Shyamsundar Ramsamuj Mishra vs The State Of Maharashtra, ...
2016 Latest Caselaw 2974 Bom

    915-J-WP-5715-15                                                                   1/8



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                           NAGPUR BENCH, NAGPUR.




                                                    
                             WRIT PETITION NO. 5715 
                                                    OF 
                                                       2015
                                                            
                                             

    Shyamsunder Ramsamuj Mishra 




                                                   
    Aged about 55 yrs. Occ. Agriculturist, 
    Resident of Godhani,  
    Tah. And Dist. Yavatmal.                                   ... Petitioner.

    Vs. 




                                          
    1.  The State of Maharashtra,
                               
         Thr. Department of Revenue and Forest, 
         Mantralaya, Madam Cama Road, 
         Mumbai 400 032. 
                              
    2.  The Collector, Yavatmal,
         Tahsil and Dist. Yavatmal. 
      

    3.  Sub Divisional Officer, Yavatmal,
         Tahsil and Dist. Yavatmal. 
   



    4.  Rukmini Pandurang Sansthan Trust at
         Yavatmal, Thr. Its President/Trustee 
         Madhav Diwakar Damle, 





         R/o Shri Rukmini Pandurang Mandir, 
         Gandhi Chouk, Yavatmal,  
         Tahsil and Dist. Yavatmal.                            ... Respondents. 





    Shri H. S. Chitaley, Advocate for petitioner. 
    Shri K. L. Dharmadhikari, Assistant Government Pleader for respondent 
    Nos.1 to 3. 
    Shri M. G. Bhangde, Senior Advocate with Shri S. S. Bhalerao, Advocate 
    for respondent No.4. 

                                              CORAM  :  A.S.CHANDURKAR, J. 

                                               DATE     :  JUNE 17, 2016
    Oral Judgment :               
           Heard. 



     915-J-WP-5715-15                                                                                  2/8

The challenge in the present writ petition is to the certificate issued

in favour of the respondent No.4-Trust under provisions of Section 129 of

the Maharashtra Tenancy and Agricultural Lands (Vidarbha Region) Act,

1958 (for short, the said Act). This certificate is dated 30/10/1964.

2. It is the case of the petitioner that his father was inducted as a

tenant of the agricultural land owned by the respondent No.4-Trust. He

was in cultivating possession since the year 1948-49. His possession was

continuous for a period of almost 55 years. The petitioner's father

expired on 30/01/1992 after which he continued in possession. The

respondent No.4-Trust initiated proceedings against the petitioner under

provisions of Section 120 of the said Act. The application filed by the

Trust came to be allowed by the Sub-Divisional Officer and the revision

petition filed by the petitioner was dismissed by the Maharashtra Revenue

Tribunal. Writ Petition No.2081 of 2014 filed by the petitioner

challenging aforesaid orders was dismissed on 24/08/2015. During

pendency of aforesaid proceedings, the petitioner had filed the present

writ petition seeking to challenge the exemption certificate that has been

issued in favour of the respondent-Trust.

3. Shri H. S. Chitaley, the learned counsel for the petitioner submitted

that the certificate in question had been issued in a manner contrary to

915-J-WP-5715-15 3/8

law. The procedure prescribed before issuing such certificate had not

been followed and the father of the petitioner was not noticed before the

same was issued. He submitted that as per the judgment of the Division

Bench of this Court in 1990(2) Mh.L.J. 1183 Keraba Dattu Borachate

and ors. vs. Shri Sheshshai and Vishnu Trust, judgments of learned

Single Judge in 2002 (1) Mh.L.J. 125 Bhimrao Chandru Patil and ors.

vs. Balkrishna Dattatraya Joshi and ors., 2009 (3) Mh.L.J. 117

Hirabai Baburao Shidankar and anr. vs. Rayat Shikshan Sanstha,

Satara and ors. and 2010 (6) Mh.L.J. Mahadeo Sanstha, Wadali vs.

Syed Turab s/o Syed Jaffar and ors., it was mandatory for the Collector

while holding an inquiry in the matter of issuance of exemption certificate

to give notice to the tenant in question. No such notice was issued to the

father of the petitioner. Similarly, the certificate in question was issued

by the Sub-Divisional Officer who was not competent to do so. The

basis on which the said certificate was issued and the purpose for the

grant of exemption certificate was also not mentioned therein.

According to the learned counsel, the knowledge of the aforesaid

certificate was got only in the year 2009 after which the petitioner took

steps to challenge the same.

It was then submitted that even though the order under Section

120 of the said Act was passed against the petitioner and the same had

become final, said adjudication would not come in the way of the

915-J-WP-5715-15 4/8

petitioner in his challenge to the exemption certificate. According to the

learned counsel, the challenge to the exemption certificate and the

challenge raised in the eviction proceedings under Section 120 of the said

Act was mutually exclusive and both the proceedings were required to be

adjudicated on their own merits. He referred to the documents placed on

record leading to the issuance of the exemption certificate with a view to

indicate the fact that there was no proper notice nor grant of proper

opportunity to the father of the petitioner. He therefore submitted that

the course as followed in the case of Hirabai B. Shindankar (supra) of

remanding the proceedings for reconsideration of the exemption

certificate deserves to be followed.

4. Shri M. G. Bhangde, the learned senior counsel along with Shri S.

S. Bhalerao, the learned counsel for the respondent No.4 opposed the

aforesaid submissions. It was submitted that the challenge to the

exemption certificate at the instance of the petitioner who had suffered

an order of eviction under Section 120 of the said Act was not tenable. It

was submitted that in fact the father of the petitioner had been duly

noticed in the exemption proceedings and he had refused ownership

rights. As the tenancy rights were not heritable, the petitioner had no

locus whatsoever to challenge the exemption certificate. It was then

submitted that while challenging the order of eviction under Section 120

915-J-WP-5715-15 5/8

of the said Act, the exemption certificate was relied upon by the Trust but

the same was not challenged by the petitioner immediately. The

possession of the petitioner having been held to be wrongful, he had no

locus to challenge the said certificate. In that regard reliance was placed

on the order dated 30/03/2015 passed in Writ Petition No.1645 of 2015

(Ramdas Y. Bhoyar and anr. vs. Rukhmini Pandurang Sansthan and ors.)

wherein it was held that challenge of the present nature after finalisation

of the eviction proceedings was academic. It was therefore urged that

entertaining the challenge to the exemption certificate in the present

proceedings would have effect of going behind the orders passed under

Section 120 of the said Act. Moreover, it was only the petitioner's father

who could have challenged the exemption certificate and not the

petitioner. It was therefore urged that the writ petition deserves to be

dismissed.

Shri K. L. Dharmadhikari, the learned Assistant Government Pleader

appeared for respondent Nos.1 to 3.

6. It is not in dispute that exemption certificate under Section 120 of

the said act came to be issued in favour of the respondent No.4-Trust on

30/10/1964. It is further not in dispute that proceedings under Section

120 of the said Act were initiated against the petitioner and the same

have attained finality by virtue of order dated 24/08/2015 in Writ

915-J-WP-5715-15 6/8

Petition No.2081 of 2014.

The effect of aforesaid proceedings attaining finality would

have to be first taken into consideration while considering the challenge

as raised by the petitioner. Under Section 120 of the said Act, any person

who is unauthorisedly occupying or wrongly in possession of any land, is

liable to be summarily evicted after due inquiry. Under Section 120(c) of

the said Act, if the use and occupation of the land in question is found to

be by a person who is not entitled to such use and occupation, he is liable

to be evicted. In Writ Petition No.2081 of 2014, the case of the

petitioner that he was a tenant of the field in question alongwith his

father prior to the deemed date of 01/04/1961 and 01/04/1963 was

considered. It was observed that the petitioner might have been aged one

year on the deemed date. On that basis, the stand of the petitioner that

the respondent-Trust entered into an agreement on lease with the

petitioner who was a minor was not accepted. It was then found that

there was no material on record to prove that the present petitioner was a

tenant of the suit field in his own right prior to the deemed date.

Thereafter it was held that tenancy rights were not inheritable in a case

where a certificate of exemption was granted under Section 129 of the

said Act. After recording these findings, the writ petition came to be

dismissed.

915-J-WP-5715-15 7/8

7. In the present proceedings, the petitioner has now come up

with a case that his father ought to have been noticed before issuance of

the exemption certificate. It is relevant to note that after the exemption

certificate dated 30/10/1964 under Section 129-B of the said Act came to

be issued, further proceedings for conferring ownership rights on the

petitioner's father came to be initiated. The petitioner's father was

noticed in said proceedings as is clear from the documents on record. An

order thereafter was passed on 28/04/1968. Even in subsequent

proceedings an order dated 30/11/1970 was passed of which the

petitioner's father had knowledge on 07/08/1971. The aforesaid

exemption certificate dated 30/10/1964 was the basis of these

proceedings. However, no steps whatsoever were taken by the

petitioner's father during his life time to challenge the orders passed

either granting exemption certificate or refusing to grant ownership

rights.

After failing in his challenge to the order of eviction under Section

120 of the said Act wherein a specific case was raised that the petitioner

was a tenant in his own right alongwith his father and which case was not

accepted, the petitioner has now come up with a case that his father

ought to have noticed in the exemption certificate proceedings. This

stand which is contrary to the stand which was taken in the earlier

915-J-WP-5715-15 8/8

proceedings, cannot be entertained in the aforesaid facts.

8. The legal position as reflected in the decisions relied upon by the

learned counsel for the petitioner does not assist his case. Moreover,

when it is found that the petitioner was not a tenant on the deemed date

as claimed by him initially, he cannot be now permitted to turn around

and challenge the exemption certificate on the ground that no notice was

issued to his father. The observations in the order dated 30/03/2015 in

W.P.No.1645 of 2015 (Ramdas Y. Bhoyar) (supra) that the challenge in

such situation becomes academic are applicable to the case in hand. In

view of aforesaid, I do not find that any case has been made out to

interfere at the instance of the petitioner. The writ petition is therefore

dismissed with no order as to costs.

JUDGE

Asmita