Bombay High Court
Shankar Anna Pisal Self And Power ... vs Vijaysinh Chandrasen Phalke And ... on 28 March, 2023
Bench: N. J. Jamadar
2023:BHC-AS:9410 Digitally signed
SWAROOP by SWAROOP
SHARAD
SHARAD PHADKE
PHADKE Date: 2023.03.29
18:50:34 +0530
22 wp 10257 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10257 OF 2022
Shankar Anna Pisal and Ors. ... Petitioners
versus
Vijaysinh Chandrasen Phalke and Ors. ... Respondents
Mr. Sumit V. Sonare for Petitioner.
Mr. S.G.Karndikar with Mr. Satish Raut for Respondent Nos.1 to 12.
Mr. Gaurav Nankar for Respondent Nos.21 and 23.
CORAM: N.J.JAMADAR, J.
DATE : 28 MARCH 2023
P.C.
1. Heard the learned Counsel for the parties.
2. Rule. Rule made returnable forthwith. With the consent of the learned
Counsel for the parties, heard finally at the stage of admission.
3. This Petition under Article 227 of the Constitution of India assails the
legality, propriety and correctness of the judgment and order dated 15 February 2021
passed by the learned Member, Maharashtra Revenue Tribunal, Bench at Pune, in
Revision Application No.NS/X/1/2019 (B-179/19) preferred by the Petitioners,
whereby the said Application came to be dismissed at the stage of admission on the
premise that the provisions of Sections 32 to 32R of the Bombay Tenancy and
Agricultural Lands Act, 1948 ( the Act of 1948) were not applicable to the subject land.
4. The Petitioners claimed to be the successors in interest of late Nana
SSP 1/6
22 wp 10257 of 2022.doc
Laxman Pisal, who was in possession and cultivation of agricultural lands bearing old
Survey Nos.81, 83, 84, 131, and 85, bearing new Gat No.592/1, owned by Vijaysinh
Chandrasen Phalke. Late Nana Pisal had instituted proceedings under Section 32G of
the Act of 1948 being Tenancy Case No.32G/Khanapur/109+110. The Agricultural
Lands Tribunal - I, by an order dated 30 November 1962, ordered that lands bearing
No.81, 83, 84 and 131 be granted on new tenure to late Nana Pisal for the purchase
price of Rs.828.30 plus interest payable in 12 annual installments. The Agricultural
Lands Tribunal held that the land bearing Survey No.85 (subject land) was recorded in
the record of right as Hill (Dongar) and the said land was, thus, being used only for
quarry. The said land was not under cultivation. Nor grass grown on the land used for
feeding the cattle of the tenant. Resultantly, the provisions of Sections 32 to 32L of
the Act of 1948, were not applicable to the subject land.
5. It seems that the said order passed by the Agricultural Lands Tribunal
attained finality.
6. In the year 2013, the Petitioners again preferred an application under
Section 32G of the Act of 1948. By a judgment and order dated 8 January 2016 in
Tenancy Case No.2 of 2013, the Tahasildar and Agricultural Lands Tribunal, Wai,
determined the purchase price of the subject land.
7. Being aggrieved, Respondent Nos.1 to 11 preferred Tenancy Appeal
No.9 of 2016 before the Sub-Divisional Officer. By a judgment and order dated 12
SSP 2/6
22 wp 10257 of 2022.doc
November 2016, the Sub-Divisional Office set aside the order passed by the
Agricultural Lands Tribunal holding that out of 20.6 H land, only 1.32 H land was
under cultivation and the balance 19.32 H land was hilly land and, therefore, the
provisions of Section 32G of the Act, 1948 were not attracted. The Sub-Divisional
Officer relied upon panchanama carried out by a Circle Officer on 16 September, 2016.
8. Being aggrieved, the Petitioners preferred a Revision under Section 76 of
the Act of 1948. The learned Member was, however, persuaded to dismiss the
Revision Application at the stage of admission itself as it was evident that the land was
not under cultivation on Tillers day and the judgment of the Agricultural Lands
Tribunal dated 30 November 1962 had attained finality and, therefore, it could not
have been reopened by initiating a fresh proceedings.
9. Mr. Sonare, learned Counsel for the Petitioners submitted that the
learned Member, Maharashtra Revenue Tribunal and the Sub-Divisional Officer
approached the matter from an incorrect perspective. The authorities have lost sight
of the fact that when the first order was passed by the Agricultural Lands Tribunal on
30 November 1962, there was no panchanama carried out, though it was not disputed
that the predecessor in title of the Petitioners had been in actual possession and
cultivation of the subject land. The Tahasildar, Wai, was thus justified in allowing the
proceedings under Section 32G of the Act on the basis of the panchanama which
indicated that the subject land was under cultivation. The learned Member,
SSP 3/6
22 wp 10257 of 2022.doc
Maharashtra Revenue Tribunal, according to Mr. Sonare, committed an error in
importing the principle of res-judicata to the proceedings under the Act of 1948.
10. In opposition to this, Mr. Karandikar, learned Counsel for Respondent
Nos.1 to 12 submitted that even if the Petitioners case is taken at par and a small
portion of the subject land was shown to have been brought under some sort of
cultivation post Tillers day, it is of no significance. In the judgment and order dated
30 November 1962, the Agricultural Lands Tribunal had recorded a categorical finding
that the subject land was a hilly land and used as a quarry. The said finding, according
to Mr. Karandikar, operates as a bar on the principle analogous to res-judicata.
Reliance was placed on a judgment of the Supreme Court in the case of Vaijinath
Yeshwant Jadhav and Ors. V/s. Afsar Begum and Ors.1
11. I have carefully perused the material on record and given anxious
consideration to the rival submissions canvassed across the bar. Undisputedly, in the
first proceedings under Section 32G of the Act of 1948 in respect of a number of
survey numbers, the Agricultural Lands Tribunal had determined purchase price of all
the survey numbers, excluding Survey No.85. The Agricultural Lands Tribunal had
ascribed justifiable reasons for excluding Survey No.85. It was held that the land
bearing Survey No.85 was not used for agricultural purposes within the meaning of
Section 2(5) of the Act of 1948. It was specifically recorded that the record of right
1 (2020) 15 SCC 128
SSP 4/6
22 wp 10257 of 2022.doc
indicated that the said land was designated as a hilly land and was used only for the
purpose of quarrying. It would be too late in the day to now urge that the Agricultural
Lands Tribunal did not record a finding that on the Tillers day, the original tenant was
not cultivating the subject land.
12. From this standpoint, the learned Member, Maharashtra Revenue
Tribunal, committed no error in dismissing the Revision Application at the admission
stage. After adverting to the definition "to cultivate" under Section 2(5) of the Act of
1948, the learned Member rightly recorded that if the land was not under cultivation
on the Tilers day, the provisions of Section 32 to 32R of the Act were not at all
attracted.
13. The broad submission on behalf of the Petitioners that the judgment of
Agricultural Lands Tribunal dated 30 November 1962 does not operate as res-judicata
cannot be readily acceded to. The said judgment declares that the original tenant was
not in cultivation of the subject land. The subsequent change in the use of a portion
of subject land, or for that matter entire subject land, is of little assistance in altering
the character of the subject land on the Tillers day.
14. I am, thus, persuaded to hold that no interference is warranted in
exercise of extra-ordinary writ jurisdiction. The Petition, thus, deserves to be
dismissed.
15. Hence, the following order :
SSP 5/6
22 wp 10257 of 2022.doc
ORDER
(i) The Writ Petition stands dismissed.
(ii) Rule discharged.
(iii) No order as to costs.
( N.J.JAMADAR, J. )
SSP 6/6
