Bombay High Court
Shri. Kondu Thaku Chavan (Since Decd) ... vs Shri. Ashok Shankar Chavan And Ors on 21 February, 2018
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11631 OF 2013
1). Shri Kondu Thaku Chavan, (since )
deceased), through Legal Heirs :- )
)
1-a) Shri Anil Kondu Chavan )
Age Adult, Occupation Agriculturist )
)
1-b) Shri Bharat Kondiba Chavan )
Age Adult, Occupation Agriculturist )
)
1-c) Smt.Sanjivani Sakharam Dive )
Age Adult, Occupation Agriculturist )
)
1-d) Smt.Jayashree Siddharth Gaikwad )
Age Adult, Occupation Agriculturist )
)
1-e) Smt.Asha Satish Kamble )
Age Adult, Occupation Agriculturist )
)
1-f) Smt.Usha Deepak Bansode )
Age Adult, Occupation Agriculturist )
)
1-g) Smt.Dagdabai Kondiba Chavan )
Age Adult, Occupation Agriculturist )
)
All R/O Dehugaon,Taluka Haveli, )
District Pune. ) ...Petitioners
....Versus....
1). Shri Ashok Shankar Chavan )
Age Adult, Occupation Agriculturist )
)
2). Shri Dilip Shankar Chavan )
Age Adult, Occupation Agriculturist )
)
1
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3). Shri Vijay Shankar Chavan )
Age Adult, Occupation Agriculturist )
)
4). Shri Ramesh Shankar Chavan )
Age Adult, Occupation Agriculturist )
)
5). Smt.Janabai Shankar Chavan, )
since deceased through L.Rs. - )
For Respondent Nos.1 to 4 and 6 )
already on record )
)
6). Sou.Ratnamala Prabhakar Rokade )
Age Adult, Occupation Agriculturist )
)
All R/O Dehugaon,Taluka Haveli, )
District Pune )
)
7). The State of Maharashtra ) ...Respondents
Mr.G.S. Hegde i/b Mr.Sunil K. Chinchalikar for the Petitioners.
Mr.S.H. Kankal, A.G.P. for the State - Respondent No.2.
Mr.G.S. Godbole i/b Mr.Sunit S. Kothari for the Respondent No.6.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 23RD JANUARY, 2018
PRONOUNCED ON : 21ST FEBRUARY, 2018
JUDGMENT :-
1. By this petition filed under Article 227 of the Constitution of India, the petitioner has impugned the order dated 14th June, 2013 passed by the Maharashtra Revenue Tribunal, Pune allowing the said Revision Application and setting aside the order passed by the Sub- Divisional Officer, Pune in Tenancy Appeal No.31 of 2001 dated 28 th February, 2003 and the order passed by the Additional Tahasildar and ALT Haveli (Pune) in Case No.32-G/SR/22/2001 dated 18 th July, 2001. Some of the relevant facts for the purpose of deciding this 2 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 petition are as under :
2. It is the case of the respondents that the grand-father of the respondents Rakhama Bhiva Chavan was the tenant of the agricultural land bearing survey no.7/4 and old survey no.5/4 and also survey no.6/16 bearing old survey no.4/16 of village Dehugaon, Taluka Haveli, District Pune and the said tenancy continued till 1 st April, 1957 when the grand-father of the respondents became deemed purchaser of the suit land. Some time in the year 1968, the petitioner had filed Regular Civil Suit No.375 of 1968 in the Civil Court, Pune against the father of the respondents for redemption of the suit land. The father of the respondents had filed the written statement in the said suit and had contended that he was the tenant in the suit land since long back prior to 1 st April, 1957. The Civil Court accordingly made a reference under section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "BT & AL Act") to the Tahasildar, Haveli to decide the issue of tenancy in respect of the suit lands.
3. Tenancy Case No.10 of 1974 was initiated before the learned Tahasildar. By an order dated 2nd February, 1979, Tahasildar held that the father of the respondents viz. Shankar Rakhmaji Chavan was the tenant in respect of the suit land even prior to the year 1941- 1942. The said order was challenged by the petitioner vide Appeal bearing No.TA 44 of 1979 before the Assistant Collector, Pune. By an order dated 15th January, 1983, the said appeal was dismissed by the Collector. The petitioner thereafter filed a Revision Application No.MRT/P/IV/11 of 1983 before the Maharashtra Revenue Tribunal challenging the order dated 15th January, 1983. By an order dated 3 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 15th April, 1986, the said revision application was dismissed. It was held in the said order that there was no proof of mortgage as alleged. There was sufficient proof of creation of tenancy. The petitioner did not challenge the said order dated 15th April, 1986 passed by the Maharashtra Revenue Tribunal. By an order dated 17 th December, 1997 in view of the order passed by the Maharashtra Revenue Tribunal, the aforesaid suit No.376 of 1968 filed by the petitioner came to be dismissed.
4. The respondents filed an application under section 32-G of the BT & AL Act for fixation of the price in respect of the suit land. Learned Additional Land Tahasildar, Pune passed an order dated 18 th July, 2001 dismissing the said application filed by the respondents and held that the suit lands were Mahar Watan lands and the same were re-granted to the petitioner on 1st August, 1949 and thus the provisions of the Maharashtra Tenancy Agricultural Land, 1949 were not applicable.
5. Being aggrieved by the said order dated 18th July, 2001 passed by the Additional Land Tahasildar, Pune, the respondents filed an Appeal No.Tenancy/Appeal/31 of 2001 before the learned Sub-Divisional Officer, Pune. By an order dated 28 th February, 2003, learned Sub-Divisional Officer dismissed the said appeal filed by the respondents and held that since the respondents had not exercised their rights for purchase of the suit land within one year from the date of the re-grant in favour of the petitioner, the respondents were not entitled to apply for fixation of the price of the suit land under section 32-G of the BT & AL Act.
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6. Being aggrieved by the said order dated 28 th February, 2003, the respondents filed a Revision Application No.P/IV/12/2003 before the Maharashtra Revenue Tribunal, Pune. By an order dated 14th June, 2013, learned Member of the Maharashtra Revenue Tribunal, Pune allowed the said revision application filed by the respondents and held that the respondents were the tenants of the suit lands prior to 1st April, 1957 i.e. "Tiller's Day" and thus they had right to purchase the suit lands as per the provisions of section 32-G of the BT & AL. Being aggrieved by the said order dated 14th June, 2013 passed by the Maharashtra Revenue Tribunal, the petitioner has impugned the said order in this petition filed under Article 227 of the Constitution of India.
7. Mr.Hegde, learned counsel appearing for the petitioner invited my attention to the documents and part of the pleadings annexed to the writ petition and also the impugned order passed by the authorities. He submits that the suit lands were already re-granted to the petitioner on 1st August, 1959. Prior to 1st August, 1959, the suit lands were Mahar Watan lands. The provisions of BT & AL Act were thus not applicable to the facts of this case. The respondents thus could not have applied for fixation of the price under section 32-G of the BT & AL Act and could not become deemed purchaser. He submits that section 70-B of the BT & AL Act was thus not applicable. At the most, the respondents ought to have followed the procedure under section 32-O of the BT & AL Act which the respondents failed to follow by giving notice to the petitioner within one year from the date of re-grant i.e. 1st August, 1959. The respondents thus did not have any right to purchase the suit lands.
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8. It is submitted by the learned counsel that though the respondents had made an application under section 32-H of the BT & AL Act which provision was not applicable to the application made by the respondents, Maharashtra Revenue Tribunal allowed the said application erroneously. It is submitted that the suit lands were mortgaged by the predecessor of the respondents on 1 st June, 1946 with the predecessor of the petitioner and thus the suit lands could not have been redeemed. The Maharashtra Revenue Tribunal however, did not consider this issue in the impugned order.
9. Learned counsel for the petitioner placed reliance on section 88-CA of the BT & AL Act and would submit that the said provisions are squarely applicable to the facts of this case. Though this issue was not raised by the petitioner before the Maharashtra Revenue Tribunal or before the authorities, whose order was impugned by the respondents before the Maharashtra Revenue Tribunal, this being a question of law can be urged by the petitioner before this Court for consideration and seek remand of the matter for determination of the said issue. He placed reliance on the judgment of this Court in case of Babu Bala Dinde (deceased) vs. Shivaram Govind Jadhav (deceased), 2000(4) ALL MR 361 and in particular paragraphs 4 to 8 and would submit that the Maharashtra Revenue Tribunal will have to make an enquiry as to whether the land held as Inam or Watan for service useful to Government but not assigned as remuneration to the person actually performing such service for the time being under section 23 of the Bombay Hereditary Offices Act, 1974 or any other law for the time being in force and accordingly whether the section 32 to 32-A, 33-A, 33-B and 33-C shall apply to such land or not. He submits that this issue goes to the root of the 6 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 matter and thus this Court shall permit the petitioner to raise this issue even at this stage. Learned counsel for the petitioner placed reliance on the judgment of this case in case of Pradip Vasudeo Ekbote & Ors. vs. Shantaram Motiram Gatkal & Ors. 2015 (1) ALL MR 717 and in particular paragraphs 5 to 10 thereof.
10. It is submitted by the learned counsel for the petitioners that the provisions of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962 are totally different and the provisions of the said Act are not in pari materia with the provisions of the Maharashtra Inferior Village Watans Abolition Act, 1959.
11. Mr.Godbole, learned counsel for the respondent no.6 on the other hand invited my attention to some of the findings rendered by the learned Additional Tahasildar in Tenancy Case No.7 of 1974 between the predecessor of the respondents and the predecessor of the petitioners, the order of the Assistant Collector, Haveli, Sub- Division, Pune, the order and judgment delivered by the 4 th Joint Civil Judge (Judicial Judge), Pune in Regular Civil Suit No.375 of 1968 and the impugned orders annexed to the writ petition. It is submitted that the grand-father of the respondents i.e. Mr.Rakhma Bhiva Chavan was a tenant of the suit lands since prior to the year 1941- 42 which tenancy continued till 1st April, 1957 and as a result thereof, the grand-father of the respondents became deemed purchaser of the suit lands. The petitioners had filed Regular Civil Suit No.375 of 1968 in Civil court at Pune against the father of the respondents for redemption of the suit lands. A reference under section 85 of the BT & AL Act was made to the Tahasildar, Haveli to decide the issue of the tenancy in respect of the suit lands. In the said proceedings, the 7 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 father of the respondents succeeded all through out. The Maharashtra Revenue Tribunal ultimately passed an order on 15 th January, 1983 dismissing the revision application filed by the petitioners and holding that there was no proof of mortgage as alleged by the petitioners but there was sufficient proof of creation of tenancy of the suit lands in favour of the grand-father of the respondents. He submits that on the basis of the said finding of tenancy in favour of the grand-father of the respondents, the Civil Court dismissed the Regular Civil Suit No.375 of 1968 filed by the petitioners before the Civil Court, Pune inter-alia praying for redemption of the suit lands against the father of the respondents. He submits that the said order and judgment of the Civil Court has been admittedly not impugned by the petitioners in any of the proceedings and has attained finality.
12. It is submitted by the learned counsel that in case of re- grant of the land to Watandar, if there is a tenant of the said Watan land as on 1st April, 1957 cultivating the land, no new tenancy is created. He submits that the provisions of section 32-O of the BT & AL Act itself is not applicable to the said tenancy. The price of the suit lands thus has to be fixed under section 32(G) in view of the fact that such tenant becomes deemed purchaser of the suit lands as on 1 st April, 1957. He submits that the proviso to section 8 of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962 does not take away the vested right of the tenant conferred by statute under section 32 of the BT & AL Act.
13. Learned counsel for the respondent no.6 placed reliance on the judgment of the Supreme Court in case of Sadashiv Dada 8 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 Patil vs. Purushottam Onkar Patil, (2006) 11 SCC 161 and in particular paragraphs 6 to 26. He submits that the Supreme Court in the said judgment has not only construed the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 but also the provisions of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962. He submits that section 8 of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962 is in pari materia with the provisions of the Maharashtra Inferior Village Watans Abolition Act, 1959. He submits that that the Supreme Court has also quoted the judgment of this Court in case of Kallawwa Shattu Patil vs. Yallappa Parashram Patil, 1992, Mh.L.J. 34 with approval in the said judgment of the Supreme Court. He submits that the law laid down by the Supreme Court in case of Sadashiv Dada Patil (supra) squarely applies to the facts of this case. The Maharashtra Revenue Tribunal has rightly followed the principles laid down by the Supreme Court in case of Sadashiv Dada Patil (supra) in the impugned judgment and thus no interference is warranted with the judgment of the Maharashtra Revenue Tribunal.
14. Learned counsel for the respondent no.6 also placed reliance on the judgment of this Court in case of Pradip Vasudeo Ekbote & Ors. vs. Shantaram Motiram Gatkal & Ors., (2015) 1 ALL MR 717 in support of his submission that the provisions of section 32-O of the BT & AL Act was not applicable.
15. Insofar as reliance on section 88-CA of the BT & AL Act placed by the learned counsel for the petitioner is concerned, it is submitted by Mr.Godbole, learned counsel for the respondent no.6 that the said provision is inserted by Amending Act, 1958. The 9 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 provisions of the Maharashtra Inferior Village Watans Abolition Act, 1959 was not in force on the date of insertion of section 88-CA in the BT & AL Act. He submits that when the provisions of the Maharashtra Inferior Village Watans Abolition Act, 1959 came into effect on 20th January, 1959, the legislature was fully aware that section 88-CA was inserted in the BT & AL Act and the Bombay Service Inams (Useful to Community Abolition) Act, 1953 was already abolished. He placed reliance on the definition of Watandar under section 2-xi of the Maharashtra Inferior Village Watans Abolition Act, 1959.
16. It is submitted that the petitioners have sought to place reliance on section 88-CA of the BT & AL Act for the first time across the bar at this stage and did not rely upon in any of the proceedings before the authority or even in the writ petition filed by the petitioners in this Court. He submits that all the judgments relied upon by the petitioners as well as by the respondents have taken a consistent view that the tenants are entitled to apply for fixing the price on the basis of they being the deemed purchasers as on 1 st April, 1957. He submits that if the arguments of the petitioners are accepted, all such judgments taking the said view would be nullity and all the orders passed by various authorities permitting the application under section 32(G) of the BT & AL Act would be also nullity.
17. Mr.Godbole, learned counsel for the respondent no.6 submits that even if section 88-CA is made applicable to the suit lands and also to the parties to the proceedings, none of the conditions prescribed therein are satisfied in this case. Reliance thus now placed on section 88-CA at this stage even otherwise is totally misplaced.
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18. Mr.Hegde, learned counsel for the petitioners in rejoinder submits that the provisions of section 88-CA of the BT & AL Act applies to all the Watan lands. He strongly placed reliance on the judgment of this Court in case of Babu Bala Dinde (supra) and more particularly paragraph 7 thereof. He submits that none of the judgments of this Court or the Supreme Court relied upon by the respondents has considered the provisions of section 88-CA of the BT & AL Act. It is submitted that the issues involved in all those judgments relied upon by the respondents were totally different. Section 32(G) of the BT & AL Act is not attracted at all. The application for fixing the purchase price by the respondent no.6 was thus not maintainable. It is submitted that in these circumstances, it is a fit case for this Court to remand the matter to the authority for rendering a finding on the issue whether the suit land was held for service useful to the Government and whether section 88-CA of the BT & AL Act was applicable to the facts of this case or not and consequently whether section 32(G) was attracted to the facts of this case or not. He made an attempt to distinguish the judgment of the Supreme Court in case of Sadashiv Dada Patil (supra) on the ground that the provisions of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962 considered by the Supreme Court in that judgment were totally different and were not in pari materia with the provisions of the Maharashtra Inferior Village Watans Abolition Act, 1959. He submits that in the said judgment, the Supreme Court had not considered section 88-CA of the BT & AL Act and thus is clearly distinguishable.
REASONS AND CONCLUSIONS :
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19. It is not in dispute that the grand-father of the original respondent was cultivating the suit land. The petitioners had filed Regular Civil Suit No.375 of 1968 in the Civil Court, Pune against the father of the respondents for redemption of the suit lands. In the said suit, the father of the respondents had filed a written statement and had contended that he was a tenant in respect of the suit lands since long time before 1st April, 1957. The trial Court made a reference under section 85 of the BT & AL Act to the Tahasildar, Haveli to decide the issue of tenancy in respect of the suit lands. Learned Tahasildar passed an order on 2nd February, 1979 in the said Tenancy Proceedings (TC No.10 of 1974) and held that the father of the respondents was the tenant in respect of the suit lands even prior to the year 1941-42.
20. The petitioners herein challenged the said order by filing Appeal bearing T.A. No.44 of 1979 before the Assistant Collector, Pune. By an order dated 15th January, 1983, the Assistant Collector, Pune dismissed the said appeal. The petitioners thereafter filed a Revision Application bearing No.MRT/P/IV/11/1983 before the Maharashtra Revenue Tribunal. By an order dated 15th April, 1986, the Maharashtra Revenue Tribunal dismissed the said revision application. In the said order, it was held that there was no proof of mortgage as alleged by the petitioners but there was sufficient proof of creation of tenancy. Admittedly, the petitioners did not challenge the said order dated 15th April, 1986 passed by the Maharashtra Revenue Tribunal confirming the finding of the tenancy in favour of the father of the respondents prior to 1st April, 1957. The said finding thus attained finality.
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21. It is not in dispute that pursuant to the said finding rendered by the authorities and confirmed by the Maharashtra Revenue Tribunal, the suit filed by the petitioners came to be dismissed by an order dated 17th December, 1997. The petitioners did not challenge the said decree passed in the said suit.
22. The respondents thereafter filed an application under section 32-G of BT & AL Act inter-alia praying for fixing the price of the suit lands under section 32-G of the said Act. Learned Additional Tahasildar dismissed the said application filed by the respondents holding that the suit lands were Mahar Watan lands and the same were re-granted to the petitioners on 1st August, 1959 and thus the provisions of the BT & AL Act were not applicable. The respondents preferred an appeal against the said order dated 18th July, 2001 before the Sub-Divisional Officer, Pune. Admittedly, the said Sub- Divisional Officer dismissed the said appeal by an order dated 28th February, 2003 holding that the respondents had not exercised their right to purchase the suit lands within one year from the date of re- grant of the suit lands in favour of the petitioners i.e. on 1 st August, 1959. The Maharashtra Revenue Tribunal however, vide an order dated 14th June, 2003 allowed the revision application filed by the respondents.
23. The Maharashtra Revenue Tribunal in the impugned order has referred to and relied upon various judgments of the Supreme Court and this Court and held that the orders passed by the Additional Tahasildar and Also by the Sub-Divisional Officer were perverse. The Maharashtra Revenue Tribunal held that the findings 13 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 rendered by the authorities below were contrary to the principles laid down by the Supreme Court in case of Pandurang Dnyanoba Lad vs. Dada Rama Methe, AIR 1976 SC 1910 and contrary to the principles laid down by this Court in case of Pradeeprao @ Virgonda Shivagonda Patil vs. Sidappa Girappa Hemgire, 2004(3) Mh.L.J. 75. The Maharashtra Revenue Tribunal adverted to and applied the principles laid down by the Supreme Court in case of Sadashiv Dada Patil vs. Purshottam Onkar Patil (supra) holding that the proviso to section 8 of the Maharashtra Revenue Patels (Abolish of Office) Act, 1962 does not take away the vested right of the tenant conferred by section 32 of the Tenancy Act. The Maharashtra Revenue Tribunal accordingly quashed and set aside the order dated 28th February, 2003 passed by the Sub-Divisional Officer and the order dated 18th July, 2001 passed by the Additional Tahasildar. The Maharashtra Revenue Tribunal remanded the matter to the trial Court for fixing the price of the suit lands as per the provisions of section 32-G of the BT & AL Act.
24. The Supreme Court in case of Pandurang Dnyanoba Lad (supra) has construed the provisions of section 32-G and 32-O of the BT & AL Act and also construed the provisions of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, XXII of 1955 and held that section 32-O of the BT & AL Act applies only to tenancies created after the tillers' day. As the relationship of landlord and tenant between the parties did not come to an end, it should not be said that the new relationship of the landlord and the tenant came into existence between the parties so as to attract the application of section 32-O. The Supreme Court held that since the tenants did not cease to be the tenants of the landlord Inamdar on the introduction of 14 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 the Alienations and Abolition Act, they are entitled to purchase the land under section 32. Section 32-O of the BT & AL Act applies only to the tenancy created after tillers' day.
25. This Court in case of Pradeeprao @ Virgonda Shivagonda Patil (supra) has adverted to the judgment of this Court in case of Kallawwa Shattu Patil vs. Yallappa Parashram Patil, 1992, Mh.L.J. 34 and held that section 32-O of the BT & AL Act is not applicable to that case and the tenant was straightway entitled to invoke the provisions of section 32-G of the BT & AL Act and to move the authorities for fixation of the purchase price without serving any notice on the landlord in respect of exercising of his right to purchase the suit land. In my view, the principles laid down by the judgment of the Supreme Court in case of Pandurang Dnyanoba Lad (supra) and the judgment of this Court in case of Pradeeprao @ Virgonda Shivagonda Patil (supra) are rightly applied by the Maharashtra Revenue Tribunal to the facts of this case.
26. This Court in case of Kallawwa Shattu Patil (supra) has held that section 32-O of the BT & AL Act is applicable only to cases where tenancy is created by the landlord after tillers' day and not to the cases where the tenancy of the agricultural land is subsisting on 1st April, 1957 i.e. tillers' day. It is held that section 32-O cannot be applied to the cases where the land was already leased by the landlord in favour of the tenant prior to 1st April, 1957 and the said lease was subsisting on 1st April, 1957 and it has subsisted through out. This Court held that proviso to section 8 of the Maharashtra Revenue Patels (Abolition of Office) Act creates a statutory legal fiction for an extremely limited purpose, i.e. for the purpose of fixing 15 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 purchase price in respect of statutory purchase. For the said limited purpose, the land is deemed to have been leased from the date of re- grant. It does not follow therefrom that the landlords have created a lease in respect of the said land after 1st April,1957 from the re-grant. The old lease never came to an end. It is held that the tenant is straightway entitled to invoke the provisions of section 32-G of the Tenancy Act and move the authorities for fixation of purchase price without serving any notice on the landlord in respect of exercising of his right to purchase the suit land. In my view, this judgment of this Court also will apply to the facts of this case. I am respectfully bound by the said judgment.
27. This Court in case of Pradip Vasudeo Ekbote & Ors. vs. Shantaram Motiram Gatkal & Ors., 2015(1) ALL MR 717 has adverted to the judgment of this Court in case of Kallawwa Shattu Patil (supra) has has taken the same view. This Court in the said judgment also adverted to the judgment of the Supreme Court in case of Sadashiv Dada Patil vs. Purushottam Onkar Patil, (2006) 11 SCC 161. In my view, the said judgment would apply to the facts of this case. I am respectfully bound by the said judgment.
28. In my view, the provision of section 8 of the Maharashtra Inferior Village Watans Abolition Act, 1959 is in pari materia with the provision of section 8 of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962 which has been construed in catena of decisions by this Court and also by the Supreme Court referred to aforesaid. I am inclined to accept the submission of Mr.Godbole, learned counsel for respondent no.6 that those judgments would squarely apply to the facts of this case. The Maharashtra Revenue Tribunal has rightly 16 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 adverted to the judgment of the Supreme Court in case of Sadashiv Dada Patil (supra) and has rightly allowed the revision application filed by the respondents.
29. Insofar as the submission of learned counsel for the petitioners that section 88-CA of the BT & AL Act applies to the facts of this case is concerned, the said provision is inserted in the said BT & AL Act by Amending Act, 1958. The provisions of the Maharashtra Inferior Village Watans Abolition Act, 1959 were not even in force on the date of insertion of the said section 88-CA in the said BT & AL Act. The provisions of the Maharashtra Inferior Village Watans Abolition Act, 1959 came into effect on 20 th January, 1959. I am inclined to accept the submission of Mr.Godbole, learned counsel for the respondent no.6 that the legislature was fully aware when the provisions of the Maharashtra Inferior Village Watans Abolition Act, 1959 were brought into force that section 88-CA was already inserted in the BT & AL Act and that the Bombay Service Inams (Useful to Community Abolition) Act, 1953 was already abolished.
30. Be that as it may, it is an admitted position that the petitioners never placed reliance on the said section 88-CA in any of the proceedings filed so far i.e. either before the Revenue Authorities in the earlier round of litigation or in the civil suit filed by the petitioners, in which the finding of tenancy of the father of the respondents was rendered. The petitioners had not even placed reliance or invoked the said provision, even in this writ petition which was filed sometime in the year 2013 till the date of commencement of arguments in this writ petition across the bar.
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31. Insofar as the reliance placed on the judgment of this Court in case of Babu Bala Dinde (supra) by the learned counsel for the petitioners is concerned, a perusal of the said judgment indicates that the respondents who were the owners of the suit land, in that matter had obtained certificate under section 88-C of the BT & AL Act and based on such certificate, the predecessor in title of the respondents became entitled to terminate the tenancy of the petitioners in respect of the suit land on the ground of bona-fide requirement under section 33-B of the BT & AL Act. The owners of the said land had filed an application under section 33-B of the BT & AL Act before Tenancy Awal Karkun, Karvir for possession of the suit land. In the said proceedings various orders were passed including the order passed by the Maharashtra Revenue Tribunal allowing the revision filed by the owners and restoring the order passed by the Tenancy Awal Karkun, Karvir allowing the prayer for possession of the suit land in favour of the owners. The tenant in that matter placed reliance on section 88-CA of the BT & AL Act and contended that the provisions of section 33-B of the BT & AL Act were not available since the suit lands were Inam lands and were exempted by the said provisions. The respondents on the other hand had contended that unless the suit lands were held to be for Inam service, the bar under section 88-CA of the Tenancy Act will not be attracted and in that event, application under section 33-B of the Tenancy Act by the landlord was competent.
32. This Court construed section 88-CA of the BT & AL Act and held that the said provision is attracted only in respect of the lands held as Inam for service useful to government and not with regard to Inam lands generally. It was not disputed in the said matter 18 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 that the suit lands were Inam lands. The Appellate Court in that matter had observed that from the 7/12 extract in respect of the suit land, it was not clear as to what kind of Inam was granted in favour of the landlord. It was held that if, the suit lands were held by the landlord as Inam for service useful to government, only then the contract under section 88-CA of the BT & AL Act would come into operation. This entitled the landlord to invoke the provisions of section 33-B of the BT & AL Act. If the lands are held as Inam but not for service useful to government, nonetheless the landlord would become entitled to invoke the provisions under section 33-B of the Tenancy Act of the BT & AL Act and apply for possession of the suit lands from the tenant. In this circumstances, this Court held that in that case it was not possible to conclude that the suit lands were held by the landlords as Inam for service useful to government. This Court accordingly remanded the case to the Trial Court to frame an issue "as to whether the provisions of section 88-CA of the Tenancy Act were not attracted in respect of the suit land".
33. In this case neither it was pleaded by the petitioners at any stage that the land in question which was Inam land was held by the petitioners as Inam for service useful to government. The owner filed an application based on the said provisions for possession under section 33-B of the BT & AL Act. In my view, this issue thus cannot be allowed to be raised for the first time in this petition challenging an order passed by the Maharashtra Revenue Tribunal allowing the revision filed by the respondents and remanding the matter to the Trial Court for fixing price of the suit land as per the provisions of section 32-G of the BT & AL Act. The said judgment of this Court even otherwise in my view does not apply to the facts of this case.
19 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 :::wp11631-13 The provisions of the section 88-CA of BT & AL Act is not attracted to the facts of this case.
34. In my view, the tenancy of the predecessors of the respondents prevailing as on 01st April, 1957 does not come to an end on the date of the re-grant of the land by the Government in favour of the petitioner with effect from 01st August, 1959. No fresh tenancy is created on 01st August, 1959. The Supreme Court in case of Sadashiv Dada Patil (supra) this Court in case of Kallawwa Shattu Patil (supra) and in case of Pradip Vasudeo Ekbote & Ors. (supra) have construed an identical provision and has held that section 32(O) of the BT & AL Act would not be attracted. The existing tenancy as on the deem that will continue and the tenants are entitle to apply for determination of the purchase price of such land based on the deemed ownership under section 32-G of the BT & AL Act. In my view, the aforesaid judgments squarely apply to the facts of this case.
35. I am not inclined to accept the submission of Mr.Hegde, learned counsel for the petitioners that section 88-CA of the BT & AL Act applies to all the Watan lands or that the application for fixation of purchase price filed by respondents under section 32-G of the BT & AL Act was not maintainable.
36. A perusal of the impugned order dated 14 th June, 2013 passed by the Maharashtra Revenue Tribunal clearly indicates that the Tribunal has rendered various findings of fact based on the findings rendered in the revenue proceedings declaring the predecessor of the respondents as deemed owner. The Revenue 20 ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 02:10:10 ::: wp11631-13 Tribunal has also applied the principles of law laid down by the Supreme Court in case of Pandurang Dnyanoba Lad (supra) and judgment of this Court in case of Pradiprao @ Virgonda Shivagonda Patil (supra). The findings rendered by the Maharashtra Revenue Tribunal being not perverse thus cannot be interfered by this Court in this petition filed under Article 227 of the Constitution of India. I do not find any infirmity in the impugned order passed by the Maharashtra Revenue Tribunal. I therefore pass the following order :-
i). The Writ Petition No.11631 of 2013 is dismissed. There shall be no order to costs.
(R.D. DHANUKA, J.) Learned counsel for the petitioners seeks continuation of ad-interim order passed by this court dated 9th September, 2016 and continued from time to time for a period of four weeks. Application for continuation of ad-interim order is vehemently opposed by the respondent no.6. Ad-interim order to continue for a period of four weeks from today.
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