Bombay High Court
Vishnu Bapu Tapkir vs Mohannagar Co-Operative Housing ... on 12 April, 1988
Equivalent citations: 1989(3)BOMCR244
Author: Sharad Manohar
Bench: Sharad Manohar
JUDGMENT Sharad Manohar, J.
1. The questions involved in both these petitions are identical. The petitions arise out of the proceedings instituted by the respondent society, the owner of the lands in question which are agricultural lands situate near Pune. I am told that they are just outside the Pune Municipal Limits. The petitioner in Writ Petition No. 159 /88 is Vishnu Bapu Tapkir (who will be referred to herein as petitioner Tapkir) and the petitioners in the other Writ Petition No. 1593/88 are Namdeo Skharam Pawar & 3 others (they will be referred to herein as the petitioner Pawars).
2. Both the petitions have some chequered career. But the present petitions arise immediately out of the proceedings instituted by the society, Mohannagar Co-op. Housing Society Limited (which will be referred to hereafter as the respondent society under section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 & hereafter the Tenancy Act.) The contention of the respondent society is that they are the owners of the lands in question, that the lands (which are agricultural lands) are illegally and unauthorisedly in the occupation of Tapkir and Pawars and that the Society was entitled to an order from the Collector under section 84 for summary eviction of the said petitioners.
3. As mentioned above, the genesis of these petitions reveals a chequered history. For appreciating the contentions initially raised in these petitions by Mr. Shah, the learned advocate for the petitioners, it is necessary to set out certain facts, undisputed and indisputable. But before that, it is necessary to set out the lands in possession of each of the respective petitioner.
(I) Lands in possession of Tapkir. (i) Survey No. 94 (17 Acres 5 Gunthas) (ii) Survey No. 95 (2 Acres 7 Gunthas) (iii) Survey No. 96/1/2 (6 Acres 6 Gunthas) (iv) Survey No. 96/2 (1 Acre 10 Gunthas) (v) Survey No. 96/3 (2 Acres 29 Gunthas) (vi) Survey No. 96/4 (3 Acres 4 Gunthas) (vii) Survey No. 97 (16 Acres 29 Gunthas) (II) Lands in possession of Pawars (i) Survey No. 53/7 (0 Acre 25 Gunthas) (ii) Survey No. 54/3 (0 Acre 85 Gunthas) (ii) Survey No. 54/5 (2 Acres 71 Gunthas)
(III) There is another piece of land, which was the subject matter of this litigation. That was land Survey No. 59. But about that land there is no subsisting dispute, because so far as that land is concerned, the petitioner Tapkir is held to be the tenant as on 1-4-1957 and against that order proceeding has been instituted by the landlord owner. In fact there is no dispute about that land in the present proceedings.
(IV) Similarly, there is one more piece of land. Survey No. 96/1/1. There is some dispute whether that land is or can be the subject matter of the present writ petitions. I will deal with that aspect in the later part of this judgment.
(V) Lastly, there is a land, Survey No. 95. As stated above, that land is with petitioner Tapkir. But about that land Survey No. 95 (2 Acres 7 Gunthas) Mr. Shah has specifically given up every claim to right, title & interest to the same by any of the petitioners. In fact as mentioned in the order of this Court dt 24-1-89, he had made a specific statement before this Court that said land Survey No. 95 (2 Acres 25 Gunthas) is not begin claimed by the petitioner Tapkir and that the possession of the same would be given by his client to the respondent society on or before 28th February, 1989. In fact the Court was inclined to direct the District Inspector of Land Records to effectuate demarcation of the land immediately and in any event before 28th February, 1989. But it was Mr. Shah, who had himself stated that this might not be necessary because the demarcation could be brought about amicably. The fact that the petitioner Tapkir has not found it possible to have the lands demarcated amicably is a different matter. But it may be mentioned that Mr. Shah stood fast to his statement even at the time of dictation of this judgment and stated that immediately upon the demarcation of the lands by D.I.L.R, the petitioner Tapkir would hand over possession of the said land to the Society, irrespective of the decision of this petition and irrespective of the decision of the appeal, if any, that may be filed by petitioner Tapkir against the present judgment to the Supreme Court.
4. There is no dispute that all these lands belonged, before 1950, to one Govind Joshi. The respondent, society purchased the said lands from the said Govind Joshi in or about the year 1950. As will be presently pointed out, it has been now finally held by Courts of competent jurisdiction by the Tenancy Courts as well as by this Court, that the petitioners were not the tenants of the suit lands and that in fact the lands were not in possession of them as tenants at all. It has been the contention of the respondent society that the petitioners in both these petitions managed to create some kind of evidence to persuade the Agricultural Lands Tribunal (A.L.T.) under the Tenancy Act to institute sou motu proceedings under section 32-G of the Act on the assumption that the petitioners were the tenants of the above mentioned lands. The petitioners strenuously contested the plea of their rights of tenancy in the suit lands, in both the petitions. Their protestations were however, negatived by the A.L.T. and the A.L.T. proceeded not only to held them to be the tenants, but also held that they had become owners of the suit lands and to fix the price payable by them to the respondent, society.
5. The respondent society filed an appeal to the Sub-Divisional Officer. The Sub-Divisional Officer allowed the appeal and set aside the order of the A.L.T. which had assumed the petitioners to be the tenants and had fixed the price of the suit lands.
Having, thus, allowed the appeal, he directed the present petitioners to institute proceedings under section 70(b) of the Tenancy Act to get a declaration about their tenancy rights in respect of the suit lands.
6. Each of the present set of petitioners did file the necessary application under section 70 (b) of the Act for a declaration that they were the tenants in respect of the particular suit land. The application filed by the petitioner Tapkir related to Survey Nos. 94, 96/1/1, 96/1/2, 96/2, 96/3, 96/4, 97 and 95. The application filed by petitioners Pawars related to Survey No. 53/7, 54/3 and 54/5.
The Tahsildar held quite an exhaustive inquiry and by his orders dated 31-8-71 & 1-3-73 he rejected the claim of the present petitioners of tenancy in respect of the suit lands.
7. In the appeals filed by both the petitioners, the Sub Divisional Officer agreed with the Tahsildar that the contractual tenancy pleaded by the present petitioners was not proved by them. However, he took the view that it might be possible for the present petitioners to prove their deemed tenancy contemplated by section 4 of the Tenancy Act and hence, he remanded the proceedings to the Tahsildar for considering the said question of so-called deemed tenancy, if any, of the present petitioners.
Two revision applications were filed by the respondent society to the Revenue Tribunal. Probably, it is in these two Revision Applications that the plea was urged before the Tribunal for the first time that the Tenancy Act did not apply to the suit lands. Contention was that the inquiry by the Mamlatdar was vitiated at least in relation to Survey Nos. 94, 96/1/1, 96/1/2, 96/2, 96/3, 96/4 and 97, because these lands were converted into non-agricultural lands under the orders of the Collector. I may state here that this was quite a mistaken plea and the contention was nothing but per incuriam. Fact, however, remains that on behalf of the present respondent this anomalous plea did come to be raised and, what is more important, it was accepted by the Tribunal. The mistake relating to the plea will be stated presently. What needs to be stated here is that the plea was accepted by the Tribunal, who in para 10 of its judgment observed that the above mentioned lands were non-agricultural lands on 1-4-1957 and were not, themselves, subject to the provisions of the Tenancy Act. The tribunal further observed that "the inquiry under section 70(b) of the Act was clearly null and void so far as these lands were concerned."
I may mention here that it is this solitary observation which turns out to be per incuriam that has given a handle to the present petitioners to file the instant petitions in this Court and to present a facile contention that if these lands are held to be non-agricultural lands, then the impugned order (nature of which will be mentioned presently), passed by the Collector under section 84 of the Tenancy Act is without jurisdiction.
8. The actual position, however, is that the tribunal did not rest content with holding that the Tenancy Act did not apply to the above mentioned lands Survey Nos. 94, 96/1/1, 96/1/2, 96/2, 96/3, 96/4 & 9. It is not as if that the tribunal did not examine the question whether, on the assumption that the lands were governed by the Tenancy Act, the present petitioners have proved their tenancy rights in relation to the lands or not. The tribunal has examined that entire question in Paras 11 to 15 so far as the petitioner Pawars were concerned and Paras 16 and 17 so far as both Pawars and Tapkir were concerned and after examining the question, though in somewhat inartistic manner the Tribunal rejected the claim of the present petitioners relating to the tenancy in respect of the suit lands, save & except Survey No. 69 which is not the subject matter of the present petitions.
The order passed by the Sub Divisional Officer remanding the proceeding to the Tahsildar for deciding whether the petitioners were the "deemed" tenants under section 4 of the Tenancy Act or not has been rightly set aside by the Tribunal and I may mention here that the correctness of that part of the order of the Sub-Divisional Officer was not canvassed before me by Mr. Shah at all, and rightly so, because of the settled legal position of law in that behalf so far as this Court is concerned. This Court has consistently held that if a person claims contractual tenancy from the owner of the land and makes application under section 70(b) of the Tenancy Act for declaration that he is a tenant and fails to prove his contractual tenancy he cannot go back and have a second inning to prove that if not a contractual tenant, he was at least a "deemed" tenant of the owner of the land as per section 4 of the Tenancy Act. This view is not based only upon technicalities of pleadings. Normally speaking, when a person agitates before the Court a plea that the owner of the land has leased the lands to him (the applicant), there is the implication flowing from his application that what he had was not a mere permission to cultivate the land, but the actual creation of tenancy. Such tenancy is governed principally by the Transfer of Property Act and the plea of the applicant claiming the tenancy, in the ultimate analysis, is that the relationship between himself and the owner of the lands and his possession in respect of the land did not extend to mere permission to cultivate the land, but to creation of a more valuable right, viz, the right of tenancy. Section 4 on the other hand contemplates mere lawful cultivation of the land. It implies nothing but permission on the part of the owner to the applicant to cultivate the land in order to make the cultivation lawful. For a "deemed" tenancy under section 4, nothing more than permission is necessary. For tenancy, something more than mere permission is required. When the tenant stated that he had been given something more than mere permission, there is an implication that mere permission was not what was given by the owner.
This is the rationale of the view consistently taken by our High Court that once the only plea of contractual tenancy set up by an applicant under section 70(b) of the Tenancy Act has been negatived, he cannot fall back upon the provision of deemed tenancy contemplated by section 4 of the Tenancy Act.
9. Point is that the Tribunal set aside the order of the Sub-Divisional Officer and restored the one passed by the Tahsildar holding that the petitioners were not the tenants in respect of the suit lands.
Two writ petitions were filed by both the above mentioned sets of petitioners and they were decided by this Court (R.D. Tulpule, J.) on 25th January, 1983. The writ petitions (Special Civil Application Nos. 2636/77 and 2637/77 were dismissed. Normally, this would mean that the declaration granted by the Tahsildar to the effect that the petitioners were not the tenants in respect of the suit lands, which declaration was confirmed by the M.R.T. was re-confirmed by this Court and this Court held that the present petitioners were not the tenants in respect of the suit lands. But, what is more significant is that this was done by this Court not on the ground that the Tahsildar had no jurisdiction to entertain the applications made by the present petitioners because the lands were converted to N.A. use. This Court (Tulpule, J.) has examined the evidence produced by the parties relating to the alleged tenancy of the present petitioners and after examining that evidence this Court has held on merits viz. that neither of the set of the petitioners had proved their claim of tenancy in respect of any other lands, which were the subject matter of the two Special Civil Applications.
The Special Civil Applications were, therefore, dismissed by the Court holding specifically that the petitioners were not the tenants of the suit lands.
10. Getting themselves armed with this declaration about the fact that the present petitioners were not the tenants on the suit lands and were, as such, in unauthorised occupation of the same, the Respondent/Society filed two Applications to the Collector under section 84 of the Tenancy Act for summary eviction of these petitioners.
The Sub-Divisional Officer once again went into the entire evidence and held that the fact that the present petitioners were rank trespassers on the lands was established. There was no dispute before him (and in fact there never existed any dispute before any Court ) that the suit lands are being used exclusively for the purpose of agriculture and that, hence, they were the "lands" within the meaning of section 2(8) of the Tenancy Act, which factual position meant that the Sub-Divisional Officer has all the jurisdiction in the world to pass an order of summary eviction against the petitioners. He has satisfied about this position that they were the rank trespassers on the land and hence, he exercised his said jurisdiction under section 84 of the Tenancy Act and passed the order of summary eviction of these petitioners.
11. Against this Order, two Revision Applications were filed by the present petitioners to the Maharashtra Revenue Tribunal.
Once again, the M.R.T. examined the entire evidence. Strangely enough, it was urged before the Tribunal by the present petitioners, who had themselves filed applications under section 70(b) of the Tenancy Act for a declaration that they were the tenants under the Tenancy Act and as such, were entitled to the protection under the Tenancy Act that the Sub Divisional Officer has no jurisdiction under section 84 of the Tenancy Act to pass an order of eviction against a person who was held not to be a tenant. It appears that before the Sub-Divisional Officer it was urged, and this plea was further pressed into service before the Revenue Tribunal that the petitioners were in adverse possession of the land They had been clamouring from the house-tops at all the times that they were the tenants in respect of the lands and now they have started contending that they are in adverse possession Their possession since the year 1942 or, for the matter of that, 1950 was not proved. But still they claimed title by adverse possession.
It needs to be mentioned here that this plea has not been urged in the present Writ Petitions before me and a statement to the effect that this plea would not lie in the mouth of the petitioners was made before me by Mr. Shah on the very first day of hearing of these petitions.
The Tribunal re-examined the entire question about their tenancy de novo. In this connection, it is worthwhile referring to some of the observations made by the Tribunal.
(i) In para 12 of its Judgment, it is pointed out that the petitioners have miserably failed to establish the case of tenancy and that the High Court had given the Judgment against the petitioners in that behalf holding that they were not the tenants.
(ii) In para 13, it is observed that though the lands Survey Nos. 94, 96 & 97 were N.A. lands on the Tiller's day, the High Court had not held that the petitioners' Applications under section 70(b) was bad on that account as such.
The Tribunal has examined the Judgment of the High Court and has held rightly that the High Court has examined the evidence on merits and has given a finding that the petitioners were not the tenants of the suit lands at any time.
(iii) In Para 14, it is observed that though the N.A. permission was granted to the Respondent Society in connection with some of the suit lands in 1950, in effect the lands ware never put to N.A. use even till today. It is pointed out in the Para that all these lands are recorded in the Record of Right as agricultural lands. Even the assessment paid is agricultural assessment. Crops have been grown and the lands are put exclusively to the agricultural use.
In said Para 14, it is further observed that the present petitioners had indulged and manipulated getting their names entered as tenants of the suit lands during the proceedings under section 32-G. (IV) In Para 15, it is observed as follows:---
"A perusal of the relevant portion (of the Judgment of the High Court) clearly indicates that the Applicants Tapkir and Pawars during the course of evidence developed altogether different story in respect of the joint tenancy concerning the suit land. According to them, such joint tenancy was created by the former landlord Joshi in favour of Sakharam Pawar and Vishnu Tapkir and thereafter by way of mutual agreement between them, Pawars and Tapkir started separate cultivation of the lands. However, this case of joint cultivation does not find place in the tenancy case filed by both of them."
The Tribunal further observed in said Para 15 that a registered deed of lease was set up by this Tapkir. Even Pawars contended that he had been a tenant on the land since 1942. According to Tapkir, he was a tenant on the land from 1940. They set up the written lease; they caught hold of one witness, who went to the extent of saying that there was a registered Rent Note. The Tribunal observed that the witness had gone to the length of saying that everytime the rent was paid, the witness accompanied Pawars and Tapkirs for going to the landlords for the purpose of paying the rent and that in his presence the rent was paid. How false is this plea is nailed by the Tribunal by observing that not a single document was forthcoming to substantiate this plea.
In this connection, it may be pointed out that what was set up was a registered Rent Note. But not only before the Tribunal but even before me the certified copy of the Registered Note was not proved. I adjourned the matter several times for enabling them to produce the Certified Copy of the Rent Note. Ultimately it was conceded that they could find no such Rent Note.
(v) In para 16 the Tribunal has even considered the position of the Record of Rights and has found that even the Record of Rights were strongly against the petitioners.
(vi) In para 17 it is pointed out that even other circumstances cried hoarse against the petitioners' claim of tenancy.
It is pointed out that the petitioners never claimed the status of protected tenants and no entry to that effect has ever been made in the Record of Right even though the claim of the petitioners have been that they have been on the land from 1940 or 1942. The position of the law, as it then stood, made it impossible that if they were the tenants on the land in 1940 or 1942, they would not have been shown as protected tenants in the Revenue Record.
(vii) Then in para 19 it is pointed out that the applicants never succeeded in getting themselves declared as tenants.
(viii) In para 20 it is observed that as per the Revenue Record the Applicants were not even in possession till the year 1975-76, except for the stray entries made in the Revenue Record on the strength of which false proceedings under section 32-G were engineered.
(ix) In para 22, the Tribunal pointed out as to how these petitioners have gone to the extent of challenging the Sale Deed taken by the Society when they had themselves stated or admitted in their own application under section 70(b) of the Act that the Society was the owner of the lands and that they claim to be the tenants to the Society in respect of the lands.
(x) In para 23, the plea of adverse possession has been dealt with by the Tribunal.
(iv) Even the question of jurisdiction has been discussed and the Revenue Tribunal found that the lands were never put to non agricultural use. The plea of jurisdiction was also negatived on the ground that the pleadings of the parties themselves show that the petitioners themselves have proceeded. Upon the basis that the lands were agricultural lands and as such were governed by the Tenancy Act.
It was in pursuance of this exhaustive Judgment that the Revenue Tribunal negatived the pleas raised before it by the present petitioners.
12. The manner in which these two sets of petitioners have gone on changing their stories in order to justify their claim, which turns out to be a thoroughly dishonest one, is also set out by the Tribunal. For instance in para 14 it is stated as follows:---
"Thus it appears that the applicants had indulged and manipulated getting their names entered as tenants in respect of the suit lands during the proceedings under section 32-G (which) were started by the A.L.T. and the price of the lands was (got) fixed".
In para 15 it is pointed as follows:---
"A perusal of this relevant portion clearly indicates that the applicants Tapkirs and Pawars during the course of evidence developed altogether different story in respect of the joint tenancy concerning the suit land. According to them such a joint tenancy was created by the former landlord Joshi in favour of Sakharam Pawar and Vishnu Tapkir and thereafter by way of mutual agreement between them Pawars and Tapkirs started separate cultivation of the lands. However this case of joint cultivation does not find place in the tenancy case filed by both of them."
Thus, in substance, the Tribunal has found that these two petitioners are not only trespassers but have been deposing to any quality and quantity of falsehood in the Court. There are many such instances pointed out by the Tribunal as also by this Court (Tulpule, J) in the Judgment in Special Civil Applications Nos. 2636/77 and 2637/77. The claim of the Tapkirs is that these extensive lands near the city of Pune were given to them by Joshi for the annual rental of Rs. 5/-. This is on the face of it impossible and this is what is observed by the Tribunal at the end of Para 16 of its Judgment.
13. The manner in which the Respondent/Society was driven by these rank trespassers from pillar to post has been also referred to in the judgment at various places (see the end of Para 11 as also para 10 in which the Judgment in R.T.S. Appeal No. 100 of 1985 is referred to). The R.T.S. proceedings were sham on the face of them. But on the basis of those proceedings, the Tribunal observes, the petitioners managed to create a make-belief of their right of tenancy in respect of the suit lands. In this connection, it is worthwhile setting out some portion of para 10 of the Tribunal's Judgment, in which para the relevant observations are to be found.
"In this respect the judgment in R.T.S. Appeal No. 100/85 is on record and its persual clearly shows that the main issued in that matter was about the Wahiwat for the years 1980 and on that basis it was held without giving proper reasons that the applicant was in possession for 50 years and therefore a direction was given under Rule 31 on 9-7-1982 to enter the Wahiwat of the present applicant. In this respect it was rightly observed by the Additional Collector, Pune, that it shows callous manner in which the issue was decided. The application which was made on 3-11-80 was given a full circle from one place to other and ultimately on 9-7-82 a wrong order was passed."
I am narrating all these aspects because this game has continued even in this Court and I am extremely unhappy to state that one of the eminent Advocates of the Court has thought it fit to associate himself in such reprehensible activities of the present petitioners.
14. The above Writ Petitions Nos. 1592 and 1593 of 1988 have been filed against this Judgment of the Revenue Tribunal. When Rule was issued by this Court and interim stay was granted, the Judgment of the Tribunal was very much there before the Court. But from the very nature of things, the facts which came to light after elaborate arguments at the time of the final hearing, were not brought to the notice of the Court. Arguments advanced at the time of the final hearing appeared to be attractive arguments, which must have been the very arguments which must have prevailed upon this Court to issue Rule and grant interim stay of the order of summary eviction passed by the Sub-Divisional Officer. The arguments were three-fold:---
(a) that while deciding the question as to whether the petitioners could be declared as tenants under section 70(b) of the Tenancy. Act or not, the Tribunal had not determined the petitioners' right of tenancy because it was held by the Tribunal that the lands were N. A. lands and hence, the Tenancy Act did not apply to the same.
(b) that if the lands were N.A. lands and if the Tenancy Act did not apply to the suit lands, as held by the Tribunal in the first set of Revision Applications (section 70(b) proceedings) then the Collector had no jurisdiction to pass the order of summary eviction under section 8 of the Act.
(c) That it was the Society's own contention that the declaration of tenancy in favour of the petitioners was misconceived because the lands were N.A. lands and , as such, were not governed by the Tenancy Act.
No other point was urged before me at the time of the final hearing of this writ petition.
As will be presently pointed out, each of the points, though attractive prima facie, is thoroughly misconceived and is urged upon the patent mis-reading of just one provision of the Tenancy Act, viz. section 2(8) thereof. I may mention at this stage itself (though on this point I propose to state something at length in the later part of this Judgment. For the reasons which will be mentioned there, not only that these points were found to be misconceived and erroneous in law (because they were based upon mis reading and wrong conception of law), but Mr. Shah, the learned Advocate for the petitioners, accepted this position in so many words. I may state here that he was taken by surprise by virtue of the particular definition of the word "land" contained in section 2(8) of the Tenancy Act and all his arguments were based upon mistaken notion about that section. It was a thoroughly bona fide and genuine mistake and I see no reason whatsoever to blame him for this slip on his part. In fact I can see that this is a mistaken plea regarding section 2(8) of the Act which is shared by large number of Advocates and possibly by the Tribunal as well. But the point is that after seeing this mistake, the learned Advocate was fair and frank enough to state before this Court that in view of the definition of the word "land" contained in said section 2(8), the very bottom and base of his petition has been knocked off and that he had no case either in law or equity whatsoever. I may mention this as a specific statement made by him and this has been a part of my previous speaking order, reference to which will be made by me presently.
15. I will presently examine the points urged by Mr. Shah before he made the above mentioned statement. The gravamen of his contention was that all these lands, except Survey No. 95, as regards which lands the orders of summary eviction was passed by the Asstt. Collector were, as per the contention of the Respondent/Society's own Advocate, the lands assessed for N.A. use and that, hence the Tenancy Act including section 84 thereof could not and did not apply to them and that, hence, the order of the petitioners' summary eviction under section 84 of the said Act was without jurisdiction.
So far as the land Survey No. 95 was concerned, it was, admittedly, not such land, because no such order of conversion of its use to N. A. purpose was passed by the Collector vis-a-vis this land. There was no dispute that this land continued to be assessed for agricultural purposes. Unlike the other lands, this was both assessed and used for agricultural purposes, whereas the other land was assessed for agricultural purpose and used for agricultural purposes. It could not be and was not Mr. Shah's contention that any of the petitioners was and could be declared a tenant of that land in any other proceedings because in the tenancy proceedings he was declared not to be a tenant. He therefore made a specific statement before this Court, at quite an early stage (on 24th January, 1989, to be precise) that his clients could urge no point to justify their claim to the said land, Survey No. 95. He went a step further. After consulting his clients, who were present in the Court, he made a statement that the relevant petitioner would hand over immediate possession of the said land to the Respondent/Society. A specific consent order was passed by this Court on 24th January, 1989 recording this statement, a copy of which Order is Appendix 1 to this Judgment. The reason for appending this order to this Judgment is that something turns upon it and that it should be made known as to how the subsequent conduct of the learned Advocate becomes exposed to criticism relating to unfair practice in the Court.
20th February was the date fixed for demarcation of this land , Survey No. 96, from the other lands in possession of the petitioners and for handing over the possession of that land to the Society Mr. Shah took time till 3rd February, 1989 stating that the intervention of D.I.L R. would not be necessary for effectuating of the demarcation, because this work can be done by the parties amicably.
The fact that on 3rd February, 1989 no amicable demarcation was done by the petitioners and the further fact that no application was made either to the D.I.L.R. directly for such demarcation or to this Court for direction to the D.I.L.R. to make such demarcation on or before 20th February, 1989 or, for the matter of that, at any time subsequently, is a different matter.
I will presently state the precise stage at which the above mentioned statement dated 21-4-1989 was made by the learned Advocate.
16. Let me now examine the three points urged by Mr. Shah.
The first point urged by the learned Advocate (with quite some vehemence initially) was that whereas the petitioners had been clamouring that they were tenant of the Respondent/Society in respect of the suit land had filed the application under section 70(b) of the Tenancy Act to get a declaration in that behalf, that question was not finally decided by the Revenue Tribunal while deciding Revision Application Nos. 5 and 6 of 1975 and while passing the order dated 19-7-1977 (hereinafter referred to as the "first set of Revision Applications) had accepted the Society's contention that the lands were N.A. lands and that, hence, Tenancy Act did not apply and that hence, the declaration sought by the petitioners of their tenancy protected by the Tenancy Act was a misconceived proceedings. Mr. Shah contended that this argument of the Society has been accepted by the Tribunal. According to him, the result is that the petitioners' tenancy has not been finally adjudicated upon by the Tribunal at all and that, still the proceedings have been instituted against them under section 84 of the Tenancy Act for their eviction on the basis that they were trespassers and not tenants.
The simple answer to this plea is that it is because of misreading the order of the Tribunal. An argument had been advanced before the Tribunal of the effect that the lands were assessed for N.A. use and that, hence, the Tenancy Act did not apply. This argument was made probably in ignorance of the provisions of section 2(8) of the Tenancy Act. It also appears that the Tribunal was impressed by the argument and accepted the argument so far as the land for which order for N.A. use was passed. But the most important point to be noted is that the Tribunal has not rested content by holding that the lands were not governed by the Tenancy Act. As stated above, the judgment of the Tribunal in the earlier set of Revision Applications is somewhat inartistic, but that does not mean that the question whether the petitioners were the tenants of the suit land or not was not examined by the Tribunal. The Tribunal has examined the evidence led by the petitioners fairly extensively and has come to a positive conclusion that, even on merits, they have not established their tenancy right. No plea can be raised by the petitioners that their tenancy rights were not adjudicated by the Tribunal.
17. But this is not all, what is even more important is that this Court (Tulpule, J.) has once again gone into the question of the tenancy rights set up by the petitioners and after examining the necessary evidence, has come to an unequivocal conclusion that the petitioners were not the tenants in respect of the suit land.
The Special Civil Applications have not been decided by Tulpule. J., against the petitioners on the ground that the Tenancy Act did not apply to the lands because they were assessed for N.A. purposes. Those Special Civil Applications have been dismissed on the ground that on facts and merits the petitioners were not entitled to any declaration of their tenancy.
In addition, to this the self-same question has been gone into once again and de-novo, by the Revenue Tribunal while deciding the two subsequent Revision Application Nos. 1 and 2 of 1986. The order in that behalf was passed by the Revenue Tribunal on 29-2-1988. I will refer to the said Judgment hereafter as "the impugned judgment'. I have set out the relevant portion of the impugned Judgment in the earlier paras and I have pointed out the relevant part of the entire evidence led by the petitioners which has been once again examined by the Tribunal quite extensively.
It is, thus, clear that the plea of Mr. Shah that there is no final adjudication about the petitioners' tenancy rights is quite baseless plea and it results probably form the misreading of all the judgments.
18. I may now state the stage at which Mr. Shah made statement relating to his client's unconditional Agreement to hand over possession of land Survey No. 95. The arguments on this first point of Mr. Shah were over on 24-1-1989 when even Mr. Shah had to concede that the order passed by this Court (Tulpule, J.) in the Special Civil Application had really concluded this point. The next point urged by him (which I will presently discus) had no relevance vis-a-vis Survey No. 95 because this land was never converted to N.A. assessment. It was on this account that the above statement referred to by me in my speaking order dated 24-1-1989 was made by him. The relevance of this position will be mentioned by me presently.
19. The next point argued by Mr. Shah, initially, was that if the Tribunal holds that the lands were not governed by the Tenancy Act because they were converted to N.A. use, they will not be governed by section 84 of the Act as well, with the result that the Collector would have no jurisdiction to pass an order of summary eviction. In fact this point was the real sheet-anchor of the learned Advocate's arguments. The plea was that the petitioners could be evicted only by due process of law, that is to say by the Court of competent jurisdiction in appropriate proceedings. If the lands were not governed by the Tenancy Act, the Collector functioning under section 84 of the Tenancy Act could pass no order of summary eviction.
I will deal with this argument along with the 3rd argument which is as follows:
According to Mr. Shah, the Society's own Advocate had urged the point before the Tribunal to the effect that the lands were not governed by the Tenancy Act because order was passed for their conversion to N.A. use. He raised a plea of estoppel against the Respondent/Society on this count.
20. Both these arguments are the two sides on the same coin. They reveal the failure of those advancing them or accepting them to read and appreciate section 2(8) of the Tenancy Act. The Tenancy Act applies to certain kinds of lands and the word 'land' is defined in section 2(8). That section runs as follows:
"Section. 2 (8) "land" means---
(a) land which is used for agricultural purposes or which is so used but is left fallow, and includes the sites of farm buildings appurtenant to such land;"
(The remaining portion of section 2(8) is not relevant). The definition is self evident and self-explanatory. In order to make the lands governed by the Tenancy Act, the question whether it is assessed for agricultural purpose or non-agricultural purpose is thoroughly irrelevant. All that the section contemplates and requires, for making the land subject to the provision of the Tenancy Act, is that the land must be used for agricultural purposes. This definition further says that if the land is used for agricultural purposes but is left fallow for particular years, still it continues to be an agricultural land and it further provides that a farm building appurtenant to such land is also an agricultural land.
Now in the instant case, there is a unanimous contention of each of the parties concerned and unanimous finding recorded by all the Courts concerned that this land has never been put to any N.A. use. In fact it is the contention of the petitioners themselves that all these years when they themselves have been in possession of the land, it has been used for agricultural purpose, that is the land is cultivated; crops are taken from the same, it is shown in the revenue records as agricultural land; the 7 x 12 extracts produced by the parties consistently show that the land are agricultural lands. But what is most important is that the petitioners themselves have all along been agitating the plea that they are tenants of the suit lands governed by the Tenancy Act. This is the very basis on which they filed the application under section 70(b) of the Tenancy Act. The fact that they could not prove their alleged tenancy is a different matter; but there is no gainsaying that throughout these proceedings they have been clamouring that the land is the agricultural land and that they are the tenants and they are entitled to the protection of the Tenancy Act.
21. I may refer at this stage to a peculiar factual position which came to surface during the course of the arguments.
When Mr. Dudhat, the learned Counsel for the Respondent/Society, pointed out this provision to the Court, Mr. Shah was taken quite by surprise and after noticing the above mentioned phraseology employed by section 2(8) and after realising the implications of the same, he made a clean breast of the fact before the Court and stated that his clients had no case or basis whatsoever for the contention that the Tenancy Act did not apply to any of the suit lands. The only basis of the said contention was that all the lands, excepting Survey No. 95, were ordered to be assessed for N.A. use. Admittedly, their use continued to be agricultural use. The implication of section 2(8) of the Tenancy Act is that the assessment has no relevance to the question whether the land is governed by the Tenancy Act or not. The very foundation of this very main contention of Mr. Shah, therefore vanished. Mr. Shah rightly gave up the contention in so many words.
22. I may also mention here, once again, that he had already given up his plea that the petitioners were tenants in respect of the suit land. I may state an additional reason why he had done so. The claim of the petitioners was that they were the tenants of the suit lands from 1940 and 1942. But next to no evidence existed on record as it stands which would support this claim. Whatever evidence was there was already considered not only by the Tenancy Courts but also by this Court (Tulpule, J.) who had rejected it. But when Mr. Shan tried to contend that the Revenue Tribunal had not examined the evidence of the petitioners' tenancy in respect suit lands, I called up Mr. Shah as the petitioners' Advocate to produce, even in this Court, any additional documentary evidence which would justify their claim. Mr. Shah made a half-hearted reference to a Registered Deed or Registered Rent Note (he was not sure what it was) which, according to him, evidenced the petitioners' tenancy. I may mention here the plea of existence of Registered Lease Deed or Rent Note was examined by all the Tenancy Courts as also by Tulpule, J. The document was not produced before any of the lower or earlier Courts. It was not produced even before me. I directed Mr. Shah to produce the Certified Copy of the Registered Rent Note or even any other reliable document to vindicate the petitioners' claim Normally, fresh evidence is not taken in writ proceedings. All the same, in the teeth of the protestations by Mr. Dudhat I expressed my readiness to examine the said Rent Note or any other reliable documentary evidence which was not produced in the lower Court and which wholly supported the petitioners claim. I offered to exercise my very extraordinary powers for this purpose. Mr. Shah took adjournment after adjournment for production of the document. But ultimately, he came before the Court with a clear statement that there existed no documentary evidence, in addition to whatever was already produced in the Tenancy Courts, to vindicate the petitioners' claim of tenancy. He also stated that in these circumstances it would not be possible for him to urge any point in support of the petitioners' claim. He stated that none of the three points formulated above could be and would be pressed into service by him and informed the Court that he was advising his client to accept the compromise, which the Court then suggested to him. The Court suggested the compromise sheerly out of mercy and persuaded Mr. Dudhat to accept the compromise, though his clients were very much reluctant to accept the same. Mr. Shan took time to persuade his client to fall in with the Court's suggestion of compromise, because, he stated that in law and on merits the petitioners had no case whatsoever.
Adjournments after adjournments were taken again on this point; but ultimately on 27th February, 1989, Mr. Shah came before the Court to make his statement that the compromise was not agreeable to his clients. In fact he made a further statement that his clients had taken away all the papers from him, which meant that he had no instructions to make any further submission or contention. It was in these circumstances that this Court realised that the lenience and liberal approach of this Court towards the petitioners in being abused by him.
23. In this connection, it is to be noted that the petitioners had not only obtained rule on the petition but also stay of the implementation of the Order passed against them by the Assistant Collector. The Court could see that the sort of prima facie case pointed out to the Court for grant of rule was veritable misleading of the Court. I mean no offence to the learned advocate because I am sure that he was himself convinced of his clients' case. He had proceeded upon the assumption that the land would not be agricultural land when they were assessed for non-agricultural purpose. I have not the slightest doubt that section 2(8) of the Tenancy Act had gone un-noticed by the learned advocate. I could see that once the import of section 2(8) of the Act was brought to the notice of the learned Advocate, he immediately gave up all the arguments.
Fact, however, remains that there was some un-international misleading of the Court. If the provisions of section 2(8) was noticed by the Court, the Rule itself would not have been granted; far less there would be any likelihood of the stay being granted.
24. In these matters I have taken a consistent view which, to my mind is the basic, principle of administration of justice, that if by the judicial process wrongful loss is caused to one of the parties to the litigation and wrongful gain is reaped by the other party and if the Court realises its own mistake or realises the fact that wrongful gain or wrongful loos is the result of the judicial process, the Court strives and must strive to restore the suffering party, to the maximum extent possible, to the original position in which it would have been had not such wrongful order been passed. This is a matter of one of the inherent powers of the Courts and particularly of the High Court. The High Court has this power not only under section 151 C.P.C., but also under Article 227 of the Constitution of India governs the present proceedings In the instant case, the Court could see that the Society has been kept away from the property for nearly 30 years, if not more. They had purchased the property for construction of houses for their members. The prices of the materials have gone up immeasurably. The result has been that untold loss & damage is made to visit upon the respondent society. Not only that this loss in caused for no fault on the part of the respondent society, but evidently it is caused by virtue of the countless proceedings (which turn out to be illegal) instituted by the petitioners against the respondent/society. The petitioners were never the tenants of the suit land. They took the false plea of tenancy and made the respondent Society to move from pillar to post for contesting their claim. When one inning was over, they resorted to the 2nd inning by contending that the Assistant Collector had no jurisdiction under section 84 to evict them because the lands were N.A. lands. Even this contention is found to be thoroughly un-sustainable and this position is conceded in so many words by their own advocates. Surely, therefore, this is the case where this Court must do everything in its hand to minimise the loss of the respondent society.
25. It was with this end in view that this Court passed the Order dated 27th February, 1989 vacating the stay wrongfully obtained by the petitioners. The Court could see to it that that delivery of the judgment was bound to take time having regard to the various factors and the Court could see no reason why the stay should continue in the mean time. I, therefore, vacated the interlocutoty stay obtained by the petitioners. This order was passed partly in the presence of Mr. Shah, who had stated that he has no further instruction from his clients, because his clients have taken away all the papers. The Court informed him the nature of the order that was being passed and he stated that he had nothing to say about it. The Court wanted him to wait until the dictation of the order was complete, but he stated that his junior would attend to that part of the work. By my order dated 27th February, 1989, I vacated the stay earlier granted by this Court (unjustifiably, as it turns out).
This order has got some significance vis-a-vis this judgment and hence, a copy of the same is appended as Appendix-2 to the same.
What happened subsequently is of significance.
After telling the Court that his client had taken away the papers from him, the learned advocate has found it fit to file an appeal before the Division Bench against the said Order, knowing full well that no such appeal lay and to operate a blanket stay of the above order. The statement to that effect is made by him in this Court subsequently. In all probability, the fact that this order was passed by the Court under Article 227 of the Constitution of India was not brought by him to the notice of the Division Bench. He could not give one justification for filing the appeal and for obtaining the stay. I specifically asked him repeatedly as to under what provision of law the appeal lay or, if the appeal was not competent, the order of stay could be passed. Not only that the learned advocate had no answer to this plea, but he specifically stated that the appeal was not competent and made statement before the Court that he would withdraw the appeal. In fact he withdrew the appeal later on.
I could have understood his filing the appeal before the Supreme Court, but suppressing the fact that he had himself made a categorical statement before the Court that his client had no case in the petition and still, obtaining the stay from the Division Bench in the Letters Patent appeal, which was not competent, is the most unedifying act and it does not advance the cause of Rule of Law. The learned advocate has repeatedly stated thereafter that he was very sorry for having done so and has even tendered his apology for having done so. The learned advocate is one of the most competent advocates of this Court of quite some eminence and this Court wishes him all the best in his career. All the same, the fact remain that the conduct of the petitioners' advocate could not be described as a legitimate conduct of a professional, The conduct of his clients is worse still. But that is a different matter. Since he has withdrawn the appeal later on, the order of stay stands vacated (I believe automatically). Nothing further needs to be stated in this case, except that I am inclined to modify my order dated 27th February, 1989 to the extent mentioned hereinafter.
26. I must mention one more point.
In the proceedings under section 84 before the Assistant Collector, a half hearted plea was sought to be taken that the petitioners were in adverse possession of the suit land. They themselves have been clamouring from house-tops that they were in occupation of the lands as tenants of the respondent society. Even Mr. Shah urged that point of tenancy even in these petitions. The fact that he could not succeed in satisfying the Court about the point is a different matter. Fact, however, remains that they have taken such plea of adverse possession before the Assistant Collector. That plea was rejected by the Assistant Collector.
In this Court, this plea was not raised by Mr. Shah and not a whisper of argument was advanced in supported of that plea.
27. Nothing further needs to be stated so far as the petitioners are concerned. All the three points urged by Mr. Shah in support of the petition have got to be rejected, not only because he made a statement to that effect, but also on merit. There is no substance in the plea that the petitioners' claim of tenancy was not considered by any of the Courts below. That plea has been considered and rejected by as many as 5 Courts including this Court (Tulpule J.).
The 2nd & 3rd plea that the Order passed by the Assistant Collector under section 84 of the Tenancy Act is without jurisdiction, because the lands were no governed by the Tenancy Act, fails because admittedly the lands are agricultural lands and as per section 2(8) of the Act, such lands are governed by the Tenancy Act irrespective of the fact as to whether they are assessed for agricultural purposes or not. There remain nothing else in the petition.
However, some additional observations are required to be made so far as the two lands, land Survey No. 96/1/1 and land Survey No. 95 are concerned.
28. It is necessary to say a few words relating to Survey No. 96/1/1. There is no dispute that so far as this land belonging to petitioner Tapkir is concerned, it forms part of the said petitioner's application under section 70(b) of the Act. The Tahsildar gave a declaration that he was not a tenant of the lands. In the appeal filed by the petitioner Tapkir, the view of the Tahsildar that he was not a tenant was not set aside. All that was done was that the matter was remanded to the trial Court for examination of the question whether, if not a contractual tenant, petitioner Tapkir could be regarded as a "deemed" tenant of the suit lands.
Against this order, a revision application was filed by the respondent Society. In that Revision application, an un-necessary argument was advanced on behalf of the petitioner Society that the lands were assessed for N.A. purposes and that, hence, the Tenancy Act did not apply to them. This was a facile argument having no basis in provision of law at all. The Tribunals appears to have accepted the argument; but the tribunal committed also another error, a legal error. In paragraph 18 of its judgment, the tribunal has observed that when the price was fixed by the A.L.T. under section 32-G of the Act and when appeals were filed against those orders by the present petitioners. Tapkir and Pawars, all the appeals were allowed except Appeal No. 35 of 1969. The Tribunal has observed that Appeal No. 35 of 1969 was dismissed by the appellate authority (The reasons need not be mentioned). Appeal No. 35 of 1969 related to two Survey No. 59 and Survey No. 96/1/1. This means, according to the tribunal, that the order of the A.L.T. declaring petitioner/Tapkir to have become statutory owner of the land had become final The Tribunal also observed that there is no evidence of the Addl. Collector's order being challenged further.
But even thereafter, the Tribunal observed further as follows:---
"However, the order insofar as it relates to Survey No. 96/1/1 will have to be ignored because the land was not subject to the provisions of the Tenancy Act having been already converted to N.A. purposes."
With some kind of reasoning, however, the Tribunal had arrived at the conclusion that petitioner Tapkir was not a tenant even in respect of Survey No. 96/1/1 and a declaration to that effect was made by the Revenue Tribunal even as regards this Survey No. 96/1/1 as is done in the case of other lands in possession of Tapkir.
29. I may mention here that the ultimate conclusion arrived at by the Tribunal is correct, but the reasoning is a riot. In the first place, the view that the A.L.T. decision become final because the appeal against the same was dismissed is basically erroneous. That is so because the order passed by the A.L.T. was itself without jurisdiction ab initio. It has been held by this Court repeatedly in one judgment after another that before deciding the question whether a person claiming to be a tenant has become owner or not, it has to be decided whether he is the tenant or not. This question is within the exclusive jurisdiction of the Tenancy Court functioning under section 70(b) of the Act. It has been repeatedly held by this Court that the Agricultural Lands Tribunal is not the same Court as the Court functioning under section 70(b) of the Tenancy Act and section 85 of the Tenancy Act gives exclusive jurisdiction to the court functioning under section 70(b) of the Act to decide whether the person is a tenant or not. The tenancy of this Tapkir was called in question by the respondent/society at all times and even before the Agricultural Lands Tribunal. The Agricultural Lands Tribunal, therefore had no business or jurisdiction to fix the price at all. If this is the position and if a Court of competent jurisdiction has held subsequently that Tapkir was not the tenant in respect of Survey No. 96/1/1, then the order passed by the A.L.T. is an order passed by a Court without jurisdiction and nullity at that. It need not be even looked at for any purpose whatsoever.
While this error is committed by the Tribunal against the Respondent Society, the next error committed by the Tribunal is in favour of the Respondent/Society. That error lies in the fact that the Tribunal proceeds upon the belief that a land which is converted into N.A. use ceases to be a land governed by the Tenancy Act As mentioned above, section 2(8) of the Tenancy Act is a complete answer to such belief.
Fact, however, remains that the Tribunal has arrived at the correct conclusion holding that petitioner/Tapkir was not a tenant in respect of land Survey No. 96/1/1 and that is the basis of the final order passed by the Tribunal. As mentioned above, petitioner/Tapkir filed Special Civil Application No. 2636 of 1977 and this Court has confirmed that order after going through the entire evidence de novo. It, therefore, goes without saying that there is a final decision of a Court of competent jurisdiction that petitioner/Tapkir was not a tenant in respect of land Survey No. 96/1/1.
30. It is mentioned above that the Respondent Society filed application under section 84 for removal of the trespassers, Tapkir and Pawars. In that application, all the lands about which the declaration, was granted by the Tenancy Court against petitioners Tapkir and Pawars could and would be included. Obviously, all these lands were intended to be included. Inadvertently, however, Survey No. 96/1/1 did not find place in the list of the lands mentioned in that application. But the inadvertance did not remain restricted to the Applicant Society only. The fact that Survey No. 96/1/1 was not mentioned in the application under section 84 was overlooked even by petitioner/Tapkir as also even by the Assistant Collector. Everybody proceeded upon the belief that possession of each of the lands of which the Respondent Society was the owner and which was in the possession of petitioners/Tapkir and Pawars illegally was prayed for by the Respondent Society. Admittedly the Asstt. Collector has passed order of eviction of the petitioner/Tapkir from said land Survey No. 96/1/1 as well.
It is to be noted that in the Revision Application filed against this order directing eviction from this land. Survey No. 96/1/1, not one word is written in the application, nor one word was uttered in the arguments in the Revenue Tribunal to the effect that the Assistant Collector had given something more to the Respondent Society than what was asked for. In fact, this inadvertance was not noticed by anyone at all, not by the Asstt. Collector, not by the Respondent Society and not even by the petitioner. Everybody proceeded upon the belief that this land for which application could be made competently by the Respondent Society under section 84 was also the subject matter of the application. That was the reason why this order relating to eviction form Survey No. 96/1/1 was not challenged before the Tribunal.
Amusingly enough, even in the present petitions, Mr. Shah has not called in question the legality of the order of the tribunal or of the Asstt. Collector on this ground. He has taken any number of grounds in the Writ Petitions, but not this one ! I do not blame him because this point, really speaking, has occurred to him almost at the fag-end of his arguments. Anybody can see that if the parties had realised this inadvertant mistake, the original application under section 84 would have been amended there and then and Survey No. 96/1/1 would be included in the list of the lands ear-marked for eviction. It follows that eviction order relating to Survey No. 96/1/1 is already granted and the objection raised by Mr. Shah at the fag end of his arguments cannot be sustained. It is a highly technical point. If it was raised before the Assistant Collector or in the Revision Application before the Tribunal, the error could have been easily rectified by appropriate amendment. I do not find any justification for leaving out only this land, Survey No. 96/1/1 from the lands from which the petitioners have got to be evicted.
I may mention another technical aspect of the matter. If the land is not included in the original application under section 84, the Respondent/ Society can make such an application in respect of the land even today. It is not as if that section 84 proceedings are subject to any limitation. A direction can be given to the Asstt. Collector to pass the necessary orders according to law immediately and the result would be the same as obtains today.
31. Lastly, a few words relating to Survey No. 95. As mentioned above, Mr. Shah has made a statement across the Bar that he had no case whatsover so far as this land was concerned. It is true that he made some arguments relating to the other lands which arguments, too, were found later on to be without substance; but so far as this land, Survey No. 95, admeasuring 2 Acres 7 Gunthas was concerned, he made a specific statement that his clients would give possession of this land to the Society immediately. 28th February, 1989 was the date-line fixed in the behalf. A speaking order was passed by this Court in this connection on 24th January, 1989. The fact that the petitioners have lost interest in honouring their words is a different matter. The possession of the land continues to be with them. However, in fairness to Mr. Shah he stated that he stuck fast to his original statement and that his clients are ready to hand over possession of the land immediately when the same is demarcated by the D.I.L.R. Appropriate order will be passed separately giving direction to the D.I.L.R. to demarcate the land so as to enable the petitioner/Tapkir to hand over possession of the same to the Respondent/Society immediately and in any event within three days from the date of the demarcation.
32. Both the petitions, therefore, fail, The Rule earlier issued in that behalf is discharged.
In view of the most heinous conduct of the petitioners both before these Petitions as also during the pendency of these petitions and in view of the fact that the Respondent/Society has been kept away from possession of the lands for more than 30 years and has been driven from pillar to post for enforcement of its basic rights of extensive land, this can be readily seen to be a case where exemplory costs should be imposed on the petitioners. I was intending to make them pay Rs. 10,000/- each in both the petitions. However, upon the request of Mr. Shah (Mr. Dudhat leaving the matter to the Court) I direct that each of the petitioners shall pay Rs. 5000/- as costs in each of the Petitions to the Respondent/ Society.