1 W.P. No. 3975.91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 3975 OF 1991 1] Vinayak Ratnagiri Gosavi Chief Promoter, Rangnath Swami Sahakari Griha Rachana Sanstha, Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar. 2] Shri Tryambak Shivram Gosavi, R/o Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar ...PETITIONERS VERSUS The State of Maharashtra ..RESPONDENT ... Mr.V.R. Dhorde, Advocate h/f Shri R.N. Dhorde for Petitioners Mrs. V.A. Shinde, A.G.P. for respondent/ State. CORAM :- S.S. SHINDE, J. JUDGEMENT RESERVED ON : 6th DECEMBER, 2010 JUDGMENT PRONOUNCED ON : 13th DECEMBER,2010 JUDGMENT: This Writ Petition is filed by the petitioner challenging the order dated 30th September, 1986 by the 2 W.P. No. 3975.91 Tenancy Awalkarkun, Rahuri in Tenancy case No. 17 of 1986 and Judgment and order dated 6th July, 1987 passed by the Sub Divisional Officer, Rahuri Sub Division, Rahuri in Appeal No. TNC/Appeal/11/86 and order passed by the Maharashtra Revenue Tribunal, Pune on 7th June, 1991 in Case No. MRT.AH.X.-7/87(Tnc.B.286/87), Pune. The back ground facts for filing this Writ Petition as disclosed in the Writ Petition are as under :- The petitioners herein are the original opponents in Tenancy Case No. 17 of 1986, in a a suo- moto enquiry initiated by the Tahasildar. It is the case of the petitioners that the land Survey No. 65/1 was purchased by the petitioner No. 2 on 18th December, 1984 to the extent of 4 R of village Chinch Vihire,Tq. Rahuri. The said land was purchased for the consideration of Rs. 3,000/- by registered sale-deed and mutation entry was effected on 26th February, 1985. The said entry was thereafter certified by Awalkarkun on 5th April, 1985 in the name of petitioner No. 2. The petitioner No. 2 made an application to the Tahasildar, for seeking permission for non 3 W.P. No. 3975.91 agricultural use. The petitioner No. 2 sold the said land to the petitioner No. 1 in his capacity as a Chief Promoter of the proposed Rangnath Swami Sahakari Griha Nirman Sanstha, Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar on 19th April, 1985, for the consideration of Rs. 5,000/-. In the suo-moto enquiry the matter was referred to the Collector and issue was raised whether the sale of land in favour of the petitioner No. 2 initially is valid as the petitioner is not agriculturist. The case was initiated against the petitioner No. 2 bearing Tenancy Case No. 16 of 1986 and simultaneously another case was initiated against the petitioner No. 1 bearing Tenancy case No. 17 of 1986. It was held that since the petitioner No. 2 who originally purchased the land is not an agriculturist, therefore, sale in favour of the petitioner NO. 2 dated 18th December, 1984 was illegal and, therefore, land should be restored to the Government. The petitioners stated that on the basis of the same proceedings, an enquiry was carried 4 W.P. No. 3975.91 against the petitioner No. 1 also and in the said enquiry it has been held that the petitioner No. 2 is also a non-agriculturist and, therefore, the sale of the land by the petitioner No. 2 in favour of petitioner No. 1 is illegal. It has been held by the Tenancy Awalkarkun, Rahuri dated 30th September, 1986 that since the petitioner No. 1 is not an agriculturist, the land should be vested with the Govrnment in view of the provisions of Section 84(C) (3) of the Bombay Tenancy and Agricultural Lands Act, 1948 (here-in-after referred as “said Act”). 2. The petitioners being aggrieved by the said judgment and order preferred an appeal bearing No. TNC/Appeal/11/86 before the Sub Divisional Officer, Rahuri Sub Division. The appellate authority has held that though the uncle of the petitioner No. 1 was agriculturist he was not an agriculturist on the date when the petitioner No. 1 has purchased the said land. It has been further held that the evidence is not produced on record to show that the petitioner No. 1 is the member of the joint family. It has been further held that the land has been purchased, on behalf of the co-operative Society and the sale has 5 W.P. No. 3975.91 taken place on 19th April, 1985 and the society has been registered on 30th December, 1985. Therefore, on the day when the land was purchased the society was not registered and, therefore, order passed by the Tenancy Awalkarkun was confirmed by the appellate authority and the appeal was dismissed by the Judgment and Order dated 6th July, 1987. The petitioners being aggrieved by the said Judgment and order preferred a revision before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal confirming the judgment and order passed by both the authorities below held that the uncle of the petitioner was holding land in the year 1953-54 and the present land has been purchased in the year 1985, therefore, on the date of the purchase petitioner was not agriculturist. It has been further held that on the date when the land was purchased for proposed society of which the petitioner No. 1 was the Chief Promoter was not registered. On the date when the land is purchased by petitioner No. 1 he was not an agriculturist and, therefore, the said sale in favour of the petitioner No. 1 is not legal. 6 W.P. No. 3975.91 Hence this Writ Petition challenging the said Judgment and order of Maharashtra Administrative Tribunal. 3. The learned Counsel appearing for the petitioners submitted that the findings reached by the Courts below that the petitioner No. 1 is not an agriculturist is perverse finding. In fact, petitioner No. 1 did produce on record the documents showing that his uncle is agriculturist and therefore, the petitioner is from agriculturist family and it cannot be said that petitioner No. 1 is not an agriculturist. It is further submitted that it has been held that the petitioner No. 2 is an agriculturist, therefore, assuming without admitting that the transaction in favour of the petitioner is bad, still petitioner No. 2 being an agriculturist can still persuade the non agricultural permission. It is further submitted that the land was purchased for proposed housing society for housing purpose of teachers belonging to reserve category and same society is registered on 30th December, 1985. The registration certificate of the said society was filed before the trial Court. The petitioner No. 1 purchased the suit property in the 7 W.P. No. 3975.91 capacity of chief promoter of the proposed Rangnath Swami Sahakari Griha Nirman Sanstha, Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar and immediately after completion of necessary procedure under the Maharashtra Co-operative Societies Act, the said Co- operative Housing Society came to be registered and suit property is being used for the purpose of said Co-operative Housing Society. It is further submitted that since the suit property was purchased by petitioner No. 1 in the capacity as Chief Promoter of the Housing society, in view of Section 64-A of the said Act, sale transaction is exempted from the provisions of Section 63 and 64.Therefore, the counsel for the petitioner submit that in the first instance the sufficient evidence was brought on record to show that the petitioner No.1 is agriculturist and secondly, since the land was purchased for the Co- operative Housing society, the provision of section 63 & 64 of the said Act have no application in the case of the sale transaction in the present case. The learned Counsel further submitted that the authorities below have taken hyper technical view in the matter that the Cooperative housing Society was not registered on the date of sale transaction ignoring 8 W.P. No. 3975.91 that society was duly registered subsequently and to that effect, evidence was produced on record. Therefore, Counsel would submit that the Writ Petition deserves to be allowed. Petitioner No. 2 herein has filed affidavit on 8th December, 2010 stating therein that the land which is the subject matter of this Writ Petition is laying fallow and because of litigation no development has taken place and the Society still continues to be registered society. It is further submitted that land would be used for Co-operative Housing Society only, if permitted. 4. On the other hand counsel appearing for the respondent/ State invited my attention to the reasons recorded by the revenue authorities, in which the petitioner No. 1 namely Vinayak Ratangiri Gosavi has admitted that he is not an agriculturist. Therefore, learned A.G.P. would submit that so far the contention of the Counsel appearing for the petitioner that the petitioner No. 1 is an agriculturist is falsified by his own statement before the Tahasildar, Rahuri that he has not an agriculturist. The learned A.G.P. 9 W.P. No. 3975.91 further submitted that the requirement of Section 64-A of the said Act can be made applicable in case sales are effected by or in favour of registered Cooperative Society under the Bombay Co-operative Societies Act 1925. However, in the instant case, admittedly on the date of sale-deed the said housing society was not registered. Therefore, the provisions of said Sections are not attracted in case of the petitioners. Therefore, relying on the reasons recorded by the Tenancy Awakkarkun, Rahuri, appellate authority and Maharashtra Revenue Tribunal. The learned A.G.P. would submit that petition is devoid of any merits and same deserves to be dismissed. 5. I have Heard learned Counsel appearing for the parties at length. I have also perused the pleadings and grounds in the petition, order passed by the Tenancy Awalkarkun, Rahuri, Judgment and Order passed by the appellate authority and Judgment and order passed by the Maharashtra Revenue Tribunal. It appears from the perusal of the order passed by the Tenancy Awal Karkun, Rahuri that transferee and transferor Shri Trimbak shivram Gosavi has sold Gut No. 61/1 part purchased him from Shir Jagannath 10 W.P. No. 3975.91 Trimbak Gite (now Gat No. 63/3) to shri Vinayak Ratangir Gosavi for Rs. 5,000/- on 19th April, 1985. The said transaction is noted in VI VI vide mutation entry No. 324 dated 20th April, 1985. The transferee Shri Vinayak Ratangir Gosavi has subsequently applied for grant of non agricultural use of Gat No. 65/3 (Old 65/1 part). In the said enquiry a point was raised whether the transferee is an agriculturist or otherwise. Accordingly, the case was referred to the Sub Divisional Officer, Rahuri, Division Ahmednagar for orders. The Sub Divisional Officer, Rahuri returned the case paper with the directions to deal with the case under Section 84-C of the said Act, as the powers under Section 84-C are vested with the Tahasildar and no order to start enquiry under Section 84-C are necessary from him. Therefore, enquiry under Section 84-C has been started suo-moto. The enquiry under Section 84-C of the said Act in respect of the first transaction in between Shri Trimbak shivram Gosavi has been held vide Tenancy Case No. 16 of 1986 in which it has been held that the transferee Shri Trimbak Shivram Gosavi is not an agriculturist and hence the transaction in respect of Gat No. 65/1 part has been declared as invalid. 11 W.P. No. 3975.91 Shri Trimbak Shivram Gosavi has subsequently sold this land to Shri Vinayak Ratangir Gosavi on 20th April, 1985. This transaction is noted in V.F.V.I. Vide mutation entry o. 324. As per this mutation entry Gat No. 65/3 was given to Gat No. 65/1-part. In his statement Shri Vinayak Ratngir Gosavi has admitted that he is not an agriculturist. (emphasis supplied) 6. It is further observed by the Tenancy Awalkarkun that as per provisions of Section 63 the transfer of any land to non-agriculturist is barred. The transferee's should have to obtain prior permission to purchase the suit land from the Collector or authorised officer under the provisions of Section 63 of the said Act. As the second transaction is in favour of the non-agriculturist. The Tenancy Awalkarkun observed “I declare that the transfer of the suit land by sale transaction dated 19th April, 1985 / 20th April, 1985 is invalid and further order that the suit land shall be deemed to vest in the State Government free from all encumbrances lawfully subsisting thereon the dtae of 12 W.P. No. 3975.91 appeal period is over and shall be disposed of in the manner provided in sub-section (4) of Section 84-C of the said Act”. 7. Being aggrieved of the order passed by the Tenancy Awalkarkun, Rahuri in Tenancy Appeal No. 17 of 1986, the petitioners herein preferred an appeal which was heard finally on 22th July, 1987. After hearing the respective counsel for the parties and after appreciating the rival contentions and after perusal of record and proceedings received from the lower authority, the Sub Divisional Officer, Rahuri held that proof submitted on behalf of appellant No. 1 therein do not show that his uncle was an agriculturist on the date of purchase of the sand land. Secondly, no proof has been submitted to show that the appellant No. 1 and his uncle Ramgir Bhimgir are the members of the joint family. Further finding is recorded that the suit land is not purchased by the appellant No. 1 in his individual capacity. But he has purchased the suit land as chief promoter of the proposed Rangnath Swami Sahakari Griha Nirman Sanstha, Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar. The suit land has been purchased by the appellant No. 13 W.P. No. 3975.91 1 on 19th April, 1985 under registered sale-deed, whereas the said Gruha Nirman Sanstha has been registered on 30th December, 1985. Thus, the said Graha Nirman Sanstha was not registered on the date of purchase of the suit land as such, the claim of the appellant cannot be accepted. Therefore, appeal came to be dismissed. 8. The petitioner herein approached the Maharashtra Revenue Tribunal, Pune by way of filing revision application No. 11 of 1986. The Maharashtra Revenue Tribunal has considered the case of the petitioners and after hearing the respective parties in para No. 8 confirmed the finding of the appellate authority that the uncle of the petitioner was not agriculturist,on the date of sale-deed. Another contention of the petitioner that since the petitioner is the Chief Promoter of the proposed Rangnath Swami Sahakari Griha Nirman Sanstha, Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar, and therefore, the provisions of Section 63 would not be attracted, in that respect the Maharashtra Revenue Tribunal has recorded that the suit land seems to have been purchased by Vinayak Gosavi from Trimbak Shivram as 14 W.P. No. 3975.91 the Chief Promoter of the proposed Shakari Gruha Nirman Sanstha and as such this particular Sanstha was not registered on the date of sale i.e. on 19th April, 1985, but came to be registered subsequently on 30th December, 1985, and therefore, the Maharashtra Revenue Tribunal held that the suit land was purchased by the applicant No. 1 i.e petitioner No. 1 herein in his individual capacity. It is further held that the suit land was purchased by the applicant No. 1 in his individual capacity, as long as the Gruha Nirman Sanstha is not registered, the benefit under the Co- operative Societies Act cannot be accrue to the present applicant No. 1, as the Chief Promoter of such society. The Maharashtra Revenue Tribunal has also referred to the registration certificate of the Society which was placed on record by the petitioner and it found that the said society is registered on 30th December, 1985 and the sale-deed in question is dated 19th April, 1985. The Maharashtra Revenue Tribunal, further observed that the position appears to be that on the date of sale deed such a society was not in existence and it was only a proposed Co- operative Society. So it cannot have any corporate status till it is registered and ultimately the 15 W.P. No. 3975.91 position stands that the sale between Trimbak Shivram and the present applicant No. 1 was between an agriculturist and non-agriculturist. Therefore, the provisions of Section 63 of the said Act would be attracted. Admittedly, no permission was obtained by the applicant No. 1 for such purchase, and therefore, the sale transaction dated 19th April, 1985 could be hit by the provisions of 63 of the said Act, the transfer of any land in favour of non-agriculturist is prohibited and the transferee is required to obtain prior permission for such purchase from the Collector or the competent officer in that behalf, and therefore, the Maharashtra Revenue Tribunal held that sale transaction dated 19th April, 1985 was rightly held as invalid by both the authorities below and the impugned order requires no interference. Therefore, revision filed by the petitioners came to be dismissed. 9. On independent scrutiny and from perusal of the orders passed by the Tenancy Awalkarkun, Rahuri, appellate authority and revisional authority, it is clear that the petitioner No. 1 was not an agriculturist and he has also admitted the same fact 16 W.P. No. 3975.91 in his statement before the Tenancy Awalkarkun. All the three forums on the basis of documents produced on record and after appreciating the rival contentions have recorded the finding that petitioner No. 1 herein was not agriculturist on the date of sale-deed. Therefore, no interference is warranted to upset the concurrent findings recorded by the Tenancy Awalkarkun, Rahuri, appellate authority and revisional authority. The another contention raise by the counsel appearing for the petitioner that provisions of Section 63 of the said Act are not attracted in the present case, since the suit land was purchased by the petitioner No. 1 as a Chief Promoter of the proposed Rangnath Swami Sahakari Griha Nirman Sanstha, Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar, is concerned, in my opinion, the said contention cannot be accepted. The appellate Authority and revisional authority have held that the said society was not registered on the date on which sale deed was registered i.e. on 19th April, 1985.Therefore, the transaction between the petitioner No. 1 and petitioner No. 2 was between the agriculturist and 17 W.P. No. 3975.91 non-agriculturist. Therefore, as per provisions of 63 of the said Act prior permission of the competent authority for such transaction was necessary and admittedly no permission was taken for such sale transaction. The contention of the petitioner that their case is covered under Section 64-A is concerned same deserves to be rejected. It would be relevant to reproduce the provisions of Section 64-A of the said Act which reads thus :- “[64-A Nothing in Section 63 and 64 shall apply to sales effected by or in favour of a co-operative Society under the Bombay Co-operative Societies Act, 1925*]” Upon perusal of the above provisions, it is clear that if sales effected or by or in favour of Co- operative Society under the Bombay Co-operative Society Act, 1925 nothing in Section 63 and 64 shall apply to sales. However, in the instant case, admittedly, the proposed Rangnath Swami Sahakari Griha Nirman Sanstha, Chinch Vihire, Tq. Rahuri, Dist. Ahmednagar was not registered on the date of sale- 18 W.P. No. 3975.91 deed. What is contemplated under Section 64-A of the said Act is the registered Cooperative Society and not the proposed Co-operative Society. Therefore, the contention of the petitioner that since the petitioner No. 1 has purchased the land in question for proposed Housing Society, and therefore, provisions of section 62 and 63 of the said Act are not applicable is required to be rejected. On the date of sale-deed the said Co-operative Society was not registered and the benefit of section 64-A of said Act could not have been given in the case of said society. Therefore, viewed form any angle, in my considered opinion no case is made out for interference. Petition stands dismissed. Rule stands discharged. Interim relief stands vacated. In view of the dismissal of the Writ Petition, Civil Application, if any stands disposed of accordingly. [S.S. SHINDE, J] At this state, learned Counsel for the petitioner prays that the interim order, which was operating during the pendency of this petition may be 19 W.P. No. 3975.91 continued for further period of eight weeks. Upon hearing counsel for the petitioner and A.G.P. for the State, in my opinion the prayer is reasonable. Hence, interim order which was in operation during the pendency of this petition shall continue for further eight weeks from today. [S.S. SHINDE, J] SDM*3975.91WP/91210