1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH AT NAGPUR WRIT PETITION NO.1180/2011 VITTHAL BABA DUDHE ..VS.. SHIVAJIRAO VITTHAL DONGRE & OTHERS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.R.Deshpande, advocate for petitioner Shri R.L. Khapre, advocate for respondents no.1 to 5. Shri Ambarish Joshi, Assistant Government Pleader for respondent no.6 to 8 CORAM : SMT. VASANTI A. NAIK, J. D A T E : MARCH 23, 2011. By this petition, the petitioner impugns the order passed by the Tahsildar as also the Maharashtra Revenue Tribunal, allowing the application filed by the respondent no.1 to 5 for fixing the purchase price and rejecting the application filed by the petitioner under section 36(2) of the Bombay Tenancy And Agricultural Land (Vidarbha Region) Act 1958. Few facts giving rise to the petition are stated thus: Since the petitioner was minor in the year 1952, his father purchased a field property comprising of 19 acres and 4 gunthas in the name of the petitioner. A notice under section 59 of the Berar Regulation of Agricultural Leases Act was issued by the petitioner to the original tenant – Vitthal Dongre – father of respondents no.1 to 5,. The notice dated 2 28.12.1954 was contested by Laxman. After coming into force of the Bombay Tenancy and Agricultural Land [Vidarbha Region] Act 1958, the petitioner filed proceedings under section 36(2) read with section 38 of the Act of 1958 on 27.3.1961 for resumption of land for bonafide cultivation. The Tahsildar, by the order dated 23.11.1962, held that the said Act was not applicable and rejected the application filed by the petitioner. The petitioner carried an appeal againstthe order dated 23.11.1962 before the Sub Divisional Officer and the Sub Divisional Officer, held that the petitioner was entitled to resume possession of 12 acres of land and Vitthal Dongre- was held to be entitled to retain 7 acres and 4 gunthas of land. It is necessary to note at this juncture that after the order was passed by the Sub Divisional Officer on 20.4.1963, the petitioner took possession of 12 acres of land in pursuance of the order passed by the Sub Divisional Officer on 9.5.1963. Since the petitioner was not aggrieved by the order permitting Vitthal Dongre to retain 7 acres and 4 gunthas of land he did not challenge the order passed by the Sub Divisional Officer on 20.4.1953. Two revisions were however, filed by Vitthal Dongre against the order passed by the Sub Divisional Officer permitting resumption of land of 12 acres and it was held by the Maharashtra Revenue Tribunal by an order dated 5.4.1962 that the petitioner had 3 no right to terminate the tenancy of Vitthal under section 38(7) of the Act of 1958. The petitioner challenged the order of the Maharashtra Revenue Tribunal, in Special Civil Application No.554/1965. The matter was remanded by this court to the Maharashtra Revenue Tribunal and on remand the Tribunal, by the order dated 24.8.1967, held that the petitioner was entitled to retain 12 acres of land. In the meanwhile the land was included within the limits of Municipal Council, Pusad on 27.6.1993. On 14.3.2002 Vitthal Dongre filed an application for entering his name in the Column NO.7 of the 7/12 Extract and on 10.2.2003 the Tahsildar directed the issuance of Sale Certificate in favour of the respondent no.1 to 5. On 7.11.2003 the Sub Divisional Officer allowed an appeal filed by the petitioner against the order of the Tahsildar. On 26.2.2004, an application was filed by the petitioner under section 36(2) of the Act of 1958 for possession of the land on a plea that the tenant was not entitled to purchase the same. On 24.5.2004, the Tahsildar passed a common order holding that the tenant had become the statutory owner of 7 acres and 4 gunthas of land and the petitioner was not entitled to possession of the land admeasuring 7 acres and 4 gunthas. The order of the Tahsildar was however, reversed by the Sub Divisional Officer, by the order dated 2.4.2005 and it was held by the Sub Divisional Officer that the 4 petitioner was entitled to possession of land admeasuring 7 acres and 4 gunthas in view of section 43 (14-A) of the Act of 1958. the order of the Sub Divisional officer was challenged by the respondent no.1 to 5 before the Maharashtra Revenue Tribunal and the Maharashtra Revenue Tribunal by an order dated 1.7.2010 allowed the revision filed by the petitioner. The respondent no.1 to 5 filed a writ petition bearing Writ Petition no.3402/2010, challenging the order of the Maharashtra Revenue Tribunal. This court remanded the matter to the Maharashtra Revenue Tribunal by the order dated 11.8.2010. The Maharashtra Revenue Tribunal by the impugned order dated 3.1.2011 allowed the revision application filed by the respondent no.1 to 5 and confirmed the order of the Tahsildar. Shri S.R. Deshpande, the learned counsel for the petitioner relied on the provisions of section 49(A)(1)(iii) and section 60 of the Act of 1958 to canvass that the Maharashtra Revenue Tribunal failed to consider that the respondent no.1 to 5 or for that matter, Vitthal Dongre was not entitled to claim ownership over the land, as the date on which the land was included in Municipal Council, Pusad i.e. 27.6.1963, the proceedings initiated by the petitionerin the year 1961 under section 36(2) read with section 38 had not attained finality and the provisions of the proviso to section 49-A (1)(iii) became applicable. The learned 5 counsel for the petitioner submitted that after the lands were included in the Municipal Council Limits on 27.6.1963, the application filed by the petitioner under section 36(2) read with section 38 of the Act of 1958 was finally decided by the Maharashtra Revenue Tribunal on 24.8.1967 and Vitthal Dongre could not have been deemed to be the full owner of 7 acres and 4 gunthas of land, in view of the provisions of proviso to section 49 A (1)(iii). According to the learned counsel for the petitioner, though the order passed by the Sub Divisional Officer on 20.4.1953 permitting the petitioner to take possession of 12 acres of land and permitting Vitthal Dongre to retain possession of 7 acres and 4 gunthas of land, was not challenged by the petitioner before the Maharashtra Revenue Tribunal, at the most it could be said that the findings in that regard had attained finality, but it could not be said as provided in the proviso to section 49-A(1)(iii) of the Act of 1958, that the application filed by the landlord/ petitioner under section 36 and 38 of the Act was finally decided. In such circumstances, according to the learned counsel for the petitioner, it has to be held that the application filed by the petitioner was finally decided on 24.8.1967, when the Maharashtra Revenue Tribunal dismissed the revision filed by Vitthal Dongre against the order passed by the Sub Divisional Officer, permitting the petitioner to take possession of 12 acres of land. The learned counsel for the petitioner 6 submitted that on a combined reading of the provisions of section 60 and section 49(1)(iii) of the Act of 1958, it cannot be said that the tenant became the full owner of 7 acres and 4 gunthas of land as the land was brought into the Municipal Limits on 27.6.1963 and the application was finally decided by the Maharashtra Revenue Tribunal on 24.8.1967. Shri Khapre, the learned counsel for the respondent no.1 to 5 supported the order of the Maharashtra Revenue Tribunal and submitted that the land was brought into the municipal limits on 27.6.1963 and the order of the Sub Divisional Officer permitting Vitthal Dongre to retain 7 acres and 4 gunthas land had attained finality on 20.4.1963, as the same was not challenged by the petitioner Tribunal and in such circumstances, even on a combined reading of the provisions of section 49 A (1)(iii) and section 60 of the Act of 1958, the respondent no.1 to 5 were deemed to be the full owners of the land w.e.f. 20.4.1963 i.e. the date on which the order of the Sub Divisional Officer attained finality in regard to the land which is the subject matter of this petition. The learned counsel for the respondent no.1 to 5 submitted that the rejection of the application filed by the petitioner under section 36(2) and section 38 of the Act of 1958 became final on 20.4.1963 as regards 7 acres and 4 gunthas of land and since on that date the land was not 7 within the municipal limits, the provisions of section 60 of the Act of 1958 did not come into play. The learned counsel for the respondent no.1 to 5 reiterated that the proceedings under section 36(2) and 38 of the Act, attained finality on 20.4.1963, in regard to 7 acres and 4 gunthas of land i.e. the land in dispute. It is submitted on behalf of the respondent no.1 to 5, by relying on a decision reported in AIR 1982 SC Page 98 that the order passed by the Sub Divisional Officer on 20.4.1963 had attained finality in regard to 7 acres and 4 gunthas of land and the same could not have been interfered with in a revision filed by Vitthal Dongre before the Maharashtra Revenue Tribunal, against the order passed by the Sub Divisional Officer, permitting the petitioner to resume possession of 12 acres of land. The learned counsel for the respondent no1. To 5 sought for the dismissal of the writ petition. Shri Joshi, the learned Assistant Government Pleader appearing on behalf of the respondent no.6 to 8 supported the order passed by the Maharashtra Revenue Tribunal and sought for the dismissal of the writ petition. On hearing the learned counsel for the parties and on perusal of the orders passed by the authorities and the provisions of the Act of 1958, it appears that the decision of the Maharashtra Revenue Tribunal in allowing the revision 8 filed by the respondents no.1 to 5 is just and proper and is not liable to be interfered with in exercise of the writ jurisdiction. It is necessary to note that the land was included in the municipal limits for the first time on 27.6.1963. The application was filed by the petitioner for resumption of land for bonafide cultivation on 27.3.1961 and in an appeal filed by the petitioner before the Sub Divisional Officer, the Sub Divisional Officer had held that the petitioner was entitled to resume possession of 12 acres of land and Vitthal Dongre was entitled to retain possession of 7 acres and 4 gunthas of land. It appears that the petitioner was satisfied with the order passed by the Sub Divisional Officer on 20.4.1963 and the petitioner took possession of 12 acres of land from Vitthal Dongre on 9.5.1963. Since the order passed by the Sub Divisional Officer, permitting Vitthal Dongre to retain 7 acres and 4 gunthas of land was not challenged by the petitioner, that part of the order passed by the Sub Divisional Officer attained finality. The tenant – Vitthal Dongre was however, aggrieved by the order passed by the Sub Divisional officer permitting the petitioner to resume possession of 12 acres of land and hence he filed a revision against the said order. It is rightly submitted on behalf of the respondent no.1 to 5 that the Maharashtra Revenue Tribunal could not have interfered with the 9 findings recorded by the Sub Divisional Officer on 20.4.1963 in regard to 7 acres and 4 gunthas of land and could have only decided the correctness or otherwise of the order passed by the Sub Divisional Officer permitting the petitioner to resume the possession of 12 acres of land. Hence, it appears that though the entire application was not finally decided on 20.4.1963, the application stood finally decided in regard to 7 acres and 4 gunthas of land with which we are concerned. Hence, in view of the provisions of proviso to section 49(A)(1)(iii), Vitthal Dongre was deemed to be a full owner of the land comprising of 7 acres and 4 gunthas on 20.4.1963, before the land was included within the limits of the municipal council by the notification dated 27.6.1963. It is rightly submitted on behalf of the respondent no.1 to 5 that the rejection of the application of the petitioner under section 36(2) and 38 of the Act became final on 20.4.1963 in regard to 7 acres and 4 gunthas of land and since the land was not within the municipal limits on that date, the tenant was deemed to be the full owner of the land. Hence on a reading of the provisions of section 49(A)(1)(iii) and section 60 of the Act of 1958, it cannot be said in the facts and circumstances of the case that the tenant/ Vitthal Dongre was not deemed to be the full owner of the land, specially when the application filed by the landlord stood finally decided in respect of the land which is the subject matter of this petition. Though all the reasons 10 recorded by the Maharashtra Revenue Tribunal, may not be just and proper, the ultimate decision of the Maharashtra Revenue Tribunal holding that the ownership of the land in question was transferred to the tenant before 27.6.1963, when the land was included in the municipal council limits is just and proper. Hence for the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE SMP