Ananda Ragho Puri Through Lrs ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 10815 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                      WRIT PETITION NO.3375 OF 2019


 1. Ananda S/o Ragho Puri
    (Deceased through L.R.)

 2. Somwar S/o Ananda Puri
    Age-65 years, Occu:Agri.,

 3. Shivram S/o Ananda Puri
    (Since Deceased through L.R.)

    A) Suman Wd/o Shivram Puri,
       Age-50 years, Occu:Household,

    B) Mahesh @ Manoj S/o Shivram Puri,
       Age-Major, Occu:Agri/Service,

    C) Rajesh @ Satish S/o Shivram Puri,
       Age-Major, Occu:Agri/Service,

 4) Haranpuri S/o Ananda Puri,
    Age-57 years, Occu:Agri/Service,

 All are permanent R/o-Kendra (Bk),
 Tq-Sengaon, Dist-Hingoli.

                                                       ...PETITIONERS

        VERSUS

 1) The State of Maharashtra,
    Through its Principal Secretary,
    Revenue Department,
    Mantralaya, Mumbai-32,




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 2) The Add. Collector,
    Hingoli, Dist-Hingoli,

 3) Sudhakar S/o Ananda Khandhare,
    Age-44 years, Occu:Agri.,

 4) Bhimrao S/o Ananda Khandhare,
    Age-Major, Occu:Labour,

 5) Kaushlya S/o Shrirang Khandhare,
    Age-54 years, Occu:Labour,

 6) Ashok S/o Shrirang Khandhare,
    Age-34 years, Occu:Agri.,

 7) Ramdas S/o Shrirang Khandhare,
    Age-32 years, Occu:Agri.,

 Respondent Nos. 3 to 7 are
 R/o-Kendra(Bk), Tq-Sengaon,
 Dist-Hingoli.
                                                        ...RESPONDENTS

                     ...
     Mr.Sachin Deshmukh Advocate h/f. Mr. Manoj U. Shelke
     Advocate for Petitioners.
     Mr.K.B. Jadhavar, A.G.P. for Respondents No.1 and 2.
     Mr.H.V. Patil Advocate for Respondents No. 3 to 7.
                     ...


                CORAM:         MANGESH S. PATIL, J.

                 DATE :        11th AUGUST, 2021


 JUDGMENT :

. Rule. The Rule is made returnable forthwith. Heard

learned advocates for the parties finally, by consent.

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2. The facts, as are necessary for the decision of the

writ petition, may be summarized as under:

(i) Respondents No. 3 to 7 assert that their predecessor

- Ananda Khandhare was protected tenant of land Survey No.38

of village Gondhankheda and in whose favour the certificate

under Section 38 - E was issued under the Hyderabad Tenancy

and Agricultural Lands Act, 1950 ("the Tenancy Act"),

approached Respondent No. 2 contending that the Petitioners

herein were illegally pretending that their predecessor was in

fact a protected tenant in whose favour a similar certificate was

issued. They assert that the Petitioners were holding possession

of the land illegally and claimed its possession by filing an

application before the Respondent No. 2.

(ii) Respondent No.2, by his order dated 10 th December

2015, treating the proceeding of Respondents No. 3 to 7 as the

one filed under Section 32 of the Tenancy Act, without indulging

into and recording any finding on merits, dismissed the

application on the ground of limitation.

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(iii) Respondents No. 3 to 7 challenged the order of

Respondent No. 2 before the Maharashtra Revenue Tribunal,

Aurangabad and by the impugned Judgment and order, the order

of Respondent No. 2 has been quashed and set aside and the

matter has been remanded to Respondent No. 2 for holding a

de novo inquiry and deciding it afresh.

3. Learned Advocate for the Petitioners, Mr. Deshmukh

would submit that considering the stand taken by Respondents

No. 3 to 7 and the grounds on the basis of which the application

was filed before Respondent No. 2, there was no error on the

part of Respondent No. 2 to treat and decide the application on

the premise that it was preferred under Section 32 of the

Tenancy Act. He would, therefore, submit that once it is

concluded that it was an application under Section 32 of the

Tenancy Act, the conclusion was inevitable since the application

was hopelessly barred by the limitation prescribed thereunder.

There was no reason for the Tribunal to ignore such vital aspect.

It has not at all indulged in any discussion as to if the application

of Respondents No. 3 to 7 was an application under Section 32

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or Section 98 of the Tenancy Act, which two provisions are

relevant though operate in different fields. Unmindful of the

distinction between the two provisions, by indulging in the

scrutiny of the facts, the Tribunal has illegally remanded the

matter.

4. The learned AGP supports the impugned order.

5. Learned Advocate for Respondents No. 3 to 7, Mr.

Patil would submit that going by the averments in the

application, when Respondents No. 3 to 7 were asserting to be

the heirs of the protected tenant in whose favour certificate

under Section 38 - E of the Tenancy Act was issued, their

application could not have been treated as the one under Section

32 of the Tenancy Act, which provides a remedy to the tenant to

claim possession under sub-section (1) or the land holder under

sub-section (2). It is their stand that the Petitioners were holding

the possession unauthorizedly and illegally and the only

provision in the Tenancy Act to meet the situation is of summary

eviction by resorting to Section 98 of the Tenancy Act. Though

the learned Member of the Tribunal has not considered and

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discussed these aspects, he has clearly referred to and pointed

out the facts which clearly show that the predecessor of the

Respondents No. 3 to 7 was a protected tenant, and referred to

various proceedings by the revenue authorities as back as in the

year 1953 onwards. Since Respondent No. 2 had rejected the

application illegally treating it to be a request under Section 32

rather than the one under Section 98 of the Tenancy Act, a

serious prejudice has been caused to Respondents No. 3 to 7. He

would then submit that no prejudice is likely to be caused to the

Petitioners in as much as, the matter has been remanded back

to Respondent No. 2 for conducting an inquiry de novo and to

decide the matter afresh. All the disputed questions of facts

which were not earlier decided by Respondent No. 2, would now

be decided by extending an opportunity to both the sides.

6. Suffice for the purpose to observe that whole dispute

and controversy revolves, for the time being, around the

impugned order which directs remand of the matter and decision

afresh. As is apparent, Respondents No. 3 to 7 had not styled

their application before Respondent No. 2 as if they were seeking

to invoke the provisions of Section 32 of the Tenancy Act, which

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prescribes limitation of two years. It is also not clear from the

order passed by Respondent No. 2 as to how and why he

proceeded on the premise that it was an application under that

provision.

7. One need not delve much but only point out that

there is a clear distinction between the provision of Section 32

and Section 98 of the Tenancy Act. The former provides a

limitation of two years, whereas the latter does not prescribe any

limitation. Since Respondent No. 2 had proceeded on the

premise that it was an application under Section 32 of the

Tenancy Act, having concluded that the application was time

barred, did not feel it necessary to go into the factual disputes.

8. True it is that even the Tribunal, in the impugned

order, has not entered into that controversy even to record a

prima facie observations as to if the approach of Respondent

No. 2 in treating the application of Respondent Nos. 3 to 7 was

correct or otherwise.

9. But then, when Respondent No. 2 was called upon to

decide the application, he should have assigned some reasons

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for treating the application as the one under Section 32 of the

Tenancy Act. He has neither assigned these reasons nor has he

touched to the facts in dispute.

10. Irrespective and independent of the reasoning given

by the Tribunal in the impugned Judgment and order, the matter

has now been remanded for decision afresh. Obviously, it would

always be open for both the sides, not only to avail an

opportunity to address Respondent No. 2 on disputed questions,

but also on the point as to if the application is to be treated

under Section 32 or 98 of the Tenancy Act. Needless to say that

depending upon the finding on this aspect, the further fate of the

proceeding would hinge. No prejudice, therefore, is likely to be

caused to the petitioners by passing of the impugned order when

they are to get the suitable opportunity to present the case once

again before Respondent No. 2.

11. Both the sides have placed on record several

decisions of this Court touching the aspect as to the scope and

ambit of provisions of Section 32 and Section 98 of the Tenancy

Act. However, in my considered view, it will not be appropriate

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for this Court to enter into that controversy in this proceeding

and it would be appropriate to leave that for the just

consideration by Respondent No. 2.

12. In my considered view, there is no merit in the

Petition and it is liable to the dismissed.

13. The Writ Petition is dismissed. Rule is discharged.

[MANGESH S. PATIL, J.]

asb/AUG21