Ramchandra Mangalya Kadu vs Madhukar Chamar Churi And Anr.
2002 Latest Caselaw 1084 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 takes exception to the Judgment and Order passed by the Maharashtra Revenue Tribunal at Bombay dated October 13, 1989, in Case No. Ten.A. 196 of 1989. Briefly stated the land in question is bearing Survey No. 339 Hissa No. 1, admeasuring 1 acre 8 gunthas and 12 annas situate at Village Badapokharan in Dahanu Taluka of District Thane. This land originally belonged to one Keshav Gokulya Raut, since deceased. The said Keshav Raut sold the land in question in favour of the petitioner herein by registered sale deed on 24-12-1965. It is the case of the petitioner that at the time of execution of the sale deed the petitioner was put in possession of the suit land. However, the respondent No. 1 who claims that he was tenant in respect of the suit land since prior to 1957, for the first time, on September 12, 1975 moved an application purported to be under Section 84C of The Bombay Tenancy and Agricultural Lands Act, 1948 contending that the sale deed in favour of the petitioner is invalid and that he should be put back in possession of the disputed land. That application was allowed by the Tahsildar by order dated March 17, 1976. It is not in dispute that thereafter the possession of land was taken over by the authorities from the petitioner and made over to the respondent No. 1 on 1-6-1976 on the basis of the above order. The petitioner, however, challenged the order passed by the Tahsildar before the appellate authority, namely, the Sub Divisional Officer being Tenancy Appeal No. 11/76. That appeal was dismissed by the appellate authority on 21-8-1977. The petitioner carried the matter in revision before the Maharashtra Revenue Tribunal being Revision No. 72 of 1978. The Tribunal after examining the rival contentions remanded the matter for further investigation to the file of the Tahsildar, by order dated 10-7-1979. After remand, the Tahsildar on application of the petitioner by order dated 28-11-1980, directed restoration of possession of the land pending inquiry to the petitioner, This order was, however, set aside on December 26, 1981 in the Revision filed by the father of respondent No. 2. The Maharashtra Revenue Tribunal rejected the Revision filed by the petitioner by Order dated September 21, 1982 and ordered that the enquiry under Section 84C of the Act to proceed. Accordingly, the Tahsildar Dahanu proceeded with the enquiry under Section 84C and by his order dated December 14, 1988 held that in view of M.R.T. Order dated July 10, 1979 and to meet the ends of justice enquiry under Section 84C should be proceeded further. The respondent No. 1 filed Tenancy Revision No. 2 of 1989 before the Sub Divisional Officer, who, by his Order dated June 17, 1989, dismissed that Revision and affirmed the Tahsildar's view that further enquiry is necessary. In view of the observations made by the appellate authority the respondent No. 1 filed Revision Application before the Maharashtra Revenue Tribunal being Tenancy A. 196 of 1989. In this revision the Tribunal examined the legal question as to whether proceedings under Section 84C could be invoked in the fact situation of the present case. The Tribunal has positively held that remedy under Section 84C of the Act was unavailable. This observation of the Tribunal, though adverse to the respondent No. 1 in the revision application filed by him, has become final. The Tribunal did not stop at that but took the view that in the fact situation of the present case, the appropriate remedy would be under Section 32(1B) of the Act. Therefore, the Tribunal directed the authorities to initiate proceedings under Section 32(1B) between the parties in respect of the suit land. Tribunal passed the following order :

"The revision application is allowed. The proceedings under Section 84C are dropped. It is hereby declared that the tiller's day for the revision applicant shall be the day on which the possession of the suit land is restored to him under Sub-section (1B) of Section 32 or the day on which he came into possession of the suit land.

2. The Tahsildar is directed to fix the purchase price under Section 32-G of the Tenancy Act without any delay. The Tahsildar is further directed to exercise his powers under Sub-section (1B) of Section 32 of the Tenancy Act if the opponent is found to be in unauthorised possession of the suit land. The impugned order of the learned S.D.O. is set aside. The order of the Tahsildar dated 14-124988 in his Tenancy No. 84-C/579 also stand set aside. The Tahsildar is hereby directed to decide the matter keeping in view the observations made by me in my judgment above and in any case the matter shall be decided within three months from the date of the receipt of this order. No order as to costs."

2. The petitioner has challenged the abovesaid Tribunal's order to the limited extent that it observes that the proceedings under Section 32(1-B) of the Act should be initiated in respect of the suit lands between the parties. It is also contended on behalf of the Petitioner that the observations made by the Tribunal with reference to continuation of proceedings under Section 84C may be inappropriate, but at the same time the conclusion reached by the Tribunal that remedy under Section 84C was unavailable is correct in law. It is contended that as the conclusion reached by the Tribunal with regard to the unavailability of proceedings under Section 84C has not been challenged by the respondent No. 1, that question need not detain this court. It is, however, submitted that even if this court were to examine that question, that conclusion reached by the Tribunal will have to be upheld in view of the statutory provisions as also on the principle enunciated by the Apex Court in the case of Mohamed Kavi Mohamed Amin v. Fatmabai Ibrahim . It is argued that in the present case, admittedly, the application under Section 84-C has been filed almost after ten years from the date of the alleged dis-possession. Besides, contends the learned counsel for the petitioner that, having regard to the scheme of the provisions of the Act, limitation for filing application under Section 84C was six months from the date of dispossession; and the present application having been filed much beyond the stipulated period, the same was not maintainable in law. Insofar as the observation of the Tribunal that the case was governed by the provisions of Section 32(1B) of the Act is concerned, learned counsel contends that on the plain language of Section 32(1B) that remedy could be available only when the tenant who was in possession on the appointed day i.e. 15-6-1955 and, who on account of his being dispossessed before 1-4-1957, otherwise than in the manner and by order of the Tahsildar as provided under Section 29, would get protection of that provision. Whereas, in the present case, going by the case made out by the respondents -- they are allegedly dispossessed when the petitioner took over possession of the suit land on the date of execution of the sale deed on 24-12-1965, which is outside the relevant period of that provision. In the circumstances, it is contended that, neither remedy under Section 84C of the Act as instituted by the respondent No. i, nor the remedy under Section 32(1B) of the Act as observed by the Tribunal, would be available in law in the present case.

3. On the other hand Mr. Karlekar submits that the respondent No. 1 was in possession of the suit land on the tiller's day i.e. 1-4-1957 and, on account of which, he has become deemed purchaser thereof. He submits that the statutory right which has enured in his favour cannot be whittled down; and, in any case, the petitioner cannot be said to have derived valid title in respect of the suit land on the basis of sale deed executed with the erstwhile owner who ceased to be the owner on and from 1-4-1957 by operation of law. He contends that, in such a situation, remedy under Section 84C was the appropriate remedy and the respondents ought to be allowed to pursue the same against the petitioner. He has placed reliance on the decision of this court reported in 2000(3) ALL MR 281 in the case of L.J. Kriplani since deceased by his legal heirs v. Manik Aditwar Patil and Ors., to buttress the above contention. He submits that, in any case, the respondent No. 1 can always take recourse to remedy under Section 84 of the Act; and if that remedy was available to the respondent No. 1, the court would permit the respondent No. 1 to convert the present application, as filed by the respondent No. 1, as having been filed under Section 84 of the Act. He further contends that the respondent No. 1 has already deposited the amount determined by the tenancy authority in terms of the order passed under Section 84-C of the Act and for that reason also he should be declared to have become deemed purchaser of the said land, which declaration would relate back to tiller's day i.e. 1-4-1957. In the circumstances he submits that this court ought not to interfere with the order as passed by the Tribunal.

4. Having considered the rival submissions, to my mind, two basic questions would arise for consideration. First whether remedy under Section 84C can be allowed to be pursued in the fact situation of the present case; and, second, whether the remedy under Section 32(1-B) of the Act can be allowed to be pursued in terms of the observations made by the Tribunal. I have no hesitation to observe that none of the remedies are available to the respondent No. 1.

5. Insofar as application under Section 84C is concerned, it is not in dispute that the same proceeds on the allegation that the respondent No. 1 has been dispossessed when the sale deed was executed in favour of the petitioner. That date relates back to 24-12-1965; whereas, the said application, purported to be under Section 84C of the Act, has been filed on 12-9-1975. In the first place, it is not necessary for this Court to address to this question because, the Tribunal has clearly observed that remedy under Section 84C of the Act cannot be continued in respect of the present land, and that order has not been questioned by the respondent No. 1 before this court. In other words, that view or finding has become final. Unquestionably, this is not a case of suo-motu proceedings initiated by the authority under Section 84C of the Act -- but one instituted on an application in writing by the respondent No. 1. If that be so, the decision relied upon by the petitioner in Mohamad's case (supra) would not be an authority directly on the point. On the other hand, as rightly contended by the Petitioner limitation for institution of application under Section 84C will be circumscribed by Sections 71 and 72 of the Act, which would mean that the respondent No. 1 ought to have filed the said application within six months from the date of his dispossession. Having failed to do so, the remedy under Section 84C of the Act becomes unavailable to the respondent No. 1. However, as observed earlier, the respondent No. 1 has not challenged the conclusion reached by the Tribunal that proceedings under Section 84C cannot be continued in the present case.

6. The next question that needs to be considered is whether the Tribunal was right in observing that remedy under Section 32(1-B) of the Act ought to be initiated. For that let us advert to Section 32(1-B) which reads thus:

"32(1B) Where a tenant who was in possession. -- On the appointed day and who on account of his being dispossessed before the 1st day of April 1957 otherwise than in the manner and by an order of the Tahsildar as provided in Section 29, is not in possession of the land on the said date and the land is in the possession of the landlord or his successor-in-interest on the 31st day of July 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said Section 29, either suo motu or on the application of the tenant, hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant; and thereafter, the provisions of this section and Section 32A to 32R (both inclusive) shall, insofar as they may be applicable, apply thereto, subject to the modification that tenant shall be deemed to have purchased the land on the date on which the land is restored to him :

Provided that, the tenant shall be entitled to restoration of the land under this sub-section only if he undertakes to cultivate the land personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area."

On plain language of Section 32(1-B) it would apply only when the tenant who was in possession on the appointed day i.e. June 15, 1955 and, who on account of his being dispossessed before the First day of April 1957, otherwise than in the manner and by an order of the Tahsildar as provided under Section 29.

In the present case, it is not in dispute that the dispossession is after the tiller's day i.e. 1-4-1957. Understood thus, provisions of Section 32(1-B) will have no application to the fact situation of the present case. Mr. Karandikar is right in relying upon the decision of this Court in the case of Arun s/o Rambhau Musale and Anr. v. Sambha Soma Gond (deleted) and Ors.., which no doubt deals with provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 which are pari materia to Section 32(1B) of this Act. In the circumstances, I have no hesitation to take the view that Tribunal has committed manifest error in

observing that remedy under Section 32(1B) of the Act ought to have been invoked in the present case.

7. It was argued that the respondent No. 1 having deposited the amount has become deemed purchaser. There is no substance in this argument for the respondent No. 1 has deposited the amount as determined pursuant to order under Section 84C; and as it is found that that remedy was unavailable, then the deposit so made by the respondent No. 1 would be of no avail and not create any indefeasible right in his favour.

8. I shall now examine the request of the respondent No. 1 for permission to convert the present application as filed under Section 84C of the Act to one under Section 84 of the Act and for deciding the same in accordance with law. There can be no dispute that proceedings under Section 84C are before the Mamlatdar, whereas under Section 84 are before the Collector. Accordingly, instead of converting the present application, the appropriate course is to give liberty to the respondent No. 1 to initiate action under Section 84 of the Act which will be decided on its own merit in accordance with law. It is made clear that I may not be understood to have expressed any opinion regarding the availability of that proceedings.

9. The next aspect which needs to be examined is, in such a situation, what is the appropriate order that can be or ought to be passed. It is not in dispute that the respondent No. 1 has been put in possession of the suit land by the Authority in June 1976 pursuant to the order passed at the interlocutory stage in enquiry under Section 84C. As observed earlier, it is held that remedy under Section 84C was unavailable. If that be so, then the court will be obliged to pass an equitable order so as to restore the status-quo ante on the date when the application purported to be under Section 84C of the Act came to be filed by the respondent No. 1 on 12-9-1975. This is the appropriate order to be passed because, according to the petitioner, there is no other remedy available to the respondent No. 1 to undo the consequence of a registered sale deed executed in his favour by the original owner of the land. At the same time, to my mind, remedy permissible in law to the respondent No. 1 is kept open. If such proceedings are taken out by the respondent No. 1, all questions which would arise for consideration in those proceedings be decided on its own merit in accordance with law.

10. Accordingly, this petition succeeds in the above terms. The orders passed by all the authorities below are set aside as well as the application purported to be under Section 84C of the Act to stand rejected. The Authorities to take steps to restore possession of the suit land to the Petitioner forthwith. No order as to costs. Certified copy expedited.