Harubai Rama Chavan And Ors. vs Krishna Bidesh Suryavanshi ...
2001 Latest Caselaw 470 Bom

JUDGMENT

V. K. Barde, J.

1. Heard learned Counsel for the parties.

Rule, returnable forthwith with consent of the parties. The land survey No. 164/1 of Village Ranjani, Taluka Kavthe Mahankal was owned by Krishna Bidesh Suryavanshi. The present petitioner- Rama Mhasu Chavan claims that he was a tenant on the land and was in possession on the appointed day. On the basis of this contention, he initiated proceedings under section 32(1B) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act") and in the said proceedings an order was passed in favour of the tenant. However, an appeal was filed, being Tenancy Appeal No. 2 of 1991, before the Deputy Collector, Sangh who by his order dated 9.10.1991 allowed the appeal and set aside the order passed by the Tahasildar and directed that the land be restored in possession of the appellant-landlord. Against that order, the present petitioners-Rama Mhasu Chavan filed revision application before the Maharashtra Revenue Tribunal at Kolhapur. That revision application was also dismissed on 12.7.1999. Hence the present proceedings have been filed.

2. A very short point arises in this matter as to whether the provisions of section 32(1B) of the Tenancy Act are governed by the provisions of section 32F of the Tenancy Act. It is worth noting that in the year 1974, the Additional

Tahasildan Kavathe Mahankal, by his order dated 30.11.1974, directed that the possession of the land be given to the tenant Rama Mhasu Chavan. That order was reconsidered by the Additional Tahasildar, Kavathe Mahankal and as per his order dated 30.11.1984, he held that the landlord was permanently mentally disabled and the question of restoration of the suit land to the tenant did not arise. He further observed that the tenant had a remedy under section 32F read with section 29 of the Tenancy Act. He, therefore, directed that the proceedings be kept pending till the landlord ceases the disability as provided under section 32F of the Tenancy Act. This order was not challenged by the tenant Rama Mhasu Chavan, but then he started fresh proceedings under section 32(1B) of the Tenancy Act and thereafter the order regarding restoration of possession to the tenant was passed. The learned Deputy Collector, Sangli as well as the learned Member of the Maharashtra Revenue Tribunal, Kolhapur have set aside that order after considering all these circumstances.

3. It also appears that a suit was filed before the learned Civil Judge, Senior Division, Sangli and in that suit also the order passed by the Tahsildar for restoration of possession to the tenant was set aside by the Civil Court, but it is not necessary for the purpose of this proceedings to go into the decision given by the Civil Court because basically here the order passed by the Maharashtra Revenue Tribunal on 12.7.1999 is challenged.

4. Learned Counsel for the petitioners has argued that the provisions in section 32(1B) of the Tenancy Act give a right to the tenant to claim possession and this right is given irrespective of the provisions of section 32F of the Tenancy Act. However learned counsel for the respondents has argued that section 32F of the Tenancy Act opens with the non-obstante clause which reads "Notwithstanding anything contained in the preceding sections," which means that the provisions of section 32(IB) are also subject to the provisions of section 32F of the Tenancy Act. Therefore, so long as the landlord was under mental disability, the tenant had no right to claim possession under section 32(1B) of the Tenancy Act.

5.. In support of this contention, learned counsel for the respondents has relied upon the ruling of the Apex Court in the case of Amrit Bhlkaji v. Kashinath. No doubt, in the said matter the proceedings were under section 32G of the Tenancy Act. However, it is categorically observed by the Apex Court that section 32F has an overriding effect.

6. When the proceedings under section 32(1B) of the Tenancy Act were to be stayed as per the order passed by the Additional Tahasildar on 30.11.1984 because the landlord happened to be mentally disabled, then it was not at all proper on the part of the Tahsildar to reopen the matter, especially when the order passed on 30.11.1984 was not set aside by any upper authority. It was absolutely wrong on the part of the Tahsildar to consider the matter against the person who was mentally disabled and to pass an order for restoration of pos session in favour of the tenant on 11.2.1991. Therefore, the learned Deputy Collector, Sangli as well as the learned Member of the Maharashtra Revenue Tribunal rightly set aside that order and directed that possession of the land be restored to the landlord.

7. During the pendency of the revision before the Maharashtra Revenue Tribunal, the original landlord expired and now his heir Mahadeo Sakharam

Patil is brought on record in this petition. It goes without saying that the tenant can exercise his right under the Tenancy Act even against the heir of the landlord as per the various provisions of the Tenancy Act. However, as the position stands, at this stage, the order passed by the Maharashtra Revenue Tribunal on 12.7.1999 cannot be interfered with. Hence the petition stands dismissed and the rule discharged.