wp9793-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9793 OF 2010 Sagar S. Suryavanshi .. Petitioner Versus Annasaheb Keshavrao Ingavle deceased through heirs:- Sajjanrao Annasaheb Ingavale deceased through heirs:- Smt.Savityribai Annasaheb Ingavale deceased through heir Suryajirao Sajjanrao Ingavale deceased heirs 1(a) Smt.Sujata Suryaji Ingavale and Ors. .. Respondents Mr.S.G.Karandikar with P.D.Dalvi for petitioner Mr.Ashok Misal for respondent Nos. 1 to 9. CORAM : S.C.DHARMADHIKARI, J. DATE : 21st July 2011. P.C.: 1] In the light of the order of the Maharashtra Revenue Tribunal, which gives detail reasons for dismissing petitioner's stay application, this petition questioning such an order has been argued on the basis that the Tribunal has virtually disposed of the main matter. The reasons assigned being wp9793-10.doc 2 detailed and elaborate, this should be construed as final order of the Tribunal and that is how the matter was argued before me. 2] By this petition under Article 227 of the Constitution of India, the petitioner is questioning the order passed by the Maharashtra Revenue Tribunal on 24th August 2010. That order was passed by the Tribunal on a revision application being Tenancy Revision Application No.34/B/2010 and particularly in an Application for stay made on behalf of the petitioner herein. 3] The Revision application was preferred against the order dated 27th January 2010 of the SDO Ichalkaranji, dismissing tenancy appeal No.6 of 2009 and confirming the order dated 13th February 2009 in Tenancy Case No.1 of 2008. 4] The Tahsildar made an order under section 32(P) of the Bombay Tenancy & Agricultural Lands Act, 1948. The wp9793-10.doc 3 respondents filed an application against the petitioner on the basis that the land in dispute is an agricultural land situated at Village Hatkanangle District Kolhapur. 5] The respondents filed Tenancy Case No.1 of 2008 before the Tahsildar under section 30P for restoration of possession of the land. After stating that they are the owners of the property, it was pointed out that the present petitioner filed an application under section 32-O for purchase of the property claiming to be a tenant. The Additional Tahsildar fixed the purchase price of the said land and issued certificate under section 32-M. However, that certificate was issued in favour of the petitioner who was then a minor. In the meanwhile, the original landlord died and his heirs and legal representatives filed Tenancy Appeal No.62 of 1983, contending that the order to sell the property is nullity as it had been obtained by fraud. That appeal of the legal representatives was dismissed. Landlord filed revision application being Revision Application No.151 of 1984 before Maharashtra Revenue Tribunal. The wp9793-10.doc 4 MRT by its judgement and order dated 24th December 1985 set aside the order of Agricultural Land Tribunal fixing the purchase price and issuing a certificate. It held that the order the order passed under section 32-O is nullity. The present petitioner claiming to be tenant in the land filed a petition in this Court being Writ Petition No.2692 of 1984. That petition was dismissed by learned Single Judge of this Court on 29th June 1999. 6] After this order, an application for restoration was filed by the respondents and they invoked section 32-P of the Tenancy Act. That was invoked on the basis that once the purchase price was declared ineffective, then, the tenant has no right in the land. This application came to be allowed on 13th February 2009 by the Tahsildar and Agricultural Land Tribunal. He directed the petitioner to restore possession of the land to the respondents. Aggrieved by that order, the tenancy appeal No.6 of 2009 was filed, which also came to be dismissed. Against this dismissal of the tenancy appeal, a wp9793-10.doc 5 revision application was filed before the Tribunal and the present petitioner applied for stay of the orders restoring possession to the landlord – co-owners. The interim reliefs/ stay has been refused and that is why this present petition. 7] Mr.Karandikar, learned Advocate appearing on behalf of the petitioner invited my attention to the order passed by this Court in the earlier round of litigation and contended that the Tribunal on that occasion so also this Court held that the lease was created in favour of minor and the entire contract was a nullity. Once there was no contract of lease in the eyes of law, then, according to Mr.Karandikar, there is no land lord tenant relationship. The very foundation of the claim under section 32-P is that there must be a landlord tenant relationship. If that is not existing or that such a relationship never came into existence, then, an application under section 32-P could not have been filed. He submits that the declaration that the proceedings under section 32-O were rendered ineffective is in the alternative. Relying upon the same, application under wp9793-10.doc 6 section 32-P could not have been filed and that is why this is a case where land owners are trying to short circuit the proceedings. They cannot now take assistance of the Tenancy Act or any powers conferred on the authorities functioning and working under that Statute. The owners could have filed a suit and that is the only remedy available to them. 8] Reliance is placed by him on a judgement of the Supreme Court in the case of Pundlik Patil Vs. Bandu Chintaman Sonar, reported in A.I.R. 1991 S.C. 486 and of this Court in the case of Kashinath Baba Asbe and Ors. Vs. State of Maharashtra and Anr., reported in 2001 (2) Mh. L.J. 372. 9] I am afraid, both contentions of Mr.Karandikar cannot be accepted. Firstly, in the earlier round of litigation, the Tribunal while reversing the order of Tahsildar so also that of the SDO held that the landlord on the relevant date was minor and, therefore, proceedings under section 32-O were ineffective and could not have been initiated at his instance. It wp9793-10.doc 7 is not as if the order and conclusion therein was only based on the tenant being minor. It also rested on the basis that assuming the tenancy came into existence, the proceedings under section 32-O were not initiated and taken up within the limit prescribed by law. That being the conclusion, they were in effective. Once they are ineffective, then, there is no impediment in invoking section 32-P of the Tenancy Act. The said section in clearest terms states that the summary eviction can be sought in the event the proceedings are rendered ineffective. A bare perusal of the sub-section 1 of section 32-P makes it clear that where purchase of any land by the tenant becomes ineffective under sections 32G or 32M or where a tenant fails to exercise the right to purchase the land held by him within the specified period under sections 32F, the Tribunal may suo motu or on an application made in this behalf and in case other than those in which the purchase has become ineffective by reason of section 32G or 32M, after holding formal enquiry, direct that the land shall be disposed of in the manner provided in sub-section (2) of that section. Sub-section wp9793-10.doc 8 2(a) states that the direction shall provide that the former tenant be summarily evicted and (b) that the land shall, subject to the provisions of section 15, be surrendered to the former landlord. 10] A perusal of these sub-sections minutely would reveal that it is not necessary for the landlord in case such as this, to go to any other authority or forum as contended by Mr.Karandikar. Once the order passed by the Tribunal in the earlier round of litigation and confirmed by this Court vide order dated 21st June 1999 makes it clear that this Court essentially based its conclusion on the fact that assuming that the relationship was in existence, the right conferred by the statute was not exercised within the time specified. Therefore, failure to exercise the right to purchase the land results in a tenant being summarily evicted and for that the remedy under section 32P can be safely invoked. 11] In such circumstances, the argument of Mr.Karandikar that section 32P would not have been invoked is wp9793-10.doc 9 not well founded. Equally, the reliance on the decision of the Supreme Court is of no assistance. There it is apparent that the consolidation proceedings under the relevant law were sought to be reopened, inasmuch as, the lease of land allotted under the consolidation scheme was contrary to section 31 of the Fragmentation Act. Notwithstanding execution of lease of land, the landlord moved the Settlement Commissioner to declare the leases as void in terms of the provisions of Fragmentation Act under which this request was granted and leases were invalidated. The order made in that behalf was confirmed and during the pendency of the petition to challenge those orders, the Fragmentation Act was amended by insertion Act No.31AA which provided for validation of illegal transfers on payment of penalty. The petitioner, therefore, withdrew the petition challenging the orders invalidating the lease and paid the penalty. That is how, he sought validation of the lease which came to be invalidated and, thereafter, tenant gave notice under section 32O expressing his intention to purchase the lands under his occupancy. The question before the wp9793-10.doc 10 Supreme Court was whether, in such circumstances, the notice given was valid. The Assistant Collector held that it was not so. That finding was reversed by the Revenue Tribunal and it came to be confirmed by this Court. In the appeal before the Supreme Court, it was held that once the landlord takes recourse to invalidate the leases on the ground that they are contrary to Fragmentation Act, he should not turn around and say that they were not invalid and secondly notice under section 32P was not proper. But in the proceedings initiated and the declarations obtained by the landlord as to the invalidity of the lease, the tenant could have issued notice under section 32-O. The landlord in some way obstructed his rights and sought to be benefited by his own illegal action. In these circumstances, the Supreme Court held that the tenant is required to be protected. This decision is of no assistance in the instant case. 12] Similarly, reliance placed on the Single Judge's decision is equally misplaced. There also the landlord initiated wp9793-10.doc 11 proceedings under section 32P of the Act. However, in view of the omission on the part of Legislature to provide for consequences after removal of the lands from the area of Municipal Councils or cantonment, these proceedings were held not to be tenable but without jurisdiction. These agricultural lands upon exclusion from the Municipal limits by itself can be governed by Bombay Tenancy act is the conclusion. That conclusion is essentially based on the factual position and there is no legal principle laid down. The Principle that a person cannot take advantage of his own wrong is too well settled but its application will depend upon the facts and circumstances of each case. Finding that the present one is not such a case, the argument based thereon cannot be accepted. In the result, the petition fails and the same is dismissed. No costs. 13] At this stage, Mr.Karandikar prays that the proceedings under section 32P which have been initiated for summary eviction stand concluded by the impugned orders. wp9793-10.doc 12 The same should not be given effect to or implemented for eight weeks to enable the petitioner to challenge this order in higher court. The request is opposed stating that this is second round of litigation and for nearly 20 years the respondents are waiting for the petitioner to be evicted. After hearing the learned Counsel on this point, I am of the view that although there is substance in the grievance of the respondents, interest of justice would be served if the impugned orders are not given effect to for some time. Hence, it is directed that the impugned orders shall not be given effect to for a period of six weeks from today. (S.C.DHARMADHIKARI, J)