Bombay High Court
Mr. Ashwin Arvind Sanghavi vs Bharat Kondu Pingale (Since Decd) ... on 18 October, 2016
Bench: M.S. Sonak
Sudhir Rane 1 11-WP-5770-14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5770 OF 2014
Mr. Ashwin Arvind Sanghavi. ... Petitioner
Versus
Bharat Kondu Pingale
(Since Deceased) Through L.Rs. ... Respondents
ig ....
Mr. Uday P. Warunjikar for the Petitioner.
None present for the Respondents.
....
CORAM: M.S.SONAK, J.
Date of Reserving the Judgment : 10th OCTOBER 2016
Date of Pronouncing the Judgment : 18th OCTOBER 2016
Judgment :
1. Heard Mr. Warunjikar for the petitioner.
2. The challenge in this petition is to the judgment and
order dated 28th May 2012 made by the Maharashtra Revenue
Tribunal (MRT) dismissing petitioner's Revision Application No.133
of 2010 and confirming SDO's judgment and order dated 29 th July
2002.
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3. The property, which is the subject matter of this
petition, bears Survey Nos.22 and 23 of village Tungrali, Tal.
Mawal, Dist. Pune admeasuring about 36,600 sq. mtrs. (said
property). There is no dispute that the said property was originally
owned by Shri Mahadeo Chintaman Wadekar. The survey records
from the year 1930-31 up to 1962-63 indicate that the said
property was under cultivation by tenants.
4. The original landlord, instituted proceedings under
section 70(b) of the Bombay Tenancy and Agricultural Lands Act,
1948 (Tenancy Act), to declare that, Pingales (predecessors-in-title
of the respondents) are not tenants of the said property.
5. The Tahsildar by order dated 15th March 1993 however,
closed the proceedings by relying upon some previous order dated
17th July 1985, holding that the Pingales were not tenants in
respect of the said property. It is pertinent to note that there is
absolutely no clarity with regard to this earlier order dated 17 th
July 1985. In paragraphs 6 and 7 of the petition, the petitioner has
stated that copy of judgment and order dated 17th July 1985 is
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unavailable and it is the petitioner's case that he was informed that
the record and proceedings in which such order was allegedly
made, are not traceable. If this be the position, it is quite
incomprehensible that the Tahasildar relies upon the judgment and
order dated 17th July 1985 in order to non suit the Pingales. The
SDO, in exercise of revisional jurisdiction, by his order dated 29 th
July 2002, has rightly set aside the Tahsildar's order dated 15 th
March 1993 and remanded the matter to the Tahasildar for
reconsideration.
6. The successors of the original landlord Shri Shashikant
Wadekar and others preferred an Appeal/Revision to the Additional
Collector questioning the SDO's order dated 29 th July 2002. By
order dated 29th December 2003 the Additional Collector has
dismissed such Appeal/Revision. The subsequent second appeal /
second revision before the Additional Commissioner, Pune was
dismissed on 15 November 2006. The SDO's order dated 29
December 2003, thus, attained statutory finality.
7. The present petitioner, who was not even a party to the
proceedings between the landlords Wadekars and the tenants
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Pingales, preferred a Revision Petition before the MRT questioning
inter alia the judgment and order dated 29th July 2002 made by the
SDO in the Revision instituted by the Pingales against the
Tahsildar's order dated 15th March 1993. By the impugned
judgment and order dated 28th May 2012 the Member, MRT has
dismissed this Revision Application, thereby confirming the
judgment and order dated 29 th July 2002 made by the SDO. The
Petitioner, in his Revision Application, claims to have purchased the
said property from the original landlords i.e. Wadekars and further,
even converted the said property for non agricultural purposes
some time in the year 1987. It is on this basis that the petitioner
had claimed the locus standi to institute the Revision Petition before
the MRT, in which the impugned judgment and order dated 28 th
May 2012 has been made.
8. Mr. Warunjikar, the learned counsel for the petitioner
submitted that upon purchase of the said property by the petitioner
and it's conversion to non agricultural use in the year 1988, the
said property ceased to be agricultural property and therefore,
there was no question of Pingales asserting any rights of tenancy in
respect thereof. Mr. Warunjikar also submitted that the Appeals
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and Revisions instituted by Pingales and Wadekars were in relation
to entries in survey records and such Appeals and Revisions were
instituted before the authorities appointed under the Maharashtra
Land Revenue Code. He submitted that, there was no challenge to
the order dated 15th March 1993 under the provisions of Tenancy
Act and therefore, the said order has attained finality. Finally, Mr.
Warunjikar also placed on record the order dated 20 th August 2016
issued by Tahsildar, Maval, to submit that the claim of Pingales to
tenancy has been enquired into and rejected.
9. In this petition, we are concerned with the impugned
judgment and order dated 28 th May 2012 made by the MRT. Upon
due consideration of the submissions made by Mr. Warunjikar and
upon perusal of the record as also perusal of the various judgments
and orders referred to earlier, in my judgment, there is no case
made out to interfere with the impugned judgment and order.
10. In the first place, it is quite doubtful as to whether the
petitioner was at all entitled to maintain Tenancy Revision
Application No.133 of 2010 before the MRT in which, the
impugned judgment and order has been made. In this Revision
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Petition, the challenge was to the order dated 29 th July 2002 made
by the SDO, Maval. As noted earlier, the original landlords, from
whom, the petitioner claims alleged rights, had already challenged
the SDO's order dated 29th July 2002 earlier before the various
authorities and such challenge had already been turned down. On
the basis of the so called acquisition of the said property by the
petitioner from the original landlords, the petitioner was not
entitled to re-challenge the SDO's order. The Revision Petition at
the behest of the Petitioner, was therefore, rightly rejected.
11. Even otherwise, there is no reason to fault the SDO's
order dated 29th July 2002. the Tahsildar, in making his order
dated 15th March 1993 appears to have relied upon order dated
17th July 1985 made by Additional Tahsildar, which order, is not at
all traceable. The proceedings in which such order was made are
also not traceable. The contents of such order are also not known.
If the Tahasildar's order dated 15th March 1993 is perused, then,
non application of mind, is writ large upon the same. The
Tahasildar has merely held that since the claim of Pingales was
turned down by the Additional Tahsildar by order dated 17 th July
1985, he is closing the proceedings. The order of the Tahasildar
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dated 15th March, 1993 was rightly set aside by the SDO in his
order dated 29th July 2002. Proceedings against the order dated
29th July 2002, instituted by the successors of the original landlords
i.e. Wadekars have failed and the said order has attained finality.
In these circumstances, the Petitioner was clearly dis-entitled to
challenge the same. In any case, the challenge of the Petitioner has
been rightly turned down.
12.
Mr. Warunjikar's contention that, since the property has
been converted for non agricultural purposes, Pingales cannot
claim any tenancy, has been rightly rejected in the impugned
judgment and order. Such subsequent and belated conversion,
obviously, cannot defeat the rights of tenants. At the highest, if
tenancy is established, such conversion will be vulnerable. Besides,
once it is established that, the said property was affected by
tenancy, it is quite doubtful whether the original landlords could
have even sold or conveyed the said property and the transferee
could have at all converted the same for non agricultural use.
13. The contention that the Pingales had preferred
appeals / revisions to the revenue authorities and not the
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authorities under the Tenancy Act, is quite misconceived. Perusal
of the record would indicate that the SDO, who entertained appeal
against the Tahsildar's order dated 15 March 1993, was indeed, the
prescribed authority under the Tenancy Act. Such objection, was,
quite rightly, never even raised by the legal representatives of the
original landlord, through whom the petitioner, now claims some
right to the suit property. As such, it is too late in the day to
contend that the Pingales had instituted appeals only under the
provisions of the Land Revenue Code and not under the Tenancy
Act. The mere circumstance that there is reference to the Land
Revenue Code and the relief to effect mutation in survey entries, is
not a very significant factor. There is no doubt that in the appeal
before the SDO, the challenge was squarely to the Tahsildar's order
dated 15 March 1993, which order the SDO, has set aside by his
order dated 29 July 2002. Mere reference to an incorrect provision
of law, does not, either vest or divest jurisdiction. There is
accordingly no merit in this contention of Mr. Warunjikar.
14. This is not the occasion for taking into consideration
the Tahasildar's order dated 20th August 2016 since, the same does
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not concern the issues raised in this petition directly. In this
Petition, the challenge is to the impugned judgment and order
dated 28th May 2012 made by the MRT. For the reasons as
discussed above, there is neither any jurisdictional error nor any
perversity in making of the impugned judgment and order.
15. Accordingly, this petition is dismissed. There shall be
no order as to costs.
16. Parties to act on an authenticated copy of this judgment
and order.
(M.S.SONAK, J.)
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