1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3303 OF 1991 Deoram Punja Koli Since Deceased, through his heirs and legal representatives : 1. Mrs. Tarabai Devram Koli (Bankar), Age : Major, Occ : Household, R/o Shirdi, Tq. Kopargaon, Dist. Ahmednagar. ..PETITIONER -VERSUS- 1. Madhav Tryambak Shelke (Since deceased) by his heirs and legal representatives:- 1-A Sadashiv Madhav Shelke, Age : 47 years, Occ : Business, R/o Pimpalwadi Road, Shirdi, Tq. Rahata, Dist. Ahmednagar. 1-B Smt. Nyahabai Madhav Shelke, Age : 80 years, Occ : Nil, R/o As above. 2 Smt. Bhagubai Fakira Koli, Age : Major, R/o Shanimandir, Shirdi, Taluka Kopargaon, Dist. Ahmednagar. RESPONDENTS ..... Mr. A.N. Nagargoje along with Mr V.J. Dixit, Senior Advocate for petitioner. Mr. V.D. Hon, Advocate for the respondent nos.1 A and 1B. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 10th January, 2011. ORAL JUDGMENT : By this Petition filed under Article 227 of the 2 Constitution of India, the petitioner-tribal is seeking restoration of lands let out to original respondent no.1-Madhav for a period of 10 years on 16.11.1967 for growing sugar cane crop. He claims to have served the required previous statutory notice for claiming the restoration of possession for cultivation on personal ground and thereafter instituted the proceedings before Tahsildar, which came to be registered as T.N.C. Case no. 85/1987. Proceedings are filed under Section 43-A of the Bombay Tenancy and Agricultural Lands Act, 1948. The Tahsildar rejected that application. The petitioner then filed appeal no. 10 of 1989 before the Sub-Divisional Officer and the Sub-Divisional Officer vide judgment delivered on 03.04.1990 allowed that appeal. The deceased respondent then filed Revision before the M.R.T. vide Revision No. MRT/AH/IV/4/1990. The M.R.T. Pune decided that Revision on 25.03.1991 and it restored the order of Tahsildar. The present matter is directed against this order of M.R.T. 2. I have heard Advocate Mr. Nagargoje for petitioner and Advocate Mr. Hon for legal heirs-respondent nos.1A and 1B of the deceased Respondent no.1. Nobody appears for respondent no.2, though she is served. 3. After inviting attention to the orders passed by the 3 authorities, Advocate Shri Nagargoje for petitioner contends that the order of Tahsildar against the petitioner was challenged by the petitioner only. That order contains some findings against the respondent nos.1A and 1B but they choose to ignore those findings. In absence of challenge to those findings in appeal before S.D.O., those findings attained finality. Thus, issuance of notice demanding possession for personal cultivation and on account of non-payment of rent is a concluded fact which could not have been reopened by M.R.T.. Similarly, the findings that land was leased out for sugar cane cultivation reached by Tahsildar also became final and hence, M.R.T. could not have re-appreciated that aspect. 4. In this connection, learned Counsel has pointed out that the petitioner being the tribal, the initial lease itself is in violation of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 and as lease as void, the authorities functioning under the Bombay Tenancy and Agricultural Lands Act, 1948 ought to have ordered restoration of possession to the petitioner. He has invited attention to the Civil Application no. 10073 of 2007 filed by the respondent no.1A and 1B pointing out acquisition of title to suit land by them because of the sale deed executed in their favour by the respondent no.2. He states that in that sale deed, the respondent no.2 has mentioned that the land was let out for sugar 4 cane cultivation. In view of this position, learned Counsel has urged that the view taken by the M.R.T. is beyond limited powers available to it under Section 76 of the 1948 Act and hence, is unsustainable. He, therefore, requested the Court to restore the order of Tahsildar passed in favour of petitioner. 5. Learned Counsel for the respondent nos.1A and 1B has supported the impugned order. 6. It is not in dispute before this Court that if the land is let out for cultivation of sugar cane, in view of the provisions of Section 43-A contained in Chapter III-A, the restrictions placed on right of landlord to demand possession in 1948 Act are not attracted. He is, therefore, entitled to possession if he shows that the agricultural holding with him is below economic holding and income from the suit land is main source of income. 7. Tahsildar in proceedings under Section 43-A filed before him has framed following issues :- (a) Whether applicant is landlord and opponent no.1 is tenant of suit land ? It has been answered in affirmative. 5 (b) Whether suit land has been leased out for growing sugar cane crop ? It has been answered in affirmative. (c) Whether Tenancy termination notice was issued to opponent no.1-tenant and whether it is properly served upon him ? It has been answered in negative. (d) Whether applicant is agriculturist having land below economic holding and whether income from the suit land is main source of income and whether he required the suit land for him and for opponent no.2 for personal cultivation ? First part of this question is answered in affirmative while later part is answered in negative. 8. Thus, Tahsildar has found that the requisite notice terminating the tenancy was not served upon tenant and income from suit land was not the main source of income. Because of this, it has found that land was not required for personal cultivation. Its answer to question, about the purpose for which the suit land was leased out, is contained in paragraph 2. It shows that the Tahsildar relied upon the statement made by the applicant before him that suit land was leased out for growing sugar cane. He has also then referred to certain revenue entries to hold that there was sugar cane crop in 30 Gunthas. He also found that no steps were taken under Section 32-G or 32-O of the 1948 Act. It is to be noted that 6 these provisions deal with the procedure for determination of price of land to be paid by tenants and for conferment of title on tenant on tiller's day. 9. The Tahsildar rejected the petitioner's application and petitioner approached Sub-Divisional Officer in appeal. Consideration by S.D.O. shows that as the tenant had not paid rent/lease money from 1974, Section 40 authorised the petitioner to claim possession. It is also noticed that the land in dispute has been given to petitioner on 11.01.1968 and hence, the provisions of Section 41 are not applicable to that land. Violation of provisions of Section 36 and 36-A of the Maharashtra Land Revenue Code is also noted. It is also noted that the Courts below had asked the tenant to pay the lease money and still the lease money has not been paid. The petitioner had no other source of income, and hence, was entitled to restoration of possession. 10. This order of S.D.O. in appeal does not consider the question of service of notice upon the respondent no.1 at all. Not only this, the finding reached in paragraph 4 by Tahsildar that the income from the suit land was not main source of income is also not looked into by appellate authority. The order of Tahsildar was not required to challenge by respondent no.1 as it was in his 7 favour. After this order of S.D.O., the respondent no.1 filed Revision and in that revision, the impugned order has been passed by the M.R.T. The absence of notice from opponent no.2 land lady is specifically recorded therein with further observation that relief granting on the ground of default of rent, was in excess of jurisdiction available to S.D.O. in the facts of the matter. 11. M.R.T. in paragraph 4 has found that the opponent no. 2 was the owner till her life time and she admitted that she has not issued notice terminating the tenancy. Proceedings filed were held to be without any such notice and findings recorded by the Tahsildar in this respect was therefore held to be justified. The absence of finding in this respect by the S.D.O. has not been expressly noticed but there is ground that said authority erred in basing its finding on default of rent when original application filed by petitioner for possession was not on the ground of default of rent. 12. It is, therefore, obvious that absence of notice recorded by Tahsildar was assailed in appeal before S.D.O. by petitioner and petitioner could not get favourable finding on it from appellate Authority. The petitioner did not challenge refusal or omission on part of S.D.O. to record finding in that respect before 8 M.R.T. The finding of M.R.T. upholding trial Court's finding is not demonstrated to be erroneous or perverse before this Court. 13. The discussion by M.R.T. clearly shows that there exists lease deed between parties and as per that document land was given for raising grains and not for growing sugar cane or flowers. These contents of document have been accepted and acted upon by the M.R.T. Mode and manner in which Tahsildar recorded finding in this respect has already been noted above by me. The appellate order passed by S.D.O. does not expressly record any finding on this purpose of lease. The application of mind by M.R.T., therefore, appears to be more proper and finding reached by Tahsildar about it is unsustainable. 14. Learned Counsel for petitioner urged that during pendency of the Petition, original defendant no.2 (present respondent no.2) has executed sale deed in favour of respondent no.1. That sale deed also contains the stipulation that land was leased out for growing sugar cane crop. The development has taken place during the pendency of Writ Petition and M.R.T. has reached its conclusion on the basis of material made available to it. The subsequent statement in sale deed apparently is running in contrary to the stipulation in lease deed. I, therefore find it not 9 relevant and in any case, it is insufficient to dislodge that finding of M.R.T. 15. The service of notice upon the respondent no.1 is not established and hence, I do not find any jurisdictional error or perversity in the findings drawn by M.R.T. The contention that lease executed in 1967 was itself in violation of above mentioned 1974 Act is not relevant because in proceedings under 1948 Act no cognizance thereof could have been taken. It was open to petitioner to move appropriate authority for restoration of possession in accordance with law. The petitioner could have taken those steps even after alleged sale deed in the matter. If any remedy is still open to petitioner, the petitioner is free to take recourse to it. 16. In this situation, I am not inclined to interfere in the matter in this jurisdiction. The Petition is rejected. Rule is discharged. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp3303.91