. Gopal Narayan Siroya,
aged major,
6. Shyamsunder Ghanshyam Ghiya,
aged major,
7. Nandkishor Banwarilal Sharma,
aged major,
8. Ashok Shrikrishna Dangayach,
aged major,
9. Chiranjilal Narayandas Maheshwari,
aged major,
10. Kacharu Pralhad Patwari,
aged major,
11. Subhash Mohanlal Bhansali,
aged major,
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12. Nandlal Chaganlal Khandelwal,
aged major,
13. Vijay Madanlal Shroti,
aged major,
nos. 1,2,7 and 10 residents of
Chawal Mandi, Achalpur,
Tq. Achalpur, Distt.Amravati.
Nos. 4,5,6,8,9,11,12 and 13
residents of Deoli,
Tq. Achalpur,
Distt. Amravati. ..... Respondents.
[org. Applicants/Respdts before MRT]
*****
Mr. C.S. Kaptan, Sr. Adv., with Mr. Rohit Joshi, Adv., for the
petitioners.
Mr. M.G. Bhangde, Senior Adv., with Mr. R.M. Bhangde, Adv., for
respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date when arguments
were concluded : 02nd August, 2016
Date when judgment
is pronounced : 30th September, 2016
J U D G M E N T:
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01. Rule. Heard finally with consent of counsel for the parties.
02. The challenge in the present Writ Petition is to the order passed by the Maharashtra Revenue Tribunal, Nagpur, in exercise of revisional jurisdiction under Section 111 of the Maharashtra Tenancy & Agricultural Lands Act, 1958 [for short "the said Act"]. By the said order, the Revision Application preferred by the petitioners has been dismissed.
03. The facts giving rise to the present Writ Petition are that the respondent no.1 claims to be a Trust registered under the provisions of the Maharashtra Public Trusts Act, 1950. Its trustees claimed that Survey No. 64, admeasuring 7 hectares 34 R situated at Khel Trimak, Achalpur, was donated in favour of the Trust. The respondent no.1 -
Trust was utilizing all the income derived from the said land for safeguarding and propogating the activities of cow protection which was one of the objects of the Trust. This land was in possession of one Narayan Poke as a tenant thereof. According to the Trust, said Narayan expired on 19th September, 1963, after which his son was in possession of the field in question. The respondent no.1 - Trust initiated proceedings under Section 120 of the said Act, for summary eviction of the petitioners who were the successors-in-interest of said ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 5 Narayan Poke. It was the case of the Trust that it was entitled for exemption under the provisions of Section 129 (b) of the said Act and in view of provisions of Section 54 of the said Act, the tenancy in question was not heritable. Hence, on 29th December, 2003, a notice was issued by the trustees seeking possession of the aforesaid field.
On such possession not being delivered, the proceedings under Section 120 of the said Act came to be filed.
04. The petitioners opposed the aforesaid proceedings by filing their Written Statement. It was denied that the Trust was entitled to seek exemption under Section 129 (b) of the said Act. The income of the Trust from the said land was not being used solely for the purposes of undertaking activities of cow protection. It was pleaded that Narayan, during his lifetime, had acquired the status of a deemed tenant and hence his legal representatives were not liable to be evicted in a summary manner. It was, therefore, stated that in absence of any Exemption Certificate and considering the status of Narayan as a deemed tenant, the application was liable to be dismissed.
05. On behalf of the Trust, a trustee and one of its members were examined before the Sub-Divisional Officer. They deposed about ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 6 the activities of the Trust. Though the petitioners filed the affidavit of one Manohar Poke, he was not presented for cross-examination. The Sub-Divisional Officer, by order dated 28th July, 2009, rejected the application filed on behalf of the Trust. This order came to be confirmed by the Maharashtra Revenue Tribunal on 2nd December, 2011. The trustees had, therefore, challenged the aforesaid orders by filing Writ Petition No. 4620 of 2012. This Court on 26th November, 2013 held that it was not necessary for the Trust to produce any Certificate of Exemption and it could lead evidence to justify its entitlement for grant of exemption. On that basis, the impugned orders came to be set aside and the proceedings were remanded for fresh consideration.
06. After remand of the proceedings, the Sub-Divisional Officer found that the Trust satisfied all the requirements of being granted exemption under Section 129 (b) of the said Act. The said authority observed that while the Trust had led evidence in support of its claim, the petitioners did not lead any evidence in support of their defence.
Hence by order dated 16th June, 2014, the Sub-Divisional Officer allowed the application filed on behalf of the Trust and directed eviction of the petitioners. This order was challenged before the Maharashtra Revenue Tribunal. After re-considering the entire matter, ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 7 the Tribunal proceeded to confirm the order passed by the Sub-
Divisional Officer and dismissed the Revision Application. Being aggrieved, the petitioners are before this Court.
07. Shri C.S. Kaptan, learned Senior Counsel along with Shri Rohit Joshi, learned counsel for the petitioners, made the following submissions:-
[a] That, both the authorities erred in holding that the respondent no.1 - Trust was entitled to grant of exemption under the provisions of Section 129 (b) of the said Act. It was submitted that the burden to prove that the entire income of the lands in question was utilized by the Trust for the purposes of undertaking activities of cow protection had not been duly discharged. There was no material on record to establish this fact and the finding in that regard was based only on inferences. The documents filed on record did not indicate the position as was obtaining on the tiller's day and they merely indicated the subsequent activities of the Public Trust. No audit report was also placed on record by the Trust to justify that the entire income of the lands in question was being utilized for aforesaid purposes. The requirements of Rule 62 of the Maharashtra Tenancy & Agricultural Lands Rules, 1959 were not satisfied. Hence, the entire premise on which the summary eviction of the petitioners had been directed had no factual foundation.::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 :::
wp6927.15 8 [b] That, in view of provisions of Section 46 of the said Act, Narayan Poke, by virtue of being in possession of the land in question on 1st April, 1961, had acquired the status of a deemed tenant and had become the statutory owner. On the tiller's day, the ownership of the land stood transferred in favour of the said Narayan Poke and, therefore, no order of summary eviction could have been passed in such situation. The learned Senior Counsel referred to the Scheme of Chapter-III of the said Act to substantiate the aforesaid contention.
[c] That, as the vesting of title was complete on the tiller's day, the title of the tenant was not defeasible. He submitted that failure to make any application by the tenant for determination of purchase price would not defeat the right of a tenant. So also, the landlord could not apply under provisions of Section 120 of the said Act on the basis of deemed surrender of tenancy under Section 20 of the said Act. It was further urged by the learned Senior Counsel that the Judgment of learned Single Judge in Vidarbha Maharogi Seva Mandal Vs. Member, Maharashtra Revenue Tribunal, Nagpur and others [2016 (3) ABR 615] did not consider the earlier judgment of the Division Bench in Sitaram Deoba Marathe Vs. Hawadya Piraji & others [1975 Mh. L.J. 521 ] in the right perspective. It was urged that the legal position as enunciated by the Division Bench was not correctly applied by the learned Single Judge.::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 :::
wp6927.15 9 [d] It was then submitted that an application for determination of purchase price under the said Act was pending before the Tahsildar. Without deciding those proceedings, the present proceedings were adjudicated. It was, in fact, necessary that the proceedings for determining the purchase price ought to have been first decided after which the present proceedings should have been taken up for consideration.
[e] As regards reliance placed on behalf of the Trust on various orders passed in proceedings relating to other tenants, it was submitted that the petitioners were not party to those proceedings and hence said adjudication was not binding on the petitioners. Reference was made to the provisions of Section 13 of the Indian Evidence Act.
In support of the aforesaid submissions, the learned Senior Counsel placed reliance on the following decisions:-
[1] Vidarbha Maharogi Seva Mandal v. Member, Maharashtra Revenue Tribunal, Nagpur and others 2016 (3) ABR 615.
[2] Shriram Mandir Sansthan vs. Vatsalabai 1999(1) Mh.L.J. 321.
[3] Sitaram Deoba Marathe vs. Hawadya Piraji & others 1975 Mh.L.J. 521.::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 :::
wp6927.15 10 [4] Laxminarayan Dipchand Maheshwari and others Vs Maharashtra Revenue Tribunal and others (1975) 1 Supreme Court Cases 487.
[5] Mahadeo Sansthan Wadali vs Syed Turab S/o Syed Jaffar and others 2010(6) Mh.L.J. 22.
[6] Chhatrapati Charitable Devasthan Trust vs. Parisa Appa [7] Bhoske and others 1979 Mh. L.J. 163.
Bhagwant Pundalik and another Vs Kishan Ganpat Bhakaskal and others 1971(1) Supreme Court Cases 15.
[8] Sakharam Bhoju Rathod Vs. State of Maharashtra & others 2004 (3) Mh.L.J. 1018.
Shri Rohit Joshi, learned Counsel while supplementing the contentions urged on behalf of the petitioners relied upon the following decisions:
[9] Ramgiri Gurudattagiri Gosavi Vs. Aba Alli Mulani and others 2005(1) Mh.L.J. 39.
[10] Devidas Sitaram Gole and others vs. Purushottam Balkisanji Mantri and others 2015(3) Mh.L.J. 219.
[11] Chhatrapati Charitable Devasthan Trust Vs. Parisa Appa Bhoske and others 1979 Mh.L.J. 163.
[12] Poulad Deochand Patil Vs. Samasta Aher Nhavi Panch Trust 1992 Mh.L.J. 412.::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 :::
wp6927.15 11 [13] Janrao Jairamji Vidhale vs. Devidas Deorao Vyavhare and others 1980 Mh.L.J. 699.
[14] Carmel Book Stall v. Dy. Commissioner of Sales Tax 1994 Supp (3) Supreme Court Cases 241.
[15] Keraba Dattu Borachate and others vs. Sheshashai & Vishnu Trust 1990 Mh.L.J. 1183.[16]
State of Bihar and others v. Sri Radha Krishna Singh and others AIR 1983 Supreme Court 684.
[17] Ramaji Batanji v. Manohar Chintaman and others AIR 1961 Bombay 169.
[18] Sital Das v. Sant Ram and others AIR 1954 Supreme Court 606. [19] Srinivas Krishnarao Kango v. Narayan Devji Kango and others AIR 1954 Supreme Court 379.
[20] Madharao Rajeshwar Deshpande vs. Shanker Singh and others 1970 (1) Supreme Court Cases 550.
[21] Vidhyadhar v. Manikrao and another AIR 1999 Supreme Court 1441.
08. On the other hand, Shri M.G. Bhangde, learned Senior Counsel along with Shri R.M. Bhangde, Advocate for the respondents, supported the order passed by the Maharashtra Revenue Tribunal. On ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 12 behalf of the respondents, the following submissions were made:-
[i] That, the Trust had clearly proved that all income from the land in question was being utilized for the purposes of the activities of the Trust and that the evidence led in that regard had not been countered. It was submitted that this Court, while remanding the proceedings, had observed that the evidence led by the Trust could be considered for the purposes of determining whether the requirements of Section 129 (b) of the said Act had been satisfied. Even after remand of the proceedings, the petitioners did not amend their Written Statement nor did they lead any evidence. There was an initial presumption in favour of the Trust that its income was being utilized for the purposes of activities of the Trust.
In absence of any rebuttal evidence by the petitioners, said finding recorded by both the authorities did not call for interference. After the trustees had led evidence, the onus shifted on the petitioners who, however, did not lead any evidence. In fact, it was urged that the petitioners had abandoned the stand taken by them in the Written Statement as to the income of the Trust not being utilized for the activities of the Trust. No plea was raised in the memorandum of Revision that the finding recorded by the Sub-Divisional Officer in that regard was incorrect.
[ii] That, the petitioners were not entitled to claim any relief on the basis of the provisions of Section 46 of the ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 13 said Act. Though it was true that the proceedings for fixation of purchase price had been initiated prior in time, by order dated 19th September, 2013, the Tahsildar had stayed said proceedings as the proceedings under Section 120 of the said Act were pending. This order of stay dated 19th September, 2013 was not sought to be vacated and though Writ Petition No. 4620 of 2012 filed on behalf of the Trust was decided thereafter, no grievance in that regard was made by the petitioners. It was further urged that if in the present proceedings the Trust was held entitled for grant of benefit in view of provisions of Section 129 (b) of the said Act, there would be no question of applying the provisions of Section 46 of the said Act.
[iii] That, the judgment of learned Single Judge in Vidarbha Maharogi Seva Mandal [supra] covered the issues raised on behalf of the petitioners herein and that the learned Single Judge had rightly applied the earlier judgments of the Division Bench. It was submitted that the title of the tenant was defeasible in certain contingencies and the present was a case where the petitioners could not claim any benefit under Section 46 of the said Act.
[iv] That, the jurisdiction of the Maharashtra Revenue Tribunal under Section 111 of the said Act was limited and it was not open for the Tribunal to re-appreciate the evidence on record. The findings recorded by the Sub- Divisional Officer being based on material available on ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 14 record and these findings having been confirmed by the Tribunal in exercise of revisional jurisdiction, the scope for interference under Article 227 of the Constitution of India was further limited.
[v] By filing Additional Reply on record, reliance was sought to be placed on orders passed in proceedings initiated by the Trust against other tenants and it was submitted that said tenants had been held dis-entitled to purchase the land occupied by them in view of provisions of Section 129 (b) of the said Act. Similarly, by filing a Pursis on record, the audit reports for the year 1966-67 were placed on record along with a communication dated 14th July, 2016 indicating that audited reports from the years 1960 to 1966 had been destroyed.
In support of the aforesaid submissions, the learned Senior Counsel placed reliance on the following decisions:-
[1] The Paper Sales Ltd V. Chokhani Bros. AIR 1946 Bombay 429. [2] Manibai wd/o Haribahi Parmar & others Vs. Manohar Chandulal Balwani 1982(2) Bom.C.R. 228.
[3] Balasaheb Dayandeo Naik V. Appasaheb Dattatraya Pawar (2008)4 Supreme Court Cases 464.
[4] Vidhyadhar V. Manikrao (1999) 3 Supreme Court Cases 573.
[5] Panjabrao Harbaji v. Gajanan Balaji AIR 1980 Bombay 396.
::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 :::wp6927.15 15 [6] Most Rev. P.M.A Metropolitan and others v. Moran Mar Marthoma and another 1995 Supp (4) Supreme Court Cases 286. [7] Gajanan Maharaj Sansthan vs. Digambar Pandhari Bhise 2005(1) Mh.L.J. 1108.
[8] Maruti Bala Raut v. Dashrath Babu Wathare and others AIR [9] 1974 Supreme Court 2051.
Agri. Produce Market Committee vs. Ashok Danaji Hatzode 2015(4) Mh.L.J. 79.
[10] Tirumala Tirupati Devasthannams vs. K. M. Krishnaiah (1998) 3 Supreme Court Cases 331.
[11] State of Kerala and others Vs. N. Avinasiappan (2004) 1 Supreme Court Cases 344.
[12] Rajnder Pershad v. Darshana Devi (2001) 7 SCC 69.
[13] Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558.
09. The petitioners subsequently filed Additional Affidavit dated 14th June, 2016 for placing on record the application moved by the Trust under Section 120 of the said Act, along with their Written Statement. Similarly, Pursis dated 7th July, 2016 was also filed to indicate that the Trust had not filed audited reports from the years 1961 to 1976.
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10. I have heard the respective counsel for the parties at length and I have given due consideration to their respective submissions.
11. Before considering the rival submissions, reference can be made to the Judgment dated 26th November, 2013 in Writ Petition No. 4620 of 2012, whereby it was observed that it was not necessary for the Trust to produce an order granting exemption under Section 129
(b) of the said Act and that the matter could be decided on the basis of evidence led by the parties.
In the application filed on behalf of the Trust, it was averred that the income from the field occupied by the petitioners was the main source of income of the Trust. Reference was made to the notice dated 29th December, 2003 issued on behalf of the Trust before initiation of the proceedings. In the said notice, it was specifically stated that all the income that was being received by the Trust was being utilized for the activities of the Trust, namely protecting cows. It was then stated that this notice was not replied. On that basis, summary eviction of the petitioners was sought. In the Written Statement filed on behalf of the petitioners, it was pleaded that Narayan Poke was in actual cultivating possession on tiller's day and that he had acquired the status of a deemed tenant. Reference was ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 17 made to the provisions of Section 54 of the said Act. It was further pleaded that the Trust was not entitled for any exemption under Section 129 (b) of the said Act.
12. On behalf of the Trust, its trustee - Shri Rajesh Khandelwal was examined. According to him, the Trust was registered in the year 1963 and that all the income of the Trust was being utilized for the activities of the Trust. He stated that he was not aware about the date of possession of Narayan. Another witness examined was Shri Kachurlal Patwari, who was a member of the Trust. He placed on record audit reports for the year 2004-05. In his cross-examination, he admitted that he was not aware about the earlier audit reports of the Trust. The Sub-Divisional Officer, after remand of the proceedings, found that as per the documents on record, the initial registration of the Trust was in the year 1955 and thereafter the Trust was again registered by subsequent order dated 30th October, 1961. After considering the provisions of Rule 62 of the Maharashtra Tenancy & Agricultural Lands Rules, 1959, a finding was recorded that the compliances as required were satisfied. On that basis, the petitioners were held liable to be evicted under Section 120 of the said Act.
In the Revision Application, the Maharashtra Revenue Tribunal concurred with the findings recorded by the Sub-Divisional ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 18 Officer and maintained the order of summary eviction.
13. As held by this Court in the earlier round of litigation, it was not necessary for the Trust to be actually armed with an order of exemption and the matter as regards entitlement to exemption could be considered on the basis of evidence led by the parties. Considering the evidence that was led on behalf of the Trust, as well as the tenor of the cross-examination of said witnesses, it cannot be said that the finding recorded by the Sub-Divisional Officer with regard to the income of the Trust being utilized for the activities of the Trust is perverse in any manner, whatsoever. Firstly, the notice dated 29th December, 2003 issued by the trustees had not been replied by the petitioners. Thereafter, while leading evidence, it was specifically stated by the trustee of the Trust on oath that the entire income of the Trust was being utilized for the activities of the Trust. However, there was no effective cross-examination in respect of said aspect of the matter. The cross-examination was centered on the absence of the Trust having any Exemption Certificate. As noted above, this evidence was recorded in the earlier round of litigation and after the order of remand dated 26th November, 2013, neither were the pleadings amended by the petitioners nor was any evidence led by them in that regard. The evidence led on behalf of the Trust remained unrebutted.
::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 :::wp6927.15 19 On that basis, therefore, it cannot be said that this finding recorded by the Sub-Divisional Officer and affirmed by the Maharashtra Revenue Tribunal can be said to be perverse for being interfered with in the writ jurisdiction. For said reason, the decisions in Ramgiri Gurudattagiri Gosavi, Poulad Deochand Patil, Janrao Jairamji Vidhale and Carmel Book Stall (supra) do not assist the case of the petitioners. On the contrary, the observations of the Hon'ble Supreme Court in paragraph 17 of its decision in Vidhyadhar (supra) support the stand of the respondents.
14. Moreover, a perusal of the written notes of evidence filed on behalf of the petitioners before the Maharashtra Revenue Tribunal as well as the contentions raised before the Tribunal do not indicate that this ground was seriously pursued by the petitioners. The reliance placed by the learned Senior Counsel for the respondents on the observations made in paragraph 156 of the judgment of the Hon'ble Supreme Court in Most Rev. P.M.A. Metropolitan [supra] is justified.
15. In so far as the applicability of the provisions of Section 46 of the said Act is concerned, it is to be noted that the petitioners had initiated proceedings for determination of purchase price before the Tahsildar. However, though these proceedings appear to have been ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 20 initiated in the year 2004-05, the petitioners have not prosecuted the same diligently. These proceedings came to be stayed by order dated 19th September, 2013 passed by the Tahsildar in view of pendency of proceedings under Section 120 of the said Act. No effort was made by the petitioners to take any legal advantage of these proceedings when Writ Petition No. 4620 of 2012 came to be decided. The order of stay was operating when the said Writ Petition was decided on 26th November, 2013. However, the said aspect does not appear to have been canvassed by the petitioners in those proceedings.
16. In Vidarbha Maharogi Seva Mandal [supra], the Trust therein had obtained an Exemption Certificate under Section 129 (b) of the said Act on 1st October, 2001. Subsequently, an application for evicting the tenants under Section 120 (c) of the said Act came to be filed. One of the questions that arose for determination was that when ownership or title of the land was transferred and stood vested in the tenant under Section 46 (1) of the said Act, whether the legal heirs of the original tenant could be evicted under Section 120 of the said Act on the basis of the Exemption Certificate that was obtained subsequently in respect of the said land. The learned Single Judge, after considering the entire scheme of Chapter-III of the said Act and after referring to various decisions of the Hon'ble Supreme Court ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 21 including the decision in Madhaorao Deshpande (supra) as well as various decisions of this Court, proceeded to hold that even if the title of the tenant stood vested on 1st April, 1961 or 1st April, 1963, the same would be defeasible in terms of Section 43 (14A) and Section 49 (A) (6) of the said Act. It was further held that if the tenant in possession loses his title or his title gets defeated on account of failure to obtain a Certificate of Purchase under Section 43 (8) of the said Act, the provisions of Section 120 of the said Act will get attracted. On that basis, it was held that if the Trust is held entitled to exemption under Section 129 (b) of the said Act, then the provisions of Chapter-III of the said Act would cease to apply to such land with effect from the tiller's day and hence the legal heirs would not be entitled to inherit the tenancy rights nor would they be entitled for protection under Section 120 of the said Act.
Though in the aforesaid case, the Trust, in question, was armed with a Certificate of Exemption under Section 129 (b) of the said Act, which is not so in the present case, the same would not make much difference. As held in Gajanan Maharaj Sansthan, Shegaon [supra], such Exemption Certificate does not operate prospectively and that it means that since inception, the Trust in question is entitled for exemption.
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17. In Vidarbha Maharogi Seva Mandal [supra], amongst other issues, the learned Single Judge considered the following question:-
"Once the ownership or title of the land is transferred and vested in the tenant under sub-section (1) of Section 46 or sub-section (1) of Section 49A of the said Act on the tillers' day, i.e., 1.4.1961 or 1.4.1963, as the case may be, whether the legal representatives of the original tenant can be evicted under Section 120 on the basis of the certificate of exemption under Section 129 (b) of the said Act obtained subsequently in respect of the land belonging to a Public Trust?"
After considering various earlier decisions as well as the provisions of the said Act, in para 33 of the said judgment it has been observed thus:-
"33. In view of above, it follows that merely because the tenant becomes statutory owner by virtue of sub-
section (1) of Section 46 or sub-section (1) of Section 49A, that by itself will not be sufficient to protect him from eviction under Section 120 of the said Act, unless his title becomes indefeasible by obtaining certificate of purchase under sub-section (8) of Section 43 of the said Act. In order to get protection, the tenant or his successor-in-interest must be armed with the weapon in the form of such certificate. ....."
On that basis, the question as framed came to be answered in the following manner:-
"42. Though the tenant satisfies the requirement of sub-section (1) of Section 46 or sub-section (1) of Section 49A under Chapter III of the said Act, the exemption under Section 129 (b) of the said Act can be claimed only after coming into force of the said Act. Once it is held that the Trust is entitled to exemption under Section 129 (b) of the said Act, the provisions of ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 23 Chapter III therein shall cease to apply to such land with effect from the tillers' day, i.e., 1-4-1961, and [neither the legal heirs of the tenant shall be entitled to inherit the tenancy rights under Section 54, nor shall be entitled to protection under Section 120 of the said Act]. The Question No. (1) is, therefore, answered accordingly."
18. Though the learned Senior Counsel for the petitioners strenuously urged that the learned Single Judge in Vidarbha Maharogi Seva Mandal [supra] has not rightly applied the earlier law laid down by the Division Bench in Sitaram Deoba Marathe [supra], I am not in a position to accept said submission. A careful reading of the said judgment of the Division Bench in Sitaram Deoba Marathe [supra] as well as the Judgment of learned Single Judge in Vidarbha Maharogi Seva Mandal [supra] does not indicate that the judgment of the Division Bench has not been considered in the proper perspective.
Merely because the learned Single Judge has referred to paragraphs 12 and 13 of the Division Bench Judgment, same cannot be taken to mean that the subsequent paras of the judgment of the Division Bench, especially paras 20 and 23, as urged by the learned Senior Counsel for the petitioners, have not been taken into consideration. The conclusions drawn by the learned Single Judge are based on the legal position as enunciated by the Division Bench. For same reason, the ratio of the decision of the Hon'ble Supreme Court in Laxminarayan ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 24 Maheshwari (supra) and the decision of learned Single Judge in Sakharam Bhoju Rathod (supra) cannot be made applicable to the facts of the present case.
19. In view of the aforesaid position of law, it will have to be held that even though the predecessor of the petitioners had become the statutory owner of the land in question, he not being armed with any certificate of purchase or any order in that regard, the Trust would be entitled to seek exemption under the provisions of Section 129 (b) of the said Act. On the basis of this conclusion, therefore, it will have to be held that the title of the predecessor of the petitioners having become defeasible in absence of any certificate of purchase, the order of summary eviction under Section 120 of the said Act is liable to be maintained. I do not find any legal infirmity in the aforesaid conclusion arrived at by both the authorities.
20. On behalf of the Trust, various orders passed in regard to other tenants were sought to be placed on record to justify its claim that it was entitled for exemption under Section 129 (b) of the said Act and that the right to purchase the tenanted land had been refused to various other tenants. This attempt on the part of the Trust was opposed by the petitioners on the ground that said orders were not ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 25 placed either before the Sub-Divisional Officer or the Maharashtra Revenue Tribunal and hence the adjudication therein was not binding on them.
Considering the fact that the orders sought to be relied upon pertain to the period prior to the adjudication of the present dispute by the Sub-Divisional Officer, there is no reason as to why the reliance was not placed on these orders either before the Sub-Divisional Officer or the Maharashtra Revenue Tribunal. Hence on that count, I am not inclined to take into consideration the adjudication in those proceedings while deciding the present Writ Petition.
21. Similarly, as regards the audited statements sought to be placed on record by the Trust and the assertion by the petitioners that no audit was conducted from the years 1961 to 1976 and the further stand of the Trust that the audit records for the period from 1960 to 1966 as well as for the period prior to 1977 to 1978 had been destroyed, it is not necessary to again go into the said aspect of the matter. I find that the evidence placed on record by the Trust before the Sub-Divisional Officer, which was accepted by him for holding that the Trust was entitled for exemption under provisions of Section 129
(b) of the said Act, is sufficient to support the conclusion arrived at in the impugned order. For said reason, the decisions relied upon by the ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 26 learned counsel for the petitioners with regard to provisions of Section 13 of the Evidence Act and the admissibility of such documents need not be gone into.
22. Thus, in view of the aforesaid reasons, the order passed by the Sub-Divisional Officer and maintained by the Maharashtra Revenue Tribunal deserves to be upheld. The Trust having made out a case for grant of exemption under Section 129 (b) of the said Act, the tenancy of the predecessor of the petitioners would not be heritable and no benefit under Section 54 of the said Act can be claimed by his successors. The petitioners would, therefore, be liable to be summarily evicted under the provisions of Section 120 of the said Act.
23. Hence, in absence of any jurisdictional error, I do not find any merit whatsoever in the Writ Petition. The same stands dismissed.
Rule stands discharged with no order as to costs.
24. At this stage, the learned Counsel for the petitioners seeks protection of their possession. This request is opposed by the learned Counsel for the respondents. As there is an order of eviction of the petitioners, their possession shall remain protected for a period of six weeks from today.
::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 :::wp6927.15 27 Said protection shall cease to operate automatically thereafter.
Judge
-0-0-0-0- |hedau| ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:51:00 ::: wp6927.15 28 CERTIFICATE I certify that this Judgment is a true and correct copy of original signed order.
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