Shri Bhagwanrao Sadashiv Gaikwad vs Narnari Jayavant Zagzap (Since ...
2003 Latest Caselaw 1070 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Maharashtra Revenue Tribunal, Pune dated March 7, 1990 in Revision No. MRT-SH-X-3-86- (TNC-B-217 of 1986), Pune. The land in question is an agricultural land bearing Gat No. 197 situated at Village Shelgaon (Vale), Taluka Barsi, District Solapur. The Petitioner claims that he was tenant in respect of the suit land since 1974-75. As he was inducted in the suit land as tenant after the fillers day, the Petitioner gave intimation to the landlord that he was willing to purchase the suit land under Section 32-O of the bombay Tenancy & Agricultural Lands Act, 1948. Thereafter, the Petitioner filed application before the Tenancy Authority for determination of the purchase price on the ground that he had become deemed purchaser of the suit land by operation of law. That application was allowed and the purchase price in respect of the suit land came to be fixed at Rs. 2,800/-. It is also seen that the Petitioner deposited that said purchase price in terms of the order passed by the Tenancy Authority, whereafter, the Authority issued Certificate in favour of the Petitioner under Section 32-m of the Act. With the issuance of Certificate under Section 32-m of the Act, there is presumption that the Petitioner has purchased the suit land and has become owner thereof. That Certificate has been issued on 18th December 1975. the Respondents who were the landlords in respect of the suit land have not challenged the order passed under Section 32-O or the issuance of Certificate under Section 32-M by the Tenancy Authority, but instead, preferred to file suit for declaration and injunction in the Court of Civil Judge, Junior Division, Barsi being Civil Suit No. 569 of 1977. The relief claimed in this Suit is for declaring that the order passed by the Tenancy Authority was beyond jurisdiction and illegal. That Suit has been resisted by the Petitioner by filing written statement. After the pleadings were filed, the Civil Court framed issues, one of them being.

"Whether Defendant prove that he is the tenant of the suit land?"

2. The Civil Court was of the view that since the issue of tenancy arises for consideration, such issue can be resolved only by the Tenancy Authority and therefore, made Reference to the Tenancy Authority in terms of Section 85-A of the Act. That Reference was placed before the Additional Tahsildar, Barsi being Court Reference No. 83. The Additional Tahsildar, Barsi, by Judgment and Order dated February 13, 1985 held that as the proceedings under Section 32-O have concluded and the order passed therein have been allowed to attain finality, coupled with the fact that Certificate under Section 32-M has also been issued in favour of the Petitioners, the question of examining the issue as referred, does not arise. The reasoning proceeds on the basis that the issue already stands answered in the earlier proceedings, as it is only person who is lawfully cultivating the suit land and inducted as tenant, would be entitled to become deemed purchaser by operation of law and on that basis, the earlier proceedings have been decided in favour of the Petitioner. Against that decision, Respondent carried the matter in appeal before the Sub-Divisional Officer being Tenancy Appeal No. 14 of 1985. The Appellate Authority by judgment and order dated 22nd August 1986 has affirmed the view taken by the Tenancy Authority and therefore, dismissed the Appeal preferred by the Respondents. The Respondents, thereafter, carried the matter in Revision before the Maharashtra Revenue Tribunal. The Tribunal, on the other hand, discarded the opinion recorded by the two authorities below and proceeded to examine the issue of tenancy, on merits. The Tribunal then proceeded to record finding that the Petitioner was not tenant in the suit land. On that basis, the Revision Application filed by the Respondents was allowed. It is this decision, which is subject matter of challenge in the present Writ Petition.

3. Mr. Mandlik for the Petitioner contends that the first two authorities had rightly answered the issue as referred by the Civil Court on the reasoning that when the earlier proceedings under Section 32-O have attained finality and more particularly, with the issuance of Certificate under Section 32-M in favour of the Petitioner, that issue stands concluded and cannot be reopened by the Tenancy Authority, merely because the Civil Court has made Reference to examine that question. However, that question could have been considered only if the decision under Section 32-O and issuance of Certificate under Section 32-M was to be challenged by way of statutory appeal under the Tenancy Act. He further submits that for deciding the Suit as filed by the Respondents, the question of examining the issue as to whether the Petitioner was tenant in respect of the suit land, does not arise, because the challenge in the Suit will have to be confined only to the question as to whether the orders passed by the Tenancy Authority in proceedings under Section 32-O of the Act and the Certificate issued under Section 32-M of the Act is beyond jurisdiction and illegal, as contended. This submission is made without prejudice to the argument which would be available to the Petitioner in the Suit pending before the Civil Court that such a plea was available only in appeal to be filed under the provisions of the Tenancy Act and the Civil Court would address itself, if at all, only to the question that the said orders were obtained by fraud. But that is not the case pleaded in the Plaint as filed. He therefore submits that the Tribunal has completely exceeded its jurisdiction in addressing itself to the merits of the issue as to whether the Petitioner was tenant in respect of the suit land because such an issue cannot and could not have been gone into in the Reference as made by the Civil Court because that issue stands concluded by the Order passed under Section 32-O of the Act and with issuance of Certificate under Section 32-M of the Act in favour of the Petitioner.

4. Mr. Pandit for Respondents, on the other hand, contends that if the argument as canvassed by Mr. Mandlik was to be accepted, that would amount to allowing the Petitioner to indirectly challenge the order passed by the Civil Court framing Issue No. 1 referred to above, as well as making Reference to the Tenancy Court under Section 85-A of the Act, which it was obliged to do when such an issue did arise for consideration of the Civil Court. He submits that the Petitioner has neither challenged the order framing issues, nor the order making Reference to the Tenancy Authority and insteats, participated in the proceedings before the Tenancy Authority, for which reason, the Petitioner is precluded from questioning the correctness of the decision of the Tribunal on the merits of the issues as to whether the Petitioner was tenant in respect of the suit land. He therefore submits that this Petition deserves to be dismissed.

5. Having considered the rival submissions, I have no hesitation in taking the view that the Tribunal, has clearly exceeded its jurisdiction in going into matters which already stood concluded on account of order passed under Section 32-O of the Act in favour of the Petitioner and on the basis of which, Certificate under Section 32-M has already been issued in favour of the Petitioner as back as on 18th December 1975. In such a situation, it was not open for the Tenancy Authority to once again examine the issue of tenancy unless the said order under Section 32-C and the Certificate under Section 32-M were to be challenged by the landlords by way of statutory appeal under the Act. On the other hand, the Suit as filed is one for declaration that the orders are beyond jurisdiction and illegal. It is only if the Respondents Plaintiffs were to succeed in getting that declaration, if permissible in law, would the question as to whether the Petitioner was tenanu in respect of the suit land, arise for consideration afresh. To put it differently, it is only if the Respondents succeed in getting the declaration as prayed, the consequence of which would be that the orders passed by the Tenancy Authority under Section 32-O and the Certificate issued under Section 32-M would stand effected from the record in law. In that case alone, the question of once again examining the issue as to whether the Petitioner was tenant in respect of the suit land would arise for consideration and will have to be examined by the Tenancy Authority, if the parties take recourse to appropriate remedy in that behalf. No doubt, this would amount to virtually negating the Issue No. 1 as framed by the Civil Court and the order of Reference made by the Civil court to the Tenancy Court. However, even though the Reference was made to the Tenancy Authority, the Tenancy Authority was bound by its earlier decision which was allowed to attain finality. If those decisions were to prevail and so long as they are not upset by the Court of competent jurisdiction and, if Tenancy Authority was bound by the said decisions under Section 32-O and Certificate issued under Section 32-M in favour of the Petitioner, it would necessarily follow that there is presumption that the Petitioner was tenant in respect of the suit land; and only in that capacity, became deemed purchaser by operation of law owner of the suit land on depositing the purchase price determined by the Tenancy Authority. Under stood thus, the two authorities below were justified in answering the Reference against the Respondents/Plaintiffs; whereas, the Tribunal was not only exceeded jurisdiction but misdirected itself in examining the issue on merits as to whether there was evidence on record to support the claim of the Petitioner that the Petitioner was tenant in respect of the suit land. Such a course was not open to the Tribunal for the reasons already recorded above. In the circumstances, the appropriate course, to my mind, is to set-aside the Judgment and Order as passed by the Tribunal and restore the orders passed by the Additional Tahsildar, Barsi and the Sub-Divisional Officer, Solapur Division, Solapur. As mentioned earlier, it is only when the Respondents/Plaintiffs were to succeed in the suit for declaration that the and the under Section 32-O and the Certificate issued under Section 32-M as issued by the Tenancy Authority, were beyond its jurisdiction or illegal as prayed and if that relief was available to the Petitioner only then, the question of examining the issue as to whether the Petitioner was tenant, would once again arise for consideration and will have to is authoritatively decided by the Tenancy Court, if the parties take recourse to such a remedy.

6. If such an occasion arises, the Tenant Authority would be well advised to decide the matter on its own merits in accordance with law on the basis of the evidence that would be accused by the parties, without being influenced by any of the observations made in the decision of the Tribunal, which is impugned in this Writ Petition and has been set-aside by this order.

7. It is also made clear that the Civil Court shall decide the Suit on its own merits, in accordance with law. All questions which would arise for consideration in the said Suit are kept open.

8. Petition disposed of on the above terms. No order as to costs.