Smt. Kerabai W/O Govind Jadhav And ... vs Shri Pandurang Gopal Patil (Since ...
2004 Latest Caselaw 579 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This Writ Petition under Article 227 of the Constitution of India, in essence, takes exception to the certification granted in favour of the Respondents by the Sub-Divisional Officer on August 31, 1982, certifying that the Respondent being a Public Trust, was exempted under Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') from application of certain provisions referred to therein. The said order came to be passed on an application preferred by the Respondent Nos. 1 and 2 claiming to be trustees, sometime in 1979 for exemption certificate under Section 88-B of the Act. It has come on record that the Trust was registered under Certificate No. 64343 on April 19, 1962 by the Charity Commissioner, Kolhapur. It is on that premiss that the Authority proceeded to grant exemption certificate under Section 88-B of the Act.

2. Mr. Page for Petitioner submits that it was not open to the Authority to grant exemption certificate in the fact situation of the present case. He submits that admittedly, the Trust is registered by the Charity Commissioner, Kolhapur, on April 19, 1962, which is after the tillers day. If it is so, the Trust is not entitled to the exemption, having been registered after the tillers day and this legal position is no more res-integra, as can be discerned from the decision of the Division Bench of our High Court in the case of Laxminarayan Temple, Kothure, through its Trustees v. Laxman Mahadu Ghandore, deceased by his legal representatives and others, in particular, Para 5 thereof. On this argument, learned Counsel submits that the Certificate issued in favour of the Trust, exempting the Trust under Section 88-B of the Act, deserves to be set-aside.

3. Mr. Arjunwadkar for Respondents submits that from the record, it can be seen that the land was owned by Deity, Vajarai of Village Vajrachounde, Taluka Tasgaon, District Sangli, and the land was Devasthan Inam land. He submits that in such a case, the application of relevant provisions of Act will be exempted with regard to the suit land by virtue of Section 88 of the Act.

4. Having considered the rival sub submissions, to y mind, it is not necessary to dwell upon any issues other than the question as to whether exemption certificate under Section 88-B of the Act could be granted in favour of the Trust, which was registered after the tillers day. That legal position is well settled as can be observed from the decision in Laxminarayan Temple's case (Supra). In Para 5, this aspect has been considered in extenso by the Division Bench of our High Court. Even in that case, the Trust was created in 1845, but came to be registered only on 28th March 1958, which is after the tillers day. Even in the present case, the registration of the Respondent Trust is after the tillers day. Accordingly, in view of the exposition in the aforesaid decision the exemption certificate issued in favour of the Respondent Trust under Section 88-B of the Act, cannot be sustained and the same will have to be set-aside.

5. Mr. Arjunwadkar for the Respondents, however, contends that in the present case, the tillers day was postponed and the Trust has been registered before the postponed date. However, there is nothing on record to support this position, nor such a plea was raised before the Authorities below. That being a mixed question of fact and law, will have to be addressed by the Authority as and when raised by the parties. As mentioned earlier, this decision is confined only to one issue as pointed out above as to whether exemption certificate can be issued in respect of Trust, which is registered after the tillers day i.e. 1st April 1957. That has to be answered against the Respondents and in favour of the Petitioners.

6. Accordingly, this Petition succeeds. The impugned certificate granted by the Authority below in favour of the Respondents is accordingly set-aside. No order as to costs.

7. At this stage, Mr. Arjunwadkar for Respondents, prays that operation of this Judgment be stayed for a period of ten weeks. I see no reason to entertain this request, as no order of dispossessing any party from the suit land is passed by me.

8. Issuance of certified copy is expedited.

9. All concerned to act on the xerox copy of this order, duly authenticated by the Sheristedar of this Court.