WP 6597/09 1 SSK/7 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6597 OF 2009 with WRIT PETITION NO.6084 OF 2010 Shivaji Dadu Mane & Anr. ....Petitioners Versus Vasanti Ramesh Dubli & Ors. ...Respondents Mr. G. R. Rege a/w. Mr. G. J. Sabnis, Advocate for the Petitioners in both the writ petitions. Mr. A. V. Anturkar a/w. Mr. D. J. Lulia, Advocate for Respondent No.1 in WP No. 6597 of 2009 and Respondent No.4 in WP No. 6084 of 2010. Mr. J. Reis i/b. Mr. R. N. Kachare, Advocate for Respondent No.2 in WP No. 6597 of 2009 and Respondent No.1 in WP No.6084 of 2010. Mr. A. I. Patel, AGP for Respondent Nos. 3 & 15. CORAM : R. V. MORE, J. DATED : 12th AUGUST, 2010. P.C.: Heard Mr. Rege, learned Counsel for the Petitioners in both the petitions, Mr. Anturkar, learned Counsel for Respondent No.1 in writ petition no.6597 of 2009 and Respondent No.4 in writ petition no. 6084 of 2010, Mr. Reis, learned Counsel for Respondent No.2 in writ petition no. 6597 of 2009 and Respondent No.1 in writ petition no.6084 of 2010, and Mr. A. I. Patel, learned AGP for Respondent Nos.3 & 15. WP 6597/09 2 SSK/7 2. The dispute is about land at Survey no.111/1, Hissa no.1(Pt) corresponding to CTS No.179 admeasuring 4 acres situated at Village- Magathane, Taluka-Borivali (hereinafter for the sake of brevity called as the said land). Admittedly, one Kalya Krishna Dubli, the predecessor-in-title of the Respondents was the tenant in the said land on tillers’ day. In the year 1965, the said land was purchased by the said Kalya under the provisions of section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948(B.T. & A.L. Act for short)and thereafter, a certificate under section 32M of the B.T. & A.L. Act was issued in his favour. 3. The said land was transferred by way of lease to four persons (herein after for the sake of brevity called as the purchasers) in the year 1976. The Tahsildar suo-motu initiated proceedings under section 84-C of the B.T. & A. L. Act. By an order dated 4th April, 1976, the Tahsildar held that the transfer was in violation of the provisions of section 43 of the B.T. & A. L. Act and consequently the land was directed to be vested in the Government. This order was challenged by the purchasers before the Sub- Divisional Officer. The Sub-Divisional Officer allowed the appeal by granting post-facto sanction under section 43 of the B.T. And A.L. Act in favour of the purchasers. Consequently, the Tahsildar’s order directing the said land to be vested in the Government came to be set-aside. WP 6597/09 3 SSK/7 4. Meanwhile, the suit property was occupied by the hutment dwellers. The notification under section 3 of the Maharshtra Slum Areas (I, C & R) Act 1971 was also issued. The Petitioner No.2-Society was formed by the hutment dwellers on the said land. The Petitioner No.1 is the office bearer of the Petitioner No.2-Society. The Petitioners challenged the order of the Sub-Divisional Officer mentioned above granting post-facto sanction before the Maharashtra Revenue Tribunal, Mumbai. The Maharashtra Revenue Tribunal, Mumbai disposed of the Petitioners’ revisions by an order dated 14th December, 1995. By this order, the Sub- Divisional Officer’s order as well as the Tahsildar’s order under section 84-C of the B.L. & A.T. Act came to be set-aside. This order is challenged after 15 years by filing writ petition no.6084 of 2010 5. Though the Maharashtra Revenue Tribunal, Mumbai remanded the matter back to the Tahsildar, the Tahsildar could not have decided the question about restoration of land under the Maharashtra Restoration of Lands to Schedule Tribes Act,1974 and therefore, the proceedings were taken over by the Sub-Divisional Officer. By an order dated 14th September, 2006 the Sub-Divisional Officer held that the Respondents are not tribals, therefore the provisions of the Maharashtra Restoration of Lands to Schedule Tribes Act, 1974 are not applicable. The learned Sub- Divisional Officer also restored and confirmed the initial order dated WP 6597/09 4 SSK/7 4th April, 1976 passed by the Tahsildar under section 84-C and consequently the said land stands vested in the State Government. This order of the Sub-Divisional Officer was challenged by the Respondent No.1 by filing a Tribal Appeal No.30 of 2007. By the order dated 22nd June, 2009, the learned member of the Maharashtra Revenue Tribunal, Mumbai confirmed the order of the Sub-Divisional Officer dated 4th September, 2006 under which the proceedings under the Maharashtra Restoration of Lands to Schedule Tribes Act, 1974 came to be dropped. The learned member of the Maharashtra Revenue Tribunal Mumbai, however, set-aside the order of the Sub-Divisional Officer, so far as it relates to confirmation of the order of the Tahsildar under section 84-C of the said Act. This order is challenged in petition no.6597 of 2009. 6. Mr. Rege, learned Counsel for the Petitioners submitted that the initial order under section 84-C dated 4th April, 1976 passed by the Tahsildar was not challenged by the Respondents, but the same was challenged by the Purchasers. Though, the Sub-Divisional Officer granted post-facto sanction under section 43 of the B.T. & A.L.Act, the Maharashtra Revenue Tribunal, Mumbai by passing the earlier order rightly set-aside this post-facto sanction. The Respondents who did not challenge the order under section 84-C of the B.T. & A. L. Act. could not have challenged the latter order dated 23rd December, 1978 passed by the Sub-Divisional WP 6597/09 5 SSK/7 Officer. Mr. Rege, learned Counsel for the Petitioners also challenged the earlier order of the the Maharashtra Revenue Tribunal, Mumbai dated 14th December, 1995 by filing writ petition no.6084 of 2010. The grievance of the Petitioners is that the the Maharashtra Revenue Tribunal, Mumbai having set-aside the post-facto sanction could not have set-aside the order of the Tahsildar under section 84-C of the said Act. He submits that though there is delay, the delay deserves to be condoned in the facts and circumstances of the case. 7. Mr. Anturkar, learned Senior Counsel for the Respondent No.1 on the contrary supports the impugned order. He opposed the reliefs claimed in the petition mainly on 3 grounds. Firstly, that infact there is no violation as contemplated under section 43 of the B.T. & A.L.Act and therefore the land could not have been directed to be vested in the Government. Secondly, the Tahsildar was not the competent authority to pass order under section 84-C of the B.T. & A. L. Act and thirdly, the said land not being an agricultural land, the lease is required to be compulsorily registered and in the absence of any registration, the so called transaction cannot be said to be transfer in violation of section 43 of the said Act. He further submitted that there is a delay of 15 years in filing the petition no.6084 of 2010. This petition is not filed bonafide and in any case, the conduct of the Petitioners dis-entitle this Court to entertain the same. WP 6597/09 6 SSK/7 Mr. Reis, learned Counsel appearing for Respondent No.2 supports the argument of the Petitioners. 8. Having heard the learned Counsel for the respective parties and having gone through the impugned order alongwith the compilation of the writ petition, I do not find any merit in the petitions. The parties are not at dispute and in fact they have not challenged the finding of the Sub- Divisional Officer as confirmed by the Maharashtra Revenue Tribunal Mumbai that the Respondents are not tribals and therefore, so far as it confirms dropping of the proceedings under section 36-A, it cannot be disturbed. Now, the relevant issue on which parties are at variance, is whether the permission to transfer the suit land is required under section 43 of the B.T. & A. L. Act and consequently the alleged transaction is illegal for want of the said permission. The issue of competency of Tahsildar in passing orders under section 84-C of B.T. & A. L. Act is also raised. 9. Let us first consider whether the alleged transfer by way of lease to the purchasers is in violation of provisions of section 43 of the B.T. & A.L.Act. In paragraph no.2 of the order dated 14th December, 1995 in Tenancy Appeal Nos. 160, 161, 162 and 163 of 1994, the Maharashtra Revenue Tribunal, Mumbai has observed that the suit lands are purchased by the purchasers from one Devla Kalia Dubli and Vesta Kalia on lease. WP 6597/09 7 SSK/7 The Petitioners in writ petition No.6084 of 2010 have made a categorical statement in paragraph no.7 thereof that during the pendency of the proceedings under section 43, the original tenant – Kalya Krishna Dubli died leaving behind his two sons viz. Devla and Vesta as tenants. Under section 43 of the B.L. and L.T. Act, the land purchased under section 32 of the said Act cannot be sold out without obtaining the previous sanction of the Collector. In the present case, from the facts, it is very clear that the transfer in question in favour of the purchaser was made by Devla and Vesta-sons of Kalya during the lifetime of Kalya-the Original Tenant. Devla and Vesta during the lifetime of Kalya have no right whatsoever in the suit property. The said transaction cannot bind Kalya. In any case, the said land was not transferred by Kalya to the purchasers. Therefore, in my view, there is no question of violation of provisions of section 43 and therefore, the Tahsildar could not have passed the order under section 84-C of the B.T. & A. L. Act, directing vesting of the suit land in the Government. 10. Since, I have held that the original tenant has not violated the provisions of section 43 of the B.T. & A. L. Act , I need not go into other questions regarding competency of the Tahsildar to pass order under section 84-C of the B.T. & A. L. Act and compulsory registration of the lease in favour of the purchasers. WP 6597/09 8 SSK/7 11. This takes me to consider the argument advanced by the respective parties in writ petition no.6084 of 2010. Admittedly, this petition is filed in the year 2010 challenging the order of Maharashtra Revenue Tribunal, Mumbai passed in the year 1995. Thus there is delay of approximately 15 years. Mr. Rege, learned Counsel for the Petitioners, submitted that the delay deserves to be condoned in the facts and circumstances of the case. Mr. Anturkar, learned Counsel as stated earlier opposed this petition on the ground that the Petitioner No.1 has also filed suit in City Civil Court being suit no.735 of 1993 for declaration that the Respondents are not owners. The Petitioner No.1 as office bearer of Deval Pada Seva Sangh filed suit for declaration that Respondents are not owners of the suit property and this suit was dismissed on 22nd February, 2001. He further submitted that this fact is suppressed by the Petitioners and therefore, their conduct does not permit this Court to condone the delay. I have perused the copy of the plaint in S.C.Suit No.735 of 1993. The said suit is filed by Deval Pada Seva Sangh, a society registered under the Maharshtra Co-operative Societies Act, 1960. The verification clause of the suit reveals that the Petitioner No.1 in the present petition has verified the plaint. The suit as stated by Mr.Anturkar, learned Counsel, was filed for declaration that Deputy Collector and State of Maharashtra have no right to grant any permission to the Respondents to develop the suit property. This WP 6597/09 9 SSK/7 suit was dismissed for default on 22nd February, 2001. The Petitioner No.1 has suppressed the fact of filing the earlier suit in the City Civil Court. In any case, the Petitioner No.1 was prosecuting the proceedings relating to the suit land in the City Civil Court. In the facts and circumstances, a huge delay of 15 years cannot be condoned and the petition is liable to be dismissed on the ground of latches. 12. The Petitioner No.2 as stated above claimed to be a Co- operative Society of the hutment dwellers of the suit land. The Petitioner No.1 claims to be office bearer of the Petitioner No.2. Whether, the suit land is private land or government land will not come in way of the Petitioners. The Petitioners always after getting consent of 70% of hutment dwellers can apply for redevelopment of slum area. 13. Taking over all circumstances into consideration, I am of the opinion that no case is made out for interference. The petition is accordingly dismissed. 14. Mr. Rege, learned Counsel for the Petitioner, at this stage, requests continuation of status-quo granted earlier on 6th August, 2009 for a period of twelve weeks from today. Mr. Anturkar, learned Counsel, opposed this prayer. However, looking into the controversy involved in the WP 6597/09 10 SSK/7 matter, status-quo granted earlier on 6th August, 2009 is continued for a period of eight weeks from today. (R. V. MORE, J.)