Bombay High Court
Smt. Indubai Balkrishna Yedekar And Ors vs Sangli Miraj Kupwad Municipal ... on 11 September, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:36557
WP-3102-1995.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3102 OF 1995
1. Shri Balkrishna, Dadoba Yedekar
residing at 926, Shwale Galli,
Nalbhag, Sangli, Dist- Sangli.
2. Smt. Sonabai Parashram Jagdale,
residing at Khanbhag, Sangli
Dist. Sangli. ...Petitioners
Versus
Sangli Municipal Council,
Dist. Sangli ...Respondent
WITH
WRIT PETITION NO.10925 OF 2017
1. Smt. Indubai Balkrishna Yedekar,
Age 73 Years, Occ: Agriculturist
R/o. 926, Shwale Galli, Nalbhag,
Sangli, District : Sangli.
2. Mrs. Asha Chandrakant Kale
Age 53 years, Occ : Housewife
R/o Khanbhag, Sangli.
District : Sangli.
3. Mrs. Shital Tukaram Patil
Age 45 years, Occ : Housewife
R/o Khanbhag, District : Sangli. ...Petitioners
4. Miss. Vrinda Balkrishna Yedekar
Age 48 years, Occ : Agriculturist & Service
R/o. Khanbhag, District : Sangli
5. Umesh Balkrishna Yedekar
Age 41 years, Occ :Agriculturist & Service
R/o. Khanbhag, District : Sangli
Harish 1 of 23
WP-3102-1995.doc
Versus
Sangli Miraj Kupwad Municipal Corporation
Through its the Municipal Commissioner
District : Sangli ...Respondent
------------
Adv. Vivek V. Salunke for the Petitioner.
Adv. N. V. Walawalkar, Sr. Advocate a/w G. H Keluskar for the Respondent.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : August 1, 2024.
Pronounced on : September 11, 2024
JUDGMENT :
1. The papers of Writ Petition No.3102 of 1995 were permitted to
be reconstructed. Writ Petition No.10925 of 2017 was admitted vide
order dated 21st February, 2024.
2. This Court vide order dated 25th June, 2013 observed that there
was mis joinder of causes of action as Writ Petition No.3102 of 1995
challenged the order of Assistant Judge, Sangli in Civil Appeal No.435
of 1969 reversing the order passed by the Civil Judge, Junior Division,
Sangli recording compromise decree dated 17 th September, 1958 and
also the order of the Maharashtra Revenue Tribunal [for short "MRT"]
dated 23rd March, 1995 under Maharashtra Tenancy and Agricultural
Lands Act, 1948 [for short "Tenancy Act"]. This Court permitted the
Petitioners to file an independent Petition to challenge the order of
MRT and retained the challenge to the Civil Court order in Writ
Harish 2 of 23
WP-3102-1995.doc
Petition No. 3102 of 1995. Subsequently Writ Petition No. 10925 of
2017 came to be filed. Common submissions were advanced and the
Petitions are being disposed of by this common judgment.
FACTUAL MATRIX :
3. There is a chequered history to this litigation which has
commenced way back in the year 1952 leading to several rounds of
litigation between the parties which is set out hereinafter briefly.
4. The subject land is Survey No.99/2 admeasuring 13 acre and 18
guntas. By registered lease deed dated 29 th January, 1942, the subject
land was leased for period of four years to father of the Petitioner
No.1 i.e. Dadoba Yedekar by the owner i.e. Mahadev Dattatray Bhide.
During the subsistence of the lease, on 23 rd June, 1945, notification
was issued under Section 6 of the Land Acquisition Act, 1894 by the
State Executive Council of Sangli State published in the Gazette dated
30th June, 1945 for acquisition of land for northern extension scheme
of Sangli town. By Huzur Order (Royal Decree) dated 6 th March, 1948,
issued by Sangli State the subject land was declared to form the
corpus of a Trust, with Sangli Municipal Council as trustee to
implement the object of Trust of providing water and drainage
scheme. On 17th June, 1950, Trust came to be registered.
5. The subject land continued to be under the cultivation and
possession of Dadoba. In the interregnum, in the year 1948, the
Harish 3 of 23
WP-3102-1995.doc
Bombay Tenancy and Agricultural Land Act, 1948 came on the statute
book repealing the Bombay Tenancy Act, 1939 to the extent
mentioned in Schedule-I.
6. Sangli Municipal Council filed a suit being Chalu Vahiwat Suit
No. 3 of 1952 in the Court of Mamlatdar Miraj for possession of the
subject land on the ground that Dadoba was only tenant for the year
1949-50. The Mamlatdar's Court dismissed the suit on 13 th October,
1952 holding that Dadoba was annual tenant against which Revision
Application was preferred before Assistant Collector which came to
be allowed. Dadoba challenged the order of the Assistant Collector by
filing Civil Revision Application No.1386 of 1952 before this Court
which by order dated 26th August, 1955 set the order of the Assistant
Collector and held Dadoba to be the annual tenant of the agricultural
land and unless the tenancy is determined, the possession of the
subject land cannot be recovered from Dadoba.
7. The Sangli Municipal Counsel terminated the tenancy of the
Dadoba by notice dated 25th February, 1956 calling upon him to hand
over possession of the agricultural land on 6th June, 1956. For recovery
of possession, Regular Civil Suit No.59 of 1957 was filed in the Sangli
Court. On 17th September, 1958, Dadoba and Sangli Municipal Council
entered into compromise terms under which it was agreed that
Dadoba will be the tenant of Sangli Municipal Council for the period of
Harish 4 of 23
WP-3102-1995.doc
7 years from 1957 to 31st March, 1964 and after expiry of the said
period, Dadoba would hand over the possession of the subject land to
Sangli Municipal Council.
8. Due to non compliance of the compromise terms by Dadoba,
Sangli Municipal Council filed Durkhast No.140 of 1964 seeking
possession. The execution was resisted contending that the
compromise was against the provision of Tenancy Act and therefore,
the decree is not executable, that the judgment debtor is a protected
tenant and in view of Section 4B of the Tenancy Act, the tenancy
cannot be terminated. The jurisdiction of Civil Court was questioned
to entertain issue of eviction of agricultural tenant. The Executing
Court rejected the contentions of judgment debtor and issued
warrant of possession. During the pendency of the Darkhast, Dadoba
expired and his legal heir, the Petitioner No.1 challenged the order of
issuance of warrant of possession by way of Civil Appeal No.39 of
1967. The Appellate Court set aside the order of issuance of warrant
of possession dated 20th November, 1967 observing that the Dadoba
was protected tenant and remanded the matter to Trial Court for
fresh consideration vide order and Judgment dated 30th July, 1968.
9. After remand, the Trial Court held that the decree passed in
terms of compromise was not executable as the agreement defeated
provisions of law and dismissed the Darkhast by judgment and order
Harish 5 of 23
WP-3102-1995.doc
dated 26th September, 1969. Sangli Municipal Council preferred Civil
Appeal to the District Court against the order of dismissal of the
Darkhast and the District Court observed that the Civil Court has no
jurisdiction to decide whether the Dadoba or his heirs were the
tenants of the agricultural land in view of Section 85A of the Tenancy
Act. The District Court stayed the execution and allowed the Trial
Court to refer the issue of tenancy to the Revenue Court i.e. the
Mamlatdar for determination of issue of tenancy by judgment and
order dated 15th July, 1971.
10. The issue of tenancy was referred to the Tahsildar in Tenancy
Case No.24 of 1978. The Petitioners contended that the issue of
tenancy was already adjudicated in Vahiwat Suit No.3 of 1952 and that
the Petitioners were continuously cultivating the land since year 1942
and they be declared as tenants under Section 70(b) of the Tenancy
Act. The Mamlatdar came to a conclusion that the subject land is
situated in the municipal limits and major portion of the land was
under grass which grows naturally and held that the judgment debtors
were not tenants by order dated 29th November, 1988.
11. The Petitioners preferred Tenancy Appeal No.6 of 1988 before
the Subdivisional Officer who dismissed the Appeal as against which
Revision Application No.30 of 1989 was preferred before MRT. The
Learned Member of MRT by the impugned judgment and order dated
Harish 6 of 23
WP-3102-1995.doc
22nd December, 1989, dismissed the Revision Application holding that
the Petitioners cannot be declared as tenants on the suit land. The
Review Application filed by the Petitioners came to be dismissed by
order dated 22nd March, 1995.
SUBMISSIONS :
12. Mr. Salunkhe, Learned Counsel for the Petitioners would submit
that by virtue of consent terms entered in the year 1958, the
Petitioner was to remain as tenant of the decree holder in respect of
the subject land from 1st April, 1957 till 31st March, 1964. He submits
that the compromise was entered into after the amendment to the
Tenancy Act of 1956, which brought Section 4B on the statute book
prohibiting termination of tenancy by efflux of time. He would point
out that though under Section 88B(1), the land of the local authorities
is exempted from other provisions of the Tenancy Act, however,
Section 4B is applicable. He has taken this Court in detail through the
various orders passed in the proceedings and submits that in first
Chalu Vahiwat Suit of 1952, Dadoba was held to be annual tenant and
therefore, there was no question of again referring the issue of
tenancy to the Revenue Court. He has taken this Court in detail
through the order of MRT and would submit that the MRT has
accepted that Dadoba was a tenant of the suit land and had also held
that the provisions of Section 4B are applicable to this case. He
Harish 7 of 23
WP-3102-1995.doc
further submits that the MRT after holding that Section 43C of the
Tenancy Act which is applicable to the area under Municipal Council
cannot take away the continuation of tenancy rights, travelled
beyond the scope of the reference and held that the Petitioners
cannot be declared as tenants under Section 70(b) of the Tenancy Act
by relying upon the photocopy of the Gazette dated 28 th March, 1977
which shows that out of survey No.99/2 some portion is reserved for
development scheme Nos. 24 and 25 and therefore Section 88 of the
Tenancy Act would apply. He submits that on 15 th July, 1971, the
reference was directed by the Appellate Court and the reference was
made on 9th September, 1976. He submits that the relevant period for
determining the issue of tenancy is the date of reference and
subsequent development of the year 1977 could not have been taken
into consideration. He submits that the reference was not an original
proceeding and the later development was not the subject matter. He
submits that once it is accepted that the Petitioners are the tenants of
the premises, it cannot be said that the Petitioners have lost the
tenancy right for the reason that from the date of notification, the
Tenancy Act was not applicable by virtue of Section 88. He would
further submit that the reference was made as the provisions of the
Tenancy Act were applicable and therefore, now it cannot be said that
the Tenancy Act is not applicable by virtue of Section 88.
Harish 8 of 23
WP-3102-1995.doc
13. Per Contra, Mr. Walawalkar, learned Senior Advocate would
submit that under Section 85A of the Tenancy Act whenever any issue
arises which is required to be dealt with by any of the authority under
the Tenancy Act, the same is to be referred to the Competent
Authority for determination. He submits that the reference was on
the issue whether the Petitioner's tenancy is protected by the
Tenancy Act. He has taken this Court in detail through the order of
MRT and submits that MRT has held that there are no rights left of the
Petitioners as tenants. He would submit that the suit which was filed
by the Sangli Municipal Council resulting in an agreement created a
tenancy in the year 1958. He submits that if the Petitioner claims
tenancy of the year 1942 then, the unamended provisions of the
Tenancy Act would apply and the land leased by the local authority
would be exempted from the provisions of the Tenancy Act.
14. He submits that if the Petitioners claims tenancy of the year
1958, then in view of Section 88(1)(b), the Tenancy Act will not apply.
He submits that the decree has already been executed and the
possession has been taken by the Sangli Municipal Counsel and there
is a bus depot and only the Petitioner's structure is protected by this
Court. He would submit that the Petitioners cannot become deemed
purchasers. He submits that the consent terms were executed in the
Harish 9 of 23
WP-3102-1995.doc
year 1958 and as per Section 111 of the Transfer of Property Act,
1882, the tenancy is determined by efflux of time. He submits that as
the tenancy was determined, no notice is required to be issued under
the provisions of Transfer of Property Act, 1882. He submits that the
Tenancy act will not protect the tenancy created by virtue of the
Consent Terms and the tenant will have no higher status that of an
ordinary tenant.
15. He submits that Writ Petition No.3102 was filed in the year 1995
and in 2013, liberty was given to file the second Petition, which was
filed in the year 2017 after a lapse of about four years. He submits
that the order of MRT passed on 22 nd December, 1989 had been
challenged by virtue of the second Petition filed in the year 2017. He
would further submit that the operation of the bus depot is in public
interest and therefore, delay and laches come into play and this Court
may not exercise jurisdiction under Article 227 of Constitution of
India.
16. In rejoinder, Mr. Salunke would dispute that the possession has
been taken and submits that portion of land has been reserved for
development scheme. He admits that there has been delay in filing of
the Petition, however, the issue of delay will not arise as the Petitions
were already admitted.
Harish 10 of 23
WP-3102-1995.doc
17. In sur-rejoinder, Mr. Walawalkar, would submit that the
Respondent Municipal Council was not heard at the time of admission
and the status quo for the structure was given. He would further
submit that Mr. Salunke has admitted that portion is reserved for
development out of Survey No.99/2.
REASONS AND ANALYSIS :
18. Although it was contended by Mr. Salunkhe that the fate of Writ
Petition No.3102 of 1995 would decide the fate of Writ Petition
No.10925 of 2017, the substantial submissions advanced by Mr.
Salunkhe was on the validity of the MRT order dated 22 nd December,
1989. In the reconstructed Writ Petition No.3102 of 1995, the prayer
clause seeks relief in respect of the Civil Court's order as well as the
orders of the Competent Authority under the Tenancy Act. However, I
have considered the order of this Court dated 25 th June, 2013 which
permitted the Petitioners to retain the challenge to the Civil Court's
order in Writ Petition No.3102 of 1995.
19. As far as the relief sought qua the Civil Court's orders are
concerned, the prayer is to quash and set aside the impugned
Judgment and Order dated 17th September, 1958 recording the
compromise decree. No submissions were advanced on the aspect of
setting aside of the compromise decree and rightly so as in exercise of
jurisdiction under Article 227 of Constitution of India, no such relief
Harish 11 of 23
WP-3102-1995.doc
could be granted.
20. The other order under challenge is the order dated 15 th July,
1971 passed in Civil Appeal No.435 of 1969 directing Reference. By
the impugned order dated 15th July, 1971, the Appellate Court framed
the issue whether the Executing Court had the jurisdiction to decide
the question whether the Judgment Debtors were the tenants. The
Appellate Court rightly considered the provisions of Section 70(b) and
Section 85A of the Tenancy Act and directed the reference. The
defence which was raised by the Petitioners to the execution
proceedings was that Dadoba was the protected tenant and the Sangli
Municipal Council had not obtained a decision from the Tenancy Court
that Dadoba was not protected tenant and Civil Court had no
jurisdiction and the execution proceedings be stayed under Section
85A of Tenancy Act and matter be sent for decision to the Mamlatdar.
The said contentions were accepted by the Appellate Court and the
matter was referred under Section 85A of Tenancy Act. Having
questioned the jurisdiction of Civil Court to decide the Petitioner's
tenancy and invoking Section 85A of Tenancy Act, the Petitioners are
now estopped from contending that there could be no reference
under Section 85A as the Mamlatdar had held that the Petitioners pre-
decessor was annual tenant in Chalu Vahiwat Case No.3 of 1952.
There was no challenge to the order directing Reference and the
Harish 12 of 23
WP-3102-1995.doc
Petitioners participated in the proceedings before the Competent
Authority and therefore, cannot now maintain a challenge to the
order of Reference of the year 1971.
21. Coming now to the challenge to the order of MRT dated 22 nd
December, 1989, the moot question which arises for consideration is
whether the tenancy of the Petitioners cannot be determined in view
of Section 4B of Tenancy Act and therefore, the Petitioners continue
to be tenants of the subject land.
22. Before deciding the applicability of Section 4B, a brief
recapitulation of the facts is necessitated as the ownership of the
subject land changed over different periods of time and accordingly
the applicable statutory provisions will have to be considered. The
Petitioner was a lessee of the subject land under the original owner in
the year 1942, the land came to be acquired by virtue of a notification
under Section 6 of the Land Acquisition Act, 1894 on 23 rd June, 1945,
on 6th March 1948, there was a royal decree issued stating that the
land would form corpus of the Trust and Sangli Municipal Council will
be the trustee. On 17th June, 1950, the trust was registered. In the
year 1952, the suit was filed before the Mamlatdar for recovery of
possession which was dismissed by holding Dadoba to be annual
tenant. On 25th February 1956, the Sangli Municipal Council
terminated the tenancy by issuing notice of termination. Regular Civil
Harish 13 of 23
WP-3102-1995.doc
Suit No.59 of 1957 was filed for recovery of possession and on 17 th of
September, 1958, by virtue of compromise decree, it was agreed that
Dadoba will be a tenant of Municipal Council for seven years from 1 st
April, 1957 to 31st March, 1964. For execution of the said compromise
terms, Darkhast was filed in which the issue of tenancy was referred
to the Competent Authority leading to the impugned order.
23. In the interregnum, by virtue of Amendment Act 13 of 1956,
Section 4B was brought on the statute book prohibiting
determination of tenancy by efflux of time. At the time of executing
compromise terms in the year 1958, Section 4B was already
introduced. In the execution proceedings taken out by Sangli
Municipal Council, the issue whether the Petitioners are tenants of
the decree holder was referred to the Revenue Authorities in view of
Section 85A of the Tenancy Act, which reads thus :
"[85A. (1) If any suit instituted in any Civil Court involves
any issues which are required to be settled, decided or
dealt with by any authority competent to settle, decide
or deal with such issues under this Act (hereinafter
referred to as the "competent authority"), the Civil Court
shall stay the suit and refer such issues to such
competent authority for determination.
(2) On receipt of such reference from the Civil Court, the
competent authority shall deal with and decide such
issues in accordance with the provisions of this Act and
shall communicate its decision to the Civil Court and such
court shall thereupon dispose of the suit in accordance
with the procedure applicable thereto."
Harish 14 of 23
WP-3102-1995.doc
24. In the reference proceedings, the Tahsildar held against the
Petitioners who approached the MRT. The findings of the MRT can be
broadly summarized as under:
(a) Dadoba cannot be considered as deemed purchaser on
tiller's day i.e. 1st April, 1957 as the subject land was
located within municipal limits and belonged to a Trust and
therefore the status of Dadoba remained as a tenant.
(b) The compromise terms executed between Dadoba and
Sangli Municipal Council created a tenancy for 7 years.
(c) Section 4B of Tenancy Act is applicable and Section 43C
cannot take away continuation of tenancy rights as only
statutory rights of purchase are kept in abeyance.
(d) The Petitioners are not tenants under Section 70(b) of
Tenancy Act as the Gazette dated 28th March, 1977
produced along with the development plan for Sangli
Municipal Council shows that out of Survey No. 99/2 a
portion is reserved for development under Scheme No. 24
and 25 and the Municipal Council requires the entire
survey No. 99 for the purpose of development scheme
which is sanctioned by Government of Maharashtra.
(e) In view of Section 88(b) of Tenancy Act, there is no right
left in the Petitioners to claim tenancy of the subject land
and therefore it is not possible to grant him the status of
tenant under Tenancy Act.
25. The issue will have to be examined by going back to the
provisions of the erstwhile Bombay Tenancy Act, 1939 as the lease
was first created in the year 1942 for period of four years which would
have expired in the year 1946. Under Section 23(1)(b) of the Bombay
Tenancy Act, 1939 as it stood amended in 1946 every lease subsisting
Harish 15 of 23
WP-3102-1995.doc
on the date when that section came into force was deemed to be for a
period of not less than 10 years. The effect of Section 23(1)(b) would
therefore be that the Petitioner's lease which would have expired in
the year 1946 continued till the year 1952 in view of the deeming
provision.
26. The Tenancy Act of 1948 came into force repealing the 1939 Act
however, the Tenancy Act did not repeal but modified Section 3, 3A
and 4 of the 1939 Act which dealt with protected tenancy. Section 3A
which was modified by 1948 Act provided that every tenant shall,
from 8th day November, 1947 be deemed to be protected tenant for
the purposes of 1948 Act and his right as such protected tenant shall
be recorded in the record of rights unless his landlord has prior to the
death made an application to a Mamlatdar for a declaration that the
tenant is not a protected tenant. In the present case, it is not shown
that any such application was made as contemplated under Section
3A. The result was that the Petitioner became protected tenant by
virtue of 1948 Act read with Section 3A of the 1939 Act.
27. Till the introduction of Section 88B exempting the lands leased
from local authority from certain provisions of Tenancy Act, the
Petitioner remained a protected tenant under the 1948 Act and
theereafter his status was of a ordinary tenant. However, Section 4B
continued to apply. Section 4A of Tenancy Act, which also came to be
Harish 16 of 23
WP-3102-1995.doc
introduced by the Act of 1956, provided that the person shall be
recognised to be a protected tenant if such person is deemed to be a
protected tenant under Section 3, 3A and Section 4 of the Bombay
Tenancy Act, 1939. Section 4A does not apply to tenancy governed by
Section 88B(1)(a) of the Tenancy Act therefore, the Petitioners were
no longer the protected tenants in respect of the subject land.
28. Having dealt with the issue of protected tenancy of the
Petitioners and negating the same, I shall now consider the pivotal
issue of applicability of Section 4B of Tenancy Act. Section 4B reads
thus:
"4B: No tenancy of any land 1[other than the
tenancy of the land duly sanctioned under section
36 or section 36A of the Maharashtra Land
Revenue Code, 1966 (Mah. XLI of 1966)] shall be
terminated merely on the ground that the period
fixed by agreement or usage for its duration has
expired]."
29. Section 4B prohibits the termination of tenancy merely on the
ground that the period fixed by agreement or usage for its duration
has expired. A plain reading of Section 4B would indicate that Section
4B militates against termination of tenancy which is sought to be
terminated only on the ground that the duration for which the
tenancy was created has expired. Section 4B does not put a complete
embargo on the determination of tenancy on any other reason
Harish 17 of 23
WP-3102-1995.doc
including the reason of the subject land itself being exempted from
the provisions of Tenancy Act.
30. The question referred to the Competent Authority was whether
the Petitioners were tenants of the Sangli Municipal Council pursuant
to the order of the Appellate Court dated 15 th July, 1971. The
reference was rightly directed by the Executing Court as Section 85A
provides for reference by the Civil Court of the issues which are
required to be settled by competent authority under the Tenancy Act.
The issues which are within the jurisdiction of competent authority
under Tenancy Act is provided under Section 70 which reads thus :
"70. For the purposes of this Act the following shall be the
duties and functions to be performed by the Mamlatdar :-
(a) to decide whether a person is an agriculturist;
(b) to decide whether a person is, or was at any time in
the past, a tenant or a protected tenant or a
permanent tenant;
(c) to determine the rates of rent under section 9;
(d) to decide dispute regarding class of land under
section 9A;
(f) to determine the amount of compensation under
section 10 for the contravention of sections 8, 9, 9A
and 9C;
(h) to determine the amount to be refunded to a
tenant under section 13(5);
(i) to determine the amount of compensation for trees
to which a tenant is entitled under section 19;
(j) to determine any dispute regarding the right to
produce of trees naturally growing under section 20;
Harish 18 of 23
WP-3102-1995.doc
(k) to determine the cost of repairing protective bunds
under section 23;
(kk) to hold an inquiry and restore possession of land
under subsection (1B) of section 32;
(l) to sanction exchange of tenancies under section 33;
(m) to determine the amount of compensation payable
to tenant for any improvement under section 41;
(ma) to determine what is reasonable rent under
section 43B;
(mb) to issue a certificate under section 84A, and to
decide under section 84B or 84C whether a transfer or
acquisition of land is invalid and to dispose of land as
provided in section 84C;
(mc) to decide reference under section 85A;
(md) to decide any dispute under section 88C;
(n) to take measures for putting the tenant or landlord
or the agricultural labourer or artisan or person
carrying on an allied pursuit into the possession of the
land or dwelling house under this Act;
(o) to decide such other matters as may be referred to
him by or under this Act.
31. Under sub section (b) of Section 70, the Competent Authority is
enjoined with the duty to decide whether a person is, or was at any
time in the past, a tenant or a protected tenant or a permanent
tenant. MRT has held the Petitioners to be tenants of the subject land
and the applicability of Section 4B to the Petitioner's tenancy. These
findings have not been challenged by the Respondent Sangli
Municipal Council and rightly so. The issue would still remain as to
whether the Petitioners continued to remain as tenants of the subject
Harish 19 of 23
WP-3102-1995.doc
land upon the issuance of Gazette Notification of 28 th March, 1977.
The Petitioners by reason of the compromise terms of the year 1958
became tenants of Sangli Municipal Council and Section 4B placed an
embargo on the determination of the tenancy by efflux of time. As
indicated above, the embargo is not an absolute embargo and only
restricts determination of tenancy by reason of efflux of time. During
the pendency of the Reference proceedings, the Gazette Notification
dated 28th March, 1977 and the development plan approved by the
Government for Sangli Municipal Council was sanctioned reserving
portion of Survey No 99/2 for development Scheme Nos. 24 and 25.
By reason of the intervening event of the development plan being
sanctioned, the provisions of Section 88(1)(b) of Tenancy Act became
applicable to the subject land making it exempt from the provisions of
Tenancy Act bringing with it the end of the tenancy rights of the
Petitioners. I find no substance in the submission of Mr. Salunkhe that
the finding of MRT was based on the subsequent development which
is beyond the scope of reference and the status of Petitioners had to
be decided on the date of reference. Firstly considering Section 70(b)
of Tenancy Act, the Competent Authority was required to determine
whether the Petitioners are or were at any time in the past the
tenants or protected tenants. The MRT after holding that the
Petitioners were in the past tenants of the subject land have
Harish 20 of 23
WP-3102-1995.doc
thereafter considered whether the Petitioners continue to remain
tenants in view of the gazette notification of the year 1977. The whole
purport of the Reference was to decide the status of the Petitioners
as tenants so that the Civil Court could have adjudicated the execution
application. In my view, the date of Reference is immaterial and it is
the status of the Petitioners which was required to be determined.
32. Learned Member of MRT has held that the Municipality requires
the entire Survey No.99 for purpose of development scheme which is
sanctioned by the Government of Maharashtra. Mr. Salunkhe has not
brought to the notice of this Court any material to dispute the said
position that the entire Survey No.99 was not reserved for non
agricultural purpose. That being so, the subject land was exempted
from provisions of Tenancy Act by virtue of Section 88(1)(b) resulting
in determination of tenancy rights of the Petitioners.
33. As far as the contention that MRT could not have held that the
Tenancy Act was not applicable as reference was made, in my view,
while determining the status of the Petitioners, as by reason of
intervening event, the provisions of Tenancy Act were not applicable
to subject land, merely because the reference has been made by
Executing Court will not alter the position. The reference was made in
view of defence raised by the Petitioners that they were agricultural
Harish 21 of 23
WP-3102-1995.doc
tenants and the Competent Authority is empowered to hold that the
Petitioners are not tenants by reason of subject land being exempted
under Section 88.
CONCLUSION :
34. Section 4B of Tenancy Act puts an embargo on termination of
tenancy only on the ground that the tenancy has been determined by
efflux of time. Section 4B cannot come to the aid of the Petitioners in
view of the sanctioned development plan published in the Gazette
Notification dated 28th March, 1977. Learned Member of MRT has held
that the Government has already published in Official Gazette the non
agricultural use of the suit land by approving the development
Scheme Nos. 24 and 25 for the Sangli Municipal Council and there is
no material shown to this Court to dispute the said position.
35. As the Competent Authority was determining the status of
Petitioners whether tenant or not, it is not the date of Reference
which is material but the status of Petitioners. The Learned Member
of MRT has rightly considered the Gazette Notification dated 28 th
March, 1977 publishing the development plan and reached the correct
conclusion that the Petitioners had no rights left with them to claim
tenancy.
Harish 22 of 23
WP-3102-1995.doc
36. In light of the above discussion, both the Petitions fail and stand
dismissed. Rule stands discharged.
37. At this stage request is made for extension of the interim relief
which has been operating in favour of the Petitioners for the period of
eight weeks. Mr. Walawalkar, learned Senior counsel for the
Respondent opposes the extension of the interim relief. As the
interim stay has been operating since long, I am inclined to extend the
same for a period of eight weeks from today.
[Sharmila U. Deshmukh, J.]
Harish 23 of 23
Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 11/09/2024 17:36:36
