Shri Mahadeo S/O Haribhau Kale vs Shri. Shriram Sansthan Batwadi ...
2016 Latest Caselaw 2633 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                               
                              NAGPUR BENCH, NAGPUR.




                                              
     WRIT PETITION NO.4447 OF 2014



     Shri Mahadeo s/o Haribhau Kale,




                                      
     Aged about 50 years, 
     Occupation - Cultivator,
     R/o Tamshi Batwadi, Tahsil-Balapur,
     District - Akola.
     (since dead) through his L.Rs.
                            
     1-A)  Satyabhama wd/o Mahadeo Kale,       - (Amended as per
           Aged about 57 years,                   Court's Order dt.
           Occupation - Labourer.                 08-06-2016)
      


     1-B) Ganesh s/o Mahadeo Kale,
   



          Aged about 32 years, 
          Occupation - Labourer,

              Both Nos.1-A & 1-B R/o Tamshi,





              Batwadi, Tahsil - Balapur, 
              District - Akola.

     1-C) Sau. Jyoti w/o Rajendra Nakaskar,
          Aged about 39 years, 
          Occupation - Labourer,





          R/o Nakashi, Tahsil - Balapur, 
          District - Akola.

     1-D) Sau. Vanita w/o Vijay Nakaskar,
          Aged about 36 years, 
          Occupation - Labourer,
          R/o Nakashi, Tahsil - Balapur, 
          District - Akola.                             ....       PETITIONERS




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                           VERSUS




                                                            
     1) Shri Shriram Sansthan Batwadi
         Vishwashta Sanstha, through its President 




                                                           
         Shri Kamlakar Hiraman Akare, 
          
     2) Shri Ramrao Kisanrao Mahisane, 
          Secretary,




                                              
          Both resident of Tamshi Batwadi,
          Tahsil - Balapur, District - Akola.
                             
     3) Maharashtra Revenue Tribunal, 
          Nagpur Bench, Secretariat Building,
                            
          Civil Lines, Nagpur.                                       ....       RESPONDENTS


     ______________________________________________________________
      


                  Shri R.L. Khapre, Advocate for the petitioners,
           Shri S.D. Chopde, Advocate for the respondent Nos.1 and 2,
   



                Mrs. H.N. Prabhu, A.G.P. for the respondent No.3.
      ______________________________________________________________

                                   CORAM : Z.A. HAQ, J.

DATED : 8 JUNE, 2016 th

CIVIL APPLICATION NO.901/2016, CIVIL APPLICATION NO.902/2016 & CIVIL APPLICATION NO.904/2016.

For the reasons stated in the applications and as they are

not opposed inasmuch as replies are not filed, the delay in filing the

application for bringing legal representatives of the petitioner is

condoned, the abatement is set aside and the applicants are permitted

to come on record as petitioners. The civil applications are disposed

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accordingly.

ORAL JUDGMENT :

1. Heard Shri R.L. Khapre, Advocate for the petitioners, Shri

S.D. Chopde, Advocate for the respondent Nos.1 and 2 and Mrs.

H.N. Prabhu, Assistant Government Pleader for the respondent No.3.

2. Rule. Rule made returnable forthwith.

3. The respondent Nos.1 and 2 (landlord) filed proceedings

under Section 120 of the Maharashtra Tenancy and Agricultural Lands

(Vidarbha Region) Act, 1958 (hereinafter referred to as "the Tenancy

Act, 1958") contending that the original petitioner was in unauthorised

occupation of the suit field and therefore, he is liable to be evicted

summarily. The Sub-Divisional Officer, by the order dated

07-05-2008, allowed the application filed by the respondent Nos.1 and

2 and directed the original petitioner to handover possession of the

suit field to the respondent Nos.1 and 2. The original petitioner

challenged the order passed by the Sub-Divisional Officer in revision

which is dismissed by the Maharashtra Revenue Tribunal, by the order

dated 12-11-2013. The petitioners, being aggrieved in the matter,

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have filed this writ petition.

4. Shri R.L. Khapre, Advocate for the petitioners has

submitted that the proceedings under Section 120 of the Tenancy Act,

1958 are quasi-judicial proceedings and therefore, it was incumbent on

the part of the Sub-Divisional Officer to follow the procedure properly

and to fix the proceedings for recording of evidence of the parties. It is

argued that the Sub-Divisional Officer did not fix the proceedings for

recording of evidence of the petitioner, because of which the original

petitioner is deprived of proving his claim that he is occupying the suit

field as tenant of the respondent No.1-Trust.

The learned Advocate for the petitioners has argued that

the witness examined on behalf of the respondent No.1-Trust has

stated in his cross-examination that he is not aware as to whether the

tenancy in respect of the suit field has been continued in favour of the

original petitioner. The submission is that, in view of the evidence of

the witness examined on behalf of the respondent No.1-Trust, the Sub-

Divisional Officer could not have concluded that the possession of the

original petitioner over the suit field is unauthorised.

5. Relying on the judgment given by the Full Bench of this

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Court in the case of Kashiram Shriram Dobale vs. Maharashtra

Revenue Tribunal, Nagpur and another reported in 1970 Mh.L.J.

462, it is submitted that the Sub-Divisional Officer while considering

an application under Section 120 of the Tenancy Act, 1958 can go into

the question as to whether tenancy is created in favour of the person

against whom the proceedings under Section 120 of the Tenancy Act,

1958 are initiated. It is submitted that the conclusions of the

Maharashtra Revenue Tribunal that the issue cannot be considered by

the Sub-Divisional Officer in the proceedings under Section 120 of the

Tenancy Act, 1958 are not in consonance with the law laid down in the

above judgment.

6. It is further submitted that the failure on the part of the

Sub-Divisional Officer to fix the matter for recording of evidence of the

original petitioner, vitiates the further proceedings and order passed by

the Sub-Divisional Officer is unsustainable. To support the submission,

reliance is placed on the Note No.60 reported in 1976 Mh. L.J. Notes

of Cases (Ramkrishna v. State). It is prayed that the impugned orders

be set aside and the application filed by the respondent Nos.1 and 2

under Section 120 of the Tenancy Act, 1958 be dismissed. It is

alternatively prayed that the matter be remitted to the Sub-Divisional

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Officer for deciding the application afresh after giving an opportunity

to the petitioners to lead evidence.

7. Shri S.D. Chopde, Advocate for the respondent Nos.1 and

2 and Mrs. H.N. Prabhu, Assistant Government Pleader have supported

the impugned orders. The learned Advocate for the respondent Nos.1

and 2 and the learned Assistant Government Pleader for the

respondent No.3 have submitted that sufficient opportunity was given

to the original petitioner, however, he has not availed the opportunity

and was only interested in protracting the matter. It is prayed that the

petition be dismissed with costs.

8. The learned Assistant Government Pleader has made

available the original record, at the time of hearing. After going

through the documents filed on the record of the petition and the

original record, I find that the contention of the petitioners that the

original petitioner is deprived of opportunity of leading evidence,

cannot be accepted. Though the order-sheet does not show that the

proceedings before the Sub-Divisional Officer were fixed for recording

of evidence of the original petitioner (non-applicant before the Sub-

Divisional Officer), the order-sheet dated 19-11-2007 shows that the

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matter was fixed for arguments on 04-12-2007, on 04-12-2007, the

matter was adjourned for 18-12-2007 and then the order was passed

by the Sub-Divisional Officer on 07-05-2008. The original petitioner

did not file any application before the Sub-Divisional Officer praying

that the matter be fixed for recording his evidence. It goes

unexplained as to why the original petitioner has not made any request

to the Sub-Divisional Officer, for giving him an opportunity to lead

evidence. The matter was pending before the Sub-Divisional Officer

for about five and half months, the order-sheet showing that it was

fixed for arguments and then for orders. The facts on record show that

there had not been any bonafides on the part of the original petitioner

and, in my view, if the contention of the petitioners is accepted at this

stage, it will cause serious prejudice to the respondent Nos.1 and 2

who are prosecuting the matter since 2001.

9. It is well settled that in quasi-judicial proceedings, the

parties should be given all the opportunities as prescribed by law

including the opportunity to lead evidence and to cross-examine the

other side. However, in the present case, I find that the original

petitioner is at fault and it cannot be said that inspite of willingness of

the original petitioner to lead evidence, the Sub-Divisional Officer has

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not permitted him to lead evidence. In these facts, the judgment given

in the case of Kashiram Shriram Dobale does not assist the

petitioners. For the same reason, the reliance on the Note No.60

reported in 1976 Mh. L.J. Notes of Cases is also misdirected.

10. As far as merits of the matter are concerned, it is

undisputed that the suit field belongs to public trust and the public

trust is granted exemption certificate under Section 129(b) of the

Tenancy Act, 1958 in 1962-63. It is undisputed that Hari Ajoji Maroti

was the original tenant of the public trust and he died. In the

judgment given in the case of Shriram Mandir Sansthan @ Shri Ram

Sansthan Pusda vs. Vatsalabai and others reported in 1999 (1)

Mh.L.J. 321, it is laid down that the tenancy rights in respect of lands

belonging to public trust granted exemption certificate under Section

129 (b) of the Tenancy Act, 1958, are not heritable. Thus, the

petitioners cannot claim tenancy rights through original tenant Hari

Ajoji Maroti.

There is nothing on the record to show that the original

petitioner was accepted as tenant by the respondent Nos.1 and 2.

11. The Sub-Divisional Officer and the Maharashtra Revenue

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Tribunal have properly appreciated the material and evidence on the

record and the findings given by the Sub-Divisional Officer and the

Maharashtra Revenue Tribunal are based on proper appreciation of

evidence on the record. I do not find any patent illegality or

irregularity in the findings. I see no reason to interfere with the

impugned order.

12. The petition is dismissed with costs quantified at

Rs.10,000/- (Rupees Ten Thousand) to be paid by the petitioners

equally to the respondent Nos.1 and 2 within two months.

JUDGE adgokar