Nathu Barku Ghuge vs Sampat Mahadu Surve And Ors.
2002 Latest Caselaw 19 Bom

JUDGMENT

1. Both the petitions are being decided together because, they revolve around the same point which is to be adjudicated in Writ Petition No.5063/1988.

2.The landlord Nathu Barku Ghuge has assailed the correctness, propriety and legality of the judgment and order passed by the learned Member of M.R.T. in the matters of TEN. A 238 of 1986 and TEN.A 148/1986.

3.Some facts will have to be stated for unfolding the controversy involved in these two matters. The land in question is survey No.202, area 7 hectors, 20 Ares, assessed at Rs.9.90 paise, situated in Manmad, which originally belonged to Nathu Barku Ghuge. Application was moved by Mahadu Bala Surve before Tahsildar and ALT Nandgaon initiating the proceedings in view of the provisions of section 32G of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as Bombay Tenancy Act, for convenience). He had claimed that Mahadu Bala Surve was the tenant of the said land. Enquiry was held in view of Bombay Tenancy Act 1948 for fixing the price of the suit land and accordingly on 6/9/1959 the price of the suit land was fixed by Additional Tahsildar and A.L.T., Nandgaon. The price was to be paid in 12 equal installments. It appears that Mahadu Bala Surve had paid installments upto 1963 and he had failed to pay remaining amount of price fixed.

4.Landlord Nathu Bala Ghuge filed an application before A.L.T. and Tahsildar, Nandgaon which was numbered as TEN/CASE NO./6/1984 Nandgaon/21010/1985 with a prayer to hand over the possession of the said land to the landlord. Nathu Barku Ghuge averred in that application that tenant Mahadu Surve had paid installments upto 1963 only and thereafter he failed to pay remaining installments. Not only that but he averred that he had sublet the suit land to third person namely Smt. Janabai W/O Baburao Jadhav of Manmad. Hence he claimed that he be given the possession of the said land in view of the provisions of section 32(2) of Bombay Tenancy Act. Notices were served and statements were recorded before A.L.T. and Tahsildar, Nandgaon on 22/11/1968. It appears from the record that A.L.T. and Tahsildar, Nandgaon held that the remaining amount of price of Rs.500/- be paid by the heirs of tenant before 8/12/1968 and in the event of failure to pay the said installments within that period, the land was to be withdrawn from the possession of tenants heirs and were to be dealt with in accordance with the provision of law. While concluding the said proceeding, said A.L.T. and Tahsildar ordered:-

"In view of the above findings recorded, the proceeding is ordered to be dropped. The suit land is forfeited to State Government as the tenants fails to exercise the right to purchase the suit land held by him within the specified period as provided in section 32 P(1) of the B.T. & A.L.Act 1948. The disposal of the suit land under section 32 P(2)(c) should be started in accordance with the procedure prescribed on his behalf."

5.Being aggrieved by the said order the legal heirs of Mahadu Surve original tenant, had filed an appeal before Sub-Divisional Officer, Malegaon Division, Malegaon, which was numbered as TNC-A-14/1985. The learned S.D.O. passed the following order;- "The appeal is dismissed. No order as to cost. Parties to be informed of the decision by post by separate letters."

6.The original landlord Nathu Barku Ghuge filed a revision application before M.R.T., so also the heirs of original tenant filed revision application. Both the applications one bearing No.TEN.A 138 of 1986 and the other TEN.A 148 of 1986 were decided by the learned Member of M.R.T. by common judgment and order. The learned Member of M.R.T. passed following order: "Revision Application No.Ten.A138/86 stands dismissed. The Revision Application No.Ten.A.148/86 is allowed, the impugned orders dated 21.10.1985 passed by the Tahsildar and A.L.T.. Nandgaon in Tenancy Case No.6/84 and the impugned order dated 5.6.1986 passed by the Sub-Divisional Officer, Malegaon, Division, Malegaon in Tenancy No.14/85 are hereby set aside and the case is remanded to the Tahsildar and A.L.T. Nandgaon with a direction that the tenants should be called upon to deposit the amount due towards the purchase price together with the interest thereon by a date to be fixed by the Tahsildar and A.L.T. Nandgaon. Thereafter the Tahsildar and A.L.T. shall issue a certificate of purchase in the prescribed form to the tenants- purchasers in respect of the suit land. Such a certificate shall be the conclusive evidence of purchase. In the event of failure of recovery of purchase price as arrears of and revene under subsection (3) of section 32K, the purchase shall be ineffective and the land shall be at the disposal of the Tribunal under section 32P and any amount deposited by such tenants-purchasers towards the price of the land shall be refunded to them. No order as to costs."

7.These orders are quoted as they are, because the Counsel appearing for the petitioners has seriously challenged the orders passed by the A.L.T. and Tahsildar, Nandgaon by which he declared that the said suit land stood forfeited to Government. He also seriously challenged the order which has been passed by the learned Member of M.R.T. who directed the concerned Tahsildar to allow the heirs of original tenant Mahadu to pay the remaining installments of the price of the suit land and to issue a certificate to them, in view of section 32M of Bombay Tenancy Act.

8.Shri Kapse submitted that when it was brought to the notice of A.L.T. and Tahsildar, Nandgaon at initial stage that original tenant had failed to pay all the installments of the purchase price, the learned A.L.T. and Mamlatdar should have taken an action as provided by section 32P sub-section(2)(b) and he should have ordered that the said land shall subject to the provisions of section 15, be surrenderd to the former landlord i.e. Nathu Barku Ghuge. He submitted that instead of passing such order the A.L.T. and Tahsildar declared that the said land stood forfeited to the Government. Shri Kapse further submitted that when the appeal was preferred by Sampat Mahadu Surve and Baburao Mahadu Surve, which was numbered as TNC-A-14/1985, Sub-Divisional Officer should have ordered that the judgment and order passed by A.L.T. and Tahsildar, Nandgaon stood set aside and should have himself passed an appropriate order in view of the provisions of section 32P of the Bombay Tenancy Act. He further submitted that instead of passing correct and legal order, S.D.O. passed erroneous order and therefore, the original landlord was required to move a revision application before M.R.T., but to his misfortune M.R.T. passed very strange order and directed A.L.T. and Tahsildar to allow the legal heirs of original tenant to pay the remaining installments of the purchase price and directed A.L.T. and Tahsildar to issue a certificate to them in view of section 32M of Bombay Tenancy Act. He further submitted that as the judgment and order which has been passed by the learned Member of M.R.T. is beyond his jurisdiction and powers, that be set aside by issuing a writ of Certiorari in view of the petition.

9.Miss Bhide, Counsel appearing for the respondents, submitted that the order which has been passed by the learned Member of M.R.T. is correct, proper and legal. She submitted that he has restored the situation and passed a legal order keeping in view the spirit behind enacting the Bombay Tenancy Act. She pointed out that only two installments were in default and therefore, the view taken by the learned Member of M.R.T. was the fit view which was available to be taken. She prayed that petition be dismissed.

10.As an auxiliary matter to this, there was a proceeding between the parties in view of the provisions of section 145 of Criminal Procedure Code, 1973 (hereinafter referred to, as Code for convenience). When the learned Executive Magistrate, Nandgaon dealt with the said proceeding in view of section 145 of the Code in which original landlord Nathu Barku Ghuge and one Vishnu Ghuge were party No.1 and Sampat Mahadu Surve and Babulal Mahadu Surve, Sanjay Babulal Surve and Rajendra Babulal Surve were Party No.2, the learned Executive Magistrate held that Party No.1 were in physical possession of the suit land two months immediately prior to the initiation of the proceeding which was initiated on account of the report filed by Police Officer of Nandgaon Police Station. The said order of Executive Magistrate was challenged in the Sessions Court, Nasik and the Additional Sessions Judge, Malegaon decided the said revision which was numbered as Criminal Revision No.61/1989. The learned Additional Sessions Judge, Malegaon held that Nathu Barku Ghuge and Vishnu Nathu Ghuge were in physical possession of the concerned land at the time of cultivation of the crop which was seized and that the proceeding deserved to be dropped. He further directed that the seized crop or its price be deposited by respondents with revenue treasury as ordered by Executive Magistrate. This order has been assailed by Party No.2 in the said proceeding under section 145 of the Code by the writ petition.

11.Thus, the parties and their Counsel are revolving around the hotchpotch created by the different observations by different forums in their respective orders. Shri Kapse submitted that the learned Member of M.R.T. had no jurisdiction and power to direct the A.L.T. and Tahsildar to permit the legal heirs of original tenants to deposit the remaining installments and to grant them a certification in view of section 32M of Bombay Tenancy Act. However, Miss Bhide submitted that the learned Additional Sessions Judge, Malegaon had no jurisdiction and power to deal with the right of cultivation and factum of cultivation of the said land and he had no jurisdiction to come to the conclusion that the said land was being cultivated by the original landlord and his associates who were party No.1 in the proceeding which was before the Executive Magistrate in view of provisions of section 145 of the Code. These things are really pinching the litigants and their Counsel. There has been hotchpotch created on account of all these things and therefore, for restoring the course of administration of justice, this Court will have to correct the things by passing the appropriate order and adverting its attention to relevant facets of the matter. It necessitates for an order from this Court to restore the things to proper stage and status keeping in view the benevolent spirit for which the Bombay Tenancy Act has been enacted.

12.Needless to mention that Bombay Tenancy and Agricultural Lands Act 1948 has been enacted for the purpose of declaring that one who physically cultivates the land should be given the land. It is enacted for declaring that one who was cultivating the agricultural land on tillers day i.e. 1/4/1957 should be protected. This is for increasing the agricultural system prevalent in India before enacting the said Act and that was for the purpose of securing the welfare of the agriculturists community and for utilising the agricultural lands for fullest and better purposes. It cannot be ignored that the purpose behind it was also to restore the rural economy based on agriculture and to increase the agricultural cultivation and produce in its real spirit for welfare of the society at large which consists of the majority of population from rural area and that too from the agricultural sector. It was for "Green Revolution". Therefore, this Court would be giving importance to this benevolent spirit while resolving complications created by various orders and observations made by various forums in the judgments and orders which are being touched by the litigants in this lis.

13 .Section 32G provides :-

"32G. (1)As soon as may be after the tillers day the Tribunal shall publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon,-

(a) all tenants who under section 32 are deemed to have purchased the lands,

(b) all landlords of such lands, and

(c) all other persons interested therein, to appear before it on the date specified in the notice. The Tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable other persons calling upon each of them to appear before it on the date specified in the public notice.

(2) The Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as tenant.

(3) Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective :

Provided that if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same.

(4) If a tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of section 32H and of section (3) of Section 63A:

Provided that where the purchase price in accordance with the provisions of section 32H is mutually agreed upon by the landlord and the tenant, the Tribunal after satisfying itself in such manner as may be prescribed that the tenants consent to the agreement is voluntary may make an order determining the purchase price and providing for its payment in accordance with such agreement.

(5) In the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall, as soon as may date, after such date determine the price of the land.

(6) If any land which, by or under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule III to this Act, is regranted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the regrant and such person shall as a tenant be deemed to have purchased the land under this section, as if the condition that it was not transferable was not the condition of regrant."

Section 32P provides:-

"(1)Where the purchase of any land by tenant under section 32 becomes ineffective under section 32G or 32M or where a tenant fails to exercise the right to purchase the land held by him within the specified period under section 32F,the Tribunal may suo motu or on an application made on this behalf, land in case other than those in which the purchase has become ineffective by reason of section 32G or 32M, after holding a formal inquiry direct that the land shall be disposed of in the manner provided in subsection (2).

(2) Such direction shall provide-

(a) that the former tenant be summarily evicted;

(b) that the land shall subject to the provisions of section 15, be surrendered to the former landlord;

(c) that if the entire land or any portion thereof cannot be surrendered in accordance with the provisions of section 15, the entire land or such portion thereof, as the case may be, notwithstanding that it is a fragment, shall be disposed of by sale to any person in the following order of priority.

(i) a cooperative farming society, the members of which are agricultural laborers, landless persons or small holders or a combination of such persons;

(ii) agricultural laborers

(iii) landless persons;

(iv) small holders;

(v) a co-operative farming society of agriculturist (other than small holders) who hold either as owner or tenant or partly as owner and partly as tenant, landless in area than an economic holding and who are artisans;

(vi) an agriculturist (other than a small holder) who holds either as owner or tenant or partly as owner and prtly as tenant, landless in area than an economic holding and who is an artisan;

(vii) any other cooperative farming society;

(viii) any agriculturist who holds either as owner or tenant or partly as owner and partly as tenant land larger in area than an economic holding but less in area than the ceiling area;

(ix) any person, not being an agriculturist, who intends to take to the profession or agriculture;

(3) Where any land is to be surrendered in favour of the (former landlord under subsection (2), the (former landlord) shall not be entitled to the possession thereof until any amount refundable to the (former tenant is refunded to him or recovered from the (former landlord); and until such refund or recovery is made, the (former tenant) shall continue to hold the land on the same terms on which it was held by him previously.

(4) Where any land or portion thereof cannot be surrendered in favour of the land lord and where such land or portion is offered for the sale under sub-section(2), but no person comes forward to purchase such land or portion as the case may be, shall vest in the State Government and the (Tribunal) shall determine the price of such land or portion in accordance with the provisions of section 63A and the amount of the price so determined shall, subject to the provisions of section 32E, be paid to the owner thereof.

(5) Where any land is sold under subsection (2), (Tribunal) shall determine the price of the land in accordance with the provisions of section 63A and the price so determined shall be payable by annual installments not exceeding six with simple interest at the rate of 4-1/2 per cent. per annum as the (Tribunal) may determine and the price of the land recovered from the purchaser shall, subject to the provisions of section 32Q, be paid to the owner thereof.

(6) On the deposit of the last instalment of the purchase price, the Tribunal shall issue a certificate of purchase in the prescribed form to the purchaser in respect of the land. Such certificate shall be conclusive evidence of purchase. If the purchaser is at any time in arrears of two installments, then unless the (Tribunal ) after holding such inquiry as it thinks fit is satisfied with the reasons given and allows a further period not exceeding one year to pay the arrears, the purchase shall be ineffective and the amount deposited by such purchaser shall be refunded to him.)".

Section 32K provides:-

"(1) On the determination of the purchase price (payable under section 32H) (the tenant-Purchaser),-

(i) if he is a permanent tenant, shall deposit with the Tribunal the entire amount of the purchase price within one year from such date as may be fixed by the Tribunal: Provided that if the Tribunal is satisfied that such tenant purchaser has failed to make the payment with the time specified for any reason beyond his control the Tribunal may extend the period by a period not exceeding one year;

(ii) if he is not a permanent tenant, shall deposit with the Tribunal the entire amount of the price,-

(a) either in lump sum within one year from such date, or

(b) in such annual installments not exceeding twelve with simple interest at the rate of 4-1/2 per cent, per annum on or before such dates as may be fixed by the Tribunal; and the Tribunal shall direct that the amount deposited in lump sum or the amount of installments deposited shall be paid to the former landlord.

(1A) If a tenant-purchaser is unable to deposit with the Tribunal the entire amount of the purchase price in lump sum before the expiry of the period fixed under clause (ii) of subsection (1), he may deposit with the Tribunal within three months after the expiry of such period of six months from the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1964, whichever is later an amount equal to one-twelfth of the purchase price, and also an amount equal to one years interest at the rate of 4-1/2 per cent per annum on the balance; and apply to the Tribunal to pay the balance in installments. On such deposit being made, the Tribunal shall grant the tenant-purchaser such reasonable facility (not exceeding eleven annual instalments) for payment of the balance as it deems fit.

(1B) Where a tenant-purchaser.-

(a)fails to pay the price in lump sum within the period referred to in clause (ii) of subsections) or

(b) is in arrears of four installments, where the number of installments fixed is four or more, and all the installments in any other case, he may during the period of six months from the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1964 or from the date of default of the payment of price in lump sum, or of the last instalment, whichever is later, apply to the Tribunal to condone the default on the ground that he, for sufficient reasons was in capable of paying the price in lump sum or the installments within time; and if the Tribunal after holding such inquiry as it thinks fit, is satisfied with the reasons given, it may allow further time,-

(i) of one year to the tenant-purchaser to pay the price in lump sum, or

(ii) for payment of the arrears, and may, for that purpose increase the total number of installments to sixteen.

(2) During any period for which payment of rent is suspended or remitted under section 13, the (tenant-purchaser) shall not be bound to pay the purchase price in lump sum or the amount of any installments fixed under this section or any interest there on, if any.

(3) If a tenant-purchaser fails to pay the entire amount of the purchase price within the period fixed under the provisions of this section or is in arrears of four instalments where the number of instalments fixed is four or more, and all the instalments in any other case, the amount of the purchase price remaining unpaid and the amount of interest thereon at the rate of 4-1/2 per cent, per annum, if any, shall be recoverable by the Tribunal as an arrear of land revenue."

14. When the landlord finds that the original tenant was in default of payment of the installments of purchase price it becomes legitimate for him to move an application before A.L.T. and Tahasildar for getting possession of the concerned land in view of the provisions of section 32P (2)(b) which provides that, the land shall, subject to the provisions of section 15, be surrendered to the former landlord. But when such proceeding is initiated and is dealt with by A.L.T. and Tahsildar, A.L.T. and Tahsildar is not powerless to consider the provisions of section 32K sub-section(3) which provides that if a tenant-purchaser fails to pay the entire amount of the purchase price within the period fixed under the provisions of this section or is in arrears of four installments where the number of installments fixed is four or more, and all the installments in any other case, the amount of the purchase price remaining unpaid and the amount of interest thereon at the rate of 4-1/2 per cent, per annum, if any, shall be recoverable by the Tribunal as arrears of land revenue. It is not powerless to consider the provisions of section 32K subsection (1B)(a) and (b) which provides that where the tenant-purchaser (a) fails to pay the price in lump sum within the period referred to in clause (ii) of sub-section) (a) or (b) or is in arrears of four installments, where the number of instalments fixed is four or more, and all the installments in any other case, he may during the period of six months from the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1964 or from the date of default of the payment of price in lump sum or of the last instalment, whichever is later, apply to the Tribunal to condone the default on the ground that he, for sufficient reasons was incapable of paying the price in lump sum or the installments within time; and if the Tribunal after holding such inquiry as it thinks fit, is satisfied with the reasons given, it may allow further time,-(i)of one year to the tenant-purchaser to pay the price in lump sum, or (ii) for payment of the arrears and may, for the purpose increase the total number of installments to sixteen. The A.L.T. and Tahsildar is empowered to consider the provisions of sub-section (2) of section 32K which provides that, during any period for which payment of rent is suspended or remitted under section 13, the (tenant-purchaser) shall not be bound to pay the purchase price in lump sum or the amount of any installments fixed under this section or any interest thereon, if any.

15. In fact the Advocate appearing for legal heirs of tenants should have made a prayer in view of provisions of section 32K that the A.L.T. and Tahsildar was also not prevented from invoking these provisions suo motu but that has not been done. Unfortunately. A.L.T. and Tahsildar forfeited that land to Government. That was naturally to give a pinch to the landlord. But very strangely he did not challenge the said order by filing an appeal before S.D.O. The appeal was filed by legal heirs of tenant and the learned S.D.O. instead of giving proper attention to the mistakes committed by A.L.T. and Tahsildar dismissed the appeal which was filed by the tenant. Not preferring of an appeal by the landlord and dismissal of the appeal of the tenant created complications. The matter was bound to go before M.R.T. and it in fact went to M.R.T. for proper adjudication.

16. The learned member of M.R.T. after elaborate discussion passed an order which has been mentioned above ad verbatim (correcting as far as possible typing mistakes). The learned Member directed A.L.T. and Tahsildar to permit the legal heirs of original tenant to pay the remaining installments and to grant them certificate in view of the section 32M. As Miss Bhide had submitted before this Court such certificate has been granted to the legal heirs of original tenant. This aspect would very much weigh while deciding these matters, because after all this Court is to exercise the jurisdiction vested in it in view of Article 227 of Constitution of India.

17. When the High Court is exercising the jurisdiction and power of superintendence over the judicial performance of subordinate Courts, Tribunal and Forums which come in the ambit of the wide jurisdiction of power of High Court provided by Article 227, this Court has to be as disciplined for maintaining the dignity and decorum of its powers and magnitude. It is to be noted that when the power is absolute, it demands more restraint. Subordinate Court, Tribunal or Forum may pass order which may not be to the satisfaction or the test of the High Court but none the less if it is within the four corners of jurisdiction exercisable by that Court, Tribunal or Forum and if it is not perverse, not against the evidence on record, not against the provisions of law, there is no need to set it aside by interfering with it. In the present case the learned Member of Tribunal has given appropriate effect to the provisions provided in section 32K of Bombay Tenancy Act as indicated above and that is consistent with the benevolent spirit behind enacting Bombay Tenancy Act. Though normally learned Member should have remanded the matter to A.L.T. and Tahasildar for permitting him to exercise his jurisdiction and power in the context of the controversy brought before him, now restoring the things to order it will have to held that he was right in passing the said order. It is for two reasons one that the said order was consistent with the spirit behind enacting Bombay Tenancy Act and was consistent with the spirit indicated by the provisions of section 32K subsection (2) and (3) subsection (1B) (2)(3). Secondly by his order, delay has been avoided, final result was beneficial one and therefore this Court does not find any ground to interfere with it and to set it aside. Therefore, this Court comes to the conclusion that the Writ Petition which has been filed by the original landlord deserves to be dismissed and will have to be dismissed.

18. This leads to another aspect of the matter, which is the proceeding which has been initiated in view of the provisions of section 145 of the Code. Section 145 of the Code unequivocally deals with the physical possession of the party in dispute. It does not allow the Courts to go into the merit for deciding the legal rights of the parties involved in the dispute over the land in dispute. It is empowered to consider as to who had sown the crop if the Court is required to deal with the return of the crop grown in the said land or its price. Therefore, the learned Additional Sessions Judge, Malegaon ought to have refrained from expressing opinion about the merit and he should have refrained from touching the merit of the legal rights of the parties who were in dispute in the said proceeding. The said observations need to be expunged and need to be ignored because, they do not fit in the structure of the provisions of section 145 of the Code. Nonetheless the learned Additional Sessions Judge, Malegaon was correct in drawing the final conclusion. His final conclusion in declaring that the said proceeding has been rightly dropped is correct, because, it has got the reference to the proceeding which was between the parties in revenue Courts and Forums.

19. Thus, though the style of solving the problem and writing equations may not be desirable in spirit the final conclusion and result happens to be correct. Therefore, that Criminal Writ Petittion also deserves to be dismissed and demands dismissal.

20. Thus, both the petitions are hereby dismissed with costs, for cautioning the litigants and making them to refrain from frivolous, unnecessary litigations. Rule issued in both the Writ Petitions stand discharged.