(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1013 OF 1993 WITH Civil Application No. 1711 of 2011 (In Writ Petition No. 1013 of 1993) WRIT PETITION NO. 1013 OF 1993 Basawanappa s/o. Limbanappa Patankar, Age : 48 years, Occupation : Business and Agriculture, R/o. Plot No. B-1 of MIDC Industrial Area, and Survey No.47 of Khadgaon, Taluka and District : Latur. .. Petitioner. versus 1. Sk. Nizamuddin s/o. Sk. Amir, Age : 70 years, R/o. Azam Gunj, Latur, Taluka and District : Latur. 2. Ramkrishna Shankarrao Madane, Age : 40 years, Occupation : Business, R/o. Sul Galli, Latur. 3. Yadav s/o. Vithal Shetty, Age : Major, R/o. Railway Canteen, Bhigwan, Taluka & District : Latur. (2) (Respondent no.3's address is changed from the address recorded in the lower court, since it is his new address) 4. Additional Tahasildar, Latur. 5. Dy. Collector (Land Reforms), Latur. 6. Maharashtra Revenue Tribunal, Behind High Court building, Aurangabad. 7. State of Maharashtra. 8. Krishna s/o. Mallhari Jadhav (Kungave), Died through legal heir : Ganpati s/o. Krishna Jadhav (Kungave), Age : Major, Occupation : Agriculture, .. Respondents R/o. Khadgaon, (No.8 - Intervenor) Taluka and District : Latur. ....................... Shri G.N. Patil, Advocate, for the petitioner. Respondent no.1 served (Absent). Smt. Anjali Bajpai (Dube), Advocate, for respondent no.2. Smt. Geeta Deshpande, Advocate, for respondent no.3 (Absent). (3) Smt. V.A. Shinde, Assistant Government Pleader, for respondent nos.4 to 7. Shri D.R. Irale Patil, Advocate, holding for Shri W.S. Jadhav, Advocate, for respondent no.8 / Intervenor. ........................ Civil Application No. 1711 of 2011 (In Writ Petition No. 1013 of 1993) Krishna s/o. Mallhari Jadhav, Died through legal heir : Ganpati s/o. Krishna Jadhav (Kungave), Age : Major, Occupation : Agriculture, R/o. Khadgaon, .. Applicant Taluka and District : Latur. (Intervenor) versus 1. Basawanappa s/o. Limbanappa Patankar, Age : Major, Occupation : Agriculture, R/o. Plot No. B-1, MIDC Industrial Area, Taluka and District : Latur. 2. Sk. Nizamuddin s/o. Sk. Amir, Age : Major, Occupation : Business, R/o. Azam Gunj, Latur, Taluka and District : Latur. (4) 3. Ramkrishna s/o. Shankarrao Madane, Age : Major, Occupation : Business, R/o. Sul Galli, Latur, Taluka and District : Latur. 4. Yadav Vitthal Shetty, Age : Major, Occupation : Business, R/o. Railway Canteen, Bhiwandi, District : Thane. .. Non-Applicants 5. Additional Tahasildar, Latur, (No.1 - Original Taluka and District : Latur. petitioner & Nos.2 to 7 - Original 6. The Deputy Collector (Land Reforms), respondents in W.P. Latur, Taluka and District : Latur. No. 1013/1993) 7. The State of Maharashtra. .............................. Mr. D.R. Irale Patil, Advocate, holding for Mr. W.S. Jadhav, Advocate, for the applicant. Mr. G.N. Patil, Advocate, for Non-Applicant no.1. None for Non-Applicant no.2. Smt. Anjali Bajpai (Dube), Advocate, for Non-Applicant no.3. Smt. Geeta Deshpande, Advocate, for Non-Applicant no.4 (Absent). Smt. V.A. Shinde, Assistant Government Pleader, for Non-Applicant nos.5, 6 and 7. (5) ............................... CORAM : B.P. DHARMADHIKARI, J. DATE : 23RD FEBRUARY 2011 & 25TH FEBRUARY 2011 ORAL JUDGMENT : 1. The challenge in this petition filed under Articles 226 and 227 of the Constitution of India, is to the judgment dated 8th February 1993, delivered by Maharashtra Revenue Tribunal, Aurangabad, in two Revisions numbered as 4/B/92/Latur and 42/B/92/Latur, preferred under Section 91 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (For short, "1950 Act"). Said revisions were filed by the present petitioner and present respondent no.2 challenging common judgment of Deputy Collector, Latur, dated 30-9-1991, in Tenancy Appeal No. 91/TNC/A/12. The appeal, in turn, was against the orders of Additional Tahsildar dated 28th February 1991 in proceedings initiated by the present petitioner for getting sale dated 15th September 1989, executed by present respondent no.1 in favour of respondent no.2 cancelled alleging violation of Section 47 of 1950 Act. The Tahsildar has taken cognizance of this complaint under Section 98C of 1950 Act and, as also, under Section 6 of the Bombay Prevention of Fragmentation and Consolidation of (6) Holdings Act, 1947 (For short, "1947 Act"). 2. The petitioner filed said application styled as one under Section 47 and 98C of 1950 Act on 26th September 1989. He claimed that he was an allottee of an adjacent plot of land for commercial purposes by Maharashtra Industrial Development Corporation. He pointed out that land Survey No.47 admeasuring 2.36 Acres situated at village Khadgaon, originally belonged to one Nizamuddin i.e. present respondent no.1. Respondent no.1 sold 1-28.5 Acres of land out of it to Ishwarlal, Ashokkumar and one Pravinkumar. Some portion out of its remaining area then came to be acquired by State Government for MIDC and about 5 Gunthas of land was only left. That land was agreed to be sold by respondent no.1 to respondent no.2 as per agreement dated 28th December 1984. It is further alleged that on 1st March 1985, respondent no.2 leased out portion admeasuring 40 feet X 50 feet out of this 5 Gunthas land for one year. On 15th September 1989, respondent no.1 executed sale deed in favour of respondent no.2. The petitioner alleged that he is in possession of this 5 Gunthas of land and raised challenges as mentioned above after execution of sale deed dated 15th September 1989. According to him, he continued in possession of the said triangular portion admeasuring 5 Gunthas which separated Plot No. B-1 allotted to him by MIDC from Latur- (7) Barshi Road. He also claimed that as his possession was obstructed by respondent nos.1 and 2, he was constrained to move Additional Tahsildar. 25TH FEBRUARY 2011 3. The Additional Tahsildar by his order dated 28-2-1991 declared the sale deed of 5 Gunthas portion of Survey No. 47 and handing over possession of 40 feet X 50 feet portion thereof as illegal in view of provisions of Section 98C of 1950 Act. He found that the agricultural land was being put to use for non-agricultural purposes and hence as per provisions of Section 47(1) of 1950 Act and Rule 29 of 1958 Rules framed thereunder, the permission of Collector was essential and it was not obtained. He also found that some civil dispute was going on between parties but then, his office was not concerned with that civil dispute. 4. Present respondent no.2 questioned this order by filing Tenancy Appeal No. 91/TNC/A/12 before the Deputy Collector (Land Reforms) at Latur. This appeal has been decided by the Deputy Collector on 30-9-1991. The Deputy Collector found that the land was an agricultural land and hence rejected contention of respondent no.2 that it was a commercial (8) land. It was also noticed that though name of tenant Krishna Malhari was struck off from tenancy records, in column meant for recording other rights, name of Pandurang Dhangar was appearing. Therefore, violation of provisions of Section 47(1) of 1950 Act was accepted by the Deputy Collector. Similarly, he also observed that as per provisions of 1947 Act, transaction of an area below 2 Acres in case of dry crop land and below 20 Gunthas for wet land is not permitted. Hence sale of 5 Gunthas land was found to be prohibited and adjacent owner was found entitled to purchase it. The appeal, therefore, came to be dismissed. In revision filed by the present respondent no.2, Ramkrishna, as also, present petitioner, the Maharashtra Revenue Tribunal has delivered impugned order on 8th February 1993. The petitioner filed revision for limited purpose of pointing out that provisions of law required forfeiture of sale consideration paid by the respondent no.2 to respondent no.1. 5. The Maharashtra Revenue Tribunal in its common judgment, noted that respondent no.2 Ramkrishna is agriculturist and, therefore, sale to him did not violate provisions of Section 47(1) of 1950 Act and hence recourse to Section 98C of 1950 Act was unwarranted. It further found that it was not competent to exercise any jurisdiction under 1947 Act and hence did not touch the issue of sale of fragment. It allowed revision petition (9) filed by respondent no.2 and dismissed revision petition filed by the present petitioner. 6. Adv. Mr. G.N. Patil, appearing for the petitioner, has after inviting attention to facts briefly, as narrated above, has urged that the respondent no.2 claimed before Tahsildar that lands were for commercial purposes and did not press into service his alleged status as agriculturist. The Additional Tahsildar applied his mind in the light of said pleading and after recording a finding that 5 Gunthas land was also meant for agricultural purposes, found its purchase by respondent no.2 was in violation of Section 47(1) and exercised jurisdiction under Section 98C of 1950 Act. This finding was challenged by respondent no.2 in appeal before Deputy Collector but then, no document to show status as agriculturist was filed along with that appeal memo or then, at any point of time before Deputy Collector by the said respondent. The Deputy Collector, therefore, upheld the finding of Tahsildar in this respect. This concurrent finding has been upset by the Maharashtra Revenue Tribunal by placing reliance upon some documents which have been produced for the first time before the Maharashtra Revenue Tribunal by respondent no.2. His contention is, reliance upon said documents by the Maharashtra Revenue Tribunal is thus, misconceived and finding by the Maharashtra Revenue Tribunal (10) that respondent no.2 is also an agriculturist is, therefore, unsustainable. He argues that concurrent finding delivered by both the authorities about said status of respondent no.2 could not have been disturbed by the Maharashtra Revenue Tribunal. 7. In the alternative and without prejudice, he also points out that the order of Deputy Collector holding sale deed to bad, as the sale was of a fragment, is also not disturbed by the Tribunal. That finding has attained finality and hence sale deed cannot be treated as legal and valid. Even on that count, according to him, orders passed by the Tribunal in revision are liable to be quashed and set aside. He has made reference to certain judgments and I find it convenient to consider the same at appropriate juncture. 8. Civil Application No. 1711 of 2011 is filed by son Ganpati of Krishna s/o. Mallhari Jadhav. Adv. D.R. Irale Patil arguing for him has invited attention to the order Additional Tahsildar to urge that said order makes reference to said Mahadu s/o. Krishna Mallhari. According to him, said finding by Additional Tahsildar itself demonstrates that between 1954 to 1961, the land was under tenancy. He has argued that tenancy of Mahadu is not shown to have been legally terminated / extinguished. Hence, his legal heirs are also tenants and entitled (11) to claim the right over every part of the land Survey No. 47. He, therefore, states that before executing any agreement in 1984 or then, sale deed in 1989 in favour of respondent no.2, respondent no.1 ought to have first offered the land to the applicant and as that has not been done, provisions of Section 47(1) are rightly found violated. He, therefore, supports the orders passed by the Additional Tahsildar and by Deputy Collector and contends that appreciation of this controversy by the Tribunal is unsustainable. 9. Adv. Smt. Dube, appearing for respondent no.2, has supported the impugned order of the Tribunal. She contends that the provisions of Section 98C of 1950 Act do not authorize person like the petitioner to move application for summary eviction or then for cancellation of sale deed. She has pointed out provisions of Section 47, as also, provisions of Section 53E of 1950 Act to urge that only a tenant, as recognized thereunder, is entitled to move such application. 10. Without prejudice to this contention, she has also relied upon order of Additional Tahsildar to show that there never was any tenant on land as such, finding of violation of Rule 29 of 1958 Rules recorded by the Deputy Collector is unsustainable. (12) 11. Attention is also invited to the object of 1947 Act to urge that said enactment is relevant only when the aimed beneficial cultivation is advanced because of steps contemplated thereunder. She points out that here, petitioner is occupying adjacent land for commercial purposes and proposed user of disputed land by him is also not for agriculture. Hence, according to her, provisions of 1947 Act are not at all relevant in this situation. 12. She further states that there was a civil dispute in relation to very same land between the petitioner and respondent no.2. The civil dispute has been adjudicated upon in favour of respondent no.2 and presently a Second Appeal filed by the petitioner is pending before this court. According to her, therefore, adjudication by Civil Court has to prevail and that adjudication cannot be allowed to be defeated through this litigation. 13. The facts noted above show that disputed land is part of Survey No.47. The part of it was acquired by State Government for Maharashtra Industrial Development Corporation and portion thereof situated adjacent to disputed land has been allotted to the present petitioner. The petitioner is, therefore, put in possession of the said part ( plot B-1 ) of Survey (13) No.47 for commercial purposes. He is claiming a right of preemption because of provisions of 1947 Act on the remaining 5 Gunthas portion which, according to him, is from Survey No. 47 only. As already observed above, said portion separates his Plot No. B-1 from Latur-Barshi road. He is not claiming this 5 Gunthas triangular portion for any agricultural purposes. On the contrary, he has taken a specific plea that after allotment of Plot No.B-1, he erected a shed initially for using it as store room and for carrying out construction activity on that plot in 1976. Thereafter, he continued using that shed as a dwelling house and for the purposes of running a canteen and space around it was utilized for cultivation of fruit bearing plants and other plants. He has stated that respondent no.2's father, as well as, respondent no.1 obstructed his possession. 14. Thus, Plot No. B-1 has been created sometime before 1976 and obviously Plot No. B-1 is not meant for agricultural purposes. It is an industrial plot. The triangular portion left out of Survey No.47 is only 5 Gunthas. The said portion was left out after remaining land of Survey No.47 was acquired by State Government. 15. Section 6 of 1947 Act shows that after “standard area” is notified, under Sub-Section (3) of Section 5 for a local (14) area, all fragments in the local area are to be entered as such in the Record of Rights and where there is no Record of Rights in such village record as the State Government may prescribe. As per Sub-Section (2) of Section 6, notice of such entry is to be given in the manner prescribed under Hyderabad Record of Rights in Land Regulation, 1358 Fasli. Section 7(1) prohibits a person from transferring any fragment in respect of which a notice has been given under Sub-Section (2) of Section 6 except to a owner of a contiguous survey number or recognized sub- division of a survey number. The petitioner, therefore, has to show that he is owner of a contiguous survey number or recognized sub-division of a survey number. In other words, MIDC Plot No. B-1 is to be established as a recognized sub- division of a survey number or a contiguous survey number. Not only this, then he has also to establish that the disputed land admeasuring 5 Gunthas is notified as a fragment and procedure as contemplated in Section 6 (1) and (2) in relation thereto has been followed. He has failed to plead & prove that respondent no. 1 is served with notice of declaration as fragment and still he sold it to a non-contiguous owner. 16. Perusal of order of Tahsildar in his favour or then, the order of Deputy Collector also in his favour does not show any such finding. The Deputy Collector has only mentioned that no (15) transaction of agricultural land of less than 2 Acres of dry crop land or 20 Gunthas of wet land is valid unless permission of competent authority is obtained. This finding does not meet the requirement of Sections 6 and 7 of 1947 Act. As already noted above, the petitioner has got Plot No. B-1 for commercial or industrial purposes and it has been allotted to him by MIDC. There is no question of he putting that Plot No. B-1 to any other use leave aside the agricultural use. The contention that he has erected a shed and he is running a canteen or then, he is using adjacent land for agricultural purposes, is not of much relevance in this view of the matter. Attempted purchase by him is not going to achieve the object of viable cultivation as required. 17. Though the Tribunal in revision has not looked into this aspect after noticing that it has no jurisdiction to take cognizance of any challenge in that respect, as I find that order of Deputy Collector holding the sale to be invalid is unsustainable in view of provisions of Sections 6 and 7 of 1947 Act, the ultimate order of the Tribunal dismissing revision of the petitioner, therefore, to that extent, does not call for any interference. 18. The provisions of Section 98C of 1950 Act permit Tahsildar to hold enquiry and decide whether alienation, transfer (16) or acquisition is invalid or otherwise. The enquiry can be conducted by Tahsildar suo motu or on the application of any person interested in such land. Perusal of provisions of Section 47 of 1950 Act reveal that such transfer is invalid if it is in favour of a person who is not an agriculturist or a agricultural labourer. Proviso to Section 47(1) permits Collector or any officer authorized by State Government to grant permission for permanent alienation, lease, etc. as contemplated therein. Explanation thereto defines "agriculturist" which includes any person who as a result of the acquisition of his land for a public purpose has been rendered landless for a period not exceeding ten years from the date of such acquisition. 19. Section 53E of 1950 Act, on which respondent no.2 has placed reliance, prescribes order of preference in leasing out the surplus land. Cooperative Farming Societies, agricultural workers working on the said lands, landholders or tenants who cultivate personally less than a family holding, and other landless person residing in the village figure in Section 53E. Rule 29 of Hyderabad Tenancy and Agricultural Land Rules, 1958, prescribe circumstances in which permission under Section 47(1) can be granted. Clause (a) therein permits grant of permission when the purchaser is found to be bona fide requiring the land for non-agricultural purpose or then, for benefit of an (17) industrial or commercial undertaking or an educational or charitable institution. Clause (c) or Rule 2, defines "interested person" to mean a person, who has or who claims to have any interest in land either as land holder occupant, mortgagee, assignee or rent, tenant or otherwise. 20. In this background, when provisions of Section 98C of 1950 Act are looked into, it enables Tahsildar suo motu or on the application of any person interested in such land to take cognizance. Here, the complaint made by the petitioner is of a sale in favour of a person who is not an agriculturist. Therefore, the complaint prima facie satisfies requirements of Section 47(1). The interest pointed out by the petitioner is his existing possession over the disputed land and hence, on the face of application it cannot be said that he is not a person interested. It, therefore, cannot be accepted that he had no locus to move application under Section 98C before Additional Tahsildar. In any case, when statute permits Additional Tahsildar to act even suo motu, the objection to locus in the present facts needs to be overruled. 21. The consideration by the Tribunal shows a finding that respondent no.2 is also an agriculturist. The finding is recorded after perusal of revenue records and discussion as (18) contained in paragraph 8 of its judgment by the Tribunal reveals that respondent no.2 along with his three brothers was holding Survey No. 38 admeasuring 9 Hectares and 84 Are situated at village Baswantpur as a owner. The order specifically mentions the copy of 7/12 extract at page 205 of the record of Deputy Collector's office for this purpose. Thereafter, definition of "agriculturist" and of phrase "to cultivate land personally" is looked into and then it is found that the respondent no.2 is an agriculturist. Because of this finding, the Tribunal has found that bar under Section 47 is not attracted. This finding of the Tribunal that copy of 7/12 extract at page 205 of the record of appeal viz. Deputy Collector's office file reveal status of the petitioner as agriculturist, is challenged before me by contending that such record was not produced along with appeal memo before the Deputy Collector. However, such a challenge only is not sufficient to meet the said specific finding. It is not the contention that at page 205 such document does not appear or then it was produced subsequently. The finding of Tribunal itself shows that said 7/12 extract was produced before the Deputy Collector i.e. before appellate authority by respondent no.2 and reliance has been placed upon that record by the Tribunal. 22. It is no doubt true that respondent no.2 had attempted to justify the purchase by contending that disputed land was to (19) be used by him for commercial purpose i.e. for non-agricultural purpose. But then, that by itself is not sufficient to render sale deed in his favour illegal in the face of above mentioned 7/12 extract. The finding reached by the Tribunal has not been challenged on any other ground by the petitioner. I, therefore, do not find anything wrong with the said appreciation and conclusion. 23. The Tribunal has also considered the issue of rights of tenant qua respondent no.1 Sk. Nizamuddin. It has found that as per provisions of Section 48(1) of 1950 Act, the landlord intending to sell any land leased to a tenant, has to apply to the Tribunal for determining reasonable price thereof and the Tribunal has to determine reasonable price in accordance with provisions of Section 50C. After such price is determined, landlord is duty bound to make an offer to the tenant. The Tribunal has found that the petitioner was not in possession as a tenant and hence petitioner was not entitled to claim any precedence in the matter of purchase. 24. So far as present intervenor is concerned, he claims to be relative of Mahadu. The relevant observations made by the Additional Tahsildar in the order dated 28-2-1991 reveal that between 1954-55 to 1960-61, name of said Mahadu did not (20) appear as a person in possession in column no.13 against Survey No.47. The entry was in respect of one Chand Saheb by Batai. The Additional Tahsildar has recorded that non-applicants before him did not explain this entry. It is, therefore, obvious that the Additional Tahsildar has found that there was no material on record to show that Mahadu - relative of applicant in Civil Application No. 1711/2011 was a tenant during the relevant period. This finding is not demonstrated to be either erroneous or perverse before this court. Moreover, claim of tenancy was over entire survey no. 47. It’s part was sold to third persons and Applicant did not claim any relief about said sold portion. He also did not claim any relief when remaining part (except 5 gunthas) came to be acquired by the State Government. He suddenly woke up when writ petition is being heard finally. 25. In the light of findings reached above, the case law cited by respective parties need to be dealt with very briefly. Learned Counsel for the petitioner has relied upon judgment of learned Single Judge of this Court reported at 1994(4) Bom.C.R. 432, in the case of Shamrao Maruti Patil and another Vs. Smt. Shantabai Dattatraya Salokhe. In the said judgment, limited scope