1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 141 OF 2009 Vitthal Rukhmini Devasthan Trust through its Secretary .. Appellant Versus Smt. Anusuya Kondiba Nagare and others. .. Respondent/s. --- Mr. S.D. Kulkarni, Advocate for petitioner. WITH LETTERS PATENT APPEAL NO. 192 OF 2009 Vitthal Rukhmini Devasthan Trust through Secretary. .. Appellants Versus Dnyandeo Nagare died through LR. .. Respondents. Mr. S.D. Kulkarni, Advocate for the appellant. 2 CORAM : B.R. GAVAI & N.D.DESHPANDE,JJ. DATE : - 1st October, 2009. ORAL ORDER :- 1] The present appeals arise out of the judgment and order passed by the learned single Judge of this court in W.P. No. 384/2002 and 3467 of 2003, respectively. . It is the claim of the legal heirs of deceased Kondiba that said Kondiba was a tenant in possession of the land in question and was entitled to purchase the same as statutory tenant. However, it is the case of the present appellants that the land in question was allotted to Vitthal Rukhmini Devasthan Trust by Sir William Robert, the then Governor of Bombay State on 31/1/1846. On 20th September, 1989 the trust was registered as a public trust under the provisions of the Bombay Public Trusts Act, 1950. The proceedings for acquisition o the said land were initiated in 1992 for the establishment of M.I.D.C. The possession of the land was taken in the year 1994 and an award was also passed. The respondent Nos. 1 to 5 claiming to be the legal heirs of deceased Kondiba Nagare, filed an application for fixation of purchase price under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 ( Hereinafter referred to as the “B.T. And A.L. Act”). It was the contention of the said respondents that on the tiller's day, the deceased Kondiba was in 3 actual possession of the land in question. The Tahsildar, Parner, vide judgment and order dated 19.12.1998, held that the respondent Nos. 1 to 4 were tenants of the land in question and as such were entitled to purchase the same under Section 32(G) of the B.T. And A.L. Act. The price of the land was fixed at Rs. 19.204/-. 2] Being aggrieved thereby, the appellants preferred an appeal, which was dismissed by the learned Sub Divisional Officer, Parner vide judgment and order dated 29th April, 1999. The appellants thereafter preferred a revision before the learned Maharashtra Revenue Tribunal. The said revision was also dismissed on 12th December, 2000. 3] In the meantime, it appears that the respondent Nos. 1 to 5 herein, filed an application under Section 35 of the M.I.D.C. Act ,1961, asserting that they were entitled to receive compensation for the acquired land in question. The learned Civil Judge (S.D.) , Ahmednagar by order dated 23/10/2002, dismissed the reference application on the ground that the writ petition filed by the temple trust was pending before this court. The said respondents, therefore, filed W.P. No. 3467/2003 before this court. 4] In so far as the writ petition filed by the tenants is concerned, this court found that the learned Civil Judge was not justified in dismissing the reference on the ground that a writ petition filed by the Temple Trust was 4 pending before this court. The learned Single Judge has held that the learned trial court ought to have kept the proceedings pending till the decision of the writ petition filed by the temple Trust. 5] The learned Single Judge, vide the impugned order dismissed the petition filed by the Temple Trust and allowed the writ petition filed by the tenants. 6] Shri Kulkarni, the learned counsel for the appellants submit that the learned Single Judge has failed to take into consideration the fact that in view of the provisions of Section 88(1)(a), since the land was leased out by the Government, the provisions of the B.T. And A.L. Act were not applicable to the land in question and as such ought to have allowed the writ petition. 9] The learned single Judge has also rejected the contention of the petitioners that the land owned by the petitioner Trust which was an Inam land was entitled to be exempted from the provisions of the said Act as it was a registered Trust. 10] The relevant provision of Section 88(1)(a) of the B.T. And A.L. Act, reads thus :- 88:- Exemption to Government lands and certain other lands :- 1. Save as otherwise provided in sub-section (2), nothing in the foregoing provisions of this Act shall apply :- (a) to lands belonging to or held on lease from, the Government “ 5 . A plain reading of the aforesaid provision would reveal that the said provision is applicable only to the land belonging to or held on lease from the Government. Nothing is placed on record to establish that the land was owned by the Government or leased to the appellants by the Government. In that view of the matter, we do not find any substance in the contention in that regard. 11] In so far as the claim about exemption on the ground that the appellant is a registered public trust is concerned, admittedly, the Trust is registered on 20/9/1999 and as such, on the tiller's day, it was not a registered public trust. In that view of the matter, the appellants would also not be entitled to the exemption under the provision of Section 88B of the B.T. And A.L. Act. 12] Shri Kulkarni, learned counsel for the appellants relied upon the judgment of the Full Bench of this Court, in the matter of “Dattu Dnyanu Padalkar Vs. Hari Natha Patil and another” reported in 1979 Mh.L.J. 628. . In the said case,the Full Bench has held that the provisions of the B.T. And A.L. Act would not be applicable if the land belongs to the Government or leased out by the Government. It has been further held that in cases where the Government is lessor either directly or through its agents the leasing out would be by Government and the person who holds the land would be holding the land on lease on behalf of the Government. 6 . In the instant case, nothing is placed on record to show that the land is either owned by the Government or the land has been leased directly or through its agent to the respondents herein, by the Government. In that view of the matter, the reliance placed on the said judgment is of no assistance to the case of the appellants. 12] We are of the considered view that the learned Single Judge has rightly refused to interfere with the concurrent finding of the 3 tribunals in the extraordinary jurisdiction under Article 227 of the Constitution of India. No case for interference in the appellate jurisdiction is made out. Hence the appeals are dismissed. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] Grt/-