1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD REVIEW APPLICATION NO. 128 OF 2010 IN SECOND APPEAL NO. 243 OF 2007 Late Kisan s/o Shripat Patil, (Since deceased through L.R’s) Applicants 1 Bhimrao s/o Kisan Patil, Aged 61 years, Occupation Agriculture, 2 Rangarao s/o Kisan Patil, (Since deceased through L.R’s) 2.1 Sayabai w/o Rangarao Patil, Aged 62 years, Occupation Household, Resident of Patil Galli, Taluka Chopada, District Jalgaon. 2.2. Jitendra s/o Rangarao Patil, Aged 24 years, Occupation Agriculture, Resident of as above. 2.3 Nirmalabai w/o Bapu Patil, Aged 35 years, Occupation Household, Resident of At Post Choubari, Taluka Amalner, District Jalgaon. 2.4 Rekhabai w/o Dagdu Patil, Aged 33 years, Occupation Household, Resident of Londe Galli, Near Shani Gate, Taluka Parola, District Jalgaon. 2.5 Pratibha w/o Raju Patil, Aged 28 years, Occupation Household, Resident of Ashtavinayaka Nagar, New Savda Road,Taluka Raver, District Jalgaon. 2.6 Sangita w/o Sunil Patil, Aged 28 years, Occupation Household, Resident of At Post Choubari, Taluka Amalner, District Jalgaon. 2 2.7 Vandana w/o Anil Patil, Aged 25 years, Occupation Household, Resident of as above. (Through Their GPA Tamraj s/o Bhimrao Patil, Aged 36 years, Occupation Agriculture, Resident of Patil Galli, Taluka Chopada, District Jalgaon) V E R S U S 1 Babulal @ Damodhar s/o Hiralal Gujrathi, Aged 66 years, Occupation Agriculture, Respondents 2 Late Chaganlal s/o Hiralal Gujrathi (Since dead, through L.R’s) 2.a Arvindlal s/o Chaganlal Gujrathi, Aged 61 years, Occupation Agriculture, 2.b Ravindralal s/o Chaganlal Gujrathi, Aged 56 years, Occupation Agriculture, 2.c Vithaldas s/o Chaganlal Gujrathi, Aged 53 years, Occupation Agriculture, 2.d Mangalabai w/o Narayandas Gujrathi, Aged 48 years, Occupation Agriculture, 2.e Smt. Gopibai Chaganlal Gujrathi, (Since Dead L.R’s already on record) Dismissed, as per Court’s order dated 27.02.2009 All resident of Gujarathi Galli, Chopada, Taluka Chopada, District Jalgaon. Mr. Vijay B. Patil, Advocate for the applicants Mr. S.A. Kulkarni, Advocate for the respondents No. 1, 2A to 2D CORAM : A.V. NIRGUDE, J. DATED : 18th February, 2011 3 ORAL JUDGMENT 1. On 3rd February, 2010, the Second Appeal No. 243 of 2007 was taken up for admission, and by my order passed on that day, I held that there was no substantial question of Law involved in the appeal and I dismissed the appeal. 2. This review is filed for correcting my Judgment dated 3rd February, 2010. After hearing submissions of the learned Advocates, I am convinced that there is sufficient reason for reviewing my Judgment and order. R E A S O N S 3. The respondent / plaintiff filed the suit in 1990 for eviction of the appellants from two agricultural lands bearing survey Nos. 995 and 1585, situated at Chopada, Taluka Chopada, District Jalgaon. It is common ground that in 1945, these two lands were given to the appellants' predecessor for agricultural purpose. He thus became tenant in respect of the lands. It is also common ground that since prior to 1945, the lands fell within the municipal limits of Chopada town. The predecessor of the appellants continued to cultivate the lands as tenant, and after his death, the appellants / defendants are cultivating the same. In the meantime, in 1983, the Chopada Municipal Council passed a resolution under Section 38 of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred as ‘MRTP Act’), and proposed a revised development plan. The proposal was sent to the Government, and, as per the provisions of the MRTP Act, the Government issued a notification on 18th October, 1986 saying inter-alia that the suit lands were reserved for certain non-agricultural purpose viz. for construction of Semi 4 Government Offices and for residential purpose including traffic island and road. Taking clue from this event, the respondents / plaintiffs assumed that the appellants / defendants would no longer have protection of the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred as ‘BTAL Act’) and further assumed that they held the lands as tenant and can be evicted by following provisions of Section 106 of the Transfer of Property Act. They accordingly issued a notice under Section 106 of the Transfer of Property Act and terminated the tenancy. Subsequently, they filed the present suit. They all along asserted that in view of Section 43C of the BTAL Act, the provisions of Sections 31, 32, 33A, 33B, 33C and 43 would not apply to the lands in question. As against this, the appellants / defendants took up a defence that they still held the lands as tenant and are protected by the provisions of BTAL Act and the suit should be dismissed. The learned Judge of the trial Court dismissed the suit on the ground that the lands in question were not included in the municipal limits of Chopada Municipal Council, and so, the provisions of Section 43C of the BTAL Act will not come to the respondents / plaintiffs help. The learned Judge of the first appeal Court however rightly held that the lands are situated within the municipal limits of Chopada Municipal Council since prior to creation of tenancy in 1945. However, the learned Judge of the first appeal Court further held that the notification, referred to above, issued under Section 38 of the MRTP Act was equivalent to notification under Section 88(1)(b) of the BTAL Act, and so, from the date of such notification of the provisions of BTAL Act would stop applying to the lands in question. In view of this, 5 he held that the suit filed was maintainable and deserved to be decreed. 4. In this background, the Second Appeal was filed. While dismissing the Second Appeal, I held that the proviso to Section 43C of the BTAL Act was not applicable to the facts of this case as was urged by the appellants’ Advocate. I also held that the case is covered by the provisions of Section 43C of the BTAL Act and the suit lands were not protected by the provisions of the BTAL Act. 5. While hearing the submissions on the review, I realized that the finding of the learned Judge of the first appeal Court that the notification issued under Section 38 of the MRTP Act is equivalent to a notification issued under Section 88 (1)(b) of the BTAL Act, was patently erroneous. In absence of the notification under Section 88 (1)(b) of the BTAL Act, the appellants / defendants were in a position to raise a substantial question of Law as to whether they were protected by the provisions of BTAL Act. After hearing on review, I think, it is a fit case, for the reasons mentioned above, to review the Judgment and order. I am, therefore, recalling my order dated 3rd February, 2010, passed in Second Appeal No. 243 of 2007. The Second Appeal No. 243 of 2007 stands restored to file and I propose to hear the submissions of the learned Advocates on the Second Appeal Now. In view of disposal of Review Application, Civil Application No. 8988 of 2010 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/ra/128/10/18/2/11/ok