Bombay High Court
Ms. Maya Balwant Chaoji vs Ganesh Dadaji Sukare on 1 December, 2016
Bench: V.A. Naik
LPA 606.10.(J) odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
LETTERS PATENT APPEAL NO.606 OF 2010
IN
WRIT PETITION NO.3408 OF 1998 [D]
Ms. Maya Balwant Chaoji,
Aged Major, R/o. S. No.3,
Tulsibagh Road, Ward No.17,
Nagpur. .. Appellant
.. Versus ..
1] Ganesh Dadaji Sukare.
R/o. Motegaon, Tahsil-Chimur,
District-Chandrapur.
2] Smt. Kusum Uddhavrao Nikhare,
R/o. Ratnapur, Tahsil-Sindewahi,
District-Chandrapur.
3] Smt. Manda Nanaji Shende,
R/o. Nagbhid, Tahsil-Chimur,
District-Chandrapur.
4] Smt. Kunda Ramkrishna Borkar,
R/o. Shioni, Tahsil-Sindewahi,
District-Chandrapur.
5] Smt. Rekha Yadaorao Zode,
R/o. Dahegaon, Post-Pardi,
Tahsil-Lakhandur, District-Bhandara.
6] Smt. Ramabai Dadaji Sukare,
R/o. Motegaon (Kewada),
Tahsil-Chimur, District-Chandrapur.
7] Maharashtra Revenue Tribunal,
Nagpur Bench, Nagpur.
8] The Sub-Divisional Officer,
Warora, Tahsil Chandrapur.
9] The Tahsildar, Tahsil-Chimur,
District-Chandrapur. .. Respondents
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LPA 606.10.(J) odt 2
Shri S.R. Deshpande, counsel for the petitioner,
Shri Dhabadgaonkar, counsel h/f Shri D.V. Chauhan, counsel for the
respondent nos.1 to 6,
Shri A.A. Madiwale, Assistant Government Pleader for the respondent nos.7
to 9.
..........
CORAM : SMT. VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATED : DECEMBER 01, 2016.
ORAL JUDGMENT : (Per : SMT. VASANTI A NAIK, J.)
In this Letters Patent Appeal, the order of the learned Single
Judge, remanding the matter to the Maharashtra Revenue Tribunal, Nagpur is
appealed against.
The admitted facts of the case are stated thus :
The appellant is the legal heir of the original landlady Smt.
Bhimabai and the respondent nos.1 to 6 are the legal heirs of the original
tenant Dadaji. As per the tenancy agreement entered into, between Smt.
Bhimabai and Dadaji, Dadaji was required to give 3 khandis of paddy (dhan)
as lease money to the landlady every year. The tenant Dadaji did not pay the
lease rent to the original landlady for the years 1972-1984. Smt. Bhimabai
served a notice for termination of tenancy under Section 19 of the Bombay
Tenancy and Agricultural land (Vidarbha Region) Act, 1958 (hereinafter
referred to as 'Act' for the sake of brevity) to Dadaji, as Dadaji had failed to pay
the rent in the form of 3 khandis of paddy to Smt. Bhimabai. Smt. Bhimabai
had given necessary intimation to Dadaji, as contemplated by the provisions of
Section 30 (2) of the Act. Since Dadaji did not comply with the notice, the
proceeding under Section 36 of the Act were initiated by Smt. Bhimabai in the
year 1985 before the Tahsildar. The Tahsildar, by the order dated 18.10.1985,
rejected the application filed by Smt. Bhimabai and, therefore, Smt. Bhimabai
filed an appeal before the Sub-Divisional Officer. The Sub-Divisional Officer
set aside the order of the Tahsildar on 31.10.1990 and remanded the matter to
the Tahsildar for a fresh enquiry. The Tahsildar rejected the application of
Smt. Bhimabai once again. By the order dated 18.12.1993, the Sub-Divisional
Officer allowed the appeal filed by Smt. Bhimabai against the order of the
Tahsildar, dated 18.12.1993 and held that the tenancy rights of the respondent
nos.1 to 6, who were brought on record of the said proceedings, were
terminated. The Sub-Divisional Officer directed the respondent nos.1 to 6 to
deliver the possession of the property to the appellant, who was brought on
record of the proceedings before the Sub-Divisional Officer, as the legal heir of
deceased Smt. Bhimabai. In the meanwhile, the respondent nos.1 to 6 had
also filed the proceedings before the Tahsildar for a declaration for conferment
of ownership rights of the land, on them. The said application was allowed by
the Tahsildar, but the Sub-Divisional Officer allowed the appeal filed by the
present appellant and held that the tenancy rights of the respondent nos.1 to 6
were terminated. Being aggrieved by the order terminating the tenancy rights,
the respondent nos.1 to 6 filed a revision before the Maharashtra Revenue
Tribunal, Nagpur. The Tribunal dismissed the revision filed by the respondent
nos.1 to 6 and confirmed the order of the Sub-Divisional Officer. The order of
the Maharashtra Revenue Tribunal was challenged by the respondent nos.1 to
6 in Writ Petition No.3408/1998 and the learned Single Judge, by the order
dated 23.6.2010, remanded the matter to the Maharashtra Revenue Tribunal
to decide the question in regard to the termination of the tenancy of the
respondent nos.1 to 6 by considering the effect of the provisions of Section 11
of the Act.
Shri S.R. Deshpande, the learned counsel for the appellant, took
this Court through the provisions of Sections 11, 12 and 19 of the Act, to
submit that the provisions of Section 11 of the Act are not relevant for deciding
whether the tenancy could have been terminated. It is submitted that the
learned Single Judge could not have remanded the matter after holding that
the Maharashtra Revenue Tribunal should have considered the provisions of
Section 11 of the Act before deciding the revision filed by the respondent nos.
1 to 6. It is stated that Section 11 of the Act merely provides that the
maximum rent payable by a tenant should not exceed three times, the land
revenue in the circumstances provide in Clause (a) of Section 11 and four
times the land revenue on the land, in any other case. It is stated that before
the Maharashtra Revenue Tribunal, the respondent nos.1 to 6 had admitted
that they had not paid the rent i.e. 3 khandis of dhan to the landlady due to
unavoidable circumstances and in the circumstances of the case, there was no
question of considering the provisions of Section 11 of the Act. It is stated that
admittedly the respondent nos.1 to 6 did not pay the rent in the form of
3 khandis of dhan or in the form of money. It is stated that not a single pie
was paid to the landlady towards rent by Dadaji or the respondent nos.1 to 6
after 1971. It is stated that, in the circumstances of the case, the Maharashtra
Revenue Tribunal had rightly upheld the order of the Sub-Divisional Officer
and the learned Single Judge could not have remanded the matter to the
Maharashtra Revenue Tribunal by referring to the provisions of Section 11 of
the Act.
Shri Madiwale, the learned Assistant Government Pleader
appearing on behalf of the respondent nos.8 and 9, has supported the order of
the Maharashtra Revenue Tribunal and submitted that on a reading of the
provisions of the Act, an appropriate order may be passed.
Shri Dhabadgaonkar, learned counsel for the respondent nos.1 to
6, has submitted that the Maharashtra Revenue Tribunal had not considered
the provisions of Section 11 of the Act before rendering the orders in revision
and hence the learned Single Judge had remanded the matter to the
Maharashtra Revenue Tribunal for deciding, whether 3 khandis of dhan would
be in excess of three times the land revenue and four times the land revenue,
as provided in Clauses (a) or (b) of Section 11 of the Act. It is submitted that
the Letters Patent Appeal would not be maintainable as the order is passed by
the learned Single Judge in exercise of the supervisory jurisdiction under
Article 227 of the Constitution of India.
In view of the well settled position of law, we are not inclined to
entertain the objection raised on behalf of the respondent nos.1 to 6 to the
tenability of the Letters Patent Appeal. It is held by the Hon'ble Supreme
Court in the judgment reported in 1993 Supp. (1) Supreme Court Cases, 9
(Ratnagiri District Central Co-operative Bank Limited .vs. Dinkar Kashinath
Watve and others) by referring to the case of Umaji Keshao Meshram .vs.
Radhikabai, reported in 1986 Supp. SCC 401 that the petitions, at times are
filed under Articles 226 and 227 of the Constitution of India, but if the relief
granted by the learned Single Judge indicates that he was exercising
jurisdiction under Article 226 of the Constitution of India and not under Article
227 of the Constitution of India, the Letters Patent Appeal under Clause 15
would be maintainable before the Division Bench of the High Court. In the
instant case also, we find that the learned Single Judge has exercised the
jurisdiction under Article 226 and not under Article 227 of the Constitution of
India and hence we overrule the objection raised on behalf of the respondent
nos.1 to 6 in regard to the tenability of the Letters Patent Appeal.
Now coming to the facts of the case and the order appealed
against, that remands the matter to the Maharashtra Revenue Tribunal, it
would be necessary to consider, whether the learned Single Judge could have
remanded the matter to the Maharashtra Revenue Tribunal for a fresh decision
by adverting its mind to the provisions of Section 11 of the Act. It was not the
case of the respondent nos.1 to 6 before any of the authorities, i.e. the
Tahsildar, the Sub-Divisional Officer or the Maharashtra Revenue Tribunal that
the value of 3 khandis of dhan would exceed the maximum rent payable by the
tenant under Section 11 of the Act. Admittedly, the respondent nos.1 to 6 had
not paid the agreed rent that is 3 khandis of dhan or for that matter, even a
single pie to Smt. Bhimabai or the appellant towards rent. If that is so, it was
necessary for the authorities to only consider, whether the tenancy could have
been terminated under Section 19 of the Act. In this case, if according to
Dadaji or the respondent nos.1 to 6, three khandis of dhan would exceed the
maximum rent payable under Section 11 of the Act, either Dadaji or the
respondent nos.1 to 6 ought to have moved an application before the Tahsildar
for fixation of the rent, in monetary value. Though, an application was made
by Dadaji in this regard and the Tahsildar had passed some order, in the
appeal filed by Smt. Bhimabai, the Sub-Divisional Officer has set aside the
order. Neither Dadaji nor the respondent nos.1 to 6 took any steps against the
order of the Sub-Divisional Officer and the order of the Sub-Divisional Officer
has attained finality. Admittedly, Dadaji did not pay the rent as agreed i.e. 3
khandis of dhan to the landlady and also did not pay any amount whatsoever,
to the landlady towards rent. If Dadaji was really desirous of paying the rent
to Smt. Bhimabai, he ought to have secured appropriate orders for fixation of
the rent in monetary value and should have paid the same to the landlady.
Be that as it may, in the circumstances of the case, the provisions of Section 11
of the Act could not have been applied. The said provisions would not apply,
specially when neither Dadaji nor the respondent nos.1 to 6 had raised a plea
before the Tahsildar, the Sub-Divisional Officer or the Maharashtra Revenue
Tribunal that the rent payable by them exceeded the limits, as provided in
Section 11 of the Act.
Admittedly, since there was compliance of the provisions of
Section 19 and Section 30 (2) of the Act by Smt. Bhimabai, the Maharashtra
Revenue Tribunal was justified in upholding the order of the Sub-Divisional
Officer terminating the tenancy of the respondent nos.1 to 6 and directing
them to hand over the possession of the land to the appellant. In the
circumstances of the case, the learned Single Judge could not have remanded
the matter to the Maharashtra Revenue Tribunal and the writ petition should
have been dismissed after upholding the orders of the Maharashtra Revenue
Tribunal.
Hence, for the reasons aforesaid, the Letters Patent Appeal is
allowed. The order appealed against, dated 23.6.2010 is set aside. The order
of the Maharashtra Revenue Tribunal is confirmed. No costs.
JUDGE JUDGE
Gulande, PA
