1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2030 OF 1996. Purushottam Krishna Gadre, died through L.Rs. 1-a. Smt.Mandakini Purushottam Gadre, Age 82 years, Occ. Household, R/o 5th Lane, At & Dist. Dhule. 1-b. Smt.Sarita Chandrasekhar Gadre, Age 52 years, Occ. Service, R/o Navkamal Pushpa Society, Near B Cabin, Plot No.2, Shivajinagar, Naupada, Thane-400 602. 1-c. Rohan S/o Chandrasekhar Gadre, Age 25 years, Occ. Nil, R/o Navkamal Pushpa Society, Near B-Cabin, Plot No.2, Shivajinagar, Naupada, Thane-400 602. 1-d. Smt.Neeta Ramesh Gadre, Age 55 years, Occ.Service, R/o 502, Parag Building, Vasantleela, Waghbil Naka, Ghodbandar Road, Thane (West). 1-e. Nachiket Ramesh Gadre, AGe 29 years, Occ.Service, R/o 502, Parag Building, Vasantleela, Waghbil Naka, Ghodbandar Road,Thane(West). ... Petitioners. 2 Versus 1. Rupchand Lala Bhil since deceased by his heirs : 1A. Smt.Drupajabai Wd/o Rupchand Bhil. 1B. Subhash Rupchand Bhil, 1C. Shrimati Shahanubai Rupchand Bhil. All R/o Sadgaon, Taluka & Dist. Dhule. 2. The State of Maharashtra. ... Respondents. ... Mr.V.J.Dixit, Sr. counsel instructed by Mr.S.V.Natu, advocate for the petitioners. Mr.K.S.Patil, A.G.P. for Respondent No.2. ... CORAM : V.R.KINGAONKAR,J. Date : 23.02.2010. ORAL JUDGMENT 1. By this petition, the petitioners impugn judgments rendered by learned Assistant Collector, Dhule in TNC Case No.18/83 and by the MRT in Tenancy Appeal No.154/1985. 3 2. Original petitioner was admittedly the owner of the land in question which originally bore S.No.45/2 and now is Gat No.119/1, admeasuring 3l Hectares 72 Ares situated at village Sadgaon, Dist. Dhule. It appears that Respondent No.1 - deceased Rupchand was previously cultivating a part of the said land. He filed an application U/s 65 of the Bombay Tenancy and Agricultural Lands Act, 1948 (For short, BT and AL Act). He submitted that the land was not being cultivated by the landlord i.e. deceased petitioner, continuously for more than two (2) years and, therefore, was liable to be taken over under management of the Government. The application was considered by the learned Assistant Collector, Dhule. A preliminary issue was raised as to whether the deceased Respondent No.1 had locus-standi to file such application. The learned Assistant Collector held that the proceedings could be initiated at behest of anyone inasmuch as power U/s 65 was exercisable when the authority could come across material to infer that for any two (2) consecutive years the land has remained uncultivated. The assistant 4 Collector held that land was kept fallow for period of more than two years and therefore, it could be taken over under management of the Government as contemplated U/s 65(1) of the BT & AL Act. In keeping with such findings, the Assistant Collector by order dated 5.2.1985 directed that the land in question shall be taken under management of the Government and it should be leased out to other persons by giving preference to those who had been cultivating it previously. It is pertinent to notice that the explanation of the deceased petitioner was that the land had been kept fallow due to reasons beyond his control inasmuch as he was suffering from heart trouble and was unable to personally cultivate the land or to make alternate arrangement within the short period. The appeal preferred by the deceased petitioner was dismissed by the MRT vide order dated 15.3.1991. 3. None appears for the Respondent Nos.1-a to 1-e though they have been served. 4. Heard learned counsel for the L.Rs. of 5 petitioner and learned A.G.P. 5. At the out-set, it may be mentioned that the land in question has remained uncultivated for mote than two (2) years is an undisputed fact. The purport of Section 65(1) is to obtain custody of the land which has remained uncultivated. Section 65 provides for assumption of the management of such land. Sub-section (2) of Section 65 declares that the lands shall be deemed as vested in the Government during the period of management. Needless to say, the land is not permanently taken away nor it is perpetually handed over to any third party. The deceased petitioner never asserted that the land was uncultivable or could not be cultivated. Whether the power was exercised at behest of the deceased Respondent No.1 or that it was exercised suo-motu will not make any difference. 6. The impugned judgments of the Tribunals would show that necessary opportunity was given to the deceased petitioner to explain his stance. It appears from the record that previously 6 deceased Respondent No.1 was cultivating the land in question without any authority with the help of some three Adiwasis. The MRT has observed that the deceased Respondent No.1 and the other three (3) encroachers had been evicted from the land in question and, thereafter, the land was handed over to the deceased petitioner (landlord). Even though he came into possession of the land in question, yet, he did not take care to cultivate the land in question. According to him, there was drought in the years 1980-81, 1981-82 and therefore, he was unable to cultivate the land. The reasons ascribed by the deceased petitioner were found to be factually incorrect. Another reason given by him was of self-illness. However, that was also found to be untrue. The record indicated that the deceased petitioner had cultivated the land along with his four partners in the years 1973-74 till 1978-79. Obviously, he could have taken help of others while cultivating the land in question. Under the circumstances, the concurrent findings of the Tribunals that the deceased petitioner committed default due to his lethargic attitude and 7 laxity, can not be said to be perverse or improper. Hence, both the impugned judgments are not required to be interfered with. However, it is pointed out by the learned counsel for the petitioners that management of the land can not be perpetuated in view of Rule 35 of the Bombay Tenancy and Agricultural Lands Rules, 1956. Sub- Rule (3) of Rule 35 reveals that if the State Government decides to continue the management, the Manager shall, from time to time, forward his report to the Collector and shall in any case submit a report not later than two (2) months before the expiry of the current period of the management to enable Government to decide whether the management shall be terminated U/s 61 or shall further be continued. The proviso appended to Rule 35 clearly indicates that beyond expiry of ten (10) years from the date of assumption of the land, the Collector is under legal obligation to hold a formal inquiry and, after recording the statement of the landlord or any person acting on his behalf, to forward the record to the State Government in order to decide issue of further continuation of the management. Needless to say, 8 the continuation of the management is not perennial. After the ten (10) years period, in any case, it has to be discontinued unless appropriate procedure is followed and the continuation is sanctioned by the Government. There is nothing on record to show that the Government has approved further continuation of the management of the land in question. 7. In the result, I do not find any substance in the petition and, therefore,the same is dismissed. However, if the management is not continued as contemplated under Rule 35 of the Bombay Tenancy and Agricultural Lands Rules, the petitioner will be entitled to get back the land in question and same shall be released after declamping the management order by end of the current agricultural year. Rule discharged. No costs. (V.R.KINGAONKAR,J.) asp/office/wp203096