Gangadhar Ramdas Kalamkar And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 12758 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                           WRIT PETITION NO. 6763 OF 2021


1.    Gangadhar Ramdas Kalamkar,
      Age : 46 years, Occu. Agriculture

2.    Ramdas Mahadu Kalamkar,
      Age : 72 years, Occu. Agriculture

      Both R/o Palve (Bk.), Tal. Parner,                     PETITIONERS
      District Ahmednagar                               (Orig. Revn. Petitioners)

      VERSUS

1.    The State of Maharashtra,
      through Secretary,
      Revenue and Forest Department,
      Mantralaya, Mumbai-32

2.    The Sub Divisional Officer,
      Shrigonda - Parner Division,
      Ahmednagar

3.    The Tahsildar and Agricultural
      Land Revenue Tribunal, Parner,
      Taluka Parner, Dist. Ahmednagar

4.    Suresh Parshuram Palaaskar,
      Age : 45 years, Occu. Agriculture

5.    Santosh Dattatray More,
      Age : 40 years, Occu. Agriculture

6.    Vikas Sitaram Jadhav,
      Age : 45 years, Occu. Agriculture

7.    Balasaheb Abaji Kalamkar,



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      Age : 47 years, Occu. Agriculture

8.    Sonyabapu Sarjerao Kalamkar,
      Age : 42 years, Occu. Agriculture

      Nos.4 to 8 are R/o Palve (Bk.),                      RESPONDENTS
      Taluka Parner, District Ahmednagar                  (Nos.4 to 8 - Orig.
                                                            Respondents)

                                      .....
Mr. Amol K. Gawali, Advocate for the petitioners
Mr. K.B. Jadhavar, A.G.P. for respondent Nos.1 to 3
Mr. Nitin V. Gaware, Advocate for respondent Nos.4 to 8
                                      .....

                                    CORAM :   MANGESH S. PATIL, J.

               JUDGMENT RESERVED ON                 :       31.08.2021
               JUDGMENT PRONOUNCED ON               :       07.09.2021


JUDGMENT :-


               Heard.

2. Rule. The Rule is made returnable forthwith. The learned A.G.P.

waives service for respondent Nos.1 to 3 and Mr. N.V. Gaware, learned

Advocate waives for rest of the respondents. With the consent of both the

sides the matter is heard finally at the stage of admission.

3. The petitioners, whose claim under Section 32G of the

Maharashtra Tenancy and Agricultural Lands Act, 1948 (hereinafter referred

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to as "Act") was allowed by the Mamlatdar alias Agricultural Lands Tribunal

("ALT", for short), are impugning the orders passed in an appeal preferred by

respondent Nos.4 and 5 under Section 74 of the Act by the Deputy Collector

and lateron confirmed by the Maharashtra Revenue Tribunal ("MRT", for

short) by rejecting their revision preferred under Section 76 of the Act.

4. The facts as are necessary to appreciate the matter in controversy

may be summarized as under.

. The land bearing Gut No.466 (old survey No.180/1),

admeasuring 7 Acres 29 gunthas at Village Palve (Bk.), Taluka Parner, District

Ahmednagar was originally owned by one Gangubai Balu Somwanshi. On

27.12.1946, by a registered sale-deed, Shri Siddheshwar Devasthan through

Sarpanch Govind Vishnu Kulkarni and 10 other panchas purchased it from her.

Accordingly, by Mutation Entry No.1547, name of Shri Siddheshwar

Devasthan through Govind Vishnu Kulkarni was mutated. Name of one

Mahadu Kalamkar was recorded as a tenant in the land. He was survived by

three sons namely Bhau Mahadu Kalamkar, Ramdas Mahadu Kalamkar and

Bhima Mahadu Kalamkar. After demise of Mahadu, name of Bhau Mahadu

appeared in the revenue record in the cultivation column as a tenant till 1955-

56. The petitioners allege that Bhau Mahadu was holding the tenancy for and

on behalf of the entire family and was in possession of the land right from

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1956 to 1962, which covered the Tillers' Day i.e. the appointed date

01.04.1957. By Mutation Entry No.1968 dated 12.12.1962, it was mentioned

that said Bhau Mahadu Kalamkar had surrendered the tenancy in the year

1955-56 and his name was, therefore, deleted. According to the petitioners,

even this Mutation Entry No.1968 was incorrect and inspite of the petitioners

having continued to be in possession, erroneously an entry of `khud' was

recorded in the cultivation column of the land.

5. The petitioners asserting that in the family arrangement, the land

was allotted to petitioner No.2, who happens to be the brother of Bhau, the

original tenant, initiated a proceeding under Section 32G of the Act before the

ALT by arraying only the legal representatives of Govind Vishnu Kulkarni as

respondents. By the order dated 30.04.2013, the ALT allowed the application

and fixed the price and accordingly, a certificate under Section 32M of the Act

was directed to be issued.

6. Respondent Nos.4 and 5 preferred an appeal under Section 247

of the Maharashtra Land Revenue Code before the Deputy Collector. By the

judgment and order dated 31.12.2014, the appeal was partly allowed and the

matter was remanded to the ALT by directing to take a decision afresh by

extending an opportunity to respondent Nos.4 and 5. The petitioners

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challenged that order in revision. The MRT by the judgment and order dated

20.04.2016, allowed the revision and quashed and set aside the order in the

appeal but granted an opportunity to respondent Nos.4 and 5 to prefer an

appeal under Section 74 of the Act and directed the learned Deputy Collector

to decide the application for condonation of delay and thereafter, to decide

the appeal. Accordingly, respondent Nos. 4 to 8 preferred an appeal under

Section 74 before the learned Deputy Collector alongwith an application for

condonation of delay. The Deputy Collector, after hearing the parties,

condoned the delay. The petitioners challenged that order in revision under

Section 76, but the MRT dismissed the revision. The petitioners approached

this Court in Writ Petition No.1333/2018, but this Court dismissed it.

7. Accordingly, the learned Deputy Collector heard the appeal under

Section 74 of the Act. He allowed the appeal and quashed and set aside the

order of the ALT that was passed in favour of the petitioners. The petitioners

preferred revision under Section 76 of the Act, but it has been dismissed by

the impugned judgment and order.

8. Mr. A.K. Gawali, learned Advocate for the petitioners would

submit that the learned Deputy Collector and the MRT have miserably failed

to appreciate the facts and circumstances obtaining in the matter in hand. He

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would submit that though the land was purchased by Shri Siddheshwar

Devasthan, it was purchased through Sarpanch Govind Vishnu Kulkarni.

Though by virtue of Mutation Entry No.1547, name of Devasthan was

mutated, it was shown as represented through Govind Vishnu Kulkarni

himself. He would, therefore, submit that by virtue of the definition of the

`landlord' contained in Section 7 (3) of the Act and `tenant' contained in

Section 2(18) of the Act, since Govind Vishnu Kulkarni, during his lifetime

and his family members after his demise, were regularly receiving the rent of

the land from the tenant Mahadu, there was no illegality in the legal

representatives of Govind Vishnu Kulkarni alone being made the respondents

in the proceeding under Section 32G of the Act. Not arraying Shri

Siddheshwar Devasthan was inconsequential. The learned Advocate would

then submit that when the landlord as defined under Section 7(3) i.e. heirs of

Govind Vishnu Kulkarni, who were actually receiving the rent, had specifically

admitted the tenancy of the petitioners' predecessor, no error was committed

by the ALT in allowing their application under Section 32G and issuing

certificate under Section 32M by accepting the purchase price.

9. The learned Advocate would submit that in fact, it was obligatory

on the part of the ALT to have initiated an enquiry under Section 32G of the

Act suo moto. Since no such enquiry was initiated, the petitioners had to file

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this proceeding in the year 2013 and the aspect of delay ought not to have

taken aid of for drawing any inference.

10. Mr. A.K. Gawali, learned Advocate would then submit that

respondent Nos.4 to 8 were not the parties to the proceeding before the ALT

under Section 32G. Since Section 74 of the Act provides a remedy of appeal,

which is a statutory remedy, in the absence of being a party, they could not

have preferred any such appeal without the leave of the Appellate Authority

i.e the Deputy Collector. This aspect was clearly overlooked by the learned

Deputy Collector, who decided the appeal and the fact was not considered,

which goes to the root of the jurisdiction. As a corollary, the learned Advocate

would further submit that when admittedly Shri Siddheshwar Devasthan is

the owner of the land, even it was not made a party in the appeal. Respondent

Nos.4 to 8 had no locus standi to prefer the appeal more so when it was not

being preferred for and on behalf of Shri Siddheshwar Devasthan. Therefore,

the appeal under Section 74 of the Act itself was not maintainable. The MRT

has also overlooked all these vital aspects and illegally dismissed the revision.

11. Mr. N.V. Gaware, learned Advocate for respondent Nos.4 to 8

would submit that though there is some error in styling the appeal under

Section 74 of the Act inasmuch as Shri Siddheshwar Devasthan is not

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specifically shown as a party nor respondent Nos.4 to 8 had styled themselves

to be acting for and on behalf of Shri Siddheshwar Devasthan, the fact was

clearly borne in mind by the learned Deputy Collector, who had rightly

considered that these respondent Nos.4 to 8 were, in fact, representing Shri

Siddheshwar Devasthan as trustees, which was by then registered as a Public

Trust under the Maharashtra Public Trusts Act in the year 2016 and that its

certificate was issued by the Charity Commissioner in the name of respondent

No.7. The learned Advocate would further point out that the question of right

to prefer an appeal and the locus was also specifically considered and decided

by the learned Deputy Collector.

12. Learned Advocate Mr. Gaware would submit that in fact, the

original proceeding before the ALT itself was defective inasmuch as Shri

Siddheshwar Devasthan, which was the owner of the land, was itself not made

a party or shown as such in the title of the application preferred by the

petitioners before the ALT under Section 32G of the Act. When admittedly it

was the owner of the land, that proceeding could not have been allowed to be

conducted behind its back.

13. Mr. Gaware, learned Advocate would then submit that the Deputy

Collector as also the MRT have minutely perused the revenue record while

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reaching the conclusions, which are clinching and based on correct

appreciation of the facts, circumstances and the revenue record. The sale-

deed was executed in favour of Sarpanch Govind Vishnu Kulkarni with ten

other panchas. If that was so, no proceeding under Section 32G of the Act

could have been initiated behind the back of the other panchas. He would

further submit that there was no revenue record showing existence of any

tenancy on the Tillers' Day and the ALT simply conceded to the request

allowing that proceeding on the basis of admissions given by the legal heirs of

Govind Vishnu Kulkarni. Ex facie, that decision was procured by collusion and

has been rightly interfered with and reversed in the appeal.

14. I have carefully considered the rival submissions and perused the

impugned orders. To repeat, there is no dispute that Gangubai Balu

Somwanshi was the original owner from whom the land was purchased by

Shri Siddheshwar Devasthan through Sarpanch Govind Vishnu Kulkarni and

ten other panchas. Pursuant to such purchase, name of Shri Siddheshwar

Devasthan was mutated by Mutation Entry No.1547. The revenue record is

also clear and demonstrates that by Mutation Entry No.1968, was recorded

showing that the tenant Bhau Mahadu Kalamkar had surrendered the tenancy

in 1955-56 and the entry was never challenged. Even according to the

petitioners, inspite of their predecessor being in possession for the period

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1956 to 1962, it was merely erroneously mentioned that the cultivation

column of the land read `khud' meaning thereby that it was the owner who

was cultivating it. Fact remains that Bhau Mahadu Kalamkar was not shown

to be in possession as a tenant in the land on the Tillers' Day i.e. 01.04.1957.

It is in view of such state-of-affairs, the learned Deputy Collector has rightly

concluded that the ALT had no reason and nothing was before it to jump to

the conclusion that the petitioners' predecessor had become a deemed

purchaser by virtue of Section 32G and the decision was rendered by it merely

on the basis of the admissions given by the heirs of Govind Vishnu Kulkarni,

who alone were the parties as respondents in that proceeding.

15. True it is that by virtue of definition of `landlord' and `tenant'

contained in the Act, it is not necessary that it should be the owner of the

land, who can confer a tenancy. However, the submissions of the learned

Advocate for the petitioners and his reference to these definitions, is

inconsequential for the simple reason that it is not the case of the petitioners

that at any point of time, Govind Vishnu Kulkarni had, for and on behalf of

Shri Siddheshwar Devasthan, inducted Mahadu Kalamkar as a tenant in the

land and was receiving the rent from him. For that matter, even if he was a

Sarpanch, there is absolutely no material to show that the body of Sarpanch

had ever authorized him to induct any tenant in the land after it was

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purchased. In the absence of any such specific stand of the petitioners,

therefore, reference to the definition of `landlord' to mean a person entitled to

receive rent for and on behalf of the owner, is of no help to the petitioners.

16. Again, Mutation Entry No.1968 mentioning that Bhau Mahadu

Kalamkar had surrendered the tenancy in 1955-56 was also never challenged

by anybody. This is also a vital circumstance, which has been referred to by

the learned Deputy Collector while deciding the appeal.

17. Now coming to the locus standi of respondent Nos.4 to 8, the

submission of the learned Advocate for the petitioners and their stand

throughout, particularly before the MRT that the issue was not dealt with and

considered by the Deputy Collector in the appeal, is fallacious. A careful

perusal of the judgment in the appeal would clearly show that the learned

Deputy Collector specifically observed that Shri Siddheshwar Devasthan was

subsequently registered as a Public Trust on 19.03.2016, its certificate was

issued in the name of respondent No.7, who was the appellant and all the

panchas were aggrieved by the order passed by the ALT dated 30.04.2013 and

that is the reason since they were related to the Devasthan as trustees that it

was necessary that the appeal was decided on merits. It, therefore, cannot be

said that the point of locus standi was not considered by the learned Deputy

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Collector while deciding the appeal.

18. Besides, though it is a fact that the title of the appeal memo does

not read name of Shri Siddheshwar Devasthan and the names of respondent

Nos.4 to 8 also do not indicate that they were intending to represent Shri

Siddheshwar Devasthan, the recitals in the appeal memo and the observations

of the learned Deputy Collector clearly indicated that they were interested in

prosecuting the appeal for and on behalf of Shri Siddheshwar Devasthan and

not in their individual capacity. It is the interest of the Public Trust which they

were intending to protect and consequently, when they were acting to secure

interest of the Trust and to protect its property, there was no question of the

proceeding being vitiated by any provision of the Maharashtra Public Trusts

Act also.

19. The learned President of the MRT has considered all the

aforementioned aspects and has objectively scrutinized not only the reasoning

given by the learned Deputy Collector but has also independently undertaken

the scrutiny of the revenue record while passing the impugned judgment and

order in revision under Section 76 of the Act.

20. The upshot of the above discussion, the concurrent findings

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arrived at in the orders passed in the appeal and in the revision, by no stretch

of imagination, can be said to be either perverse or arbitrary so as to empower

this Court to intervene in writ jurisdiction.

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

[ MANGESH S. PATIL ] JUDGE

npj/WP6763-2021