Bombay High Court
Marwadi Smashan Hanuman Mandir, ... vs Lakhanlal S/O Brijlal Purohit, ... on 19 July, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2376 OF 2014
Marwadi Smashan Hanuman Mandir,
Akot, Regd. No.A-1427,
through President Brijlal Maniklal
Bhandari, Aged about 82 years,
Occupation - Trader,
R/o Akot, District - Akola. .... PETITIONER
VERSUS
1) Lakhanlal s/o Brijlal Purohit,
Aged about 70 years,
Occupation - Trader,
2) Omprakash s/o Brijlal Purohit,
Aged about 60 years,
Occupation - Trader,
3) Dilip s/o Ramkisan Purohit,
Aged about 51 years,
Occupation - Trader,
All R/o Goal Bazar, Akot,
Tq.- Akot, District - Akola.
4) Vasant Nagari Sahakari Pat Sanstha,
Maryadit, Akot, Regd. No.455,
having Head Office at 'Vasant
Mangalam', Popatkhed Road,
Akot, through its Official Liquidator,
Akot, Tq.- Akot, District - Akola.
::: Uploaded on - 27/07/2016 ::: Downloaded on - 30/07/2016 09:56:17 :::
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5) Assistant Registrar,
Co-operative Societies Akot,
Tq. Akot, District - Akola.
6) Joint Registrar,
Co-operative Societies, Amravati.
7) The Special Recovery and Sale Officer,
Vasant Nagari Sahakari Pat Sanstha
Maryadit, Akot, Popatkhed Road,
Akot, Tq. - Akot, District - Akola. .... RESPONDENTS
______________________________________________________________
Shri R.L. Khapre, Advocate for the petitioner,
Mrs. H.N. Prabhu, A.G.P. for the respondent Nos.5 and 6,
Shri S.P. Palshikar, Advocate for the respondent Nos.4 and 7,
None for the respondent Nos.1 to 3.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 19
JULY, 2016.
th
ORAL JUDGMENT :
Heard Shri R.L. Khapre, Advocate for the petitioner-Trust
and Mrs. H.N. Prabhu, Assistant Government Pleader for the
respondent Nos.5 and 6. Shri S.P. Palshikar, Advocate appearing for
the respondent Nos.4 and 7 reports "no instructions". None appears
for the respondent Nos.1 to 3 though notices of final disposal are
served.
2. Rule. Rule made returnable forthwith.
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3. The petitioner-Trust owns the agricultural land which is
the subject matter of dispute. Smt. Rukmabai Narayan Khandale and
others claiming to be the legal heirs of Shri Narayan Khandale had
staked claim for conferral of statutory ownership under Section 49-A of
the Maharashtra Tenancy and Agricultural Lands (Vidarbha Region)
Act, 1958 (hereinafter referred to as "the Tenancy Act of 1958") and
the tenancy Tahsildar, by the order dated 31-03-1990, upheld the
claim of Smt. Rukmabai Narayan Khandale and four others.
Smt. Rukmabai Narayan Khandale executed sale-deed in
respect of the agricultural land in favour of the respondent Nos.1 to 3
immediately on 30-04-1990. In view of the order dated 31-03-1990,
Sale Certificate in respect of the agricultural land owned by the
petitioner-Trust was issued in favour of Smt. Rukmabai Narayan
Khandale and four others on 14-05-1990.
4. The petitioner-Trust had challenged the order of tenancy
Tahsildar dated 31-03-1990 before the Sub-Divisional Officer in appeal
which came to be allowed by the order dated 28-09-1990. The order
passed by the tenancy Tahsildar conferring statutory ownership in
respect of the agricultural land in favour of Smt. Rukmabai Narayan
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Khandale and four others was set aside. The respondent Nos.1 to 3
challenged the order passed by the Sub-Divisional Officer in revision
which was dismissed on 29-01-1996. This order was challenged before
this Court in Writ Petition No.2130/1996 which is dismissed on
16-09-2000.
5.
In the meantime, the respondent Nos.1 to 3 obtained the
loan from the respondent No.4-Sanstha and mortgaged the agricultural
land. As the amount of loan was not repaid, the respondent No.4-
Sanstha initiated proceedings under the Maharashtra Co-operative
Societies Act, 1960 (hereinafter referred to as "the Act of 1960") and
certificate for recovery of amount of Rs.2,55,219/- is issued on 01-04-
2005. The respondent No.7 initiated action for auction of the
agricultural land to recover the amount. The petitioner-Trust
approached the respondent No.6-Joint Registrar under Section 154 of
the Act of 1960 challenging the recovery certificate and the public
notice issued by the respondent No.7-Special Recovery and Sale
Officer. The petitioner-Trust also prayed for an interim order. The
Joint Registrar, Co-operative Societies refused interim order. The
petitioner being aggrieved by the order passed by the Joint Registrar,
Co-operative Societies refusing to grant interim relief, has filed this
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writ petition.
6. While directing issuance of notice on 07-05-2014, this
Court stayed the proceedings in respect of sale of the agricultural land
and directed the revisional authority to proceed with the matter before
him. In view of the interim order passed by this Court on 07-05-2014,
the auction could not take place and the Divisional Joint Registrar has
disposed the revision observing that as the auction is cancelled, the
revision has become infructuous.
Now the challenge raised by the petitioner-Trust to the
legality of sale certificate issued by the respondent No.5-Assistant
Registrar remains.
7. The respondent Nos.1 to 3 claim title over the agricultural
land on the basis of sale-deed executed by Smt. Rukmabai Narayan
Khandale in their favour. Smt. Rukmabai Narayan Khandale became
owner of the agricultural land in view of the sale certificate issued on
14-05-1990 under Section 49-A of the Tenancy Act of 1958 on the
basis of the order passed by tenancy Tahsildar on 31-03-1990. The
order passed by the tenancy Tahsildar upholding the claim of Smt.
Rukmabai Narayan Khandale for statutory ownership and the sale
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certificate issued in her favour on 14-05-1990 are quashed and set
aside by the Sub-Divisional Officer and the order passed by the Sub-
Divisional Officer is maintained by the Maharashtra Revenue Tribunal
and this Court in Writ Petition No.2130/1996. In the above facts, the
sale-deed executed by Smt. Rukmabai Narayan Khandale on
30-04-1990 in favour of the respondent Nos.1 to 3 does not transfer
any valid marketable title in favour of the respondent Nos.1 to 3.
8. After the judgment is passed in Writ Petition
N0.2130/1996, the petitioner-Trust had initiated proceedings under
Section 120(c) of the Tenancy Act of 1958 for summery eviction of the
respondent Nos.1 to 3. The matter came up to this Court in Writ
Petition No.4134/2014 which is decided on 12-07-2016. The claim of
the petitioner-Trust for summary eviction of the respondent Nos.1 to 3
is upheld by this Court.
9. In the above facts, it has to be held that the respondent
No.4-Sanstha cannot recover the amount given to the respondent
Nos.1 to 3 as loan, by auctioning the agricultural land owned by the
petitioner-Trust. Therefore, the recovery certificate issued against the
petitioner-Trust on 01-04-2005 is required to be quashed.
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10. Hence, the following order :
(i) The Recovery Certificate issued by the Assistant Registrar,
Co-operative Societies against the petitioner-Trust on
01-04-2005 is quashed.
(ii) It is declared that the respondent Nos.4 to 7 cannot
recover the amount of loan given to the respondent Nos.1
to 3, by auctioning the agricultural land bearing Survey
No.19, admeasuring 1.65 hectares, situated at Mouza-
Akot, District-Akola.
(iii) The respondent Nos.4 to 7 will be entitled to recover the
amount of loan as per the recovery certificate from the
respondent Nos.1 to 3.
Rule is made absolute in the above terms.
(iv) The respondent Nos.1 to 3 shall jointly and/or severally
pay costs of Rs.30,000/- (Rupees Thirty Thousand) to the
petitioner-Trust within two months. If the amount is not
paid within two months, the amount of costs shall be
recovered as arrears of land revenue.
JUDGE
adgokar
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CERTIFICATE
I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment.
Uploaded by : P.M. Adgokar. Uploaded on : 27-07-2016.
P.A. to Hon'ble Judge.
