Shri Kondiba Laxman Hanmar (Since ... vs Shri Krishnarao Anandrao Dalavi, ...
2004 Latest Caselaw 676 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, 1986 in Revision No. MRT.NS/III/7/84 (TEN.B.70/84) Pune. Briefly stated, this Petition emanates from the Application preferred by the Respondent No. 5 Trust for issuance of exemption certificate under Section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') in relation to land bearing Survey No. 383 situated at Aundh, Taluka Khatau, District Satara admeasuring about 30 acres and 21 gunthas, which included Order 22 gunthas, potkharaba land. The Petitioner claims to be tenant in respect of the suit land. It is his case that he was in lawful cultivation of the suit land on the tillers' day i.e. 1st April 1957 and has become deemed purchaser. Indeed, if exemption certificate under Section 88B of the Act was to be issued in favour of the Trust, the claim of Petitioner having become deemed purchaser, cannot be countenanced because such a claim will be subject to the outcome of the decision on application under Section 88B of the Act. On the other hand, the case of the Respondent No. 5 Trust is that it was initially a private Trust, but was subsequently, registered as a Public Trust and was eligible for issuance of exemption certificate in respect of the suit land. It is not necessary to advert to other proceedings in relation to the suit land because the limited issue that need to be examined is whether the suit land complies with the requirement of Section 88B of the Act, so as to entitle the Trust for certificate under that provision. The said application under Section 88B of the Act was filed on 30th September 1972 by one Ramchandra Dnyanu Ghole claiming to be the power of attorney of one Shripadrao Pant Pratinidhi, who was the wahivatdar trustee of Respondent No. 5 Trust. The Collector, by his order dated January 23, 1974 allowed the said application and proceeded to issue exemption certificate in relation to the suit land. Against the said decision, Petitioner filed Revision Application before the Maharashtra Revenue Tribunal, which was allowed by remanding the matter for fresh enquiry by Judgment and Order dated November 5, 1974. It is the case of the Petitioner that the remand was with direction to the first Authority to do as follows:

(1) To issue public notice inviting claim in respect of suit land.

(2) To give opportunity to all concerned, including he Petitioner.

(3) To examine the question of title of the Trust in respect of suit land as the record indicated that some private individuals were also claiming to be owners.

(4) To examine whether the Trust was ready to accept the Petitioner as tenant.

(5) To examine whether the power of attorney in favour of said Ramchandra Ghole was proper and whether the conditions incorporated in Section 88B as well as Rule 2 are complied with.

(6) To include land belonging to Trust for fresh enquiry under Section 88B.

2. Pursuant to the remand order by the Tribunal, the Tenancy Awwal Karkun recorded statements of some persons and forwarded papers to the Sub-Divisional Officer. The Sub-Divisional Officer on examining the said evidence, proceeded to grant exemption certificate in favour of the Respondent No. 5 Trust by Judgment and Order dated January 16, 1984. This decision was questioned by the Petitioner by filing Revision before the Maharashtra Revenue Tribunal, which has been dismissed by the impugned Judgement and Order date March 7, 1986. The present Writ Petition takes exception to the aforesaid concurrent view taken by the two authorities below. It was contended on behalf of the Petitioner that although two authorities have proceeded to decide the matter in favour of the Trust, both the authorities have committed jurisdictional error in having failed to examine the core issue as to whether the suit land bearing Survey No. 383 was the property of the Trust as on 1st April 1957, which will be the relevant date for deciding the controversy in issue; and secondly whether the entire income of such land bearing Survey No. 383 was appropriated for the purposes of the Trust. It is, however, conceded that the Trust has been registered prior to 1st April 1957 as Public Institution for public religious worship. It is, therefore, contended that the authorities below have committed manifest error and failed to exercise jurisdiction vested in them in deciding the aforesaid aspects before issuing the exemption certificate and recording satisfaction on those points was sine-qua-non for issuance of exemption certificate. It is contended that if the Trust failed to get exemption certificate under Section 88B of the Act, the Petitioner being in lawful cultivation of the suit land on the tillers day, would become deemed purchaser on 1st April, 1957. Accordingly, on the above argument, the Petitioner assails the correctness of the view taken by the two authorities below.

3. On the other hand, Counsel for the Respondent No. 5 Trust who alone has appeared before this Court and is the contesting Respondent, contends that there is no infirmity either in the approach or the conclusion reached by the two authorities below, which would warrant interference in exercise of writ jurisdiction. He submit that there is ample evidence on record to substantiate the conclusion reached by the authorities below that the property in question bearing Survey No. 383 is the property of the Respondent No. 5 Trust. He submits that even on the second aspect as to whether the entire income of the suit land was being appropriated for the purposes of the Trust, both the authorities below have recorded finding of fact on evaluating the evidence on record in favour of the Trust, which will not warrant any interference in exercise of writ jurisdiction. He has placed reliance on the decision in the case of Paygonda Survgonda Patil and Ors. v. Jingonda Surgonda Patil and Ors. Reliance is placed on observations in Para 18 of this decision that even if the authorities below have erred in law in deciding the matter in favour of Respondent No. 5 Trust, even then, in the interest of justice, this Court will not exercise writ jurisdiction to undo the said decision on some grounds raised before this Court. It was next contended that original Respondent Nos. 3 and 4 in this Petition were necessary parties, whereas, after the death of the said Respondents, their heirs and legal representatives have not been brought on record which has resulted in abatement of proceedings qua them. It is contended that in the fact situation of the present case, it will have to be held that the entire proceedings have abated. To support this proposition, reliance is placed on the decision of our High Court reported in 2002 (3) Mh.L.J. 507 in the case of Annabai Devram Kini and Ors. v. Mithilal Daisangar Singh and Ors. and also on the decision reported in 1998 (1) Mh.L.J. 928 the case of Sheela wd/o Vijay Choudhari and Ors. v. Central Bank of India and Ors. and that of Supreme Court in A.I.R. 1973 S.C. 204 in the case of Babu Sukhram Singh v. Ram Dular Singh and Ors. to support the above contention.

4. Having considered the rival submissions, I have no hesitation in taking the view that this Court will be obliged to set-aside the orders passed by the two authorities below and relegate the parties before the Sub-divisional Officer for fresh adjudication of the issue as to whether the Respondent No. 5 Trust was entitled for exemption certificate in respect of the suit land bearing Survey No. 383 under Section 88B of the Act. This is so because the cardinal requirement of Section 88B of the Act has not been kept in mind by the authorities below while considering the matter. it will be apposite to advert to Section 88B before proceeding to examine this aspect. Section 88B reads thus:

"88B. Exemption or certain provisions to land of local authorities, universities and trusts. - [(1)] Nothing in foregoing provisions except Sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of Chapters VI and VIII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above shall apply.

(a) to lands held or leased by a local authority, or University established by law in the [Bombay area of the State of Maharashtra]; and

(b) to lands which are the property of a trust for an educational purpose, [a hospital, Panjarapole, Gaushala] or an institution for public religious worship; Provided that.-

(i) such trust is or is deemed to be registered under the Bombay Public Trusts Act, 1950 and

(ii) the entire income of such lands is appropriated for the purposes of such trust;

[(c) to lands assigned or donated by any person before the 1st day of August 1956 for the purpose of rendering any of the following services useful to the community, namely:- maintenance of water works, lighting or filling of water troughs for cattle;]

[(d) to lands taken under management temporarily by the Civil, Revenue or Criminal Courts by themselves, or through receivers appointed by them, till the decision of the title of rightful holders:

Provided that, from the date on which the land referred to in Clause (d) is released from management, all the foregoing provisions of this Act shall apply thereto; but subject to the notifications that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land,

(i) The landlord shall be entitled to terminate the tenancy under Section 31 (or under Section 33B in the case of a certificated landlord) within one year from such date; and

(ii) within one year from the expiry of the period during which the landlord or certificated landlord is entitled to terminate the tenancy as aforesaid, the tenant shall have the right to purchase the land under Section 32 (or under Section 33-C in the case of an excluded tenant and

(iii) the provisions of Sections 31 to 31-D, (both inclusive) (or Sections 33-A and 33-B in the case of a certificated landlord and Sections 32 to 32-R, (both inclusive) for Sections 33A and 33-C in the case of an excluded tenant) shall, so far as may be applicable, apply to the termination of a tenancy or the right to purchase the land, as aforesaid: Provided further that.-

(a) in the case of a permanent tenancy the permanent tenant shall be entitled to purchase the land held by him on permanent tenancy.

(i) within one year from the date on which the estate r land is released from management, or

(ii) where such estate or land was released from management after the Tillers' day but before the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, within one year from such commencement, and

(b) where such permanent tenant is desirous of exercising the right conferred on him under this proviso, he shall accordingly inform the landlord and Tribunal in the prescribed manner within the said period of one year and the provisions of Sections 32 to 32-R shall, so far as may be applicable, apply to the fight of the permanent tenant to purchase the land.]

[(2)] For the purposes of this section, a certificate granted by the Collector, after holding an enquiry, that the conditions in the proviso to Sub-section (1) are satisfied by any trust shall be conclusive evidence in that behalf.]".

5. It is well settled that if the Trust was registered prior to 1st April 1957, the tenant in possession would become deemed purchaser, subject to the outcome of proceedings under Section 88B of the Act. Inasmuch as, if such Trust was to succeed in getting certificate under Section 88B of the Act, then it would necessarily follow that the person cultivating the suit land cannot become deemed purchaser as such, but his right to remain in possession of the land will be subject to other provisions of the Act. The entitlement of the Trust to get certificate under Section 88B of the Act will have to be reckoned as on 1st April 1957. Indeed, the Respondent No. 5 Trust is registered prior to 1st April 1957 as an institution for public religious worship, but that by itself, cannot be the basis to assume that the suit land formed property of the Trust on 1st April 1957. Whereas, if the land has been acquired by the Trust after 1st April 1957, exemption certificate in relation to such a property cannot be granted. Counsel for the Respondent No. 5 Trust contends that there is concurrent finding of fact by the two authorities below that the property in question being Survey No. 383 is property of the Trust. This submission, however, overlooks the requirement of Law, that is to find whether the property in question was the property of the Trust as on 1st April 1957. The First Authority has referred to extract of V.F. No. III produced by the Respondent No. 5 Trust to hold that the property was of the Trust. However, this document i.e. Village Extract being V.F. No. III cannot establish the position that the property was of the Trust as on 1st April 1957, nor the First Authority has recorded a clear finding in that behalf. The Revisional Authority, no doubt, has adverted to Schedules VIII and IX in support of the finding that the property being Survey No. 383 is property of the Trust. However, record maintained in the office of the Charity Commissioner in Schedule VIII and Schedule IX is in the context of the requirement under the provisions of the Bombay Public Trust Rules 1951, in particular, Rule 17, which obligates the Trust to maintain accounts in particular manner under Section 32 of the Bombay Public Trust Act. The said Schedules cannot establish the factum of ownership of the Public Trust in respect of the suit land, that too, as on 1st April 1957. Nor the authorities below have positively adverted to any extract of these Schedules to hold that the suit land was the property of the Trust on April 1, 1957. During the course of arguments, leaned Counsel for the Respondent No. 5 placed reliance on Schedule I maintained under Rule 5 of the Bombay Public Trust Rules, which was produced before the Authority below, which forms part of record at Page 146. However, neither the First Authority nor the Revisional Authority has adverted to Schedule I under Rule 5 of the Bombay Public Trust Rules and contents thereof. No doubt, Schedule I is required to be maintained in the Office of the Charity Commissioner which would disclose the position as to the ownership of the property and the certification that the property belongs to the Trust by the Charity Commissioner, would be sufficient proof of the ownership. But the question is: whether the Trust was owner of the said land "on 1st April 1957". On examination of the said document along with other contemporaneous record, on which reliance was placed by the Counsel for the Respondent No. 5, may be, the Respondent No. 5 would be in a position to establish the fact that when application for registration of Trust was made in the year 1955 at the relevant time, it had disclosed that the Trust was owner in respect of the land bearing Survey No. 383. However, that adjudication will have to be done by the fact finding authority and it will not be proper for this Court to take upon itself to wade through the entire record, so as to cull out the finding that the Respondent No. 5 Trust was the owner of the suit land "as on 1st April 1957", which is the sine-qua-non for issuance of exemption certificate.

6. Since the first aspect as to whether land bearing Survey No. 383 was the property of the Trust as on 1st April 1957, has not been authoritatively answered by the fact finding authority, the appropriate course, for the Court is to relegate the parties to the First Authority for consideration of the issue, on its own merits, in accordance with law, on the basis of record already produced or that would be produced by the parties during the course of remand enquiry, as may be permissible by law.

7. In so far as the finding recorded by the authorities below that the entire income of land bearing Survey No. 383 was appropriated for the purposes of the Trust, the same is presumably founded on entries in Schedules VIII and IX, which was produced on record. Those entries and certification by Chartered Accountant appears to be of year 1971. Since the matter is remanded to examine the issue as referred to above, the Authority will also examine as to whether the material already on record or to be produced by the parties, would establish the position that the entire income of the suit land was appropriated for the purposes of the Trust as on 1st April 1957, which will be the relevant date for issuance of exemption certificate under Section 88B of the Act.

8. For the reasons which are recorded above, the decision pressed into service on behalf of the Respondent No. 5 in the case of Paygonda Survgonda Patil (Supra) will be of no avail because the Authorities below have committed menifest error in finally disposing of the proceedings without recording a clear finding on the material issue, which it was obliged to decide being sine-qua-non for issuance of exemption certificate.

9. That takes me to the technical plea advanced on behalf of Respondent No. 5 that the entire proceedings have abated because no steps have been taken to bring on record heirs and legal representatives of deceased Respondent Nos. 3 and 4. This submission clearly overlooks the fact that the contest is essentially between Petitioner and Respondent No. 5 Trust. It is the Respondent No. 5 Trust who had approached the Court for issuance of exemption certificate in respect of Survey No. 383 against the Petitioner. The Respondent Nos. 3 and 4 in fact, have accepted the decision of the authorities below and have not chosen to challenge the decision rendered in favour of the Trust before this court as has been done by the Petitioner herein. In that sense, the interest of the Petitioner and Respondents 3 and 4 is not joint or indivisible or common as such, whereas, the Petitioner is claiming to be tenant in his own rights, unlike Respondents 3 and 4 who were claiming to be the permanent tenants. If it is so, the three decisions pressed into service referred to above, will be of no avail to Respondent no. 5 to contend that entire proceedings have abated. Accordingly, it is open to the Petitioner to assail the correctness of the decision passed by the Authorities below directing issuance of exemption certificate under Section 88B of the Act in favour of Respondent No. 5 Trust, which order directly affects the right, title and interest of the Petitioner herein. In the circumstances, the Petition succeeds and the matter is remanded before the Sub-Divisional Officer for enquiry into following two issues afresh:

1) Whether the land bearing Survey No. 383 was property of the Respondent No. 5 Trust as on 1st April 1957?

2) Whether the entire income from the said land was and is appropriated for the purposes of the Trust as on 1st April 1957?

10. The Sub-Divisional Officer may allow the parties to produce further evidence on record as may be advised and permissible by law and record clear finding on the aforesaid two issues before taking the final decision for issuance or non-issuance of exemption certificate under Section 88B of the Act. The remand proceedings be concluded as expeditiously as possible, and preferably within three months from the receipt of writ of this Court.

11. Rule made absolute on the above terms. No order as to costs.