2] Shri Tryambak Shivram Gosavi vs The State Of Maharashtra
2010 Latest Caselaw 279 Bom

                                 1
                           W.P. No. 3975.91




                                                                      
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                              
                       BENCH AT AURANGABAD.


                  WRIT PETITION NO. 3975 OF 1991




                                             
    1]   Vinayak Ratnagiri Gosavi
         Chief Promoter,
         Rangnath Swami Sahakari Griha
         Rachana Sanstha, Chinch Vihire,




                               
         Tq. Rahuri, Dist. Ahmednagar.

    2]   Shri Tryambak Shivram Gosavi,
                   
         R/o Chinch Vihire, Tq. Rahuri,
         Dist. Ahmednagar                             ...PETITIONERS
                  
                               VERSUS
      

    The State of Maharashtra                    ..RESPONDENT
   



                        ...
    Mr.V.R. Dhorde, Advocate h/f Shri R.N. Dhorde                            for
    Petitioners





    Mrs. V.A. Shinde, A.G.P. for respondent/ State.



                               CORAM :- S.S. SHINDE, J.





              JUDGEMENT RESERVED ON       : 6th DECEMBER, 2010
           JUDGMENT PRONOUNCED ON          : 13th DECEMBER,2010


    JUDGMENT:

This Writ Petition is filed by the petitioner

challenging the order dated 30th September, 1986 by the

W.P. No. 3975.91

Tenancy Awalkarkun, Rahuri in Tenancy case No. 17 of

1986 and Judgment and order dated 6th July, 1987 passed

by the Sub Divisional Officer, Rahuri Sub Division,

Rahuri in Appeal No. TNC/Appeal/11/86 and order passed

by the Maharashtra Revenue Tribunal, Pune on 7th June,

1991 in Case No. MRT.AH.X.-7/87(Tnc.B.286/87), Pune.

The back ground facts for filing this Writ

Petition as

disclosed in the Writ Petition are as

under :-

The petitioners herein are the original

opponents in Tenancy Case No. 17 of 1986, in a a suo-

moto enquiry initiated by the Tahasildar. It is the

case of the petitioners that the land Survey No. 65/1

was purchased by the petitioner No. 2 on 18th December,

1984 to the extent of 4 R of village Chinch Vihire,Tq.

Rahuri. The said land was purchased for the

consideration of Rs. 3,000/- by registered sale-deed

and mutation entry was effected on 26th February, 1985.

The said entry was thereafter certified by Awalkarkun

on 5th April, 1985 in the name of petitioner No. 2. The

petitioner No. 2 made an application to the

Tahasildar, for seeking permission for non

W.P. No. 3975.91

agricultural use.

The petitioner No. 2 sold the said land to

the petitioner No. 1 in his capacity as a Chief

Promoter of the proposed Rangnath Swami Sahakari Griha

Nirman Sanstha, Chinch Vihire, Tq. Rahuri, Dist.

Ahmednagar on 19th April, 1985, for the consideration

of Rs. 5,000/-. In the suo-moto enquiry the matter

was referred to the Collector and issue was raised

whether the sale of land in favour of the petitioner

No. 2 initially is valid as the petitioner is not

agriculturist. The case was initiated against the

petitioner No. 2 bearing Tenancy Case No. 16 of 1986

and simultaneously another case was initiated against

the petitioner No. 1 bearing Tenancy case No. 17 of

1986.

who originally purchased the land is not an

agriculturist, therefore, sale in favour of the

petitioner NO. 2 dated 18th December, 1984 was illegal

and, therefore, land should be restored to the

Government. The petitioners stated that on the basis

of the same proceedings, an enquiry was carried

W.P. No. 3975.91

against the petitioner No. 1 also and in the said

enquiry it has been held that the petitioner No. 2 is

also a non-agriculturist and, therefore, the sale of

the land by the petitioner No. 2 in favour of

petitioner No. 1 is illegal. It has been held by the

Tenancy Awalkarkun, Rahuri dated 30th September, 1986

that since the petitioner No. 1 is not an

agriculturist, the land should be vested with the

Govrnment in view of the provisions of Section 84(C)

(3) of the Bombay Tenancy and Agricultural Lands Act,

1948 (here-in-after referred as "said Act").

2. The petitioners being aggrieved by the said

judgment and order preferred an appeal bearing No.

TNC/Appeal/11/86 before the Sub Divisional Officer,

Rahuri Sub Division. The appellate authority has held

that though the uncle of the petitioner No. 1 was

agriculturist he was not an agriculturist on the date

when the petitioner No. 1 has purchased the said

land. It has been further held that the evidence is

not produced on record to show that the petitioner No.

1 is the member of the joint family. It has been

further held that the land has been purchased, on

behalf of the co-operative Society and the sale has

W.P. No. 3975.91

taken place on 19th April, 1985 and the society has

been registered on 30th December, 1985. Therefore, on

the day when the land was purchased the society was

not registered and, therefore, order passed by the

Tenancy Awalkarkun was confirmed by the appellate

authority and the appeal was dismissed by the

Judgment and Order dated 6th July, 1987.

The petitioners being aggrieved by the said

Judgment and order preferred a revision before the

Maharashtra Revenue Tribunal. The Maharashtra Revenue

Tribunal confirming the judgment and order passed by

both the authorities below held that the uncle of the

petitioner was holding land in the year 1953-54 and

the present land has been purchased in the year 1985,

therefore, on the date of the purchase petitioner was

not agriculturist. It has been further held that on

the date when the land was purchased for proposed

society of which the petitioner No. 1 was the Chief

Promoter was not registered. On the date when the land

is purchased by petitioner No. 1 he was not an

agriculturist and, therefore, the said sale in favour

of the petitioner No. 1 is not legal.

W.P. No. 3975.91

Hence this Writ Petition challenging the said

Judgment and order of Maharashtra Administrative

Tribunal.

3. The learned Counsel appearing for the

petitioners submitted that the findings reached by the

Courts below that the petitioner No. 1 is not an

agriculturist is perverse finding. In fact, petitioner

No. 1 did produce on record the documents showing that

his uncle is agriculturist and therefore, the

petitioner is from agriculturist family and it cannot

be said that petitioner No. 1 is not an agriculturist.

It is further submitted that it has been held that the

petitioner No. 2 is an agriculturist, therefore,

assuming without admitting that the transaction in

favour of the petitioner is bad, still petitioner No.

2 being an agriculturist can still persuade the non

agricultural permission. It is further submitted that

the land was purchased for proposed housing society

for housing purpose of teachers belonging to reserve

category and same society is registered on 30th

December, 1985. The registration certificate of the

said society was filed before the trial Court. The

petitioner No. 1 purchased the suit property in the

W.P. No. 3975.91

capacity of chief promoter of the proposed Rangnath

Swami Sahakari Griha Nirman Sanstha, Chinch Vihire,

Tq. Rahuri, Dist. Ahmednagar and immediately after

completion of necessary procedure under the

Maharashtra Co-operative Societies Act, the said Co-

operative Housing Society came to be registered and

suit property is being used for the purpose of said

Co-operative Housing Society. It is further submitted

that since

the suit property was purchased by

petitioner No. 1 in the capacity as Chief Promoter of

the Housing society, in view of Section 64-A of the

said Act, sale transaction is exempted from the

provisions of Section 63 and 64.Therefore, the counsel

for the petitioner submit that in the first instance

the sufficient evidence was brought on record to show

that the petitioner No.1 is agriculturist and

secondly, since the land was purchased for the Co-

operative Housing society, the provision of section 63

& 64 of the said Act have no application in the case

of the sale transaction in the present case. The

learned Counsel further submitted that the authorities

below have taken hyper technical view in the matter

that the Cooperative housing Society was not

registered on the date of sale transaction ignoring

W.P. No. 3975.91

that society was duly registered subsequently and to

that effect, evidence was produced on record.

Therefore, Counsel would submit that the Writ Petition

deserves to be allowed.

Petitioner No. 2 herein has filed affidavit

on 8th December, 2010 stating therein that the land

which is the subject matter of this Writ Petition is

laying fallow and because of litigation no development

has taken place and the Society still continues to be

registered society. It is further submitted that land

would be used for Co-operative Housing Society only,

if permitted.

4. On the other hand counsel appearing for the

respondent/ State invited my attention to the reasons

recorded by the revenue authorities, in which the

petitioner No. 1 namely Vinayak Ratangiri Gosavi has

admitted that he is not an agriculturist. Therefore,

learned A.G.P. would submit that so far the contention

of the Counsel appearing for the petitioner that the

petitioner No. 1 is an agriculturist is falsified by

his own statement before the Tahasildar, Rahuri that

he has not an agriculturist. The learned A.G.P.

W.P. No. 3975.91

further submitted that the requirement of Section 64-A

of the said Act can be made applicable in case sales

are effected by or in favour of registered Cooperative

Society under the Bombay Co-operative Societies Act

1925. However, in the instant case, admittedly on the

date of sale-deed the said housing society was not

registered. Therefore, the provisions of said Sections

are not attracted in case of the petitioners.

Therefore,

relying on the reasons recorded by the

Tenancy Awakkarkun, Rahuri, appellate authority and

Maharashtra Revenue Tribunal. The learned A.G.P. would

submit that petition is devoid of any merits and same

deserves to be dismissed.

5. I have Heard learned Counsel appearing for

the parties at length. I have also perused the

pleadings and grounds in the petition, order passed by

the Tenancy Awalkarkun, Rahuri, Judgment and Order

passed by the appellate authority and Judgment and

order passed by the Maharashtra Revenue Tribunal. It

appears from the perusal of the order passed by the

Tenancy Awal Karkun, Rahuri that transferee and

transferor Shri Trimbak shivram Gosavi has sold Gut

No. 61/1 part purchased him from Shir Jagannath

W.P. No. 3975.91

Trimbak Gite (now Gat No. 63/3) to shri Vinayak

Ratangir Gosavi for Rs. 5,000/- on 19th April, 1985.

The said transaction is noted in VI VI vide mutation

entry No. 324 dated 20th April, 1985. The transferee

Shri Vinayak Ratangir Gosavi has subsequently applied

for grant of non agricultural use of Gat No. 65/3 (Old

65/1 part). In the said enquiry a point was raised

whether the transferee is an agriculturist or

otherwise. Accordingly, the case was referred to the

Sub Divisional Officer, Rahuri, Division Ahmednagar

for orders. The Sub Divisional Officer, Rahuri

returned the case paper with the directions to deal

with the case under Section 84-C of the said Act, as

the powers under Section 84-C are vested with the

Tahasildar and no order to start enquiry under Section

84-C are necessary from him. Therefore, enquiry under

Section 84-C has been started suo-moto. The enquiry

under Section 84-C of the said Act in respect of the

first transaction in between Shri Trimbak shivram

Gosavi has been held vide Tenancy Case No. 16 of 1986

in which it has been held that the transferee Shri

Trimbak Shivram Gosavi is not an agriculturist and

hence the transaction in respect of Gat No. 65/1 part

has been declared as invalid.

W.P. No. 3975.91

Shri Trimbak Shivram Gosavi has subsequently

sold this land to Shri Vinayak Ratangir Gosavi on 20th

April, 1985. This transaction is noted in V.F.V.I.

Vide mutation entry o. 324. As per this mutation entry

Gat No. 65/3 was given to Gat No. 65/1-part. In his

statement Shri Vinayak Ratngir Gosavi has admitted

that he is not an agriculturist.

ig (emphasis supplied)

6. It is further observed by the Tenancy

Awalkarkun that as per provisions of Section 63 the

transfer of any land to non-agriculturist is barred.

The transferee's should have to obtain prior

permission to purchase the suit land from the

Collector or authorised officer under the provisions

of Section 63 of the said Act. As the second

transaction is in favour of the non-agriculturist. The

Tenancy Awalkarkun observed "I declare that the

transfer of the suit land by sale transaction dated

19th April, 1985 / 20th April, 1985 is invalid and

further order that the suit land shall be deemed to

vest in the State Government free from all

encumbrances lawfully subsisting thereon the dtae of

W.P. No. 3975.91

appeal period is over and shall be disposed of in the

manner provided in sub-section (4) of Section 84-C of

the said Act".

7. Being aggrieved of the order passed by the

Tenancy Awalkarkun, Rahuri in Tenancy Appeal No. 17 of

1986, the petitioners herein preferred an appeal which

was heard finally on 22th July, 1987. After hearing the

respective

counsel for the parties and after

appreciating the rival contentions and after perusal

of record and proceedings received from the lower

authority, the Sub Divisional Officer, Rahuri held

that proof submitted on behalf of appellant No. 1

therein do not show that his uncle was an

agriculturist on the date of purchase of the sand

land. Secondly, no proof has been submitted to show

that the appellant No. 1 and his uncle Ramgir Bhimgir

are the members of the joint family. Further finding

is recorded that the suit land is not purchased by the

appellant No. 1 in his individual capacity. But he has

purchased the suit land as chief promoter of the

proposed Rangnath Swami Sahakari Griha Nirman

Sanstha, Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar.

The suit land has been purchased by the appellant No.

W.P. No. 3975.91

1 on 19th April, 1985 under registered sale-deed,

whereas the said Gruha Nirman Sanstha has been

registered on 30th December, 1985. Thus, the said

Graha Nirman Sanstha was not registered on the date of

purchase of the suit land as such, the claim of the

appellant cannot be accepted. Therefore, appeal came

to be dismissed.

                                            
    8.                 The
                            ig    petitioner      herein         approached             the

Maharashtra Revenue Tribunal, Pune by way of filing

revision application No. 11 of 1986. The Maharashtra

Revenue Tribunal has considered the case of the

petitioners and after hearing the respective parties

in para No. 8 confirmed the finding of the appellate

authority that the uncle of the petitioner was not

agriculturist,on the date of sale-deed. Another

contention of the petitioner that since the petitioner

is the Chief Promoter of the proposed Rangnath Swami

Sahakari Griha Nirman Sanstha, Chinch Vihire, Tq.

Rahuri, Dist. Ahmednagar, and therefore, the

provisions of Section 63 would not be attracted, in

that respect the Maharashtra Revenue Tribunal has

recorded that the suit land seems to have been

purchased by Vinayak Gosavi from Trimbak Shivram as

W.P. No. 3975.91

the Chief Promoter of the proposed Shakari Gruha

Nirman Sanstha and as such this particular Sanstha was

not registered on the date of sale i.e. on 19th April,

1985, but came to be registered subsequently on 30th

December, 1985, and therefore, the Maharashtra Revenue

Tribunal held that the suit land was purchased by the

applicant No. 1 i.e petitioner No. 1 herein in his

individual capacity. It is further held that the suit

land was

purchased by the applicant No. 1 in his

individual capacity, as long as the Gruha Nirman

Sanstha is not registered, the benefit under the Co-

operative Societies Act cannot be accrue to the

present applicant No. 1, as the Chief Promoter of such

society. The Maharashtra Revenue Tribunal has also

referred to the registration certificate of the

Society which was placed on record by the petitioner

and it found that the said society is registered on

30th December, 1985 and the sale-deed in question is

dated 19th April, 1985. The Maharashtra Revenue

Tribunal, further observed that the position appears

to be that on the date of sale deed such a society was

not in existence and it was only a proposed Co-

operative Society. So it cannot have any corporate

status till it is registered and ultimately the

W.P. No. 3975.91

position stands that the sale between Trimbak Shivram

and the present applicant No. 1 was between an

agriculturist and non-agriculturist. Therefore, the

provisions of Section 63 of the said Act would be

attracted. Admittedly, no permission was obtained by

the applicant No. 1 for such purchase, and therefore,

the sale transaction dated 19th April, 1985 could be

hit by the provisions of 63 of the said Act, the

transfer of any land in favour of non-agriculturist is

prohibited and the transferee is required to obtain

prior permission for such purchase from the Collector

or the competent officer in that behalf, and

therefore, the Maharashtra Revenue Tribunal held that

sale transaction dated 19th April, 1985 was rightly

held as invalid by both the authorities below and the

impugned order requires no interference. Therefore,

revision filed by the petitioners came to be

dismissed.

9. On independent scrutiny and from perusal of

the orders passed by the Tenancy Awalkarkun, Rahuri,

appellate authority and revisional authority, it is

clear that the petitioner No. 1 was not an

agriculturist and he has also admitted the same fact

W.P. No. 3975.91

in his statement before the Tenancy Awalkarkun. All

the three forums on the basis of documents produced on

record and after appreciating the rival contentions

have recorded the finding that petitioner No. 1 herein

was not agriculturist on the date of sale-deed.

Therefore, no interference is warranted to upset the

concurrent findings recorded by the Tenancy

Awalkarkun, Rahuri, appellate authority and revisional

authority.

The another contention raise by the counsel

appearing for the petitioner that provisions of

Section 63 of the said Act are not attracted in the

present case, since the suit land was purchased by

the petitioner No. 1 as a Chief Promoter of the

proposed Rangnath Swami Sahakari Griha Nirman Sanstha,

Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar, is

concerned, in my opinion, the said contention cannot

be accepted. The appellate Authority and revisional

authority have held that the said society was not

registered on the date on which sale deed was

registered i.e. on 19th April, 1985.Therefore, the

transaction between the petitioner No. 1 and

petitioner No. 2 was between the agriculturist and

W.P. No. 3975.91

non-agriculturist. Therefore, as per provisions of 63

of the said Act prior permission of the competent

authority for such transaction was necessary and

admittedly no permission was taken for such sale

transaction. The contention of the petitioner that

their case is covered under Section 64-A is concerned

same deserves to be rejected. It would be relevant to

reproduce the provisions of Section 64-A of the said

Act

which reads thus :-

"[64-A Nothing in Section 63 and 64 shall apply to sales effected by or in favour of a co-operative Society under

the Bombay Co-operative Societies Act,

1925*]"

Upon perusal of the above provisions, it is

clear that if sales effected or by or in favour of Co-

operative Society under the Bombay Co-operative

Society Act, 1925 nothing in Section 63 and 64 shall

apply to sales. However, in the instant case,

admittedly, the proposed Rangnath Swami Sahakari Griha

Nirman Sanstha, Chinch Vihire, Tq. Rahuri, Dist.

Ahmednagar was not registered on the date of sale-

W.P. No. 3975.91

deed. What is contemplated under Section 64-A of the

said Act is the registered Cooperative Society and not

the proposed Co-operative Society. Therefore, the

contention of the petitioner that since the petitioner

No. 1 has purchased the land in question for proposed

Housing Society, and therefore, provisions of section

62 and 63 of the said Act are not applicable is

required to be rejected. On the date of sale-deed the

said Co-operative Society was not registered and the

benefit of section 64-A of said Act could not have

been given in the case of said society. Therefore,

viewed form any angle, in my considered opinion no

case is made out for interference. Petition stands

dismissed. Rule stands discharged. Interim relief

stands vacated.

In view of the dismissal of the Writ

Petition, Civil Application, if any stands disposed of

accordingly.

[S.S. SHINDE, J]

At this state, learned Counsel for the

petitioner prays that the interim order, which was

operating during the pendency of this petition may be

W.P. No. 3975.91

continued for further period of eight weeks.

Upon hearing counsel for the petitioner and

A.G.P. for the State, in my opinion the prayer is

reasonable. Hence, interim order which was in

operation during the pendency of this petition shall

continue for further eight weeks from today.

[S.S. SHINDE, J]

SDM*3975.91WP/91210