Bombay High Court
Shaheen Mohammad Garwe vs Hazrat Shaha Badroddin @Dada Hyat ... on 16 June, 2016
Bench: Z.A. Haq
Judgment 1 wp4868.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4868 OF 2014
Shaheen Mohammad Garwe,
Aged about 27 yrs., occ.
Agriculturist, R/o. Village Koli,
Tah. Karanja, Distt. Washim.
ig .... PETITIONER.
// VERSUS //
1. Hazrat Shaha Badroddin @
Dada Hyat Kalandar Sansthan
Trust, Mangrulpir, Tah. Mangrulpir,
Distt. Washim, Reg. No. B-94, through
its President, Shamshuddin Enoddin
Jahagirdar, Aged about 55 yrs.,
Occ. Business, R/o. Mangrulpir,
Distt. Washim.
2. Anis Bhanu Kalarwale,
Aged : Major, Occupation : Agriculturist,
3. Imran Bhanu Kalarwale,
Aged : Major, Occupation: Agriculturist,
4. Sabera wd/o. Bhanu Kalarwale
Aged : Major, Occupation: Agriculturist,
5. Ismail Khairu Kalarwale,
Aged : Major, Occupation: Agriculturist,
6. Mangal Khairu Kalarwale,
Aged : Major, Occupation: Agriculturist,
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Judgment 2 wp4868.14.odt
7. Mohammad Khairu Kalarwale,
Aged : Major, Occupation: Agriculturist,
8. Sayabeen W/o. Firoz Mohanawale,
Aged : Major, Occupation: Agriculturist,
Nos. 2 to 8 R/o. Kolambi, Tah.Mangrulpir,
Distt. Washim.
9. Sub-Divisional Officer, Mangrulpir,
Tah. Mangrulpir, Dist. Washim.
10.
Tahsildar, Mangrulpir, Tah. Mangrulpir,
Distt. Washim.
.... RESPONDENTS
.
______________________________________________________________
Shri S.I.Jagirdar, Advocate for Petitioner.
Shri S.S.Sitani, Advocate for Respondent No.1.
Shri Mahesh Rai, Advocate for Respondent Nos. 2, 4 to 8.
Ms H.N. Prabhu, A.G.P. for Respondent Nos.9 & 10.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JUNE 14, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
Judgment 3 wp4868.14.odt
3. The respondent No.1-Trust is owner of suit field. The
respondent No.1-trust is granted exemption certificate under Section
129-B of the Maharashtra Tenancy and Agricultural Lands (Vidarbha
Region) Act, 1958 (hereinafter referred to as "the Tenancy Act of
1958"). It is undisputed that Bhika Biram had transferred the suit field
to Pachobai (sister of Bhika Biram) and later on Bhanu Khairu
Kalarwale son of Pachobai was in possession of the suit field.
According to the petitioner, after the death of Bhanu Khairu Kalarwale,
respondent Nos. 2 to 8 and the petitioner were in possession of the suit
field. The petitioner contends that the respondent No.1 filed
proceedings under Section 120(c) of the Tenancy Act, 1958 against the
respondent Nos. 2 to 8 and got order of eviction at the back of the
petitioner without impleading the petitioner as party. The case of the
petitioner is that she got knowledge about the order passed by the Sub-
Divisional Officer just 3-4 days prior to filing of the revision application
before the Maharashtra Revenue Tribunal and therefore, there was
delay in filing the revision application and the application praying for
condonation of delay of 863 days was filed which is rejected by the
Maharashtra Revenue Tribunal.
Judgment 4 wp4868.14.odt
4. The learned advocate for the petitioner has submitted that
the Tribunal has committed an error in rejecting the application praying
for condonation of delay overlooking the fact that the petitioner was
not impleaded as party to the proceedings before the Sub-Divisional
Officer and therefore, the petitioner was not having knowledge about
the proceedings before the Sub-Divisional Officer and about the order
passed by him. It is submitted that the petitioner is affected by the
order passed by the Sub-Divisional Officer and as the delay is not
condoned, the challenge raised by the petitioner in revision filed before
the Tribunal is aborted and the petitioner is deprived of her legal right
of protecting her possession over the suit field. The learned advocate
for the petitioner, relying on the order passed in the case of L/Naik
Mahabir Singh Vs. Chief of Army Staff, reported in 1990 (Supp) SCC
89(I) has submitted that the Tribunal should have considered the
prayer of the petitioner for condonation of delay liberally. It is prayed
that the impugned order be set aside, the delay in filing the revision
application be condoned and the Tribunal be directed to consider the
revision filed by the petitioner on merits.
5. The learned advocate for the respondent No.1 has
submitted that the respondent Nos. 2 to 8 who occupied the suit field
Judgment 5 wp4868.14.odt
illegally were impleaded as party in the proceedings filed before the
Sub-Divisional Officer and as the petitioner had not been in possession
of the suit field she was not impleaded. It is submitted that the
petitioner has not placed any material on record to substantiate that
she is legal heir of Bhanu Khairu Kalarwale and the Tribunal has rightly
considered this aspect. It is prayed that the petition be dismissed with
costs.
6. After considering the material on record and the proposition laid
down in the judgment given in the case of Shriram Mandir Sansthan
Vs. Vastalabai & others, reported in (1999) 1 SCC 657, it is clear that
the tenancy rights in respect of the suit field owned by respondent
No.1 - Public Trust are not heritable, as the respondent No.1 is granted
exemption certificate under Section 129-B of the Tenancy Act, 1958.
7. The petitioner claims to be in possession of the suit field,
however, the Tribunal has recorded that the 7/12 extracts and the
record of rights do not show the name of the petitioner as legal
representative of Bhika Biram. Thought the learned advocate for the
petitioner relies on the legal heirs certificate issued by the Sarpanch/
Police Patil (placed on record at page No.22 of the petition) there is no
Judgment 6 wp4868.14.odt
explanation on record as to why the name of the petitioner does not
appear in the 7/12 extracts or the record of rights if she had been in
possession of the suit field as claimed by her.
8. Be that as it may, the Tribunal has found that the
explanation given by the petitioner for delay of 863 days in filing the
revision is not acceptable and the petitioner has not shown any
sufficient cause for it. I see no reason to interfere with the order passed
by the Tribunal.
The petition is dismissed. In the circumstances, the
parties to bear their own costs.
JUDGE
RRaut..
