1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4033/2009. 1) Vikram s/o Dhoman Patil Age: 68 Yrs., occ.Agril. R/o at Post Pimple (Khurd) Tal.Dharangaon, Dist.Jalgaon. Hemraj s/o Dhoman Patil (since died through his L.rs.) 1-A) Vastalabai w/o Hemraj Patil Age: 50 Yrs., occu. Agril. R/o At post Pimple (Khurd), Tq. Dharangaon, Dist.Jalgaon. 1-B) Suresh s/o Hemraj Patil Age: 28 Yrs., occu.Agril. r/o At post Pimple (Khurd) Tal.Dharangaon, Dist.Jalgaon. 1-C) Mangalabai w/o Ramkrishan Patil Age: 24 Yrs., occu. Household, R/o Nishane, Tq.Dharangaon, District Jalgaon. (Petitioner No.2 and his legal heirs have executed power of attorney in favour of petitioner no.1) - PETITIONERS VERSUS 1) The State of Maharashtra Through the Secretary, Ministry of Revenue and Forest Department, Mantralaya, Mumbai-32. 2) The Divisional Commissioner, 2 Nashik Division, Nashik. 3) The Sub Divisional Officer, Jalgaon Division, Jalgaon. 4) The Tahsildar, Dharangaon, Dist.Jalgaon. 5) Shri Mukund s/o Ratan Patil Age:Major, occu. Agril. 6) Shri Pandit s/o Ratan Patil Age: Major, occ. Agril. 7) Devidas s/o Ratan Patil Age:Major, occu.Agril. 8) Smt. Tejasbai Ravan Patil Age:Major, occu.Household (Respondenet Nos. 5 to 8 all R/o At post Pimple (Kh.) Tq.Dharangaon, Dist.Jalgaon.) 9) Bhikubai w/o Malhari Patil since deceased through Lrs. A) Santosh s/o Malhari Patil Age: 58 Yrs., occu. Agril. B) Vaijanathabai w/o Baburao Patil Age: 65 Yrs., occu. Household. C) Sumanbai w/o Lotan Patil’ Age: 48 Yrs., occu. Household. D) Bansilal Hola Patil (since deceased through L.Rs.) D1) Sanjay s/o Bansilal Patil Age: 20 Yrs., occu. Agril. All R/o Billadi, Tq. and District Dhule. 3 10) Smt.Rajasabai w/o Uttam Patil Since deceased through L.Rs. A) Shivaji s/o Uttam Patil Age: 40 Ys., occu. Agril. B) Jijabrao s/o Uttam Patil Since deceased through L.Rs. B1) Samadhan s/o Jijabroa Patil Age: 16 Yrs., occu. nil. B2) Balkrishna s/o Jijabrao Patil Age: 14 Yrs., occ. nil U/g of their real mother - Smt. Kamalabai w/o Jijabrao Patil Age:Major, ocu.Agril. C) Bansilal s/o Uttam Patil Age: 36 Yrs., occu. Agril. D) Sanjay s/o Uttam Patil Age: 32 Yrs., occu. Agril. E) Hiralal s/o Uttam Patil Age:30 Yrs., occu. Agril. F) Annapurna w/o Madhukar Patil Age: 41 Yrs., occu. Household. G) Mangalabai Yashwant Patil Age: 39 Yrs., occ.Household. H) Sunandabai w/o Prakash Patil ge:34 Yrs.. occ. Household. All R/o Hiwarkheda, Tq.Pachora, District Jalgaon. - RESPONDENTs ***** WITH WRIT PETITION NO.4034 OF 2009 4 Dwarkabai w/o Narayan Patil Age: 70 Yrs., occu.Agril. R/o At post Pimple (Khurd) Tq.Dharangaon,Dist.Jalgaon. - PETITIONER VERSUS 1) The State of Maharashtra Through the Secretary, Ministry of Revenue and Forest Department, Mantralaya, Mumbai-32. 2) The Divisional Commissioner, Nashik Division, Nashik. 3) The Sub Divisional Officer, Jalgaon Division, Jalgaon. 4) The Tahsildar, Dharangaon, Dist.Jalgaon. 5) Shri Mukund s/o Ratan Patil Age:Major, occu. Agril. 6) Shri Pandit s/o Ratan Patil Age: Major, occ. Agril. 7) Devidas s/o Ratan Patil Age:Major, occu.Agril. 8) Smt. Tejasbai Ravan Patil Age:Major, occu.Household (Respondenet Nos. 5 to 8 all R/o At post Pimple (Kh.) Tq.Dharangaon, Dist.Jalgaon.) 9) Bhikubai w/o Malhari Patil since deceased through Lrs. A) Santosh s/o Malhari Patil Age: 58 Yrs., occu. Agril. 5 B) Vaijanathabai w/o Baburao Patil Age: 65 Yrs., occu. Household. C) Sumanbai w/o Lotan Patil’ Age: 48 Yrs., occu. Household. D) Bansilal Hola Patil (since deceased through L.Rs.) D1) Sanjay s/o Bansilal Patil Age: 20 Yrs., occu. Agril. All R/o Billadi, Tq. and District Dhule. 10) Smt.Rajasabai w/o Uttam Patil Since deceased through L.Rs. A) Shivaji s/o Uttam Patil Age: 40 Ys., occu. Agril. B) Jijabrao s/o Uttam Patil Since deceased through L.Rs. B1) Samadhan s/o Jijabroa Patil Age: 16 Yrs., occu. nil. B2) Balkrishna s/o Jijabrao Patil Age: 14 Yrs., occ. nil U/g of their real mother - Smt. Kamalabai w/o Jijabrao Patil Age:Major, ocu.Agril. C) Bansilal s/o Uttam Patil Age: 36 Yrs., occu. Agril. D) Sanjay s/o Uttam Patil Age: 32 Yrs., occu. Agril. E) Hiralal s/o Uttam Patil Age:30 Yrs., occu. Agril. F) Annapurna w/o Madhukar Patil Age: 41 Yrs., occu. Household. 6 G) Mangalabai Yashwant Patil Age: 39 Yrs., occ.Household. H) Sunandabai w/o Prakash Patil ge:34 Yrs.. occ. Household. All R/o Hiwarkheda, Tq.Pachora, District Jalgaon. - RESPONDENTS ***** WITH WRIT PETITION NO.4035 OF 2009 1) Suresh s/o Tulshiram Patil Age: 63 Yrs., occu. Agril. R/o At Post Pimple (Khurd), Tq.Dharangaon, Dist.Jalgaon. 2) Manohar s/o Tulshiram Patil Age: 71 Yrs., occu. Agril. R/o as above. 3) Dharma s/o Atmaram Patil Age; 40 Yrs., occu.Agril. R/o as above. - PETITIONERS VERSUS 1) The State of Maharashtra Through the Secretary, Ministry of Revenue and Forest Department, Mantralaya, Mumbai-32. 2) The Divisional Commissioner, Nashik Division, Nashik. 3) The Sub Divisional Officer, Jalgaon Division, Jalgaon. 4) The Tahsildar, 7 Dharangaon, Dist.Jalgaon. 5) Shri Mukund s/o Ratan Patil Age:Major, occu. Agril. 6) Shri Pandit s/o Ratan Patil Age: Major, occ. Agril. 7) Devidas s/o Ratan Patil Age:Major, occu.Agril. 8) Smt. Tejasbai Ravan Patil Age:Major, occu.Household (Respondenet Nos. 5 to 8 all R/o At post Pimple (Kh.) Tq.Dharangaon, Dist.Jalgaon.) 9) Bhikubai w/o Malhari Patil since deceased through Lrs. A) Santosh s/o Malhari Patil Age: 58 Yrs., occu. Agril. B) Vaijanathabai w/o Baburao Patil Age: 65 Yrs., occu. Household. C) Sumanbai w/o Lotan Patil’ Age: 48 Yrs., occu. Household. D) Bansilal Hola Patil (since deceased through L.Rs.) D1) Sanjay s/o Bansilal Patil Age: 20 Yrs., occu. Agril. All R/o Billadi, Tq. and District Dhule. 10) Smt.Rajasabai w/o Uttam Patil Since deceased through L.Rs. A) Shivaji s/o Uttam Patil Age: 40 Ys., occu. Agril. 8 B) Jijabrao s/o Uttam Patil Since deceased through L.Rs. B1) Samadhan s/o Jijabroa Patil Age: 16 Yrs., occu. nil. B2) Balkrishna s/o Jijabrao Patil Age: 14 Yrs., occ. nil U/g of their real mother - Smt. Kamalabai w/o Jijabrao Patil Age:Major, ocu.Agril. C) Bansilal s/o Uttam Patil Age: 36 Yrs., occu. Agril. D) Sanjay s/o Uttam Patil Age: 32 Yrs., occu. Agril. E) Hiralal s/o Uttam Patil Age:30 Yrs., occu. Agril. F) Annapurna w/o Madhukar Patil Age: 41 Yrs., occu. Household. G) Mangalabai Yashwant Patil Age: 39 Yrs., occ.Household. H) Sunandabai w/o Prakash Patil ge:34 Yrs.. occ. Household. All R/o Hiwarkheda, Tq.Pachora, District Jalgaon. - RESPONDENTS ***** WITH WRIT PETITION NO.4036 OF 2009 1) Atmaram s/o Tulshiram Patil (since Dead through his L.Rs.) Dharma s/o Atmaram Patil Age; 40 Yrs., occu.Agril. 9 R/o At Post Pimple (Kh.) Tq.Dharangaon,Dist.Jalgaon. 2) Dwarkabai w/o Narayan Patil Age: 70 Yrs., occu.Agril. R/o At post Pimple (Khurd) Tq.Dharangaon,Dist.Jalgaon. 3) Suresh s/o Tulshiram Patil Age: 63 Yrs., occu. Agril. R/o At Post Pimple (Khurd), Tq.Dharangaon, Dist.Jalgaon. - PETITIONERS VERSUS 1) The State of Maharashtra Through the Secretary, Ministry of Revenue and Forest Department, Mantralaya, Mumbai-32. 2) The Divisional Commissioner, Nashik Division, Nashik. 3) The Sub Divisional Officer, Jalgaon Division, Jalgaon. 4) The Tahsildar, Dharangaon, Dist.Jalgaon. 5) Shri Mukund s/o Ratan Patil Age:Major, occu. Agril. 6) Shri Pandit s/o Ratan Patil Age: Major, occ. Agril. 7) Devidas s/o Ratan Patil Age:Major, occu.Agril. 8) Smt. Tejasbai Ravan Patil Age:Major, occu.Household (Respondenet Nos. 5 to 8 all R/o At post Pimple (Kh.) 10 Tq.Dharangaon, Dist.Jalgaon.) 9) Bhikubai w/o Malhari Patil since deceased through Lrs. A) Santosh s/o Malhari Patil Age: 58 Yrs., occu. Agril. B) Vaijanathabai w/o Baburao Patil Age: 65 Yrs., occu. Household. C) Sumanbai w/o Lotan Patil’ Age: 48 Yrs., occu. Household. D) Bansilal Hola Patil (since deceased through L.Rs.) D1) Sanjay s/o Bansilal Patil Age: 20 Yrs., occu. Agril. All R/o Billadi, Tq. and District Dhule. 10) Smt.Rajasabai w/o Uttam Patil Since deceased through L.Rs. A) Shivaji s/o Uttam Patil Age: 40 Ys., occu. Agril. B) Jijabrao s/o Uttam Patil Since deceased through L.Rs. B1) Samadhan s/o Jijabroa Patil Age: 16 Yrs., occu. nil. B2) Balkrishna s/o Jijabrao Patil Age: 14 Yrs., occ. nil U/g of their real mother - Smt. Kamalabai w/o Jijabrao Patil Age:Major, ocu.Agril. C) Bansilal s/o Uttam Patil Age: 36 Yrs., occu. Agril. 11 D) Sanjay s/o Uttam Patil Age: 32 Yrs., occu. Agril. E) Hiralal s/o Uttam Patil Age:30 Yrs., occu. Agril. F) Annapurna w/o Madhukar Patil Age: 41 Yrs., occu. Household. G) Mangalabai Yashwant Patil Age: 39 Yrs., occ.Household. H) Sunandabai w/o Prakash Patil ge:34 Yrs.. occ. Household. All R/o Hiwarkheda, Tq.Pachora, District Jalgaon. - RESPONDENTS ***** Mr.VD Salunke,Adv.h/for Mr.DS Bagul,Advocate for Petitioners; Mr.KS Patil,AGP for Resp.Nos.1 to4 ; Mr.Hemant Surve,Advocate for Resp.Nos. 5 to 10H. ----- CORAM : K.U.CHANDIWAL,J. DATE : 11th October,2010. ORAL JUDGMENT : 1) Heard the learned Counsel for the respective parties extensively. 2) This group of writ petitions is finally 12 heard by consent of parties. 3) Rule. Rule made returnable forthwith by consent of parties. 4) No separate set of document other than tendered is furnished. 5) A chequered history of long drawn litigation way back from 1948-1949 till 1988-1990 is projected. Both the learned Counsel threadbare dealt with several mutation entries and orders, coupled with provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter to be referred to as the Tenancy Act). 6) Writ petitioners claim to be tenants of the disputed properties, they moved an application before the learned Tahsildar, for declaration of their status as tenants and other reliefs. The respondents claim to be owner of the disputed properties. 7) Agricultural fields were owned and possessed by Manaji Khushal Patil, who expired on 13.11.1946, leaving behind him his widow – Smt. Seeta and son, namely Waman and three daughters, viz. Sakhubai Ratan Patil, Subhadrabai Kisan 13 Patil and Bhikubai Malhari Patil. Waman was mentally ill, consequently, his wife – Smt. Shantabai applied to the District Court for appointment of Guardian and it was by orders of the learned District Judge, Deputy Nazir of the Court was appointed as Guardian of Waman Manaji Patil, consequently, mutation entry No.694 was recorded in the name of Nazir of the court dated 4.4.1949 (page 44 of the paper book). The theory of the present petitioners occupying the properties as tenants necessarily flow from the period onwards of 1949. It will not be relegating during the life time of original owner Manaji in 1946, as has been tried to be coined. There is no document barring stray entries to support such assertion in favour of the petitioners. Had it been a case of prior tenancy, there was no need of management of the properties. Title to property can not vest based on mutation entries. A Will-deed dated 07.10.1980 is purportedly executed in favour of Mukunda Ratan Patil by Subhadrabai Kisan Patil, who expired on 23.7.1981, consequently, mutation entries to this effect could be traced at Serial No.1392(page 49 of paper book). 8) The settled position of law is, if the petitioners or their forefathers were enjoying the properties on annual auction basis (Eksala 14 lawani) even for a long duration, including possession on the tillers day, i.e. 1.4.1957, such tenants (petitioners) will not get absolute rights over the property excluding the rights of the landlord. It was a time gap arrangement made by the Court. No sooner the possession or the guardianship of the Nazir is eliminated and discontinued, the effect will be, any person holding on the basis of such arrangement at the behest of such Nazir or the State or the Court, will cease to remain in occupation of the property under any valid right. Continuation of such person’s right or possession over the property will be tantamount to that of a tresspasser. 9) The other limb of submission from learned Counsel for the petitioners, was, since proceedings under Section 32G of the Tenancy Act, commenced in the year 1958 for fixation of purchase price and restoration of possession of the suit land, U/s 84 of the Tenancy Act, limitation applicable should have been considered. 10) The powers concerning provisions of Section 32 of the Tenancy Act are vested in the Tribunal. The tribunal necessarily means, an authority conferred in the learned Tahsildar or 15 Mamlatdar, as the case may be, but would not be a Collector. 11) Two basic questions are projected by learned Counsel for petitioners, viz. i) Whether slumber, that has been demonstrated by the landlords (respondents) in their application (Tenancy Case No.2/1988) dated 18.7.1988, after a period of 35 years, would be entertained and maintainable ?; ii) Whether the action of learned Tahsildar in entertaining the application in Tenancy Case No.2/1988 was barred by virtue of Section 84 of the Tenancy Act? 12) Two Authorities, viz., Sub Divisional Officer, Jalgaon Division Jalgaon, based on the observations of learned Tahsildar, Dharangaon and thereafter learned Member, M.R.T., by order dated 4.5.2009, have decided against the petitioners and consequently the writ petitions, questioning the legality of such orders. 13) Section 32P and 32F of the Tenancy Act will have its decisive bearing in the matter. Any action, which the tenant proposes to take concerning the property in possession, will be within the stipulated period, as is ordained and mandated in Section 32F, which starts with right of tenant to purchase where landlord etc are 16 minor. Section 32F sub-sections (1)(b)(iii) stipulates within one year from the date on which the mental or physical disability of the landlord ceases to exist. There is no controversy that Waman expired on 23.05.1962. Any action, if the petitioners desired could be within a period of one year. However, this mandatory compliance is not apparently adhered to by any of the petitioners. Immediately after death of Waman on 23.05.1962, mutation entry No.1059 has taken place (page 45 of the paper book). Mutation entry No.1160, dated 3.3.1968 (page 47 of paper book), illustrates deletion of name of management, i.e. Nazir. Mutation entry No.1194 (page 48) deals with deletion of name of Tulshiram Ratan Patil having expired on 21.3.1970. 14) Since Waman had no male issue, the agricultural fields owned by him were relegated to his sisters, namely, Sakhubai Ratan Patil; Bhikubai Malhari Patil and Subhadrabai Kisan Patil, referred earlier and mutation entry was effected in their respective names, vide mutation entry no.1392 (page 49) 15) The authorities found that whatever mutation entries recorded in the name of the petitioners or their forefathers, were apparently 17 after management of the court was recorded in 1949 or after 12.12.1953. The mutation entries were dated 8.12.1954. This explicitly indicate that on the ate of effecting such entries, the disputed properties were under management of the Court and, therefore, the petitioners could not have, to repeat, claimed their rights as tenants. The provisions of Section 9 of the Tenancy Act authorizes the Mamlatdar to fix the rent payable by tenant to landlord. However, both the authorities found that there was nothing to demonstrate any fixation of rent payable by the petitioners to the landlord. No exercise was made by the petitioners. There is nothing to display that the petitioners any time, in past either from 1949 or 1954 or 1957 had paid any sum to the land owners either towards yearly rent on the basis of crop or otherwise, as is contemplated under Section 9A of the Tenancy Act. 16) Section 4 of the Tenancy Act deals with persons to be deemed tenants. Survey of details illustrate that the petitioners could not be branded to be deemed tenants. Effect of Section 4A takes care of protected tenants. Same will not be even applicable to the case portrayed by the petitioners. 17) Learned MRT found that there is no 18 specific case of the petitioners that there was actual agreement between them and the original landlord for cultivation of the suit lands. They did not dispute that the original landlord suffered from disability and, therefore, the suit lands were taken in by the management of Court, which continued up to 1968. I find this observation of the learned Member of the Tribunal to be in tune with the earlier discussions. 18) The learned member of MRT also found that the petitioners were neither protected tenants nor permanent tenants. This is so indicated in terms of Section 4 and 4A of the Tenancy Act. It is clear, as indicated, that the status of the petitioners or their forefathers was as merely cultivating the lands on year-to- year basis, even on the tillers day, it was by virtue of the arrangement by the Nazir of the court. 19) The learned Counsel for the petitioners canvassed that fresh application 2/1988 or the group of applications moved by the landlord before the learned Tahsildar, was/were not maintainable in the light of the provisions of Section 84 of the Tenancy Act. I find it difficult to conceive. The possession of petitioners will have to be governed in terms of 19 the Scheme and procedure, as is indicated either under Section 32 of the Tenancy Act, which flows in tune with the system of determination of the rights. Section 84 of the Tenancy Act though contemplate powers to be exercised by Collector, will not be to be accelerated, as the powers to deal with the tenancy controversy vest in the Tribunal. 20) The point of limitation, that has been raised, needs consideration. Mr.Surve, learned Counsel appearing for the respondents/landlords informs that Section 32P of the Tenancy Act does not bind to take recourse in a specified period or time bound frame. Second limb of submission was, it was in the year 1981, based on the testamentary document, the landlord having created rights in the property, the period that can be reckoned, could be within 12 years and not of three years. For such purposes, learned Counsel relies upon Article 67 of Schedule-I of Limitation Act, 1963. I endorse this view to be correct. 21) Mr.Salunke, indicates even if the Will deed is to be considered, it was only in respect of one, being legal representative of deceased Subhadrabai and the Will-Deed executed by Subhadrabai, referred earlier. Even if this 20 position is accepted, however, the possession or enjoyment of the property by the petitioners was necessarily under the banner of the court, they could not continue the same, either as tenant or trespasser. 22) Mr.Surve, learned Counsel for the respondents, took recourse to the following reported Judgments : (i) AIR 2009 SC 1126; (ii) AIR 1999 SC 1963 (1); (iii) 2007 (3) Mh.L.J. 344; (iv) 1991 (1) Mh.L.J. 435; (v) AIR 2001 SC 3994; (vi) AIR 1999 SC 1043; (vii) AIR 1996 SC 223(1) (viii) AIR 1995 SC 2164(1); (ix) 2009 (3) Mh.L.J. 745; (x) 2009 (1) Mh.L.J. 377 and (xi) AIR 1991 SC 1037. 23) There cannot be any quarrel on proposition of law, as has been enunciated. The Apex Court in the matter of Tukaram Maruti Chavan Vs. Maruti Narayan Chavan (deceased by L.Rs.) and Ors., reported in AIR 2009 SC 1126 , in unequivocal terms indicated that the provisions of Section 32F are independent in nature and are 21 separate from provisions of Section 31. The Apex Court observed, “ Section 31 is not not included in the sections mentioned under sub-section (2) of Section 32F, and the expression “Notwithstanding anything contained in the preceding sections” under sub-section (1) of Section 32F, right given to the landlord under Section 31 has nothing to do with the right given to the tenant under Section 32F for purchasing the land and consequently the tenant is under a legal obligation or statutory duty to give notice of his intention to purchase the land as required under Section 32F. Even if the proceedings were initiated under Section 32G by the tenant initially, he cannot claim to be exempted from complying with the mandatory requirement of serving a notice to the landlord as contemplated under Section 32F which mandated under the Act and commands strict compliance thereof. The required notice is not mandatory only in a case when a widow landlady has already exercised her right under Section 31(1), i.e. when during her lifetime, a notice is served to the tenant that the landlady requires the land bona fide.” This legal position clearly establishes that at no point of time in past the petitioners complied with their obligations even if they are treated to be tenants of the agricultural fields. 22 24) The findings recorded by both the authorities, cannot be branded to be perverse or crossing the limits in the authorities vesting such powers. No interference in writ jurisdiction is warranted. Writ Petitions dismissed. No costs. Heard. The order is stayed for eight weeks. sd/- (K.U.CHANDIWAL) JUDGE bdv/ Authenticated copy (BD VADNERE,PS)