Bombay High Court
Ganapat Maruti Jadhav And Ors vs Subhash Balkrishna Marwadi (Soni) And ... on 27 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:34258
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1029 OF 2021
1. Ganapat Maruti Jadhav ,
2. Thaka Bhima Jadhav,
3. Bhagwat Bhima Jadhav (Deceased)
Thr. L. Rs :-
a. Lankabai Bhagwat Jadhav,
b. Bausaheb Bhagwat Jadhav,
c. Kailas Bhagwat Jadhav,
d. Dilip Bhagwat Jadhav,
All R/o.Gajarwadi, Taluka Niphad,
District Nashik. ...Petitioners
Versus
1. Subhash Balkrishna Marwadi (Soni),
R/o.Vinchur, Taluka Niphad, District Nashik
(Shri Trimbakeshwar Nivruttimaharaj &
Nadur Mandhameshwar Maharaj through
Subhash Marwadi (Soni)
2. The Sub Divisional Officer,
Niphad District Nashik.
3. The Tahsildar, Niphad,
Tal. Niphac District Nashik. ...Respondent
------------
Adv. Sanjeev Sawant a/w Adv. Samir Suryawanshi, Adv. Ketan Joshi & Bhakti
Wart for the Petitioners
Adv. Sugandh Deshmukh a/w Adv. Karishma Shinde & Adv. Vaibhav Thorve for
the Respondents
Adv. P. V. Nelson Rajan, AGP for the State.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : July 29, 2024.
Pronounced on : August 27, 2024.
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JUDGMENT :
1. Rule. Rule made returnable forthwith and taken up for final
hearing with consent of learned counsel for the parties.
2. By this petition, exception is taken to the order dated 23 rd
February, 2018 passed by the Maharashtra Revenue Tribunal (for short
"MRT") in Revision Application No.TNC/REV/NSK/76 of 2016, by which
the Revision Application at the instance of the Respondent No.1-
landlord came to be allowed and the order passed by the Sub
Divisional Officer in Tenancy Appeal No. 3 of 2015 dated 14 th August,
2015 and order of the Tahsildar and ALT in Tenancy Vahivat Case
No.246 of 1991 dated 7th March, 2015 came to be quashed and set
aside.
3. The case of the Petitioners is that the Petitioners are in
possession and cultivation of land bearing Survey No.164 situated at
village Gajarwadi, Taluka- Niphad, District-Nashik as tenants. The
Petitioners are the heirs of one Devram Nandu Jadhav. Devram along
with his brother Bhika were cultivating the subject land as tenants.
The subject land was owned by one Ram Nandaram Marwadi who is
the predecessor of Respondent No.1. In the year 1961, tenancy
proceedings were initiated under the provisions of the Bombay
Tenancy and Agricultural Lands Act, 1948 in which only Devram
participated and recorded his unwillingness to purchase the property.
4. Vide order dated 13th January, 1961, it was declared that the
tenant is not willing to purchase the land and the purchase is
ineffective under Section 32G(3) of the Tenancy Act.
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5. On 29th May, 1961, an order came to be passed in favour of the
Respondent No.1 under Section 32P of the Tenancy Act. Despite the
order dated 13th January, 1961 and 29th May, 1961, Devram and his
brother Bhika continued in the possession of the land as tenants and
thereafter the subject land is in possession and cultivation of the
Petitioners. The Respondent No.1 continued to accept the rent and
also issued rent receipts. The Petitioners were paying the land
assessment and the name of the Petitioners continued to be reflected
in the cultivation column of the 7/12 extract.
6. On 20th August, 1991, the Respondent No.1 filed an application
for deletion of the name of the Petitioners from the 7/12 extract.
Subsequently, the Petitioners filed an application before the Tahsildar
and ALT for fixation of purchase price under Section 32G of the
Tenancy Act. Vide Order dated 31st December, 1992, the Tahsildar
declared the Petitioners as deemed purchasers and fixed the purchase
price in Tenancy Case No.246 of 1991.
7. Respondent No.1 challenged the order dated 31 st December,
1992, passed by the Tahsildar and ALT before the Sub Divisional
Officer bearing Tenancy Appeal No. 1 of 1993. The SDO held that
there was procedural irregularity in fixation of the purchase price and
remanded the matter to the Tahsildar by order dated 24 th March,
1995.
8. Respondent No.1 preferred Revision Application before the
MRT challenging the remand by the SDO being Tenancy Revision
Application No.111 of 1995. MRT by order dated 18 th January, 1996,
set aside both the orders i.e. order of the Sub Divisional Officer dated
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24th March, 1995 and order dated 31 st December, 1992 passed by the
Tahsildar allowing the 32G application filed by the Petitioners. The
Learned Member of MRT held that once the Tahsildar and ALT had
passed an order of 13th January, 1961, holding that the tenant is
unwilling to purchase the land, it is not open to the tenant to file a
fresh application under Section 32G as the order dated 13 th January,
1961 had become final.
9. The Petitioner filed Writ Petition No.3856 of 1996 challenging
the order of the MRT dated 18th January, 1996. This Court vide order
dated 10th July, 2014, set aside the order of MRT holding that the
proper course of action to be adopted by MRT is to remand the matter
to the Tahsildar and ALT for composite adjudication as regards the
maintainability of fresh application under Section 32G and if held
maintainable then the fixation of purchase price. The matter came to
be remanded to the Tahsildar and ALT and the Tahsildar fixed the
purchase price vide order dated 7 th March, 2015. The amount of
purchase price was deposited by the Petitioners.
10. Tenancy Appeal No.3 of 2015 came to be filed against the order
dated 7th March, 2015 fixing the purchase price. On 14th August 2015,
the Sub Divisional Officer dismissed the appeal filed by Respondent
No. 1 confirming the order dated 7th March, 2015.
11. Respondent No.1 filed Revision Application No. 76 of 2016
before the MRT challenging the order of 14 th August, 2015 passed by
the SDO and order of 7 th March, 2015 passed by the Tahsildar. Vide
impugned order dated 23rd February, 2018 the Learned Member of
MRT allowed the Revision Application filed by Respondent No.1
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setting aside the order of the Sub Divisional Officer and Tahsildar on
two grounds firstly by negating the issue that Section 32G
proceedings are maintainable in view of order passed in 1961
declaring purchase ineffective by relying on decision of Apex Court in
the case of Dnyandev Ganpat vs. Mahadev Vitthal [2005 (4) Mh.L.J]
and secondly, by reason that Devram as Karta of family had expressed
his unwillingness which binds the Petitioners and there is no challenge
to the order of 1961. MRT held that in view of the admitted position
that the Petitioners are still in possession and the Respondent has
accepted the rent and issued receipt would be case of tenancy
created after Tiller's day for which recourse can be taken under
Section 32O of the Tenancy Act, 1948.
12. Heard Mr. Sawant, learned counsel for the Petitioners, Mr.
Deshmukh for the Respondent and Mr. Nelson Rajan, AGP for the
State.
13. Mr. Sawant, would submit that the remand by this Court by
order dated 10th July, 2014 was for purpose of composite adjudication
as to the maintainability of the fresh application under Section 32G
and if affirmative for fixing purchase price. He has taken this Court
through the order of Tahsildar dated 7 th March, 1995 and submits that
the issues are answered in favour of Petitioners in view of Section
37(1) of Tenancy Act.
14. Pointing out to the order of the SDO, he submits that the
Respondent No.1 has accepted that the rent was paid by the
Petitioners. He submits that the order of the MRT takes into
consideration the unwillingness which has been recorded in the order
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passed in the year 1961 for the purpose of declaring the purchase
ineffective. He submits that the case was of surrender of tenancy and
submits that it is only in event of compliance of Section 15 read with
the Rules that the purchase can be declared ineffective. He submits
that the consequence of unwillingness to purchase is provided in
Section 32P, which was an order passed on 29 th May, 1961. He submits
that there was no inquiry as contemplated by Section 15 of the
Tenancy Act. He submits that there is a specific finding that under
Section 32P of the Tenancy Act, the landlord has not taken land for his
personal cultivation and on the contrary, has accepted the rent from
the tenants and that as under Section 37 of the Tenancy Act, there has
been breach of the conditions by virtue of section 39 of the Tenancy
Act, the ownership of the tenant stands confirmed.
15. He submits that the Sub Divisional Officer has dismissed the
appeal by holding that though, the order of year 1961 was passed
holding the purchase to be ineffective, the same was not
implemented. He would further submit that since 1942, the
possession of the land is with the tenant and post 1961 order passed
under Section 32P of the Tenancy Act, the rent was accepted. He
submits that MRT in exercise of the revisionary power could not have
substituted its own view. In support, he relies upon the following
decisions.
Laxmanrao Anantrao Stardekar vs Bapu Satyappa Pawar
[1988 MhL.J. ].
Ramchandra Keshav Adke vs. Govid Joti Chavare And Ors.
[(1973) 1 SCC 559].
Dnyandeo Ganpat Jadhav vs. Madhav Vitthal Bhaskar And
Ors. [2005(4) Mh.L.J.].
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Arun Ramchandra Shirke And Anr. vs. Pune Municipal
corporation and Ors. [2005 (4) Mh.L.J.].
Vasu Dhondi Sutar vs. Ganpati Dhondi Sutar And Anr.,[1992
Mh.L.J.730].
Abdul Rajtak Abdul Rehman Mulla vs. Ibrahim Yusuf Lambe
[2006 (1) Bom.C. R. 214].
Dinkar Ramchandra Morbale And Ors vs. Mahadu Nathu
Warke [2005(1) Bom. C. R. 159].
16. Per Contra, Mr. Deshmukh would submit that the application
which was filed on 20th December, 1991 under Section 32G by the
present Petitioners specifically stated that Devram was the Karta of
the family. That being so, the statement recorded by the the Tahsildar
in the year 1961 that Devram was not willing to purchase the subject
land binds the present Petitioners. He submits that the application
was filed for fixing purchase price. He submits that ALT had held that
the purchase has become ineffective without noticing that Section 15
of the Tenancy Act are not applicable. He would further submit that
the question which is required to be decided as regards the
maintainability of the 32G proceeding. He submits that after the
remand of the order of the High Court, the issues which were directed
to be considered were not considered which has been considered by
the MRT and it held that by relying upon the decision of the Apex
Court in the case of Dnyandeo Ganpat Jadhav (supra), that once the
purchase has been declared ineffective, the question of the tenant
becoming deemed purchaser would not arise.
REASONS AND ANALYSIS :
17. In the proceedings initiated by the Tribunal under Section 32G,
Devram had expressed his unwillingess to purchase and thus the
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purchase was rendered ineffective. The effect of the purchase being
rendered ineffective can be found in Section 32P of Tenancy Act ,
which empowers the Tribunal to resume and dispose of the land not
purchased by the tenant. Section 32P(1) provides that where the
purchase has become ineffective, the Tribunal may suo motu or on an
application direct that the land shall be disposed of in the manner
provided in Sub Section (2). Sub-section 2(b) of Section 32P provides
for the land to be surrendered to the former landlord subject to the
provision of Section 15.
18. Section 15 of the Tenancy Act deals with the termination of the
tenancy by surrender thereof which reads thus:
"[15. (1) A tenant may terminate the tenancy in respect
of any land at any time by surrendering his interest therein in
favour of the landlords :
Provided that such surrender shall be in writing and
verified before the Mamlatdar in the prescribed manner.
(2) Where a tenant surrenders his tenancy, the landlord shall
be entitled to retain the land so surrendered for the like
purposes, and to the like extent, and in so far as the conditions
are applicable subject to the like conditions as are provided in
Sections 31 and 31A for the termination of tenancies.
[2A) The Mamlatdar shall, in respect of the surrender
verified under sub-section (1), hold an inquiry and decide
whether the landlord is entitled under sub-section (2) to retain
the whole or any portion of the land so surrendered and
specify the extent and particulars in that behalf].
(3) The land, or any portion thereof, which the landlord is
not entitled to retain under sub-section (2), shall be liable to
be disposed of in the manner provided under clause (c) of sub-
section (2) of section 32-P]."
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19. Rule 9 of the Tenancy Rules of 1956 prescribe the manner of
verifying the surrender of the tenancy and provide that while
verifying the surrender of tenancy in favour of landlord under Section
15, the Mamlatdar must be satisfied after conducting an enquiry that
the tenant understand the nature and consequences of surrender, and
also that it is voluntary and shall endorse his finding in that behalf
upon the instrument of surrender.
20. Having noted the statutory provisions, coming to the facts of
the present case, by order dated 13 th January, 1961, the ALT had held
that the purchase has been rendered ineffective by recording the
unwillingness of Devram. The order of 13th January, 1961 passed by
the ALT has been tendered across the bar. Perusal of the said order
indicates that the ALT has merely recorded that the tenant is not
willing to purchase the land.
21. Once the purchase has been declared ineffective, the provisions
of Section 32P come into effect. The Tribunal is empowered under
Section 32P to issue various directions including directing surrender
of land to the former landlord subject to compliance of Section 15 of
Tenancy Act. After the order of 13th January, 1961, Section 32P order
was passed on 29th May, 1961. By the said order, the ALT held that the
landlord is willing to cultivate the same personally and held that
tenancy of Devram has terminated and the possession of the suit land
is hereby ordered to be restored to the said landlord on the condition
that the said land shall be cultivated by him personally. However,
there was no surrender of land to the landlord and the tenants
continued in possession of the land, and the tenancy continued upon
accepting the rent.
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22. This Court by order dated 10th July, 2014 had rightly remanded
the matter to consider the maintainability of the second application.
In the proceedings after remand, the Tahsildar framed seven issues
regarding the cultivation and possession of the subject property by
the tenants. The Tahsildar held that the landlord was accepting rent
from the tenants. By order of 29 th May, 1961, the land was given for
personal cultivation of landlord, however, possession is still with
tenant and therefore, the tenant is entitled to have the purchase price
fixed. The Tahsildar considered the provisions of Section 37(1) of
Tenancy Act and held that as the subject property was in possession
of the tenants, they are entitled to fixation of purchase price.
23. In appeal before the SDO, it was held that there no action
pursuant to the order of the year 1961 and the landlord continued to
accept rent from the tenants. The SDO held that the relationship of
landlord and tenant did not come to an end and therefore accepted
the contention that the order passed under Section 32P was
ineffective as it was not implemented. The SDO further held that even
if the purchase by tenant has been declared ineffective there was no
action taken and the possession of the subject property was not taken
from the tenant and handed over to the landlord.
24. The Learned Member of MRT has answered the issue against
the Petitioners by relying on the decision of Dnyandev Ganpat
Jadhav (supra). It will be necessary to consider the said decision in
detail. In that case an order was passed on 16 th November, 1959, by
the ALT declaring the purchase ineffective by recording the statement
of the tenant. On the same day the statement of the landlord was
recorded seeking restoration of land for personal cultivation which
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order was passed under Section 32P. However, the tenant continued
in possession till 1962. In the year 1962, when the tenant went to
surrender the possession, the statement was again recorded by the
ALT and panchnama of handing over possession was recorded.
Thereafter, an application was filed by the tenant under Section 32G
for fixation of purchase price in the year 1976. The authorities passed
an order in favour of tenant which was carried to the High Court and it
was held that after inquiry was conducted the order of 16 th November,
1959 was passed and allowed the Petition which was carried to the
Apex Court.
25. The Apex Court considered that the order declaring the
purchase ineffective was passed in the year 1959 after recording
statement of the tenant in accordance with law. The Apex Court held
that the surrender of tenancy by the tenant who had become deemed
purchaser under the Act must be in accordance with law. The Apex
Court held in paragraph 25 as under:
"25. Conjoint reading of Section 15 and Rule 9 makes it clear
that a tenant who has become "deemed purchaser" under the
Act may surrender tenancy. Such surrender, however, must be as
per the procedure laid down in the Act and the Rules. If the
surrender is not in accordance with the law, it must be held
illegal, unlawful and the status of tenant as "deemed purchaser"
would not get adversely affected".
26. The Apex Court held in paragraph 30 that if the procedure is not
followed, surrender was invalid and the effect of non compliance
would result in all proceedings being vitiated.
27. In Ramchandra Keshav Adke vs. Govind Jyoti Chavare [1975
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Mh.L.J (S.C 515)] the Apex Court held that the surrender of tenancy
by a tenant in order to be valid and effective must fulfill the following
requirements:
"(i) It must be in writing.
(ii) It must be verified before the Mamlatdar.
(iii) While making such verification the Mamlatdar must satisfy
himself in regard to two things namely (a) that the tenant
understands the nature and consequences of the surrender and
(b) The Mamlatdar must endorse his finding as to such
satisfaction upon the document of surrender."
28. It is thus clear that a specific procedure has been prescribed
under the Tenancy Act and the failure to comply to the mandatory
provision vitiates the proceeding. If the surrender is not verified by
the Mamlatdar in the prescribed manner, there is no surrender in the
eyes of law. Applying the law laid down by the Apex Court to the facts
of the present case, the Tribunal while declaring the purchase as
ineffective failed to verify the unwillingness of the tenant in manner
provided by law. There is no verification by the Mamlatdar and thus
failure to comply with this mandatory provision in accordance with law
would vitiate the surrender and render it non est.
29. In that view of the matter, the order of 13 th May, 1961 would
become ineffective and would result in all proceeding being vitiated.
That apart, admitted position is that even after the passing of the
order under Section 32P of the Tenancy Act, the possession was not
restored to the landlord and the tenant continued in possession. The
order of 29th May, 1961 ordered the possession to be restored to the
landlord on the condition that the said land shall be cultivated by him
personally. The possession was never handed over to the landlord and
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therefore, there was non implementation of the order passed under
Section 32P of the Act. The ALT has taken into consideration the
relevant facts and thereafter decided the purchase price and directed
the issuance of 32M certificate. The SDO, in an Appeal filed by the
landlord has rejected the Appeal by taking into consideration the facts
of the case and that the order of 1961 has been rendered ineffective.
30. The Tribunal in revision had reversed the finding of the ALT and
the SDO upon a misreading of the decision of the Apex Court in the
case of Dnyandev Ganpat Jadhav (Supra). The keywords in the
observation of the Apex Court was that due procedure had to be
followed by complying with Section 15 read with Rule 9 of the
Tenancy Rules, 1956. In the present case, the order of 13 th January,
1961 and 29th May, 1961 would indicate that there is no verification by
the ALT in the manner prescribed by the Rules. It is necessary while
verifying the surrender that the tenant understands the nature and
consequence of the surrender and there must be satisfaction of
mamlatdar endorsed upon such finding. At least before this Court,
there is no material placed to demonstrate that the surrender of
tenancy was in accordance with Section 15 read with Rule 9 of the
Ruels, 1956. As the surrender is not shown to be in accordance with
law, the status of tenant as "deemed purchaser" continues. It is an
admitted position that despite passing of order under Section 32P, the
landlord is not personally cultivating the land and the subject land is
being cultivated by the Petitioners and is in possession of the
Petitioners. Once it has been held that the earlier order of 13 th May,
1961 was not accordance with the procedure of law, the subsequent
application for fixation of the purchase price would be perfectly
maintainable.
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31. In light of the above, as the order of 13 th May, 1961 declaring
the purchase ineffective was not in accordance with the manner
prescribed, the same stands vitiated and therefore the Petitioners
application under Section 32G for fixing of the purchase price was
maintainable. The ALT, after taking into consideration the evidence on
record, has fixed the purchase price, which has been upheld by the
SDO. In exercise of the powers of revision under Section 76, the MRT
can interfere only on the grounds of the order being contrary to law
or the proceeding having failed to determine some material issue of
law or by reason of a substantial defect in following the procedure
provided by the Act which was resulted in the miscarriage of justice.
The finding of the MRT that the 32G proceeding is not maintainable is
based upon the misreading of the decision of the Apex Court in
Dyandev Ganpat Jadhav (supra) and is therefore clearly
unsustainable.
32. In light of the above, the impugned judgment dated 23 rd
February, 2018 is hereby quashed and set aside. Resultantly, the order
of the Tahsildar and ALT dated 7 th March, 2015 and SDO dated 14 th
August, 2015 stands revived. Petition stands allowed. Rule is made
absolute.
33. At this stage, request is made by the learned counsel for
Respondent No. 1 for the stay of this judgment for a period of four
weeks. The judgment is stayed for a period of four weeks from the
date of uploading of the present judgment on the official website of
this Court.
[Sharmila U. Deshmukh, J.]
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Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 27/08/2024 18:35:42
