Bombay High Court
Shri Digambar Jain Dharma And ... vs Sub Divisional Officer, Malkapur ... on 23 March, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4895 OF 2014
Shri Digambar Jain Dharma and Samaj
Vikas Trust, Malkapur, Distt. Buldhana,
Regd. No. A-238, Buldhana, through its
President
1] Suresh Gulabchand Jain (Jangam)
aged about 63 years, Occ. Business,
R/o. Near Police Chowky, Lakhani
Chowk, Tah. Malkapur, Distt. Buldhana
2] Sameer Ashok Jatale (Secretary),
aged 40 years, Occ. Business,
R/o. Bhagwan Mahavir Marg,
Nimwadi Chowk, Malkapur,
Distt. Buldhana ...... PETITIONER
...VERSUS...
1] Sub Divisional Officer,
Malkapur, Distt. Buldhana.
2] Member, Maharashtra Revenue Tribunal,
Nagpur.
3] Shri Sanjay Pralhadsingh Rajput,
aged adult, Occ. Agriculturist,
R/o. Kondwada Road, C/o. Akshay
Hospital, Near Tulsi Medical Stores,
Malkapur, Tah. Malkapur,
District Buldhana........ RESPONDENTS
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Shri A.P.Chaware, counsel for Petitioner.
Smt. Rashi A. Deshpande, AGP for R1 and 2
Shri Saoji, counsel for Respondent no. 3
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CORAM: R. K. DESHPANDE, J.
rd
DATE : 23
FEBRUARY, 2016 .
ORAL JUDGMENT
1] The petitioner is a Public Trust registered under
the Bombay Public Trust Act and it owns agricultural land at
Mouza Rangaon, Tq. Malkapur, District Buldhana, including
Survey No. 32/1, Gat No. 53, admeasuring 3 hectare and
16R, which is the subject matter of this petition. One Shri
Gunnusingh Dhondusingh, resident of Rangaon was the
tenant in possession of the land in question, who died in the
year 1991. The petitioner Trust filed an application for grant
of exemption under Section 129(b) of the Maharashtra
Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958
(for short "the said Act'), which was allowed on 08.04.1968
and the land in question is included in the said certificate of
exemption. The revision application filed by the legal heir
was dismissed by the Maharashtra Revenue Tribunal on
23.09.1974 and it attained the finality.
2] After the death of the original tenant Shri
Gunnusingh Dhondusingh in the year 1991, the Trust filed
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an application under Section 120 of the said Act for summery
eviction of his L.R from the land in question. The Sub
Divisional Officer by his order dated 17.03.2007 rejected the
said application and the Maharashtra Revenue Tribunal
rejected the revision on 03.12.2013. Hence, the Trust is
before this Court.
3] The Maharashtra Revenue Tribunal as well as
the Sub Divisional Officer have taken a view that the
certificate of exemption is always prospective in operation
and if it is found that the legal heirs of the tenant are in
possession of the exempted land, then their possession
cannot be held to be illegal, as they have inherited the
tenancy right of their predecessor before the certificate of
exemption was obtained.
4] The point is no longer res integra in view of the
decision of this Court delivered in Writ Petition No. 5383 of
2014 in case of Vidarbha Maharogi Seva Mandal, Tapovan,
Amaravati vrs. The Member, Maharashtra Revenue
Tribunal, Nagpur, and others, on 23.02.2016. In paragraph
Nos. 33 and 34 of the said decision, it is held as under;
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33. In view of above, it follows that merely because the
tenant becomes statutory owner by virtue of sub-section
(1) of Section 46 or sub-section (1) of Section 49-A, that
by itself will not be sufficient to protect him from eviction
under Section 120 of the said Act, unless his title becomes
indefeasible by obtaining certificate of purchase under
sub-section (8) of Section 43 of the said Act. In order to
get protection, the tenant or his successor-in-interest must
be armed with the weapon in the form of such certificate.
The undisputed factual position in this case is that till this
date, the tenant or his legal heirs have not obtained the
certificate of purchase under sub-section (8) of Section 43
of the said Act, to perfect the title or to make it
indefeasible. Hence, they are not entitled to protection
from eviction under Section 120 of the said Act.
ig The right of a tenant to purchase the land being
made heritable upon the death of the original tenant as
per Section 54 in Chapter III of the said Act, the heir or
the successor-in-interest of the original tenant also gets the
said right on the same terms and conditions on which the
original tenant was holding the land at the time of his
death. Hence, the legal heir or the successor-in-interest of
the original tenant shall be bound to discharge all the
statutory obligations of the original tenant to retain the
title or to make his title over the land indefeasible."
It is not in dispute in the present case that till this date neither
the tenant nor his legal heir has obtained the certificate of
purchase under sub-section (8) of Section 43 of the said Act.
Hence, he is not entitled to protection of eviction under
Section 120 of the said Act.
5] In paragraph Nos. 41 and 42 of the aforesaid
judgment, it has been held as under;
41. The grant of exemption under Section 129(b)
of the said Act is the conclusive evidence of the fact that
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the land in question is the property of the Public Trust
and the entire income therefrom is appropriated for the
purposes of such Trust. In the absence of such
certificate, the factum of existence of the Trust on or
before the tillers' day, i.e. 1-4-1961, and its utilisation
of income from the land for the purposes of the Trust,
will have to be established. There conditions are sine
qua non to claim exemption from the applicability of
Chapter III of the said Act.
42. Though the tenant satisfies the requirement of
sub-section (1) of Section 46 or sub-section (1) of
Section 49-A under Chapter III of the said Act, the
exemption under Section 129(b) of the said Act can be
claimed only after coming into force of the said Act.
Once it is held that the Trust is entitled to exemption
under Section 129(b) of the said Act, the provisions of
Chapter III therein shall cease to apply to such land
with effect from the tillers' day, i.e. 1-4-1961, and the
tenant shall not be entitled to protection from eviction
under Section 120 of the said Act. The Question No.
(1) is, therefore, answered accordingly.
In view of above, the certificate of exemption granted in the
present case is the conclusive evidence of the fact that the
land in question is the property of the Public Trust and the
entire income therefrom is appropriated for the purposes of
such trust. Once it is held that the Trust is entitled to such
exemption, the provision of Chapter III of the said Act ceases
to apply to such land with effect from tillers date 01.04.1961
and the tenants are neither entitled to inherit the tenancy nor
entitled to protection under Section 120 of the said Act. In
view of above, the order passed by the authorities below
rejecting the application under Section 120 of the said Act
cannot be sustained.
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6] The writ petition is, therefore, allowed. The order
dated 03.12.2013 at Annexure-G passed by the Maharashtra
Revenue Tribunal in Tenancy Revision No.
TNC/Rangaon/64/2006-07 and the order dated 17.03,.2007
at Annexure-E passed by the Sub Divisional Officer,
Malkapur, in Revenue Case No. TNC/Rangaon-10/2001-02
are hereby quashed and set aside. The matter is remitted
back to the Sub Divisional Officer to pass an order under
Section 120 of the said Act for eviction and possession and
to take further appropriate steps to implement the same. No
order as to cost.
JUDGE
Rvjalit
