-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY Civil Appellate Jurisdiction Writ Petition No. 840 of 1986 Mr.Shankara Genba Yadav ) an adult,agriculturist ) residing at Yeot, Taluka ) Daund, District Pune ) ..Petitioner (Org.Opponent) vs. 1. Mr.Kisan Anant Jagtap ) adult, agriculturist, ) residing at Yeot,Taluka Daund) District Pune ) 2. Mr.Vithal Yadavrao Wable ) Adult, Agriculturist,residing) at Yeot, Taluka Daund, ) District Pune ) 3. Smt.Haribai Vithal Wable ) Adult, Household residing at ) Yeot, Taluka Daund,Dist.Pune ) 4. Mr.Keshav Narlayan Gore, ) since deceased by his heirs ) 4a. Mr.Vasant Keshav Gore ) Age 37 yearss, residing at ) 135, Kirloskarwadi, District) Sangli ) 5. Shri Bhagchand Ramchandra ) Jain, since ceased through ) his legal heirs: ) 5a. Smt.Premabaia w/o Bhagchand ) Jain 5b. Shri Anandkumar Bhagchand ) Jain (son), 34 years ) 5c. Shri Ajitkumar Bhagchand ) Jain (son) age about 29 years) All residing at village Yawat) near Yavat Railway Station ) Tal. Daund District Pune ) 5d. Smt.Surekha Vinod Jain ) -2- daughter age 41 years, ) residing at Sadar Bazar, ) at and post Jain Mandir, ) behind C.M.P.S.,Tal.Bhind ) 5e. Smt.Jayshree Dinesh Jain ) Residing at s8/12, Anand ) Complex, Gadimal,Hadapsar ) Pune ) 5f. Smt.Rani Sanjay Jain ) near Hanuman Chorahe, ) Bajarangabali, Guna (M.P.) ) 6. Mr.Naresh Ramchandra Jain ) adult, residing at Yeot, ) Taluka Daund, District Pune ) 7. Mr.Vasant Anant Godbole ) Adult, residing at Yeot, ) Taluka Daund, District Pune ) ..Respondents Shri R.R.Mahagaonkar for petitioner. Shri D.K.Ghaisas for respondent no.1. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 25th and 28th March, 2008 25th and 28th March, 2008 25th and 28th March, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. By this Writ petition under Article 22 7 of the Constitution of India, the petitioner has challenged the order passed by the Maharashtra Revenue Tribunal in Revision Appl.MRT-P-X-9-83 and the judgment and order dated 30.8.1983 of the Addl.Collector in Tenancy Appeal No.27 of 1982. The petitioner prays that these orders be set aside and the one passed by the Additional Tahsildar dated 31.8.1982 in Tenancy Appeal No.35 of 1982 be restored. -3- 2. The Agricultural land situated at Village-Yeot, Taluka-Daund, District-Pune more particularly described in para-1 of this Writ Petition, is the land in question. 3. One Sarlabai Shrinivas Velankar was the owner of various lands including the land in question. The father of respondnet no.1 was a tenant in rsepect of the land in question. After his death, respondnet no1. succeeded to tenancy rights and was cultivating the lands alongwith other lands as tenant of Smt.Velankar. 4. The case of the petitioner is that the Bombay Tenancy and Agricultural lands Act (BTAL Act for short) applies to the land in question. Therefore the said Velankar filed a tenancy case being Tenancy case No.47 of 1970 before the Tahsildar,Daund seeking possession of lands including the land in question. The proceedings were under section 29 and 31 of the said Act. The said Application was allowed on 4.12.1970. The revision Application filed by respondent no.1 before the MRT challenging this order, was dismissed on 28.3.1972. In such circumstances, the order directing respondent no.1 to hand over possession to the said Smt. Velankar was -4- confirmed. 5. In pursuance of these orders, out of the total holding, half of the lands were handed over by respondent no.1 to the said Smt.Velankar. The mutation entries would evidence this fact. Even the possession receipt (Kabje Pavati) was executed. It is the case of the petitioner, that the said Smt.Velankar continued to cultivate the said land till her death. She expired on or about 22.7.1976. at Pune. However, prior to her death she had executed a Will bequeathing the land inquestion to respondent no.4 (K.N,Gore). Respondent No.4 succeeded to the Estate and enjoyed ownership rights till about 1980. Respondent No.4 acting as an owner of the land in question executed a registered sale-deed in favour of the petitioner and respondent nos.2, 3 and 5 to 7 . The petitioner states that he along with respondent nos.2 and 3 purchased the land admeasuring 10 ares out of the total land bearing no.152/4/1B. 6. It is the case of the petitioner that respondent no.1 Kishan Anant Jagtap filed an Application before the Tahsildar, Daund which was numbered as Tenancy Case No.35 of 1982. His -5- case was that, the above agricultural land belonged to Saralabai who was the widow on the Tillers day (1st April, 1957). The tiller day was therefore postponed as the landlady was a widow. She successfully applied under Section 29 read with Section 31 and reliance was placed on the above orders. However, it was urged that half of the land had to be given to respondent no.2 kishan as a tenant for bonafide personal cultivation. It was his case that, remaining lands were purchased by him under the proceedings under BTAL Act. The case of the said Kishan was that Keshav Narayan Gore had transferred 4 Hectares of land in favour of the respondents to the Application of Kishan which included the present petitioner Shankar Gyanba Yadav. However, the said kishan was never consulted and his willingness was not sought with regard to the sale and purchase of this land. In such circumstances, by virtue of the provisions contained in Section 37 of the Bombay Tenancy Act, the land should be restored to him. 7. That Application was rejected by the Additional Tahsildar and Agricultural lands Tribunal, Daund on 31.8.1982 on the ground of limitation. It was held that the application -6- should have been filed within one year from the date of surrendering possession. In other words, it should have been filed within one year from 25.6.1972. However, it is filed on 22.1.1982. In such circumstances, it is liable to be dismissed. It was accordingly dismissed. 8. Aggrieved by that order, the First Respondent before me preferred an Appeal being Tenancy Appeal No.27 of 1982 before the Appellate Authority and the Appellate Authority by its judgment and order dated 30.8.1982 allowed the same. He set aside the order of the Additional Tahsildar and directed him to take necessary action for restoration of possession of the land in question to respondent no.1, Kishan. 9. The petitioner aggrieved and dissatisfied with this order of the Appellate Authority preferred a Revision Application before the MRT. The said Revision Application was heard alongwith another Revision Application. The learned Member of the MRT after hearing both sides was pleased to dismiss the Revision Applications and confirmed the order passed by the Additional Collector, Pune. The judgment -7- and order of the MRT is challenged by the petitioner-Original Applicant in Rev.Application No.9 of 1983. 10. Shri Mahagaonkar, learned Counsel appearing for the petitioner has contended that the impugned orders are vitiated in as much as the application filed was hopelessly time barred. It should have been rejected. The ingredients of section 37 of BTAL Act are not satisfied in this case. The submission is that part of the land was disposed of. In such circumstances, the lands could not have been restored. The restoration of the entire land has caused great prejudice. In such circumstances, the impugned orders should be quashed and set aside. 11. Shri Ghaisas, learned Counsel appearing for respondent no.1, on the other hand, has supported the impugned orders. 12. For properly appreciating the rival contentions a reference will have to be made to section 37 of the Bombay Tenancy and Agricultural Lands Act. The said Section reads thus: -8- "37. Landlord to restore possession if he fails to cultivate within one year: (1) If after the landlord takes possession of the land after the termination of the tenancy (under sec.31), (33B or section 34 of this Act as it stood immediately before the commencement of the Amending Act, 1956), he fails to use it for any of the purposes specified in the notice given under (section 31), (33B or section 34 of this Act as it stood immediately before the commencement of the Amending Act, this act as it stood immediately before the commencement of the Amending act, 1956) within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him, unless he has obtained from the tenant his refusal in writing to accept the tenancy of the same terms and -9- conditions or has offered in writing to give possession of the land to the tenant on the same terms and conditions and the tenant has failed to accept the offer within three months of the receipt thereof. (2) After the tenant has recovered possession under sub-section (1) he shall subject to the provisions of this Act, hold such land on the same terms and conditions on which he held it at the time his tenancy was terminated. (3) If the landlord has failed to restore possession of the land to the tenant as provided in sub-section (1) he shall be liable to pay such compensation to the tenant as may determine by the Mamlatdar for the loss suffered by the tenant on account of eviction. (4) The provisions of this section shall not apply to a landlord who becomes a serving member of the armed forces; and on that account, fails to use the land, or ceases to use it, for any of the -10- purposes specified in the notice referred to in sub-section (1) and within the period specified in that sub-section." A bare perusal of the same would indicate that the landlord has to restore possession if he fails to use the land within one year from the date on which he took possession for the purpose for which notice was issued under sec.31 of BTAL Act. The landlord is also obliged to hand over possession and restore the land if he ceases to use it at any time for the purposes of which have been enumerated in sub-section (1) of section 37. Thus the provision is that if the landlord ceases to use it within a period of 12 years from the date on which he took such possession, he shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him. The landlord can be relieved from his obligation only if he has obtained from the tenant his refusal in writing to accept the tenancy on the same terms and conditions or has offered him in writing to give possession of the land to the tenant on the same terms and conditions and the tenant has failed to accept the offer within 3 months of receipt -11- thereof. 13. In the present case, the factual situation has been set out already. It is not in dispute before me that the possession of the suit land was obtained by the landlady in pursuance of the order dated 4th December, 1970 passed under sections 31 and 29 of the Tenancy Act. The landlady was the widow and the argument was that she could not have made any application for possession under section 31 of the Act after the Tiller’s day. She has to either make the application for personal cultivation before 31st March, 1957 or her successor in title can make an application within one year from her death. That apart, the order granting possession to the landlady was not challenged. It is also an admitted fact that the landlady sold some area out of the suit land to Bhagchand Ramchandra Jain and Naresh Ramchandra Jain. The sale deeds are dated 25th June, 1972. It is also pointed out that remaining land remained with the tenant. The landlady died in the year 1976. It is clear from the record that the additional Tahsildar dismissed the Application of the tenant on the ground of limitation. It is his conclusion that the application should have been -12- filed within one year from the date of surrendering possession i.e. 25th June, 1972. The application is filed on 22nd January, 1982 and, therefore, it is not filed within limitation. 14. The first respondent, therefore, approached the Appellate Court and urged that the landlady has been succeeded by Keshav Narayan Gore. He transferred the area of 4 H in favour of the present petitioner and others. The changes have been made in 7/12 extract. However, the tenant was never consulted about his willingness to purchase the said land. The tenant is liable for restoration of the land in exercise of powers under section 37 and that is how he requested that the possession be handed over to him. The Appellate Court has rightly accepted the argument that the landlady got possession of the land on 4th December, 1970. The date of taking possession is 25th June, 1972 whereas the sale deed is dated 14th October, 1980. In such circumstances, the application could not have been dismissed on the ground of limitation. The point that was required to be decided was whether the landlord has failed to use the land for the purpose for which the possession has -13- been obtained from the tenant. In my view, the courts below were right in holding that the certified copy of the order in Tenancy Case No.46 of 1970 dated 4th December, 1970 terminating the tenancy of Kisan Anant Jagtap, respondent no.1, to the extent of one half share and restoring possession of the same to the deceased landlady shows that the deceased landlady was entitled to possession of one half area of the said land. Section 37 was, therefore, attracted and obligation of the landlady, therefore, to use the land for the purposes for which the possession has been obtained, is clear. The period stipulated by law is 12 years. If the landlord ceases to use it for any of the purposes, then, possession will have to be restored forthwith to the tenant. The application was filed on 28th January, 1982. The application could not have been dismissed on the ground that it is filed beyond one year from taking of possession i.e. within one year from 25th June, 1972. The application for possession could have been filed in this case within 12 years as the landlord had failed to cultivate the same. 15. In such circumstances, Maharashtra Revenue -14- Tribunal and the Additional Collector were right that the application preferred by the first respondent deserves to be allowed. There is no legal impediment in granting the relief. If this factual backdrop is noticed, then, the Appellate and Revisional Authorities were right in the conclusions that have been reached by them. There is no substance in the contention of Shri Mahagaonkar that section 37 was not applicable or assuming the same was applicable, the restoration could not have been sought after one year had lapsed from the date of taking possession. The obligation of restoration upon the landlord under section 37 is that within one year from the date on which he took possession for some of the purposes enumerated in sub-section (1) of section 37, he must use the land. Further, if he ceases to use it in time any of the aforesaid purposes within 12 years from the date on which he took possession, even then, he has to restore possession forthwith. In such circumstances, the application of the first respondent was maintainable and could not have been rejected.He was entitled to possession of the entire suit land bearing survey nos.154/4/1B. There is no error apparent or perversity in the order under challenge. All -15- findings are rendered consistent with the factual position and in the backdrop of section 37 of the Act. 16. In the result, writ petition fails. Rule is discharged. However, there shall be no order as to costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)