Bombay High Court
Kalpataru Properties (Thane) ... vs Late Balu (Balya) Deu Warli Decd. ... on 13 July, 2023
Bench: N. J. Jamadar
2023:BHC-AS:19405
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.3701 OF 2022
Kalpataru Properties (Thane) Private Limited ...Petitioner
vs.
Late Balu (Balya) Deu Warli (since deceased)
legal heir Laxman Balu Dive (since deceased)
through legal heirs and Ors. ...Respondents
WITH
WRIT PETITION NO.4254 OF 2022
D. Dahyabhai & Co. Private Limited ...Petitioner
vs.
Late Balu (Balya) Deu Warli (since deceased)
legal heir Laxman Balu Dive (since deceased)
through legal heirs and Ors. ...Respondents
Mr. Girish Godbole a/w. Mr. Vishal Kanade i/b. Mr. Makarand
Savant for the Petitioner in W.P. No. 3701 of 2022 and for
Respondent No. 3 in W.P. No. 4254 of 2022.
Mr. Siddhesh Bhole a/w. Ms. Srushti Mandade i/b. Mr. Sunil Tyagi,
for the Petitioner in W.P.No.4254 of 2022 and for Respondent No. 3
in W.P.No. 3701 of 2022.
Mr. Saurabh Utangale a/w. Ms. Sarika Kurundwadkar i/b.
Uthangale & Co., for Respondent Nos. 1.1 and 1.2.
Mr. S.D. Rayrikar, AGP for the State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : APRIL 28, 2023
PRONOUNCED ON : JULY 13, 2023
-------------
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the
learned counsel for the parties, heard finally.
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2. These petitions call in question the orders passed by Tahsildar
and Agriculture Land Tribunal, Thane whereby the applications
preferred by the respective petitioners seeking framing of the issue
of the maintainability of the proceedings under section 32-G of the
Maharashtra Tenancy and Agricultural Lands Act, 1948 (the Act,
1948) and to try and decide the said issue as a preliminary issue,
came to be rejected.
3. Though the litigation has a checkered history, the facts
necessary for determination of these petitions can be stated in brief
as under:-
3.1 For the sake of convenience and clarity the parties are
referred to in the capacity in which they are arrayed in Writ
Petition No. 3701 of 2022.
3.2 The respondents No. 1.1 and 1.2 claim to be the successors in
interest of Balu Dive, who according to respondent Nos. 1.1 and 1.2,
was the protected tenant of the land bearing Gut No. 59/A situated
at village Chitalsar Manpada, Thane (subject land). Late Shamaldas
Laxmandas Gandhi, the predecessor in title of respondent Nos. 2.1
to 2.3 was the landlord of the subject land. Late Balu Dive was a
member of Warli, Scheduled Tribe. In a proceedings against late
Shamaldas, the landlord, the Court Receiver, High Court, Bombay
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came to be appointed as the Receiver of the subject land.
3.3 Respondent Nos. 1.1 and 1.2 alleged that, by taking undue
advantage of the illiteracy of tribal, the Court Receiver unlawfully
dispossessed late Balu who was a protected tenant of the subject
land in flagrant violation of the protective provisions contained in
Maharashtra Tenancy and Agricultural Lands Act, 1948.
3.4 The delivery of possession to the Court Receiver and deletion
of the name of late Balu Deu, the protected tenant of the subject
land, was evidenced by mutation entry Nos. 239 and 240 dated 1 st
August, 1960. The petitioners claimed, after the said mutation
entries were certified, the Court Receiver executed a sale deed in
respect of several lands of the landlord and others, in favour of D.
Dayabhai & Company Private Limited, respondent No. 3 (and
petitioner in Writ Petition No. 4254 of 2022). The later, in turn,
executed a sale deed in favour of Tata Hydroelectric Power Supply
Company Limited and others, on 27th May, 1970. Tata Power
Company Limited executed a development agreement dated 10 th
June, 2005 in favour of Kalpataru Properties (Thane) Private
Limited, the petitioner.
3.5 In the meanwhile, Laxman Balu Dive, the predecessor in title
of respondent Nos. 1.1 and 1.2 and the respondent Nos. 1 and 2
instituted multiple proceedings before various authorities. One
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plank of the respondents legal persuit was that the late Balu was a
tribal and, therefore, late Balu, having been wrongfully
dispossessed of the subject land, was entitled to restoration of the
subject land under the provisions of section 3 and 4 of the
Maharashtra Restoration of Lands to Scheduled Tribes Act 1974.
The other plank was that late Balu was in cultivation of the subject
land on tiller's day and thus became a deemed purchaser under the
provisions of Maharashtra Tenancy & Agricultural Lands Act,1948.
3.6 It may not be necessary to trace the history of all these
proceedings for determination of these petitions. It would be suffice
to note in persuit of the claim of late Balu being a protected tenant
of the subject land, the respondents No. 1.1 and 1.2 had preferred
Writ Petition No. 7153 of 2003 before this Court. The said petition
came to be dismissed by a Division Bench of this Court by an order
dated 27th June, 2005.
3.7 The respondent Nos. 1.1 and 1.2 professed to seek review of
the aforesaid order and filed an application for condonation of delay
in filing Review Petition. By an order dated 13th February, 2015 this
Court rejected the application for condonation of delay as there was
gross and unexplained delay of 8 years.
3.8 The respondent Nos. 1.1 and 1.2 preferred an application
purportedly under section 32-G of the Act, 1948 seeking fixing of
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the purchase price and eventual grant of certificate under section
32M of the Act, 1948 before the Tahsildar and ALT, Thane, being
proceeding No. 60/2021 (under section 32G).
3.9 Kalpataru Properties (Thane) Private Limited, the petitioner,
filed an application for intervention. By an order dated 30 th
December, 2021 the said application came to be allowed and the
petitioner was directed to file reply to the main application, under
section 32G.
3.10 The petitioner preferred an application challenging the
maintainability of the said proceedings primarily on the ground
that in view of the decision of this Court in Writ Petition No. 7153 of
2003 and the Civil Application No. 675 of 2014 dated 13 th February,
2015, the issue of late Balu being a deemed purchaser of the subject
land stood conclusively determined and it was not open for the
Tahsildar and ALT to again delve into the said issue. The petitioner
thus prayed that a preliminary issue as to maintainability of the
application under section 32-G be framed and decided.
3.11 D. Dahyabhai & Co. Private Limited, respondent No. 3, which
was impleaded as respondent No. 2 therein, also preferred an
application for framing and deciding issue of maintainability of the
said application as a preliminary issue.
3.12 The respondent Nos. 1.1 and 1.2 resisted the application
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preferred by D. Dayabhai and Kalpataru. By the impugned orders,
the Tahsildar & ALT was persuaded to reject the applications taking
a view that it was necessary to decide the tenancy application on
merits. The petitioners have thus invoked the writ jurisdiction.
4. I have Mr. Girish Godbole, learned senior advocate for the
petitioner in Writ Petition No. 3701 of 2022 and for respondent No.
3 in Writ Petition No. 4254 of 2022; Mr. Siddhesh Bhole, the learned
counsel for the petitioner in Writ Petition No. 4254 of 2022 and for
respondent No. 3 in Writ Petition No. 3701 of 2022; Mr. Saurabh
Utangale, learned counsel for Respondent No. 1.1, Mr. Mayuresh
Narle, learned counsel for respondent No. 1.2 and Mr. S.D. Rayrikar,
learned AGP for the State. With the assistance of the learned
counsel for the parties, I have perused the material on record
including the orders passed by this Court in Writ Petition No. 7153
of 2003 and the Civil Application No. 675 of 2014 in Review Petition
(St.) No. 29898 of 2013 and the orders passed by the authorities
under the Act, 1948 and Revenue Authorities.
5. Mr. Girish Godbole, learned senior counsel for the petitioner,
would submit that the issue having been decided by this Court, the
Tahsildar and ALT has no authority to again adjudicate the aspect
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as to whether late Balu was the protected tenant of the subject land.
On this premise, the petitioners had sought a decision on the
maintainability of the tenancy application as a preliminary issue.
Tahsildar and ALT, Mr. Godbole would urge, committed a gross
error in not at all delving into the objection to the maintainability
raised by the petitioners and passed a single line order that, in his
opinion, the application was required to be determined on merits.
The impugned order, according to Mr. Godbole, singularly lacks
reasons. Nor there is any indication in the impugned order that the
question of maintainability of the application in the light of the
orders passed by this Court would be considered by the ALT while
finally deciding the tenancy application.
6. Mr. Godbole further urged that the objections to the
maintainability of the tenancy application are well merited and
could not have been brushed aside by a single line order. Mr.
Godbole invited the attention of the Court to the prayers in the Writ
Petition No. 7153 of 2003. In prayer clause (a), the respondent Nos.
1.1 and 1.2 had sought a mandamus to State of Maharashtra, the
respondent No. 4 therein, to fix the purchase price of the suit land
in the name of the petitioners in accordance with the provisions of
Act, 1948, restore the possession of the suit land to the petitioners
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by removing the then occupants thereof. It was urged that the very
prayers in the instant application before the Tahsildar and ALT
were made in the said Writ Petition and this Court declined to grant
those reliefs. The dismissal of the Writ Petition, in the
circumstances of the case, according to Mr. Girish Godbole, clearly
constitutes Res Judicata. At any rate, the principle of issue of
estoppel operates.
7. Mr. Godbole further submitted that institution of a multitude
of proceedings by respondent Nos. 1.1 and 1.2 is a clear case of
abuse of the process of the Court. Having not succeeded up to this
Court in multiple proceedings, respondent Nos. 1.1 and 1.2 cannot
be permitted to re-agitate the very same issue again and again. An
instance of the abuse of the process of the Court is relitigation,
submitted Godbole. To bolster up this submission, reliance was
placed on the decision of the Supreme Court in the case of K.K. Modi
vs. K.N. Modi and Others1, and a judgment of a learned single Judge
of Madras High Court in the case of Ranipet Municipality Rep. By
Its Comer, and Special Officer, Ranipet vs. M. Shamsheerkhan2.
8. Mr. Siddhesh Bhole, the learned counsel for the petitioners in
1 (1998) 3 Supreme Court Cases 573.
2 1998 (I) CTC 66.
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Writ Petition No. 4254 of 2022 and for respondent No. 3 in Writ
Petition No. 3701 of 2022 supplemented the submissions of Mr.
Godbole. Mr. Bhole laid emphasis on the fact that the decision by
this Court in Writ Petition No. 7153 of 2003 is a complete answer to
the controversy sought to be raised, by respondent Nos. 1.1 and 1.2,
before the ALT. In any event, according to Mr. Bhole, the mutation
entry which evidences the deletion of the name of late Balu, has not
been varied and set aside. It was further urged that even if it is
assumed that the order rejecting the claim of protected tenancy
was passed without jurisdiction, or for that matter it was invalid, it
was incumbent upon the respondent Nos. 1.1 and 1.2 to take out the
proceedings to establish the cause of invalidity and get the order
quashed or otherwise set aside. To buttress this submission Mr.
Bhole placed reliance on the decision of the Supreme Court in the
case of State of Punjab and Others vs. Gurdev Singh3.
9. Mr. Saurabh Utangale, learned counsel for respondent Nos.
1.1 and 1.2 stoutly countered the submissions on behalf of the
petitioners. It was submitted with tenacity that the order passed by
this Court in Writ Petition can not be construed to have conclusively
determined the tenancy rights. Nor the said order precludes the
respondent Nos. 1.1 and 1.2 from instituting the proceedings for
3 (1991) 4 SCC 1
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enforcement of their statutory rights under section 32G of the Act,
1948. Mr. Saurabh Utangale submitted that statutory remedy
cannot be taken away either by executive fiat or even judicial order.
10. Mr. Utangale placed a strong reliance on a three judge Bench
judgment of the Supreme Court in the case of Dayaram vs. Sudhir
Batham and Others4 wherein, in the context of the restriction
placed by the judgment of the Supreme Court in the case of Madhuri
Patil vs. Additional Commissioner5, on intra-court appeal, the
Supreme Court held that a remedy by way of appeal provided
expressly by statute, cannot be taken away by an executive fiat or
judicial order.
11. On the merits of the matter, Mr. Utangale would submit that
the fact that late Balu was a protected tenant of the subject land is
rather incontestible. It can not be disputed that late Balu was
cultivating the subject land on tillers day. Neither the tenancy was
surrendered by late Balu in conformity with the provisions
contained in section 15(2) of the Act, 1948. Nor late Balu was
dispossessed under an order of the Mamlatdar passed under section
29(2) of the Act, 1948. The mutation entry No. 239 deleting the
4 (2012) 1 Supreme Court Cases 333.
5 (1994) 6 SCC 241.
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name of late Balu and the dispossession thereunder were, according
to Mr. Katneshwarkar, tainted with fraud and in fragrant violation
of the statutory protections.
12. I have carefully considered the rival submissions.
13. To start with, it is imperative to note that there is not much
controversy over the fact that the name of late Balu was shown as a
tenant in the cultivator's column of the subject land. Vide mutation
entry No. 239, name of the late Balu came to be deleted as the
tenant thereof on the premise that the Court Receiver had been
appointed and the provisions of the Act, 1948 were inapplicable to
the land custodia legis.
14. It is in this context, the order passed by this Court in Writ
Petition No. 7153 of 2003 deserves to be considered. Since the
controversy revolves around the import of the said order dated 27 th
June, 2005, it may be advantageous to note the observations in
paragraphs 3 and 4 thereof.
3] Mr. Balsara, learned counsel appearing for
Respondent No.3, has shown us the entry from the
revenue records entered on 24th October 1960 which
states that the person concerned, i.e. grand father of
the Petitioner, has handed over possession of the land
to the High Court Receiver willingly. The entry further
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states that since the Bombay Tenancy and
Agricultural Lands Act is not applicable to the Court
Receiver, the name of the tenant has been deleted.
Mr.Balsara has pointed out that later on in the year
1965, the Respondent No.1 purchased this property
from the Receiver and the Respondent No.3 has
thereafter purchased it in the year 1979. It is too late
in the day for the Petitioner to canvass this
submission. It is also pointed out that steps were
taken under the Restoration of Land to Tribal Act in
the year 1979, but the Act came into force in 1974 and
that time the land was already with a non-tribal and,
therefore, the Act had no application.
4] The only submission of Mr.Damle, the learned
counsel for the Petitioner, is that the rights of the
Petitioner, which were protected under the Bombay
Tenancy and Agricultural Lands Act, could not be said
to have been extinguished. The entry made in the
revenue record way back in the year 1960 stares him
in the face. It is too late in the day to canvass this
submission. The petition suffers from laches. Petition
is dismissed.
15. Evidently, this Court recorded in clear and explicit terms that
entry made in the revenue record (mutation entry No. 239) way
back in the year 1960 stared in the face of the petitioner and it was
too late in the day to canvass the submission that the rights of the
protected tenant could not be said to have been extinguished. What
follows is of significance. The Court further noted that the petition
suffered from laches. In the subsequent order passed by this Court
in Civil Application No. 675 of 2014 in Review Petition (St.) No.
29898 of 2013, this Court had declined to condone the delay purely
on the ground of unjustifiablity of the explanation.
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16. Though the learned counsel for the petitioners made an
endevour to draw home the point that the aforesaid decision in Writ
Petition No. 7153 of 2003 conclusively determines the issue sought
to be raised by respondent Nos. 1.1 and 1.2 in the tenancy
application before ALT, and thereby precludes them from re-
agitating the same, I do not consider it appropriate to delve deep
into that aspect of the matter.
17. Undoubtedly, the respondent Nos. 1.1 and 1.2 had specifically
prayed for the restoration of the possession of the subject land by
removing the then occupants and a direction to the State
Government to fix the purchase price and declare them as deemed
purchasers. Yet the jurisdictional issue as to whether this Court
could have determined the question as to whether respondent Nos.
1.1 and 1.2 were, or for that matter late Balu was, the tenant of the
subject land would crop up for consideration.
18. The legal position is absolutely clear. Under the provisions of
section 70 of the Act, 1948 it is one of the duties of the Mamlatdar
to decide whether a person is, or was at any time in the past, a
tenant or a protected tenant or a permanent tenant. Relevant part
of section 70 of the Act, 1948 reads as under:-
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70. Duties of the Mamlatdar
For the purposes of this Act the following shall be duties
and functions to be performed by the Mamlatdar :-
... ....
(b) to decide whether a [person is, or was at any time in
the past, as tenant] or a protected tenant [or a
permanent tenant].
19. Section 85(1) of the Act, 1948 incorporates a jurisdictional
bar qua the Civil Court. It provides that no civil Court shall have
jurisdiction to settle, decide or deal with any question including a
question whether a person is or was at any time in the past a tenant
and whether any such tenant is or should be deemed to have
purchased from his landlord the land held by him which is by or
under the said Act required to be settled, decided or dealt with by
the Mamlatdar or Tribunal, a Manager, the Collector or
Maharashtra Revenue Tribunal in appeal or revision or the State
Government in exercise of their powers of control. Under the
provisions of the Act exclusive jurisdiction is conferred on
Mamlatdar to decide, inter alia, whether a person is or was at any
time in the past a tenant or a protected tenant of an agricultural
land.
20. In the case of Madhumati Atchut Parab (Smt.) vs. Rajaram V.
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Parab and Others6 after adverting to the provisions of section 70(b)
and 85(1) of the Act, 1948, the Supreme Court observed, inter alia,
as under :-
"17] From a bare perusal of Section 85 of the Bombay
Tenancy Act, it would be evident that this provision bars
the jurisdiction of the Civil Court to deal with any
question including a question whether a person is or was
at the time in the past a tenant and whether any such
tenant is or should be deemed to have purchased from
his landlord the land held by him would be decided or
dealt with only by the Mamlatdar or Tribunal or a
Manager, the State Government in exercise of their
powers of control. When a question arises whether a
particular person is an agriculturist or a tenant or not, it
is only the Mamlatdar who has the jurisdiction to decide
the same. ....."
21. It does not seem to be a case that at any point of time in the
past, the respondent Nos. 1.1 and 1.2 or their predecessor(s) in title
had preferred an application under section 32-G of the Act, 1948. In
that view of the matter, I find substance in the submissions on
behalf of respondent Nos. 1.1 and 1.2 that the said aspect primarily
falls within the province of authority of ALT, under the provisions of
the Act, 1948. At the same time, what is the import of the order
passed by this Court in Petition No.7153 of 2003 on the proceedings
under section 32G deserves to be adequately dealt with.
22. The criticism on behalf of the petitioners that Tahsildar and
ALT had not at all delved into the said aspect, as is evident from the
6 (2009) 4 Supreme Court Cases 183.
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impugned order, appears well founded. The impugned order simply
records that ALT found it necessary to decide the application on
merits. It nowhere indicates that the question of tenability of the
application or for that matter the alleged bar to consideration of the
said issue by the ALT in view of the decision of the Division Bench in
Writ Petition No. 7153 of 2003, would be inquired into. To this
extent, the impugned order suffers from the vice of non application
of mind.
23. I am, however, not inclined to accede to the prayers of the
petitioners that the said issue is required to be determined as a
preliminary issue. Since the question of maintainability is rooted in
facts also, I deem it appropriate to direct the Tahsildar and ALT to
specifically frame and decide the point of maintainability of the
application in the context of the order passed by this Court in Writ
Petition No. 7153 of 2003 along with rest of the points, while finally
deciding the application under section 32-G. The petitions,
therefore, deserve to be partly allowed.
Hence, the following order.
ORDER
1] The petitions stand partly allowed.
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2] Impugned orders to the extent the Tahsildar and ALT rejects the
objection of maintainability outright stand quashed and set aside.
3] The applications assailing the maintainability of the said
application thus stand restored to the file of Tahsildar and ALT.
4] The Tahsildar and ALT is directed to frame and decide a specific
point of maintainability of the application under section 32-G in
view of the order passed by Division Bench in Writ Petition No. 7153
of 2003 along with other points which arise for determination while
deciding the application under section 32G, finally.
5] By way of abundant caution it is, however, made clear that this
Court may not be construed to have expressed any opinion on the
maintainability of the application under section 32-G of the Act,
1948 and the aforesaid consideration is confined to test the legality
and correctness of the impugned order and the Tahsildar and ALT
shall decide the same uninfluenced by any of the observations
hereinabove, in accordance with law.
6] Rule made absolute to the aforesaid extent.
7] In the circumstance of the case there shall be no order as to costs
in both the petitions.
(N. J. JAMADAR, J.)
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