Vidarbha Maharogi Seva Mandal, ... vs The Member, Maharashtra Revenue ...
2016 Latest Caselaw 883 Bom

     wp5383.14 + .J.odt                                                                                             1      




                                                                                                      
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                                          
                                  WRIT PETITION NO.5383 OF 2014




                                                                         
     Vidarbha Maharogi Seva Mandal,
     Tapovan, Amravati, Dist. Amravati,
     Regd. No. F-6/Amravati, R.No. 614/61-62,
     Through its Director.                                                           ...Petitioner




                                                       
              Versus
                                
                               
     1.       The Member,
              Maharashtra Revenue Tribunal,
              Nagpur.
      

     2.       Sub-Divisional Officer, Murtizapur,
              Tq. Murtizapur, Dist. Akola.
   



     3.       Tahsildar, Murtizapur,
              Tq. Murtizapur, Dist. Akola.





     4.       Dayansingh Bhagwansingh.

     5.       Rameshsingh Bhagwansingh.

     6.       Sudhabai w/o Arunsingh.





              Respondent Nos.4 to 6, R/o. Anbhora,
              Tah. Murtizapur, Dist. Akola.                                          ...Respondents


     Shri Anand Deshpande, Advocate for Petitioner.
     Ms. Rashi A. Deshpande, AGP for Respondent Nos.1 to 3.
     Shri C.A. Joshi, Advocate for Respondent Nos.4 to 6.




    ::: Uploaded on - 01/04/2016                                          ::: Downloaded on - 31/07/2016 10:04:06 :::
        wp5383.14 + .J.odt                                                                                             2




                                                                                                     
                        CORAM:  R.K. DESHPANDE, J. 

rd FEBRUARY, 2016.

                        DATE:      23


     COMMON JUDGMENT :




                                                                        

1. Rule, made returnable forthwith. Heard finally by consent

of the learned counsels appearing for the parties.

2. The petitioner-Trust had filed an application under

Section 120(c) of the Maharashtra Tenancy and Agricultural Lands

(Vidarbha Region) Act, 1958 (for short "the said Act"), for recovery of

possession on 15-6-2001, which was allowed by an order

dated 9-5-2003 passed by the Tahsildar. The appeal preferred against it

was dismissed on 17-6-2003. The Maharashtra Revenue Tribunal, in

revision under Section 111 of the said Act, has set aside the decisions

given by the lower authorities, and the application filed under

Section 120(c) of the said Act for eviction and possession by the

petitioner-Trust, has been dismissed. Hence, the Trust is before this

Court in this petition.

3. The undisputed factual position in Writ Petition No.5383 of

2014 is that one Bhagwansingh and his wife Badamibai were the tenants

in personal cultivation of the land bearing Survey No.83 and

Gat No.203/B, which were gifted to the petitioner-Trust on 3-10-1950.

The Trust was registered in the year 1961-1962 as a Public Trust. The

tenancy continued and Bhagwansingh died in the year 1984, whereas

Smt. Badamibai died on 9-6-2001. After obtaining certificate of

exemption under Section 129(b) of the said Act on 1-10-2001, an

application was moved under Section 120(c) therein for eviction and

possession against the legal representatives of the original tenants, who

are the respondent Nos.4 to 6 herein.

4. The authorities below, viz. the Tahsildar as well as

the Sub-Divisional Officer, have held that in view of the certificate of

exemption issued on 1-10-2001, the Trust was entitled to claim eviction

and recovery of possession after the death of original tenants

Bhagwansingh and Smt. Badamibai. The Maharashtra Revenue Tribunal

has reversed this finding holding that the certificate of exemption issued

on 1-10-2001, under Section 129(b) of the said Act does not include the

land Survey No.83 and Gat No.203/B, which were in cultivating

possession of the original tenants-Bhagwansingh and

Smt. Badamibai, who became the owners of the said lands after the

tillers' day i.e. on 1-4-1963. Perusal of the order dated 1-4-2001 passed

under Section 129(b) of the said Act granting certificate of exemption

shows the survey numbers which are exempted, and it further states that

Gat No.203/B, admeasuring 12.79 HR, Mouza Anbhora, is in possession

of the legal heirs of Bhagwansing and Smt. Badamibai, and hence that is

deleted from the lands which are exempted. It is also not in dispute that

the list of survey numbers which are exempted do not indicate Survey

No.83. Hence, the undisputed position is that the lands in question are

not included in the list of land survey numbers shown to be exempted in

the certificate of exemption.

5. Shri Anand Deshpande, the learned counsel appearing for

the petitioner-Trust, does not dispute this factual position, but has urged

that the exemption under Section 129(b) of the said Act could only be to

the Public Trust without mentioning any land owned by such Trust. He

submits that that the exemption is not to the lands, but to the Trust. He

has further urged that the Maharashtra Revenue Tribunal has committed

an error in holding that there was no exemption to the petitioner-Trust

in respect of the lands in question, and the reliance by the Tribunal on

the decision of this Court in the case of Mahadeo Sansthan Wadali v.

Syed Turab s/o Syed Jaffar and others, reported in 2010 (6) Mh.L.J. 22,

was misplaced. Shri Anand Deshpande has relied upon the decision of

the Apex Court in the case of Shriram Mandir Sansthan @ Shri Ram

Sansthan Pusda v. Vatsalabai and others, reported in

1999(1) Mh.L.J. 321, for the proposition that the tenancy in respect of

the land belonging to the Trust is not heritable, and the decision of this

Court in Gajanan Maharaj Sansthan, Shegaon v. Digambar Pandhari

Bhise, reported in 2005(4) Bom.C.R. 376, for the proposition that the

exemption certificate operates on the facts, which were in existence prior

to the date of issuance of such certificate.

6.

Shri S.R. Deshpande and Shri C.A. Joshi, the learned

counsels appearing for the respondents, have urged that the

predecessors-in-title of the respondents were the tenants in respect of the

lands in question and they had become absolute owners thereof by virtue

of sub-section (1) of Section 46 and sub-section (1) of

Section 49-A of the said Act, as they were in cultivating possession of the

lands in question on the tillers' day, i.e. 1-4-1961 or 1-4-1963 therein.

According to them, the respondents are the legal representatives of the

original tenants and they cannot be divested of their ownership on the

basis of the exemption certificate issued under Section 129(b) of the said

Act on 1-10-2001. They have supported the order passed by the

Maharashtra Revenue Tribunal.

7. On the basis of the undisputed factual position, the findings

recorded by the authorities below and the rival contentions raised, the

following questions fall for determination by this Court :

(1) Once the ownership or title of the land is transferred

and vested in the tenant under sub-section (1) of Section 46

or sub-section (1) of Section 49-A of the said Act on the

tillers' day, i.e. 1-4-1961 or 1-4-1963, as the case may be,

whether the legal representatives of the original tenant can

be evicted under Section 120 on the basis of the certificate

of exemption under Section 129(b) of the said Act obtained

subsequently in respect of the land belonging to a Public

Trust?

(2) Whether the Maharashtra Revenue Tribunal has

committed an error in holding that since the certificate of

exemption issued on 1-10-2001 under Section 129(b) of the

said Act does not include the land Survey No.83 and Gat

No.203/B, which are in cultivating possession of the legal

representatives of the original tenant, the respondents

cannot be evicted under Section 120(c) of the said Act?

As to Question No.(1) :

8. In order to consider question No.(1), certain provisions of

the said Act are required to be seen. Sub-section (1) of Section 46 of the

said Act being relevant, is reproduced below :

"46. Transfer of ownership of land to tenants from

specified date.--(1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary, with effect on and from the first day of April, 1961, the ownership of all lands held by tenants which they are entitled to purchase from their

landlords under any of the provisions of this Chapter shall stand transferred to and vest in, such tenants and from such

date such tenants shall be deemed to be the full owners of such land. ..."

In order to confer title or transfer of ownership or vesting of

land in the tenant under sub-section (1) of Section 46 of the said Act,

two things are required to be satisfied - (i) that the tenant was in

cultivating possession of the said land as on 1-4-1961, i.e. the tillers' day;

and (ii) that the tenant becomes entitled to purchase the said land from

his landlord under the provisions of Chapter III under the said Act.

9. Sub-section (1-A) was introduced under Section 46 of the

said Act with effect from 1-3-1962 and clauses (a) and (b) therein being

relevant, are reproduced below :

Section 46(1-A) :

"(a) Where a tenant who is evicted from the land before the

1st day of April, 1961 and not in possession thereof on that date, has made or makes an application for possession of the land within the period specified in sub-section (1) of Section 36, then if the application is allowed by the Tahsildar,

or in appeal by the Collector, as the case may be, or in revision by the Maharashtra Revenue Tribunal, the ownership of such land shall stand transferred to and vest in the tenant on the date on which the final order allowing the application is made."

"(b) Where such tenant has not made the application within

the period aforesaid or the application is finally rejected under this Act, and the land is held by any other person as tenant on the date of expiry of the said period or on the date of final

rejection of the application, then the ownership of the land shall stand transferred to and vests in such other person on the relevant date aforesaid."

The aforesaid provision takes care of the situation where a

tenant, who was evicted from the land before the 1st of April, 1961 and

was not in possession thereof. Such tenant can make an application for

possession of the land within the period specified in sub-section (1) of

Section 36 of the said Act, and if such application is allowed by the

Tahsildar, or in appeal by the Collector, or in revision by the

Maharashtra Revenue Tribunal, as the case may be, the ownership of

such land stands transferred to and vests in the tenant on the date on

which the final order allowing the application is made.

10. Sub-section (2) of Section 46 of the said Act is also relevant,

and it is reproduced below :

"(2) In respect of the land the ownership of which stands

transferred to and vests in a tenant under sub-section (1) the tenant shall continue to be liable to pay the landlord the rent of such land until the amount of the purchase price payable by the tenant to the landlord is determined under Section 48."

The aforesaid provision makes the tenant, in whom the

ownership of the land stands transferred to and vests under

sub-section (1) of Section 46, liable to pay the landlord the rent of such

land until the amount of purchase price payable by the tenant to the

landlord is determined under Section 48 of the said Act.

11. Sub-section (1) of Section 41 of the said Act dealing with

the right of tenant to purchase land, is reproduced below :

"41. Right of tenant to purchase land.--(1) Notwithstanding anything contained in any law, usage or contract but subject to the provisions of Sections 42 to 44 (both 8inclusive) a tenant other than an occupancy tenant shall, in the case of land held by him as a tenant, be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally."

The aforesaid provision confers a right upon the tenant to

purchase the land and only such tenant in whom the ownership of the

land stands transferred and vested under sub-section (1) of Section 46,

gets a right to purchase the land from the landlord, subject to the

provisions of Sections 42 to 44 of the said Act.

12. Section 42 of the said Act provided that the right of a tenant

under Section 41 to purchase from his landlord the land held by him as a

tenant shall be subject to the conditions specified in clauses (a) to (c)

therein and clause (c) provided that the extent of the land remaining

with the landlord after the purchase of the land by the tenant whether to

cultivate personally or otherwise shall not be less than one family

holding.

13. Section 43 of the said Act deals with the tenant to make an

offer, determination of purchase price, mode of payment, etc.

Clause (a) of sub-section (1) of Section 43 of the said Act being relevant,

is reproduced below :

"43. Tenant to make an offer, determination of purchase price, mode of payment, etc.--(1) (a) A tenant who desires to exercise the right conferred by Section 41 shall make an offer to the landlord stating the price at which he is prepared to purchase the land such price not exceeding twelve times the rent payable by him and the depreciated value of any structures, wells and embankments constructed and

permanent fixtures made and the value of any trees planted on

the land by the landlord after the period of the last Settlement or where no such Settlement is made during the period of

thirty years before the commencement of this Act and the amount of the arrears of rent, if any, lawfully due on the day on which the offer is made."

In terms of the aforesaid provision, a tenant, who desires to

exercise his right conferred by Section 41 of the said Act has to make an

offer to the landlord stating the price at which he is prepared to purchase

the land, any structures, wells and embankments constructed and

permanent fixtures made and the value of any trees planted on the land,

determined in the manner specified therein.

14. If any dispute raised in respect of such offer by the landlord,

it has to be determined by the Agricultural Lands Tribunal upon

reference to it by the tenant under sub-sections (2) and (3) of Section 43

of the said Act, which are reproduced below :

"43. Tenant to make an offer, determination of purchase price, mode of payment, etc.-- ...

(2) If the landlord refuses or fails to accept the offer and to execute the sale deed within three months from the date of the offer, the tenant may apply to the Tribunal for the determination of the reasonable price of the land.

(3) The Tribunal shall, after giving an opportunity to the tenant and the landlord and all other persons interested in

such land to be heard and after holding an inquiry, determine

and purchase price of such land, which shall consist of--

(a) the price of such land determined by the Tribunal in accordance with the provisions of Section 90, and

(b) the amount of the arrears of rent, if any,

determined by the Tribunal as lawfully due on the date on which the tenant has made an application under sub-section (2)."

If the landlord fails to accept the offer and to execute the

sale-deed within three months, the tenant may apply to the Tribunal for

the determination of the reasonable price of the land. On determination

of the purchase price under sub-section (3) of Section 43 of the said Act,

the tenant has to deposit with the Tribunal the entire amount of such

purchase price - (a) either in lump sum within one year from such date,

or (b) in such annual instalments not exceeding twelve with simple

interest at the rate of 4½ per cent per annum on or before such dates as

may be fixed by the Tribunal and the Tribunal has to direct that the

amount deposited in lump sum or in instalments shall, subject to the

provisions of Section 44, be paid to the landlord.

15. Upon deposit of the purchase price either in lump sum or in

instalments, the Tribunal is empowered to issue certificate of purchase in

the prescribed form to the tenant in respect of such land in terms of

sub-section (8) of Section 43, and such certificate, as stated therein, is to

be held as conclusive evidence of purchase. After issue of certificate

under sub-section (8), the Tribunal has to declare the tenant to be

Bhumiswami or Bhumidhari according as the land was held by the

landlord with effect from the agricultural year next following the date of

issue of the certificate, as contemplated by sub-section (14) of

Section 43 of the said Act.

16. Section 54 of the said Act makes the rights of tenants to be

heritable and it runs as under :

"54. Rights of tenants to be heritable.--(1) Where a tenant

dies, the landlords shall be deemed to have continued the tenancy--

(a) if such tenant was a member of an undivided Hindu

family to the surviving member of the said family, and

(b) If such tenant was not a member of an undivided Hindu family, to his heirs, on the same terms and conditions on which such tenant was holding at the time of his death.

(2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profit of such land.

(3) The interest of an occupancy tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his personal law.

Upon the death of original tenant, the aforesaid provision

makes the tenancy rights heritable in the manner specified above. The

tenancy so inherited shall be on the same terms and conditions on which

the original tenant was holding at the time of his death.

17. Sub-sections (9) to (13) of Section 43 provide for the

consequences for failure on the part of the tenant to pay the purchase

price fixed under sub-section (4) or (7) of the said Act. The same being

relevant, are reproduced below :

"43. Tenant to make an offer, determination of purchase

price, mode of payment, etc. ...

(9) If the tenant fails to pay the entire amount of the purchase price within the period fixed under sub-section (4) or (7) or is in arrears of four instalments under sub-section (4) or (7) of the amount of the purchase price remaining unpaid

and the amount of the interest thereon, if any, shall be recoverable as arrears of land revenue and on such recovery the Tribunal shall issue the aforesaid certificate.

(10) In the event of failure of recovery as arrears of land

revenue under sub-section (9) the purchase shall not be effective and the amount deposited by the tenant shall be refunded to him after deducting the rent due from him for the period :

Provided that if the land is situated in a scheduled area the tenant shall also be refunded the amounts of land revenue and the cesses referred to in clauses (c) and (d) of sub-section (1) of Section 17 paid by him.

(11) Until the deposit of the entire amount is made in lump

sum or until the year in which the first instalments becomes

payable the liability of the tenant to pay the rent due in respect of the land shall continue and shall not be affected.

The tenant holding land in a scheduled area shall be liable to pay the land revenue, canal revenue and other cesses referred to in Section 17 due in respect of the land on deposit of the entire amount or from the year in which the first instalment

thereof becomes payable.

(12) Where any purchase of land becomes ineffective, the landlord shall be entitled to recover from the tenant the rent of the land as if the land has not been purchased and the rent

due, if not paid within the period of extended period referred to in sub-section (13), shall be recovered from the tenant as an

arrears of land revenue and paid to the landlord. The amount of rent so recoverable shall be deducted from the amount, if any, to be refunded to the tenant.

(13) If within three months from the date on which the purchase of any land has become ineffective or such further period not exceeding one year as may be allowed by the

Tribunal having regard to the total amount refundable to the tenant the landlord fails to refund to the tenant the amount

paid after deducting any rent due to him, it shall be recovered from him as an arrears of land revenue and paid the tenant."

Failure to pay the entire amount of purchase price within

fixed period results in issuance of the certificate of recovery as arrears of

land revenue by the Tribunal, and upon failure to recover the amount as

arrears of land revenue, the certificate of purchase of the land becomes

ineffective. The significant feature of sub-section (11) of Section 43 of

the said Act is that until the deposit of the entire amount is made in

lump sum or until the year in which the first instalments becomes

payable the liability of the tenant to pay the rent due in respect of the

land continue and remains unaffected. The liability of the tenant to pay

land revenue, canal revenue and other cesses also continues.

18. Sub-section (14-A) of Section 43 of the said Act was added

by Section 7 of Maharashtra Act No.2 of 1962, brought into force with

effect from 1-3-1962, and it reads as under :

"43. Tenant to make an offer, determination of purchase

price, mode of payment, etc.-- ...

(14-A) If a tenant fails to exercise his right of purchase under Section 41 in respect of any land or the purchase of any

land becomes ineffective, the land shall be deemed to have been surrendered to the landlord, and thereupon the provisions of

sub-section (1) and (2) of Section 21 and Chapter VII shall apply to such land as if the land was surrendered by the tenant under Section 20."

The aforesaid provision provides for the consequences of

failure on the part of the tenant to exercise his right of purchase under

Section 41 of the said Act or where the purchase of land becomes

ineffective. In both these eventualities, the consequences of deemed

surrender of the land to the landlord follow and thereupon the

provisions of sub-sections (1) and (2) of Section 21 and Chapter VII

become applicable to such land as if the land was surrendered by the

tenant under Section 20 of the said Act.

19. By Maharashtra Act No.2 of 1962, Section 42(c) was deleted

with effect from 1-3-1962, and Section 49-A of the said Act was

introduced. Sub-sections (1), (4), (5) and (6) therein being relevant, are

reproduced below :

"49-A. Ownership of certain lands to stand transferred to tenants on 1st day of April, 1963.-- (1) Notwithstanding anything contained in Section 41 or 46, or any custom, usage,

decree, contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day of April, 1963 the ownership of all land held by a tenant (being land which is not transferred to the tenant under Section 46 or

which is not purchased by him under Section 41 or 50 shall stand transferred to and vest in such tenant who shall, from

the date aforesaid, be deemed to be the full owner of such land, if such land is cultivated by him personally, and

(i) the landlord has not given notice of the termination

of tenancy in accordance with the provisions of sub-section (1) of Section 38 or Section 39 or sub-section (2) of Section 49-A; or

(ii) the landlord has given such notice but has not

made an application thereafter under Section 36 for possession as required by those sections; or

(iii) the landlord being a landlord not belonging to any of the categories specified in sub-section (2) of Section 38 has not terminated the tenancy on any of the grounds specified in Section 19; or has so terminated the tenancy but has not applied to the Tahsildar on or before the 31st day of March, 1963 under Section 36 for possession of the land :

Provided that, where the landlord has made

such application for possession then the tenant shall, on the date on which the application is finally

decided be deemed to be the full owner of the land which he is entitled to retain in possession after such decision.

(4) The ownership of land shall stand transferred to the tenant under sub-section (1), subject to the following conditions, that is to say,--

(a) if the tenant does not hold and cultivate

personally any land as tenure-holder, the transfer of ig ownership of land to him shall be limited to the extent of three family holdings; and

(b) if the tenant holds and cultivates personally

any land as tenure-holder, the transfer of ownership of land shall be limited to such area as will be sufficient to make up with the area of land held by him as tenure-holder to the extent of three family

holdings.

(5) The land ownership of which is not transferred under sub-section (1) shall be deemed to have been surrendered to the landlord, and thereupon the provisions of sub-sections (1) and (2) of Section 21 and

Chapter VII shall apply in relation to such land, as if the land was surrendered by the tenant under Section 20.

(6) Save as provided in sub-sections (1) and (5), the provisions of sub-sections (4) to (14), (14-A) and (15)

of Section 43, Section 44, sub-sections (2), (3), (4) and (5) of Section 45 and of Sections 47 and 48 all such mutatis mutandis apply to the transfer of ownership of land under this section."

The aforesaid amendment provides for the ownership of all

lands held by a tenant, being the land which is not transferred to the

tenant under Section 46 or which is not purchased by him under

Section 41 or 50 of the said Act. Such land shall stand transferred to and

vest in such tenant on and from 1st April, 1963, if such land was

cultivated by him personally subject to the conditions specified under

sub-section (1) therein.

20. Sub-section (5) provides for the consequences where the

ownership of the land is not transferred under sub-section (1) and states

that the land shall be deemed to have been surrendered to the landlord

under Section 20 and thereupon the provisions of sub-sections (1) and

(2) of Section 21 and Chapter VII becomes applicable to such land, as if

the land was surrendered by the tenant under Section 20. By virtue of

sub-section (6), the provisions of sub-sections (4) to (14), (14-A) and

(15) of Section 43, Section 44, sub-sections (2), (3), (4) and (5) of

Section 45, and Sections 47 and 48, same as provided in sub-sections (1)

to (5) becomes mutatis mutandis applicable.

21. The objects and reasons of of Act No.2 of 1962 along with

the objects and reasons of deleting clause (c) of Section 42 and

introducing sub-section (14-A) of Section 43, sub-section (1-A) of

Section 46, and Section 49-A of the said Act being relevant, are

reproduced below :

"Objects and Reasons

While implementing the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, Government found that to clarify the

position, or to remove lacunae or to improve the measure it was necessary to make certain amendments and additional provisions in the Act. It was also felt that small landlords needed some relief in the matter of resumption of land for personal cultivation. The Act is designed to achieve these

objects."

"Section 6.-- It deletes section 42 of the principal Act under which a tenant's right of purchase was subject to the condition that the land left with the landlord after purchase by his

tenant was not less than one family holding."

"Section 7.-- It amends section 43 of the principal act by inserting a new sub-section (14-A), in that section to provide

that on the failure of the tenant to exercise his right of purchase under section 41 of the principal Act in respect of any

land or on the purchase of land becoming ineffective, the land shall be deemed to have been surrendered to the landlord subject to the provisions of section 21, and Chapter VII, shall apply to such land as if the land was surrendered by the tenant

under section 20 of the principal Act."

"Section 8.-- It amends section 46 of the principal Act by inserting a new sub-section (1-A) in that section to provide that where a tenant is evicted from land before 1st April, 1961

and is not in possession thereof on that date but who subsequently obtains possession thereof by an application made under section 36 of the principal Act, the ownership of such land shall stand transferred to and vest in the tenant on the date on which the final order allowing the application is made.

But where such tenant has not made an application within the prescribed period or the application is finally rejected under the principal Act, and the land is held by any other person as tenant on the date of expiry of the said period

or on the date of final rejection of the application then the

ownership of land shall stand transferred to and vest in such other person the relevant date aforesaid."

"Section 9.-- It inserts a new section 49-A after section 49 of the principal Act, so as to provide for conferring on tenants right of ownership over land which is not resumed by

landlords or which they are not entitled to resume.

The new section provides that the ownership of all land held by a tenant, being land which is not transferred to the tenant under section 46 or which is not purchased by him

under sections 41 and 50 of the principal Act, shall under the circumstances specified in sub-section (1) and subject to the

conditions mentioned in sub-section (4) of the new section shall stand transferred to such tenant on and from 1st April, 1963.

It also provides for such right of ownership in respect of tenants who are evicted from the land before 1st April, 1963 and are not in possession thereof on that date."

22. In the decision of three-Judge Bench of the Apex Court in

the case of Madhaorao Rajeshwar Deshpande v. Shankar Singh Madhao

Singh and others, reported in 1971 Mh.L.J. 4, it was a case where the

landlord filed an application before the Tahsildar in the month of

August, 1963 under Sections 43(14-A) and 36(2) of the Bombay

Tenancy and Agricultural Lands Act (Vidarbha and Kutch area) Act, 1958

for possession of the land on the ground that the respondent No.1 had

failed to exercise his right of purchase in respect of the field in question

under the provisions of the said Act. The Tahsildar accepted the defence

raised by the tenant that he became the owner of the suit field on April

1, 1961 under Section 46 of the said Act and dismissed the application.

The order was confirmed by the Deputy Collector and the Maharashtra

Revenue Tribunal in appeal as well as revision respectively. The petition

filed under Article 227 of the Constitution before the High Court

challenging the said orders came to be dismissed and the Apex Court

maintained the orders passed by the Courts below and dismissed the

appeal.

23. In the aforesaid decision, the question involved was whether

vesting of ownership of the field in question with the tenant by virtue of

Section 46 of the said Act with effect from April 1, 1961 was affected by

subsequent enactment of sub-section (14-A) by Act No.2 of 1962,

brought into force with effect from March 1, 1962, the Apex Court held

that the amendment introduced did not have retrospective effect, as the

respondent No.1 became statutory owner of the land in his tenancy by

virtue of Section 46(1) of the said Act with effect from April 1, 1961,

even though he did not take steps to purchase that land from the

landlord under Section 43 of the said Act.

24. In the decision of the Division Bench of this Court in the

case of Sitaram Deoba Marathe v. Hawadya Piraji and others, reported in

1975 Mh.L.J. 521, it was a case where the tenant in respect of

agricultural land filed an application under Section 36(1) of the Bombay

Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 alleging

that he was in physical possession of the land in question till

December 1963 when he was forcibly dispossessed. The Naib Tahsildar

allowed the application and restored the possession recording the finding

that the respondent No.1 was a tenant of the land and was in possession

in the year 1963-64 and the application under Section 36(1) of the said

Act filed on 7-9-1966 was within a limitation of three years. The petition

against it was dismissed and the revision before the Maharashtra

Revenue Tribunal also failed. This Court allowed the writ petition and

quashed the orders passed by the authorities below.

25. While deciding the aforesaid case, the Division Bench of this

Court comparatively examined the provisions of Sections 46(1) and

49A(1) of the said Act. It is held in para 11 that a mere look at the

provision of Section 46(1) leaves no doubt that the intention of the

Legislature was clear and an absolute transfer of title in favour of the

tenant was intended as from 1 st of April 1961 and the provision of

clause (c) of Section 42 of the said Act restricted the operation of

transfer of title in respect of certain lands. The result of the deletion of

clause (c) of Section 42 of the said Act was that even in respect of cases

which had some protection, the transfer of title has to take place on

1st of April 1963. So far as Section 49A(1) of the said Act is concerned,

the Apex Court held in para 12 that the requirement was that not only

the juridical relation of landlord and tenant must be in existence but the

tenant was actually cultivating the land personally as and from

1st of April 1963. Every tenant who was in personal cultivation or was

in cultivating possession was declared owner as and from

1st of April 1963 under the provisions of sub-section (1) of Section 49A.

26. It is held in para 12 that the Legislature has repeated the

language of Section 46(1), which is an indication of their firm intention

to transfer title and vest it in the tenant, who was in possession on the

1st of April, 1963 and to make him full owner as and from

1st of April, 1963. It is further held that under the earlier Section 46, as

also under Section 49A, a certain procedure is to be thereafter followed

and it is not enough to merely declare that the property of A now

belongs to B. In para 13, the Court holds that though the vesting is

complete as on 1st of April, 1961 or 1st of April, 1963, the title becomes

defeasible, if the tenant is unable to fulfill the conditions of retaining

that title. It holds that even where the sale becomes ineffective, the

landlord does not get the entire land. The provisions of Section 21 are

attracted and the Tribunal has to dispose of the land in that manner after

deciding the rights and liabilities of the landlord himself.

27. The position of law emerging from the entire scheme of

Sections 46 and 49-A in Chapter III of the said Act, the objects and

reasons of Maharashtra Act No.2 of 1962, and the decisions of the Apex

Court and of this Court, cited supra, to the extent relevant for this case,

can be briefly summarized as under :

(a) By virtue of sub-section (1) of Section 46 of the said

Act, the tenant in cultivating possession of the land as on

1-4-1961 becomes statutory owner of the said land with

effect from the said date and becomes entitled to purchase it

under Section 41 subject to the provisions of Sections 42 to

44 of the said Act.

(b) Section 42 of the said Act provided that the right of a

tenant under Section 41 to purchase from his landlord the

land held by him as a tenant shall be subject to the

conditions specified in clauses (a) to (c) therein, and

clause (c) provided that the extent of the land remaining

with the landlord after the purchase of the land by the

tenant whether to cultivate personally or otherwise, shall

not be less than one family holding. This rider put on the

tenant's right to purchase the land was removed by

Maharashtra Act No.2 of 1962 with effect from

1st of March, 1962.

(c) Under sub-section (1) of Section 43 of the said Act, a

tenant desirous of exercising the right under Section 41, has

to make an offer stating the price at which he is prepared to

purchase the land and if the landlord fails to accept such

offer, the tenant has to approach the Tribunal constituted

under Section 97, to determine such price. On

determination of such price as per Sections 47, 48 and 90 of

the said Act, the tenant has to deposit the amount as per the

order.

(d) On deposit of such amount, the Tribunal has to issue a

certificate of purchase in the prescribed form to the tenant

and such certificate becomes conclusive evidence of

purchase, in terms of sub-section (8) of Section 43 of the

said Act.

(e) Sub-section (14-A) was introduced under Section 43 of

the said Act by an amendment of Maharashtra Act No.2 of

1962 with effect from 1st March, 1962 with an object of

providing that on the failure of the tenant to exercise his

right of purchase under Section 41 of the principal Act in

respect of any land or on the purchase of land becoming

ineffective, the land is deemed to have surrendered to the

landlord under Section 20 and the provisions of Section 21

of the said Act and Chapter VII therein becomes applicable

to such land.

(f) Though, in terms of the decision of the Apex Court in

the case of Madhavrao Rajeshwar Deshpande, cited supra, the

provision of sub-section (14-A) of Section 43 of the said Act

does not operate retrospectively, this decision does not

consider the prospective effect of the said provision.

(g) Section 49-A, introduced with effect from

1st of March, 1962 by Maharashtra Act No.2 of 1962,

repeats the language of Section 46 and it fixes the date of

1st of April, 1963 to transfer of ownership and vesting of

title in favour of a tenant in respect of all land held by him,

being the land which is not transferred to the tenant under

Section 46 or which is not purchased by him under

Sections 41 and 50 of the parent Act. It also provides for

the right of ownership in respect of the tenants who were

evicted and not in possession of the land before

1st of April, 1963.

(h) If the tenant fails to fulfill the conditions of retaining

title, as conferred upon him under the provisions of

sub-section (1) of Section 49-A of the said Act, it results in

deemed surrender of such land to the landlord under

Section 20 of the said Act, and the provisions of

sub-sections (1) and (2) of Section 21 and Chapter VII

become applicable in relation to such land.

(i) In terms of Section 54 of the said Act, upon the death

of the original tenant, the rights of tenant go or devolve

upon the surviving member of an undivided Hindu family, if

the tenant was a member of such family or the legal heirs of

the tenant, if he was not a member of such family, on the

same terms and conditions on which such tenant was

holding at the time of his death.

(j) Though the vesting of title in the tenant is complete on

1st of April, 1961 as per sub-section (1) of Section 46, and

on 1st of April, 1963 as per sub-section (1) of Section 49-A,

it becomes defeasible in terms of sub-section (14-A) of

Section 43 and sub-sections (5) and (6) of Section 49-A of

the said Act with effect from 1st of March, 1962, as has been

held by the Division Bench of this Court in the case of

Sitaram Deoba Marathe, cited supra.

(k) Irrespective of the fact whether the transfer of

ownership is under sub-section (1) of Section 46 or under

sub-section (1) of Section 49-A, the tenant or his

successor-in-interest becomes liable to pay rent, land

revenue, canal revenue and other cesses in terms of

sub-section (11) of Section 43 read with sub-section (6) of

Section 49-A, till the issuance of certificate of purchase

under sub-section (8) of Section 43 of the said Act.

28. There is no time-limit prescribed under Section 43 of the

said Act for the tenant either for making an offer to the landlord stating

the price at which he is prepared to purchase the land or for making an

application to the Tribunal to determine the purchase price of the land.

This may result in the following situations :

(i) The tenant makes his offer immediately after 1st of

April, 1961 or 1st of April, 1963, as the case may be, and

upon refusal or failure of the landlord to accept the offer

within a period of three months, as contemplated by

sub-section (2) of Section 43 applies to the Tribunal for

determining the price.

(ii) The tenant belatedly makes an offer of purchase price

to the landlord and does not make an application for

determination of purchase price to the Tribunal under

sub-section (2) of Section 43 of the said Act either upon the

refusal or failing to accept the offer by the landlord within a

period of three months or belatedly making an application

for fixation of purchase price.

(iii) The tenant totally fails to make his offer of purchase

price to the landlord and also fails to make an application to

the Tribunal for determination of such purchase price.

29. In the situation at serial No.(i) above, if the tenant pays the

purchase price upon acceptance of his offer by the landlord or deposits it

in the Tribunal as per the order passed under Section 48 of the said Act,

he becomes entitled to get the certificate of purchase under

sub-section (8) of Section 43, but in the situations at serial Nos.(ii) and

(iii), it will depend upon the facts and circumstances of each case as to

whether the tenant establishes his entitlement to issuance of certificate

under sub-section (8) of Section 43 in Chapter III of the said Act.

30.

The entitlement of a tenant to purchase the land from his

landlord under sub-section (1) of Section 41 and to obtain a certificate

of purchase under sub-section (8) of Section 43 in Chapter III of the said

Act, depends upon the volition to exercise such right, which, of course,

remains subject to the provisions of Sections 42 to 44 therein. The right

to purchase the land need to be exercised by making an offer of

purchase price under sub-section (1) of Section 43 and to apply for

determination of purchase price under sub-section (2) of Section 43, in

case where the landlord refuses or fails to accept such offer within a

period of three months. Merely because there is no time-limit prescribed

in the said Act for the tenant either for making such an offer, or to apply

to the Tribunal for determination of purchase price, it does not follow

that the tenant can make such offer or apply for determination of

purchase price at any time during the life-time or after an inordinate

delay. In the absence of there being any time-limit prescribed, the

tenant will have to follow the procedure of obtaining a certificate of

purchase under sub-section (8) of Section 43 of the said Act, within a

reasonable time. What is the reasonable time, shall depend upon the

facts and circumstances of each case and no strait-jacket formula can be

prescribed.

31. Sub-section (14-A) of Section 43 and sub-sections (5) and

(6) of Section 49-A of the said Act provide for the consequences of

non-fulfillment of or failing to comply with the procedure prescribed for

retaining the title or to make the title indefeasible. If the tenant fails to

obtain a certificate of purchase under sub-section (8) of Section 43

within a reasonable time, the sale becomes ineffective or defeasible and

shall result in the consequences of deemed surrender of tenancy by the

tenant to the landlord under Section 20 of the said Act, and the tenant

will no longer continue to be the owner of the land in his possession. If

such view is not taken, then the provision of sub-section (14-A) of

Section 43 and sub-sections (5) and (6) of Section 49-A of the said Act

would become redundant.

32. If the tenant in possession of the land loses his title or his

title gets defeated on account of failure to obtain a certificate of

purchase under sub-section (8) of Section 43 of the said Act, the

provision of Section 120 regarding summary eviction under the said Act

may get attracted. The provision of Section 120 of the said Act is,

therefore, reproduced below :

"120. Summary eviction.--Any person unauthorisedly occupying or wrongfully in possession of any land,--

(a) the transfer of which either by the act of parties or

by the operation of law is invalid under the provisions of this Act,

(b) the management of which has been assumed under the said provisions, or

(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such person, may be summarily

evicted by the Collector after such inquiry as he deems fit."

Though by virtue of sub-section (1) of Section 46 of the said

Act or by virtue of sub-section (1) of Section 49-A of the said Act, the

tenant becomes the statutory owner of the land under his personal

cultivation as on 1st of April, 1961 or 1st of April, 1963, as the case may

be, if such transfer becomes invalid on account of failure to obtain a

certificate of purchase under sub-section (8) of Section 43, the provision

of clause (a) of Section 120, reproduced above, gets attracted, and the

possession of such tenant becomes unauthorised and wrongful. If the

management of such land is assumed by the State Government in

exercise of its power under Section 21 of the said Act, the provision of

clause (b) of Section 120 would get attracted, and in both these

eventualities, the tenant is liable to be summarily evicted under

clause (c) of Section 120 of the said Act.

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.

34. 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.

35. If the land belongs to a Public Trust, then the exemption

from the applicability of Sections 46 and 49-A can be claimed under

Section 129(b) of the said Act, by obtaining a certificate of exemption.

Section 129(b) of the said Act along with the Explanation, to the extent

it is relevant, is reproduced below :

"129. Exemption from certain provisions to lands held by local authorities, Universities, trusts, etc. - Nothing in the foregoing provisions except Section 2, the provision of

Chapter II (excluding Sections 21, 22, 23, 24 and 37) and Section 91 and the provisions of Chapters X and XII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply,--

(b) to lands which are the property of a trust for an educational purpose, hospital, panjarpole, Gaushala, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purposes of such trust.

Explanation.-- For the purpose of clause (b), a certificate granted by the Collector after holding an inquiry, that the conditions mentioned in the said clause are satisfied by the trust shall be the conclusive evidence in that behalf."

While considering the question as to whether, in the case of

lands belonging to a trust of an educational institution falling within

Section 129(b) of the Tenancy Act, 1958, the tenancy is heritable on the

death of a tenant, by his heirs, the Apex Court, in the case of Shriram

Mandir Sansthan @ Shri Ram Sansthan Pusda v. Vatsalabai and others,

reported in 1999(1) Mh.L.J. 321, has considered the objects and reasons

of the said Act. The Apex Court has held that the said Act is, therefore,

not meant entirely for the benefits of the tenants although it gives

valuable rights to the tenants of the agricultural lands generally. The

Apex Court has further held that the clear intention of Section 129 of the

said Act is to protect certain lands from tenancy legislation where the

lands or income from such lands is being utilised for public purposes set

out there.

36. In the aforesaid decision, the Apex Court holds that under

Section 46 of the said Act, which forms a part of Chapter III, there is a

provision of transfer of ownership lands held by the tenants, which they

are entitled to purchase from their landlords under any of the provisions

of this Chapter with effect from 1st of April, 1961. The provision of

Section 49-A was inserted in Chapter III by Maharashtra Act No.2 of

1962 and these provisions, which form a part of Chapter III, do not

apply to the tenancies of the lands covered by Section 129 of the said

Act. The Apex Court further holds that Section 54 of the Act, which

forms a part of Chapter III, does not apply to the lands belonging to such

a trust of an institution for public religious worship. The obvious effect

is that the tenancy in respect of such lands is not heritable at all and the

exclusion of Section 54 from applicability of the Act necessarily implies

exclusion of ordinary law of inheritance.

37. In the decision of this Court in the case of Gajanan Maharaj

Sansthan, Shegaon v. Digambar Pandhari Bhise, reported in

2005(4) Bom.C.R. 376, it is held in paras 9 and 10 as under :

"9. ... Perusal of section 129 of the Tenancy Act reveals that

the said Section 129 only require agricultural lands which are property of the trust for educational purpose, hospital etc., provided entire income of such land is appropriated for the purpose of such trust. The said section 129(b) nowhere states that it should be the public trust or such trust should be

registered trust. Further certificate of registration is granted by authorities under Bombay Public Trust Act after inquiry under section 19 thereof. Thus, first activity in the nature of trust already starts functioning and thereafter it is recognised as public trust. Therefore, it cannot be said that the petitioner trust came into existence only after 15-6-1962. The registration as a public trust granted by Assistant Charity Commissioner, Buldana to the petitioner is only in recognition of an existing fact and therefore, the said certificate will always relate back to the date on which the said activity started. It will not mean that the petitioner trust

became public trust only after 15-6-1962. The order of

S.D.O. Reveals that the petitioner trust is in existence since atleast 1957. Under these circumstances, the arguments

of Advocate Deshpande depending upon date of registration of the petitioner-trust are misconceived and unsustainable.

10. Perusal of explanation to section 129 also reveals

that the certificate granted by Collector after holding inquiry that conditions mentioned in the said clause are satisfied by the trust is conclusive evidence about it. The said powers of the Collector are exercised by the sub-Divisional Officer. The Sub-Divisional Officer has issued certificate on 13-9-1963.

Thus, the said certificate is in recognition of the fact that the suit lands are property of the trust as required by

section 129(b) of Tenancy Act. Thus, the certificate also operates on facts which are in existence prior to the date of its issue and it cannot be constituted that the petitioner/trust

becomes entitled to exemption only from 13-9-1963 prospectively. Thus, the argument that prior to 15-6-1962 the petitioner trust was a private trust and prior to 13-9-1963 there was o exemption in favour of the petitioner

trust are liable to be rejected and are accordingly rejected. Such certificate means that petitioner trust is exempt from its

inception."

This Court has taken a view that it cannot be said that the

public trust comes into existence only on the date of its registration

granted by the Assistant Charity Commissioner. It is held that the

registration of Public Trust is merely recognition of an existing fact and,

therefore, the certificate of registration will always relate back to the

date on which the said activities started. It is held that the certificate

under Section 129(b) of the said Act operates on the facts which are in

existence prior to the date of its issue and it cannot be construed that

the petitioner-Trust becomes entitled to exemption only from the date of

issuance of this certificate prospectively. The Court rejected the

contention that there was no exemption in favour of the

petitioner-Trust prior to issuance of the certificate of exemption.

38. In the decision of the learned Single Judge of this Court

(Shri B.P. Dharmadhikari, J.) in the case of Maroti Sansthan, Tiwsa v.

Gulab Haribhau Jirapure (dead) and others, reported in

2006(6) Mh.L.J. 367, the question was whether the exemption under

Section 129(b) of the said Act was applicable to the public trust, which

was not registered as such on the tillers' day, i.e. 1-4-1961. In para 10

of the said decision, it is held as under :

" Thus the exemption under section 129(b) is available to

the lands, which are property of a trust for educational purposes, hostel, hospital, panjarpole, Gaushala or an institution for public religious worship provided the entire income of such lands is permitted for the purpose of said trust. It is, therefore, apparent that section 129(b) of the

1958 Act does not require any registration as contemplated under section 88-B of the 1948 Act. Only requisite under section 129(b) is that the entire income of the said land should be appropriated for the purpose of the Trust. The requirement that trust should be registered or should be deemed to have been registered under the Bombay Public Trust Act, 1950 is nowhere reflected in section 129(b) of the 1958 Act. When the particular requirement is not provided for by the Legislature in section 129(b), it is not for the Court to read such a condition in it and therefore, it cannot be held that the petitioner-trust must be registered on the tillers day

for the purpose of claiming exemption under the 1958 Act. It

is an admitted position that the petitioner trust has been registered on 19-9-1962 and the tillers day is 1-4-1961."

This Court has held that the requirement that the Trust should be

registered or should be deemed to have been registered under the

Bombay Public Trusts Act as on the tillers' day, i.e. 1-4-1961, is nowhere

reflected in Section 129(b) of the said Act, and the Court is, therefore,

not required to read such condition in it. The Court has rejected the

contention that the Trust must be registered on the tillers' day for the

purposes of claiming exemption under Section 129(b) of the said Act.

39. In the decision of this Court in the case of Nathaji Mandir

Sanstha (Shri Krishnalalaji Mandir Trust) and others v. Vishnu s/o Kisan

Pakade and another, reported in 2014(5) Mh.L.J. 852, it is held that the

existence of a Trust holding a property on the tillers' day is the essential

condition, and in the absence of such finding, the question of utilising

the income for the purposes of the Trust is of no consequence. This was

held in the background of the fact that there was neither any finding nor

any evidence on record to show that the lands in question were

purchased either by the Private Trust or by the Public Trust or that there

existed any such deed of settlement of Trust on or before the tillers' day,

i.e. 1-4-1961. As a matter of fact, the lands in the said decision stood in

the names of the individuals. The question as to whether the Trust

should have been registered on the tillers' day, did not arise in this

decision. This Court has distinguished the aforesaid two decisions of this

Court in which a view was taken that the Trust need not have been

registered on or before the tillers' day, i.e. 1-4-1961, for claiming

exemption under Section 129(b) of the said Act.

40. The position of law can be summed up as under :

(1) In order to claim exemption under Section 129(b)

of the said Act, what is essential is that - (i) the land in question is the property of a Trust for an educational

purpose, hospital, panjarpole, Gaushala, or an institution for public religious worship; and (ii) the entire income of the land is appropriated for the purposes of such Trust.

(2) It is the factum of existence of Public Trust on or before 1-4-1961 and utilisation of the income from the land for the purposes of the Trust, which is required to be established, and it is not necessary that such Public Trust should have been actually registered as such on or before the tillers' day. Such requirement cannot be read in the Statute.

(3) The grant of certificate of registration of Public

Trust under Section 20 of the Maharashtra Public Trusts Act, 1950 relates back to the date of formation or constitution of the Trust, as it is merely a recognition of the existing Trust.

(4) The certificate of exemption issued under Section 129(b) of the said Act operates on the facts which

were in existence on the date of its issuance and it cannot be

construed that the Trust became entitled to exemption only from the date of its issuance, i.e. prospectively.

* *"(5) Once the certificate of exemption is granted under Section 129(b), Section 54 under Chapter III of the said Act

ceases to apply and the legal heirs of the tenant shall not be

entitled to inherit the tenancy, as the applicability of the ordinary law of inheritance is excluded".

41. The grant of exemption under Section 129(b) of the said

Act 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. 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 +[neither the legal heirs of the tenant shall be entitled to inherit the

tenancy rights under Section 54, nor shall be entitled to protection

under Section 120 of the said Act]. The Question No.(1) is, therefore,

answered accordingly.

As to Question No.(2) :

43. A bare perusal of Section 129(b) of the said Act, reproduced

earlier, shows that the exemption contemplated therein applies to the

lands which are the properties of the Trust. The exemption is to the

"Trust" in respect of the properties/lands held by it and the ownership of

the lands held by the Trust can be seen from Schedule I under the Public

Trust Register maintained by the Office of Charity Commissioner under

the provision of Section 18 of the Maharashtra Public Trusts Act, which

is in terms of Section 21 therein, the conclusive proof of the fact that the

lands belong to the Trust. It is the statutory function of the authorities

under the Act to see that the income of the land is utilised for the

purposes of the Trust. In such situation also, there would be a

presumption that the income from the land is being utilised for the

purposes of the Trust and the tenant will not be entitled to protection

from eviction under Section 120 of the said Act.

44. In the present case, the undisputed factual position being

that the land in question was gifted to the Public Trust on 3-10-1950

and the fact of inclusion of this property in Schedule I of the Public Trust

Register being not disputed, it is not the reason for excluding the land in

question from the certificate of exemption dated 1-10-2001 issued under

Section 129(b) of the said Act that the income therefrom is not being

utilised for the purposes of the Trust. The reason that the land in

question is in possession of the legal heirs of the tenant, cannot be the

reason to hold that the Trust is not entitled to exemption. In the

absence of any dispute and the finding by the Maharashtra Revenue

Tribunal that the income from the land in question is not being utilised

for the purposes of the Trust, it will not make any difference as to

whether such property is included in the certificate of exemption under

Section 129(b) of the said Act. The Question No.(2) is, therefore,

answered accordingly.

45. For the reasons stated above, the petition is allowed. The

judgment and order dated 11-1-2013 passed by the Maharashtra

Revenue Tribunal, Nagpur, in Tenancy Revision No.3-TEN/2003-

04/Ambhora, is hereby quashed and set aside, and the order

dated 7-6-2003 passed by the Sub-Divisional Officer, Murtizapur, in

Revenue Appeal No.TNC/107/2/Ambhora/2002-03, is restored.

46. Rule is made absolute in above terms. No order as to costs.

JUDGE.

Lanjewar

* Added by corrigendum dated 29-3-2016.

+ Deleted and substituted by corrigendum dated 29-3-2016.

+ Deleted portion "..the tenant shall not be entitled to protection from eviction under Section 120 of the said Act".