:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 597 OF 2008 PETITION NO. 597 OF 2008 PETITION NO. 597 OF 2008 Sitaram Vishnu Samant ..Petitioner V/s Ganesh Vitthal Samant ..Respondent Mr.Sudhir Prabhu for the petitioner Mr. P.M.Pradhan for the respondent CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 19TH JUNE, 2008 : 19TH JUNE, 2008 : 19TH JUNE, 2008 P.C. 1. By this petition, the petitioner impugns the order dated 29-10-2007 passed by the Civil Judge, J.D. Vengurla, whereby the Application of the petitioner for framing an issue regarding tenancy in respect of certain properties out of the suit properties, and to refer the issue of tenancy to the Tahasildar, Vengurla for decision, came to be rejected. 2. The suit is filed by the respondent-plaintiff against the petitioner-defendant inter-alia for a declaration and injunction in respect of twenty six properties which form the suit properties. The averments in the plaint are that the petitioner was unlawfully felling trees in one of the suit :2: properties and the respondent apprehended that the petitioner may take possession of the suit properties and cause obstruction to the respondent’s possession and enjoyment of the suit properties. The petitioner’s case in his written statement is that he is a protected tenant in respect of 10 properties out of the 26 properties enumerated in the plaint. According to the petitioner said properties have been in possession and under the wahivat and cultivation of the petitioner’s family as tenant and that his father’s name was entered as tenant in the record of rights and after his death the petitioner’s name appeared in the record of rights. During the period between 1965-66 and 1972-74 various proceedings in respect of the said 10 properties under section 32-G of B.T.& A.L. Act, 1948 were pending before the Agricultural Lands Tribunal (ALT). It is alleged that at that time respondent’s forefathers in collusion with petitioner’s cousin misled the petitioner and got the name of the petitioner deleted from the record of rights as tenant. It is the contention of the petitioner that the orders passed by ALT, Vengurla under section 32-G of Bombay Tenancy and Agricultural Lands Act, 1948 (BT & AL Act) are :3: nullity and not binding on him and therefore the tenancy is still subsists. 3. During the pendency of the suit, the petitioner made an Application to frame an issue regarding the tenancy of above referred 10 properties and to determine the issue of tenancy and to refer the issue of tenancy to the Tahasildar, Vengurla. This Application as stated above, came to be rejected by the Trial Court by its order which is impugned in the above petition. 4. The learned Counsel for the petitioner relying upon sections 85 and 85-A of the BT & AL Act and the decision in the case of Gundaji Satwaji Shinde V. Gundaji Satwaji Shinde V. Gundaji Satwaji Shinde V. Ramchandra Ramchandra Ramchandra Bhikaji Joshi, Bhikaji Joshi, Bhikaji Joshi, reported in AIR 1979 SC 653 contended that the Civil Court is under a statutory obligation to refer the issue of tenancy to the competent authority under the BT & AL Act to decide the same and upon the reference being answered back to dispose of the suit in accordance with the decision of the Competent Authority under the BT & AL Act. The learned Counsel urged that the impugned order is therefore required to be set aside and the :4: issue of tenancy is required to be framed and referred to the Tahasildar, Vengurla to determine the same and upon the reference being answered back, to dispose of the suit in accordance with the decision of the Competent Authority under the BT & AL Act. 5. The learned Counsel for the respondent on the other hand has drawn my attention to the affidavit-in-reply filed by the respondent to the Application. It is contended that in the proceedings initiated by the ALT under the provisions of section 32-G of the BT & AL Act the statement of Sadanand Kashinath Samant, the petitioner’s cousin, was recorded and it was admitted by the petitioner through his cousin that they had no right of tenancy. In fact in one of the tenancy cases being tenancy Case No. 326/5068, the statement of the petitioner himself was recorded and verified by the Upper Tahasildar wherein the petitioner has made a statement that the names appearing in the record of rights should be deleted as he has no concern with the said lands as tenant and there was no relationship of landlord and tenant. The learned Counsel for the respondent vehemently argued that the :5: Application of the petitioner was not bonafide. The learned Counsel relied upon the case of Naushabai Naushabai Naushabai Balu Balu Balu Patil V. Kamal Chaugunda Patil, Patil V. Kamal Chaugunda Patil, Patil V. Kamal Chaugunda Patil, reported in 2002 (23) Mh.L.J. 440 wherein it is held that it is only a bonafide and legally sustainable claim of tenancy that can be referred to the Competent Authority in exercise of provisions of Section 85A of the BT & AL Act. The learned Counsel for the respondent therefore submitted that the Trial Court has rightly rejected the Application of the petitioner. 6. I have heard the learned Counsel for the parties and perused the material on record. At the outset it is required to be noted that the orders passed under section 32-G of the BT & AL Act are as far back as of the year 1974. Till date the same have not been challenged by the petitioner and the said orders have attained finality. There is no explanation by the petitioner as to why these orders have not been challenged by him. The case of the petitioner that he was pressurised and was cheated by colluding with his cousin Sadanand Kashinath Samant as is sought to be made out, cannot be accepted. The :6: statement of said Sadanand Kashinath Samant and that of the petitioner has been recorded and verified by the Upper Tahasildar in relation to the deletion of the name of the petitioner from the record of rights. Pertinently, no rejoinder has been filed by the petitioner to the reply filed by the respondent in the petition controverting the facts stated in the reply. No doubt in normal course under section 85 and 85A of BT & AL Act, once when the issue of tenancy is raised, the matter is required to be referred to the Competent Authority and this position is also reiterated in the case of Gundaji Satwaji Gundaji Satwaji Gundaji Satwaji Shinde Shinde Shinde (Supra) (Supra) (Supra) relied upon by the Counsel for the petitioner. However, in the instant case, the reasons mentioned earlier I find that the Application of the petitioner is not bonafide and plea of the tenancy is not legally sustainable. It is not that all claims are mechanically required to be referred to the Competent Authority and it is only a bonafide and legally sustainable claim of the tenancy that can be referred to the Competent Authority in exercise of provisions of section 85A of the BT & AL Act, 1948. This ratio was laid down in the case of Thomos Thomos Thomos Antoney Antoney Antoney V. Varkey Varkey (2000) 1 SCC 35, V. Varkey Varkey (2000) 1 SCC 35, V. Varkey Varkey (2000) 1 SCC 35, wherein :7: the Hon’ble Apex Court has held thus:- "From the aforementioned provisions the statutory scheme is clear that when a question regarding status of a person as a tenant or as a kudikidappukaran arises in any suit or proceeding before a Civil Court that court shall refer the matter to the Land Tribunal for a decision on that question only. On receipt of the decision of the Tribunal on the question of the trial Court shall decide the suit or proceeding accepting the decision of the Tribunal on the question referred to it. While making a reference to the Tribunal mandatory the legislature cannot be said to have intended that even a patently frivolous, malafide and illegal plea of tenancy taken by a party merely to delay the proceedings and to remain in possession of the property is also to be referred to the Tribunal. The statutory provisions, in our considered view, envisage a case where a bonafide and legally sustainable plea of tenancy is taken by the party, that question shall be referred to the Tribunal." 7. The above decision has been referred to by the Single Judge in the case of Naushabai Balu Patil Naushabai Balu Patil Naushabai Balu Patil (Supra) relied upon by the learned Counsel for the respondent whilst holding that the issue of tenancy cannot be raised as a vague plea and it is only a bonafide and legally sustainable plea of tenancy that can be referred to the Competent Authority. The decision in the case of Gundaji Satwaji Shinde (Supra) relied upon by the Counsel for the petitioner is clearly distinguishable in the facts of the :8: present case. 8. Having regard to the facts and circumstances of the case and the legal position which emerges, I do not find any merit in the petition so as to warrant interference with the impugned order in exercise of the powers of this Court under Article 227 of the Constitution of India. The petition is accordingly dismissed. No order as to costs. 9. It is clarified that the observations in this order shall not come in the way of the petitioner in the event the petitioner files any proceedings challenging any orders passed under section 32-G of the BT & AL Act, which shall be decided on its own merits and in accordance with law. (A.A. (A.A. (A.A. SAYED, J) SAYED, J) SAYED, J)