Santu Babaji Powar Since Deceased ... vs Shankar Nivas Sitaram Kamat And ...
2002 Latest Caselaw 234 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioner hereby assails the judgment and order which has been passed by learned Member of M.R.T. in Revision Application No. MRT-KP-214/1985 dated 17-11-1988 whereby he dismissed the revision application filed by the present petitioner confirmed the judgment and order passed by S.D.O. in Tenancy Appeal No. 61/83 dated 18-10-1985 and set aside the order which was passed in Tenancy Case No. 32-G Kukudwadi-14-A dated 6-6-1983. The land in question is survey No. 28 admeasuring 2 Acres and 3 Gunthas situated in the precincts of village Kukudwadi, Taluka Radhanagari, Dist. Kolhapur. The said land belonged to Shankar @ Nivas Sitaram Kamat, respondent No. 1, who was minor on 1-4-1959. Initially on 7-6-1979 Tahasildar and A.L.T. had decided the purchase ineffective as the tenant did not prove that the intimation was issued by him which was served on the landlords during the prescribed period. The present petitioner filed an appeal which was decided by S.D.O. who allowed the appeal and remanded the case back to Tahasildar and A.L.T. In view of that order passed by S.D.O., Tahasildar and A.L.T. issued fresh notices and heard the proceedings on 6-1-1983. The evidence was recorded on 18-4-1983 and 2-5-1983 and thereafter the Tahasildar and A.L.T. decided the said proceeding by passing the judgment and order which is the order which has been set aside by the learned Member of M.R.T. bearing the date as indicated by the said judgment of M.R.T. "6.6.83". By virtue of the said judgment and order, the learned Tahasildar and A.L.T. declared that the tenant was entitled to purchase the said land in view of provisions of Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act for convenience) and after deciding the purchase price directed that a certificate of purchase be issued to him in view of provisions of Section 32 M of the Act.

2. The said judgment and order was challenged by the present Respondent No. 1 by filing an appeal which was decided by S.D.O. in Tenancy Appeal No. 61 of 1983 which has been referred to in the abovesaid judgment passed by the learned Member of the M.R.T. which was confirmed by it. By the said judgment and order, the S.D.O. set aside the judgment and order which was passed by Tahasildar and A.L.T. in proceedings No. 32--G Kukudwadi-14-A. The learned S.D.O. held that the present petitioner was unable to prove that he had sent the intimation expressing his willingness to purchase the land in view of provisions of Section 32F (1)(a) of the Act and that point is the point of contest in the present petition.

3. Shri Dalvi placed reliance on the judgment of the Supreme Court in the case of Shimla Development Authority and Ors. v. Santosh Sharma (Smt.) and Anr., , wherein while dealing with a land acquisition matter, the Supreme Court held that in view of provisions of Section 27 of the General Clauses Act, 1897, if the notice is sent by the petitioner to the respondent but neither the unserved notice nor the acknowledgment cards were received, in such case it would be presumed that notice must be deemed to have been served on the addressee. He pointed out that in the said case the notice was sent to the respondent by the petitioner as early as on 25-7-1991 but neither the unserved notice nor the acknowledgment cards have so far been received from the respondent and in that case the Supreme Court held that notice must be deemed to have been served on the respondents. By pointing out that, Shri Dalvi pointed out that in the present case as the judgment passed by S.D.O. Kolhapur shows that the present petitioner had sent the intimation by registered post with acknowledgment due system but the petitioner had not received the acknowledgment copy showing that the said notice was served on respondent No. 1. Shri Dalvi submitted that it was on record that an intimation was sent to the respondent No. 1 by the petitioner but on account of the non-receipt of the said acknowledgement copy he was unable to prove such service by said method and when that was so, it was not proper and legal for the learned S.D.O. to come to a conclusion that the petitioner had failed to establish that he had given the intimation of his willingness to purchase the land in question. He further submitted that when that was the state of affair, it was not proper and legal for the learned Member of M.R.T. to come to a conclusion that the present petitioner had not expressed his willingness to purchase the land and had not given an intimation to that effect to respondent No. 1, the landlord. He submitted that the learned Member of M.R.T. landed in error of dismissing the revision application and, therefore, this Court be pleased to grant the writ of certiorari in favour of the petitioner for rectifying the said error of law.

4. Shri Ingale, Counsel appearing for respondent No. 1, by pointing out some observations from the judgment of learned S.D.O. Kolhapur submitted that the present petitioner did not have the evidence at all to prove that he had sent such an intimation to the respondent No. 1 landlord and, therefore, both the S.D.O. Kolhapur and the learned Member of M.R.T. were right in dismissing the contention raised by the present petitioner. He submitted that there is no error of law at all and, therefore, this writ petition be dismissed.

5. Shri Tngale pointed out the observations made by the learned S.D.O. twice in his judgment. Those observations can be quoted here in this judgment also in the interest of justice. The learned S.D.O observed that the petitioner had stated in his evidence :--

^^tehu ekyd ;kauk uksVhl ykxw >kyh ukgh-

iksgp ikorh ek>sdMs ukgh- eh uksVhl fnyh- i.k tehu ekyd ;kauk feykY:kps flð d: 'kdr ukgh-^^

He also quoted the admission made by the present petitioner :--

^^tehu ekyd uksVhl ikBfoY;kcíy ¼tehu [kjsnh dj.;k cn~ny½ etdMs vkt ys[kh iqjkok ukgh- ?kjhgh ukgh- rh uksVhl tehu ekydkauk iksgkspys cn~ny iqjkok vfLrRokr ukgh- uksfVl iksgpys cn~ny ikorh eky feykysyh ukgh-**

(Emphasis specially provided).

6. Thus, the sum and substance of the admissions given by the present petitioner is that he had not received the acknowledgment copy in context with the postal communication which was in context with his willingness to purchase the land and the intimation which he gave to landlord (present respondent No. 1). The statements made by the present petitioner that he did not have any documentary evidence in respect of the dispatch of such intimation to landlord was on account of his inability to produce the acknowledgment card in respect of the said postal communication which was sent by him to respondent No. 1 by "postal communication acknowledgment due". In that context he had stated that he was unable to produce the said acknowledgment card and in that context he had no documentary evidence to adduce, when he was examined, in the Court in his possession at that time, in the Court or at his residence. That was the meaning which was communicated by the sentences which were uttered by him and which have been quoted by the learned S.D.O. in his judgment. The said quotation from the judgment of learned S.D.O., Kolhapur, show that the said communication was in context with his willingness to purchase the said land. Infact communication was sent by him to the landlord in that context. When that was so, it was incumbent on both, the learned S.D.O. Kolhapur and the learned Member of M.R.T. to understand the impact created by the sentences uttered by the present petitioner in proper way. Unfortunately, both of them committed the gross error of interpreting it in proper sense and they drew the conclusions which were inconsistent with the material on record.

7. Section 32F(1)(a) provides that notwithstanding anything contained in the preceding sections, (a) where the landlord is a minor, or a widow, or a person subject to any mental or physical disability the tenant shall have the right to purchase such land under Section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall sent an intimation to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31. In context with provisions of Section 32F(1)(a) provisions of section (1A) will have to be read which provide that a tenant desirous of exercising the right conferred on him under Sub-section (1) shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub-section. Provided that, if a tenant holding land from a landlord [who was a minor and has attained majority before the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1969] (hereinafter referred to as Amended Act for convenience) has not given intimation as required by this sub-section but being in possession of the land on such commencement is desirous of exercising the right conferred upon him under Sub-section (1), he may give such intimation within a period of two years from the commencement of that Act. Provisions of Section 25F(1A) require that such tenant shall give an intimation in that context to the landlord and the Tribunal within a period of two years from the commencement of the Amended Act i.e. from 17-10-1969. Therefore, his right to give such intimation stood extended in the present matter upto 17-10-1971. The record shows that such intimation was sent, as contended by the present petitioner, on 4-10-1971. That means he could have sent such intimation on or before 17-10-1971 and according to his contention he had sent such intimation to landlord on 4-10-1971. When that was so both authorities below concluded erroneously.

8. Section 114 of Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act for convenience) provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. Illustration (e) to Section 114 provides that the Court may presume that judicial and official acts have been regularly performed. In that context provisions of Section 27 of General Clauses Act, 1897 will have to be kept in mind. Keeping in view the impact created by the sentences which were uttered by the present petitioner and which were read by learned S.D.O. and learned Member of M.R.T. as their judgments indicate, they should have come to the conclusion that the present petitioner had given the intimation of his willingness and his intention to purchase the land in question to respondent No. 1 by postal communication acknowledgment due within the prescribed period as indicated by provisions referred to above of the Act and Amending Act and in view of that, both, the learned S.D.O. Kolhapur and learned Member of M.R.T. should have recorded the conclusions that the judgment and order passed by Tahasildar and A.L.T. Radhanagari was correct and legal when it conferred the right of purchasing the land in question on the present petitioner. They should have concluded that he was entitled to purchase the said land on the payment of the price when it was determined by Tahasildar and A.L.T., Radhanagari and after payment of the said price he was entitled to get the purchase certificate in view of provisions of Section 32M of the Act. They have committed the gross error of law by recording the said findings which were inconsistent with the evidence on record. Therefore, while exercising the jurisdiction of superintendence in view of Article 227 of the Constitution of India, it becomes the duty of this Court to set it aside by granting the writ of certiorari in favour of the petitioner. Thus, the writ petition stands allowed with costs. Those two judgments and orders stand set aside and the judgment and order passed by Tahasildar and A.L.T. Radhanagari in Tenancy Case No. 32-G Kukudwadi-14-A dated 6-6-1983 is restored. Rule stands made absolute.