Bombay High Court
Totappa S. Lawange (Since ... vs Suresh D. Chaugule on 23 June, 2017
Bench: M.S. Sonak
Prs 1 926 wp 2546-98
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2546 OF 1998
Shri Totappa Shivappa Lawange (Since deceased)
through his legal heirs
Smt.Kerubai Totappa Lawange and ors. ... Petitioners
vs
Suresh Dhondiba Chougule ... Respondent
---
Mr. S.G.Kudle for the Petitioners.
Ms.Sucheta Mirrashi for the Respondent.
---
CORAM : M.S.SONAK, J.
DATE : JUNE 23, 2017.
ORAL JUDGMENT :
1. Heard the learned counsel for the Parties.
2. The Petitioners who are the legal representatives of the
original tenant challenged the judgment and order dated 2 nd
September 1997 made by the Maharashtra Revenue Tribunal
(M.R.T.) Pune, allowing the landlord's Revision Petition
against judgment and order dated 27 th April 1993 made by the
Sub-Divisional Officer (S.D.O.), Pandharpur.
3. In this case, there is no dispute that the Predecessor-in-
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title of the Petitioners-Totappa Shivappa Lawange was the
tenant in respect of the suit property which, the landlord was
Dhondiba Chougule. On the Tillers day i.e. on 1st April 1957
however, Dhondiba Chougule was not living and was survived
by his widow Smt. Parvatibai. Therefore, Tillers day stood
postponed until the expiry of Parvatibai on 15 th October 1987.
Parvatibai was survived Suresh Dhondiba Chougule,
(Chougule) the Respondent herein who is said to be the
adopted son of Parvatibai.
4. The Petitioners state that they had issued notice dated
11th October 1989 to Chougule, which was duly received by
him. Copy of such notice was also served upon the Agricultural
Lands Tribunal on 12th October 1989. It is also the case of the
Petitioners that the date of birth of Chougule being 25 th April
1969, the said Chougule, was the major on the date of service
of the notice dated 11th October 1989. On this basis, the
Petitioners contend that they or their Predecessor-in-title had
validly exercised the option for purchase of the suit property in
accordance with the provisions of the Maharashtra Tenancy and
Agricultural Lands Act, 1948 (Agricultural Tenancy Act).
5. The Respondent- Chougule on 1 st January 1990 filed an
application before the Tahasildar invoking the provisions of
Section 32F and 32P of the Agricultural Tenancy Act seeking
restoration of possession of the suit property mainly on the
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ground that the Petitioners and tenants had failed to exercise
option for purchase of the suit property within the prescribed
period of two years in terms of Section 32F of the Agricultural
Tenancy Act.
6. The Tahasildar (Agricultural Lands Tribunal) vide
judgment and order dated 13th August 1992 allowed the
Respondent-Chougule's application and directed the restoration
of the possession of the suit land. The Tahasildar (Agricultural
Lands Tribunal) held that there was no valid service notice
upon the Respondent-Chougule within a period of two years
from the date of demise of Parvatibai on 15th October 1987.
7. The Petitioners aggrieved by the Tahasildar's (Agricultural
Lands Tribunal) order dated 13 th August 1992, appealed to the
Sub-Divisional Officer, Pandharpur, (SDO) who , vide judgment
and order dated 27th April 1993 accepted the case of the
Petitioners and set aside the Tahasildar's judgment and order
dated 13th August 1992.
8. Aggrieved by the SDO's order dated 27 thApril 1993 the
Respondent-Chougule instituted a Revision Petition before the
MRT, which has, vide the impugned judgment and order dated
2nd November 1997, set aside the SDO's order dated 27 th April
1993 and restored the Tahasildar's order dated 13 th August
1992. Hence, the present Petition by the Petitioners'
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impugning MRT's judgment and order dated 2 nd September
1997.
9. Mr. Kudle the learned counsel for the Petitioners has
made the following submissions in support of the Petition.
(a) The Appeal Court i.e. the SDO, which is the
Final Court on facts has recorded a categorical
finding that the notice expressing intention to
purchase was served upon Chougule on 11th
October 1989, with a copy marked to the
Agricultural Lands Tribunal received by the
Agricultural Lands Tribunal on 12th October,
1989. The MRT which has limited revisional
jurisdiction in terms of Section 76 of the
Agricultural Tenancy Act, has exceeded
jurisdiction in interfering with the finding of
fact recorded by the SDO. Since, the exercise
by the MRT in interfering with a pure finding
of fact is in excess of jurisdiction, the same is
required to be set right by this Court in exercise
of its extra ordinary jurisdiction under Sections
226 and 227 of the Constitution Act.
(b) From the material on record it is quite
clear that Chougule, whose date of birth was
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25th April 1969 had attained majority on 11 th
October 1989. In such circumstances, the MRT
clearly exceeded jurisdiction in holding the
notice served on 11th October 1989, was notice
served upon a minor landlord and therefore, not
a valid notice for the purpose of Section 32F of
the Agricultural Tenancy Act.
(c) Without prejudice Mr. Kudle submits that
if Respondent-Chougule is to be regarded as
minor on 11th October 1989, then, it is for
Respondent-Chougule to send an intimation to
the tenant of the fact of his attaining majority
before expiry of the period during which such
landlord is entitled to terminate tenancy under
Section 31 of the Agricultural Tenancy Act. In
the present case, Mr. Kudle points out that no
such intimation was sent and in absence of any
such intimation, Chougule's application seeking
restoration of possession was not at all
maintainable.
10. Ms.Sucheta Mirrashi, learned counsel for the
Respondent-Chougule submits that there is absolutely no
material on record to establish service of notice upon Suresh
on 11th October 1989. Both, the Tahasildar as well as MRT have
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returned categorical findings in this regard. Chougule had
always signed documents and never put his thumb impression
in token of signature. The postal acknowledgment, upon which,
the Petitioners placed reliance is said to contain to purported
thumb impression of Chougule. She submits that there is no
reason as to why Chougule would put his thumb impression
upon the postal acknowledgment receipt when, in fact,
Chougule used to put his signature on all documents as held
by the Tahasildar and the MRT.
11. Ms. Mirrashi further submits that on 11 th October 1989,
Respondent-Chougule was a minor and therefore, any alleged
service upon as minor can never be regarded as valid service in
the eyes of law. She submits that this reasoning of the MRT
is correct and cannot be faulted. Ms. Mirrashi also submits
that the Petitioners, in the synopsis have rightly made no
reference to the notice dated 11th October 1989, but rather
have made reference to notice dated 20th August 1990, which is
admittedly beyond the period of two years from the death of
widowed landlady-Parvatibai. In such circumstances, Ms.
Mirrashi submits that there is absolutely no legal infirmity in the
impugned order which may not be disturbed by this Court, in
the exercise of the extra ordinary jurisdiction.
12. At the outset, it is necessary to state that there is
absolutely no dispute that the Predecessor-in-title of the
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Petitioners were the tenants in respect of the suit property of
which the Predecessor-in-title of the Respondents were the
landlords.
13. The only question which arises for determination is
whether the application made by the Respondent-landlord
seeking restoration of possession of the suit property in terms of
Section 32F r/w Section 32P of the Agricultural Tenancy Act
was maintainable, in view of the provisions contained in
Section 31 and Section 32F of the Agricultural Tenancy Act?
14. Section 31 of the Agricultural Tenancy Act reads as
follows:-
"Section 31- Landlord's right to terminate tenancy
for personal cultivation and non-agricultural
purpose:-(1) Notwithstanding anything contained
in sections 14 and 30 but subject to sections 31A
to 31D (both inclusive), a (landlord (not being a
landlord within the meaning of Chapter III-AA)
may), after giving notice and making an
application for possession as provided in sub-
section (2), terminate the tenancy of any land
(except a permanent tenancy), if the landlord
bona fide requires the land for any of the
following purposes:-
(a) for cultivating personally, or
(b) for any non-agricultural purpose.
(2) The notice required to be given under sub-
section (1) shall be in writing, shall state the
purpose for which the landlord requires the land
and shall be served on the tenant on or before the
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31st day of December, 1956. A copy of such
notice shall, at the same time, be sent to the
Mamlatdar. An application for possession under
section 29 shall be made to the Mamlatdar on or
before the 31st day of March, 1957.
(3) Where a landlord is a minor, or a widow,
or a person subject to mental or physical
disability then such notice may be given (and
an application for possession under section 29
may be made)-
(i) by the minor within one year
from the date on which he attains
majority;
(ii) by the successor-in-title of a
widow within one year from the
date on which her interest in the
land ceases to exist;
(iii) within one year from the date
on which mental or physical
disability ceases to exist; and
(Provided that where a person of such category
is a member of a joint family, the provisions of
this sub-section shall not apply if atleast one
member of the joint family is outside the
categories mentioned in this sub-section unless
before the 31st day of March, 1958 the share of
such person in the joint family has been separated
by metes and bounds and the Mamlatdar on
inquiry is satisfied that the share of such person in
the land is separated, having regard to the area,
assessment, classification and value of the land, in
the same proportion as the share of that person
in the entire joint family property, and not in a
larger proportion.
(Emphasis supplied)
Prs 9 926 wp 2546-98
15. Similarly, Section 32F of the Agricultural
Tenancy Act read as follows:-
Section 32F--- Right of tenant to purchase where
landlord is minor, etc.-(1) Notwithstanding
anything contained in the preceding section,-
(a) Where the landlord is a minor, or a
widow, or a person subject to any mental or
physical disability the tenant shall have the
right to purchase such land under section 32
within one year from the expiry of the period
during which such landlord is entitled to
terminate the tenancy under section 31 (and
for enabling the tenant to exercise the right
of purchase, the landlord shall send an
intimation to the tenant of the fact that he
has attained majority, before the expiry of
the period during which such landlord is
entitled to terminate the tenancy under
section 31:)
(Provided that where a person of such
category is a member of a joint family, the
provisions of this sub-section shall not apply if at
least one member of the joint family is outside the
categories mentioned in this sub-section unless
before the 31st day of March 1958 the share of
such person in the joint family has been separated
by metes and bounds and the Mamlatdar on
inquiry is satisfied that the share of such person in
the land is separated, having regard to the area,
assessment, classification and value of the land, in
the same proportion as the share of that person in
the entire joint family property and not in a larger
proportion.)
(b) Where the tenant is a minor, or a widow, or
a person subject to any mental or physical
disability or a serving member of the armed forces,
then subject to the provision of clause (a), the right
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to purchase land under section 32 may be
exercised,-
(i) by the minor within one year, from the
date on which he attains majority;
(ii) by the successor-in-title of the widow
within one year from the date on which her
interest in the land ceases to exist;
(iii) within one year from the date on which the
mental or physical disability of the tenant ceases
to exist;
(iv) within one year from the date on which the
tenant ceases to be serving member of the armed
forces:
(Provided that where a person of such category is
a member of a joint family, the provisions of this
sub-section shall not apply if at least one member
of the joint family is outside the categories
mentioned in this sub-section unless before the 31 st
day of March 1958 the share of such person in the
joint family has been separated by metes and
bounds and the Mamlatdar on inquiry is satisfied
that the share of such person in the land is
separated, having regard to the area, assessment,
classification and value of the land, in the same
proportion as the share of that person in the
entire joint family property, and not in a larger
proportion.)
(A tenant desirous of exercising the right
conferred on him under sub-section (1) shall
give an intimation in that behalf to the
landlord and the Tribunal in the prescribed
manner within the period specified in that
sub-section:)
(Provided that, if a tenant holding land
from a landlord (who was a minor and has
attained majority before the commencement of
the Tenancy and Agricultural Lands Laws
Prs 11 926 wp 2546-98
(Amendment) Act, 1969) has not given intimation
as required by this sub-section but being in
possession of the land on such commencement is
desirous of exercising the right conferred upon
him under sub-section (1), he may give such
intimation within a period of two years from the
commencement of that Act.)
(2) The provisions of sections 32 to 32E (both
inclusive) and sections 32G to 32R (both inclusive)
shall, so far as may be applicable, apply to such
purchase."
(Emphasis supplied)
16. It is the case of the Petitioners that the option to purchase
the suit property was duly exercised by the Petitioners within
a period of two years from the date of demise of the widowed
landlady-Parvatibai. For this purpose the Petitioners rely the
service of the notice upon Parvatibai's adopted son-Chougule,
the Respondent herein on 11th October 1989. The Tahasildar
(Agricultural Lands Tribunal) has disbelieved the Petitioners'
case of service of notice on 11th October 1989. However, the
SDO, which is the Appeal Court has believed the Petitioners'
case of service of notice on 11th October 1989. The Appeal Court
has not only relied the postal acknowledgment which purports
to bear thumb impression of Respondent-Chougule but also
found the factum of service of notice in the office of Tahasildar
(Agricultural Lands Tribunal) on 12 th October 1989. The MRT in
the exercise of its revisional jurisdiction under Section 76 of
the Agricultural Tenancy Act, has however, reversed the SDO's
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order.
17. Section 76 of the Agricultural Tenancy Act reads as
follows :-
"76- Revision:-(1) Notwithstanding anything
contained in the Bombay Revenue Tribunal Act,
1939, an application for revision may be made
to the (Maharashtra Revenue Tribunal)
constituted under the said Act against any order
of the Collector on the following grounds
only-
(a) that the order of the Collector
was contrary to law;
(b) that the Collector failed to
determine some material issue of
law; or
(c) that there was a substantial
defect in following the procedure
provided by this Act, which has
resulted in the miscarriage of justice.
(2) In deciding applications under this section
the (Maharashtra Revenue Tribunal) shall
follow the procedure which may be prescribed
by rules made under this Act after consultation
with the (Maharashtra Revenue Tribunal).
18. Upon due consideration of the provisions in Section 76 of
the Agricultural Tenancy Act, it is clear that the MRT can
exercise revisional jurisdiction and interfere with the SDO's
order only on certain well defined grounds :-
(a) that the impugned order was contrary to law; or
(b) that the Collector/SDO failed to determine some
Prs 13 926 wp 2546-98
material issue of law; or
( c) that there was a substantial defect in following the
procedure provided by the Agricultural Tenancy Act,
which has resulted in miscarriage of justice.
19. The MRT, in the present case, whilst purporting to exercise
revisional jurisdiction, does not appear to have adverted to the
parameters prescribed in Section 76 of the Agricultural Tenancy
Act. The MRT's impugned order dated 2 nd September 1997 does
not indicate the ground on which the revisional jurisdiction has
been exercised. The MRT, has no doubt, interfered with a
finding of fact recorded by the SDO on the aspect of service of
notice upon Respondent-Chougule. However, the reversal, is
tentative. The MRT in the impugned judgment and order, does
not record that the finding of fact arrived at by the appellate
court i.e. SDO, was a perverse finding.
20. The MRT, as noted earlier, is itself not clear on the aspect
of service of notice upon Respondent-Chougule. At one place, it
appears that the MRT upon re-appreciation of the material on
record, suggest that there was no service of notice upon
Respondent-Chougule on 11th October 1980. At another place, the
MRT, seems to suggest that there may have been service of notice but
since on the said date, the Respondent-Chougule was a minor,
such service, is no service in the eyes of law. Again, in the record
of such tentative findings, the MRT, has not adverted to the
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entire material on record, including, in particular, the material
with regard to the date of birth of Respondent-Chougule or the
material with regard to service of a copy of the notice upon the
Tahsildar (Agricultural Land Tribunal), on 12 th October 1989 in
terms of Section 32F of the Agricultural Tenancy Act. In terms
of section 32F of the Agricultural Tenancy Act, tenant, who is
desirous of exercising right to purchase the tenanted property in
terms of sub section (1), is required to give an intimation in that
behalf, both to the landlord as well as the Tribunal in the
prescribed manner within the period specified in the said sub
section. If the records reveal that the tenant had indeed served
notice dated 11th October 1989, upon the office of the Tahsildar
(Agricultural Land Tenancy) on 12th October 1989 i.e. within the
prescribed period of two years from the date of demise of
widowed - Parvatibai, then, this is a significant circumstance in
support of the tenant's contention that such notice / intimation
was also given to the Respondent-landlord on 11 th October 1989.
The MRT prior to reversing the SDO's order dated 27 th April
1993, was required to advert to all such circumstances, apart
from the relevant provisions of the Agricultural Tenancy Act.
21. Further, even if the finding recorded by the MRT to the effect
that on 11th October 1989, the Respondent-Chougule was a minor,
and therefore, any alleged service of notice upon a minor, cannot
be regarded as valid service in the eyes of law, is to be accepted,
then, the MRT, was duty bound to consider the impact of the
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provision contained in Section 32F (1)(a) of the Agricultural
Tenancy Act to such a situation. This provision, clearly obliges a
minor landlord to send an intimation to the tenant of the factum
of his attaining majority before the expiry of period during
which such landlord is entitled to terminate the tenancy in terms
of Section 31 of the Agricultural Tenancy Act. In this case, at
least prima facie, there is no material on record to suggest that
any such intimation was ever given by Respondent-Chougule to
the tenants. Again, this aspect, has not even been touched by the
MRT, in the making of the impugned judgment and order dated
2nd September 1997.
22. In the aforesaid circumstances, it will be appropriate if the
MRT's impugned judgment and order dated 2 nd September 1997
is set aside and the matter is remanded to the MRT for
reconsideration of the Respondent's Revision Petition against
SDO's order dated 27th April 1993. The MRT's impugned
judgment and order dated 2nd September 1997, is accordingly
set aside and the matter is remanded to the MRT with a
direction to take up and dispose of in accordance with law and
on its own merits the Respondent's Revision Petition against the
SDO's order dated 27th April 1993 as expeditiously as possible
and in any case, within a period of one year from the date of
production of authenticated copy of this judgment and order.
23. The MRT, in pursuance of the remand, is directed to
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dispose of the Respondent's Revision Petition on its own merits
and in accordance with law. The observations in the present
judgment and order would be regarded as only prima facie and
the MRT need not be influenced by the same in disposing of the
Respondent's Revision Petition. However, the MRT, is requested
to address itself to all relevant matters, including, the matters
adverted to in paragraphs 20 and 21 of this judgment and order,
as also, relevant provisions of the Agricultural Tenancy Act,
which have bearing upon the matter.
24. The parties to appear before the MRT on 18 th July, 2017
at 11.00 a.m. and to produce authenticated copy of this Order.
The MRT is requested to dispose of the Revision Petition as
expeditiously as possible and in any case within a period of
one year from the date of the parties filing authenticated copy
of this Order.
25. The Rule is accordingly disposed of in the aforesaid
terms. There shall however no order as to costs.
26. All concerned to act on the authenticated copy of this
order.
(M.S.SONAK, J.)
