1 (WP717/92) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 717 OF 1992 Rajaram Namdeo Khairnar ) Resident of Parner, Post: Nitane ) Taluka : Baglan, District Nasik ) ....Petitioner. (Orig. Plaintiff) V/s 1 Shri Nanaji Tulshiram Deore) Resident of Parner, Post : ) Nitane, Taluka : Baglan, ) District Nasik ) ) 2 Bhika Bhiva Deore ) (since deceased through Lrs) ) ) 2a) Smt. Bhagabai Bhika Devare ) R/at Parner, Post Nitane ) Tal. Baglan, District Nashik ) ) 2b) Shri Kautik Bhika Devare ) R/at Parner, Post Nitane ) Tal Baglan, District Nashik ) ) 2c) Mrs Sakubai Daga Bhayare ) R/at Baglan, District Nashik ) ) 2d) Mrs Mulkanbai Gangandhar ) Khairnar, ) R/at Akhatvade, Tal. Baglan ) District Nashik. ) ) 2e) Smt. Hirubai Shivaji Desale ) R/at Parner, Post Nitane ) Tal Baglan, Dist. Nashik ) 2 (WP717/92) 2f) Mrs Jijabai Shivaji Sonawane ) R/at Satana, Tal. Satana ) Devla Road, behind ) Pawankhind Hotel, Nashik ) ) 2g) Smt. Pratibha Sahebrao Hire ) R/at Aaghar, Mitranagar, ) Tal. Malegaon, District Nashik ) ) 2h) Surekha Gaman Ahire ) R/at Talwade, Tal Baglan, ) Bhawade Road, Dist. Nashik ) ) 2i) Leelabai Bau Ahire ) R/at Niwane, Tal. Kalwan, ) Bej Phata, Dist. Nashik. ) ...Respondents. Mr. D.S. Maispurkar along with Mr. A.H. Palekar i/b Mr. A.R. Kapadnis for the Petitioner. Mr. Nanaji Tulshiram Deore Respondent No.1 for himself and on behalf of heirs of Respondent No.2 in person. CORAM: V. M. KANADE, J. DATE : 22nd February, 2011 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Petitioner and the Respondent No.1 who is appearing on his own behalf and on behalf of heirs of Respondent No.2 in person. 3 (WP717/92) 2. Petitioner is challenging the order passed by the Maharashtra Land Revenue Tribunal, Bombay dated 30/10/1991. By the said judgment and order, MRT was pleased to allow the revision application filed by Respondents herein and set aside the order passed by the Sub-Divisional Officer who was pleased to declare that the Petitioner herein was a tenant in respect of the suit land. 3. The suit land consists of Gat No.7 admeasuring 55 Ares situated at Village Parner, Taluka Malegaon, District Nashik. Petitioner herein filed a suit in the Civil Court on 31/03/1980 vide Civil Suit No. 3 of 1980. The said suit was filed for a declaration that he is a tenant of the suit land and for possession and permanent injunction restraining the Respondents from interfering with the possession of the Petitioner. Since the Petitioner had claimed that he was tenant of the suit land, the Civil Court was pleased to refer the said issue to the tenancy court. In the meantime, application was made for injunction vide Exh.5 which application was allowed in favour of the Petitioner. 4 (WP717/92) Respondents did not challenge the said order. The Civil Court held that the Petitioner was in possession of the suit land on the basis of the averments made in the affidavit filed by the Petitioner herein and on the basis of the material available on record at the relevant time. After the issue was referred to the tenancy court, the matter traveled from Tahsildar to SDO and again back to Tahsildar on couple of occasions. Initially, an inquiry was made by the learned Tahsildar, who, by his judgment and order dated 30/5/1984, held that the Petitioner herein is not a tenant of the suit land. Against this order, he preferred an appeal before the SDO, who was pleased to allow the appeal and remand the matter to Tahsildar for fresh inquiry. After remand, the Tahsildar made a fresh inquiry and held that the Petitioner herein is not a tenant of the suit land. Again, the Petitioner preferred an appeal before the SDO who was again pleased to allow the appeal and set aside the order of Tahsildar and again remanded the matter to Tahsildar for fresh inquiry. After remand, the matter was renumbered by Tahsildar as Court Reference 11 of 1989 and the Tahsildar, by his judgment and order dated 14/08/1990, declared that the 5 (WP717/92) Petitioner herein is not a tenant. Against this order, the Petitioner herein filed appeal before the SDO. SDO again allowed the appeal and set aside the order of Tahsildar by his judgment and order dated 23/10/1990 and declare the Petitioner as tenant and fortunately again did not remand the matter for fresh inquiry. Being aggrieved by the said order, Respondents preferred revision application before the MRT. The MRT allowed the revision application and confirmed the order passed by the Tahsildar and set aside the order of SDO by which the Petitioner herein was declared as tenant of the suit land. Being aggrieved by the order of MRT, the Petitioner has preferred this Petition under Article 227 of the Constitution of India. 4. The learned Counsel appearing on behalf of the Petitioner vehemently urged that the entire approach of the MRT was improper and the finding recorded by the MRT is perverse and, therefore, he submitted that the said order could not have been passed in revision application. He 6 (WP717/92) submitted that, therefore, the finding recorded by the MRT being perverse, is liable to be set aside by this Court while exercising its jurisdiction under Article 227 of the Constitution of India. He then submitted that the MRT had erroneously proceeded on the footing that the Respondents were in possession of the suit land. He submitted that the Respondents admitted the possession of the Petitioner in respect of the suit land, firstly in a notice which was given by their advocate to the Petitioner and, secondly, in view of the entries which were made in the record of rights and, thirdly, on account of registered lease deed which was executed on 27/4/1979. It is submitted that it was not open for the MRT to have re-appreciated the evidence on record and to have come to its own conclusion and opinion. It is submitted that the MRT, therefore, could not have substituted its own view to the view taken by the SDO in appeal. It is further submitted that inferences which were drawn by the MRT that the agreement of lease was executed since Bhika was in need of money due to the marriage of his daughter and the Petitioner had tried to secure the money/loan by execution of the said deed were perverse. 7 (WP717/92) 5. The learned Counsel appearing on behalf of the Petitioner has also relied upon the judgment of this Court in Shamrao Maruti Patil and another vs. Shantabai Dattatraya Salokhe1 and in S. Saktivel (Dead) by Lrs. vs. M. Venugopal Pillai and others2. 6. On the other had, Respondent No.1 who is appearing for himself and on behalf of Respondent No.2 in person has relied upon the written submissions which he has filed. 7 Before considering the rival submissions, it will be necessary to consider the scope & extent of the power which can be exercised by this Court while exercising jurisdiction under Article 227 of the Constitution of India and in a recent judgment in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil3 the Apex Court has observed as under. “62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court’s jurisdiction under Article 227 of the 1 1995(1) Mh.L.J. 668 2 (2000) 7 SCC 104 3 2010(6) Mh.L.J.661 8 (WP717/92) Constitution may be formulated: (a) A Petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of 9 (WP717/92) this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, ‘within the bounds of their authority’. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situation pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view that the one taken by the tribunals, or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra vs. 10 (WP717/92) Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure 11 (WP717/92) and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” The Apex Court, therefore, in the said judgment has deprecated the practice of the High Court re-appreciating the evidence on record particularly in matters pertaining to land disputes between the landlords and tenants and has also observed that power of the High Court under Article 227 is only to be exercised as a power of superintendence. 8. Similarly the Apex Court in Surya Dev Rai vs. Ram 12 (WP717/92) Chander Rai & Ors1 has observed in para 12 and 38 as under:- “12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. “38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- (1) ... (2) .... (3) .... (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the 1 2004(1) Mh.L.J 633 13 (WP717/92) subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. 14 (WP717/92) (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of Appeal and indulge in re-appreciation or 15 (WP717/92) evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 9.............” 9. Keeping in view the observations made by the Apex Court in the aforesaid judgments and other judgments which are referred by the Apex Court in the aforesaid two judgments, it has to be seen whether any case is made out for interfering with the impugned order passed by the MRT. 10. Before considering the rival submissions, it is necessary to briefly take into consideration the factual matrix of the case. 11. In the present case, admittedly, suit was filed by the Petitioner herein and the matter was referred to the tenancy court. In this case, according to the Respondents, Bhika Bhiva Deore initially entered into agreement of sale with Nanaji Tulsiram Deore and possession receipt was also executed in presence of witnesses. The said agreement of 16 (WP717/92) sale, however, was not registered and the said land was agreed to be sold for an amount of Rs 17,000/-. According to the Respondents, since Bhika wanted money for marriage of his daughter, he took an amount of Rs 1000/- as a loan from the Petitioner herein and in the said receipt which was obtained by the Petitioner he was told that he would execute a lease deed which would be torn off after the payment was made. The Tahsildar in his order has referred to the statement of Bhika Deore which was recorded on 9/3/1984 in which he had stated that an amount of Rs 1000/- which he had taken was returned and when he demanded the said rent note dated 27/4/1989, the Petitioner informed him that the said rent note was with his brother and had promised that he would tear off the said deed. The Tahsildar, thereafter, has noted the evidence given by the Petitioner herein. In his evidence, the Petitioner claimed that in Pahani Patrak for the years 1980-81 and 1981-82 his name was shown and, therefore, he claimed to be the tenant. According to him, he had taken possession on the same day on which the lease deed was executed. The Tahsildar, thereafter, came to the conclusion that in respect of 7 x 12 17 (WP717/92) extract the name of Nanaji Deore was shown as person who was in possession for the years 1978-79, 1979-80 and 1981-82 and under the crop and cultivation column, it was shown that he was cultivating the land personally. The Tahsildar has further observed that almost after one year after the agreement of sale was executed, the said lease deed was executed on 27/4/1979. He has further observed that by order dated 26/12/1985 SDO allowed the Tenancy Appeal No.A/10/85 filed by Nanaji Deore and against that order no appeal was preferred by the Petitioner. The Tahsildar, therefore, on the basis of the said inquiry came to the conclusion that the Petitioner is not a tenant of the suit land. However, the SDO came to the conclusion that the stand taken by the Respondents about agreement of sale appears to be a afterthought. He came to the conclusion that the said agreement of sale appears to be sham and bogus. On the other hand, he relied on registered lease deed. The SDO further observed that merely because period of three years had expired, the tenure which was created 18 (WP717/92) did not come to an end and, therefore, held that the petitioner was a tenant of the said land. The MRT, on the other hand, considered the evidence and has noticed that the SDO did not take into consideration various aspects and, therefore, after taking into consideration the said aspects which were not noticed by the SDO and which were part of the record, has set aside the order of SDO and confirmed the order of Tahsildar. The MRT observed, firstly, that in the lease deed itself there was a clear averment that the Petitioner did not claim tenancy in respect of the said land. However, subsequently, he had filed civil suit. 12. Section 4 of the B.T & A.L. Act lays down the conditions for declaring the person as tenant. Section 4(1) reads as under:- 4. Persons to be deemed tenants.-(1) A person lawfully cultivating any land belonging to another persons shall be deemed to be a 19 (WP717/92) tenant if such land is not cultivated personally by the owner and if such person is not,- (a) a member of the owner’s family, or (b) a servant on wages payable in cash or kind but not crop share or hired labourer cultivating the land under the personal supervision of the owner of any member of the owner’s family, or (c) a mortgage in possession Explanation-I A person shall not be deemed to be tenant under this section if such person has been on an application made by the owner of the land as provided under section 2A of the Bombay Tenancy Act, 1939, decided by a competent authority not to be a tenant. Explanation-II Where any land is cultivated by a widow or a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then notwithstanding anything contained in Explanation I to clause (6) of section 2, such tenant shall be deemed to be a tenant within 20 (WP717/92) the meaning of this section].” Sub-clauses (a), (b) and (c) consist of categories of persons who cannot claim tenancy. 13. In the instant case, it is obvious that according to the Respondents, the Petitioner was a mortgagee in possession which is evident from his statement which was recorded by the Tahsildar and the question before the tenancy court, therefore, was to consider whether the Petitioner herein was a tenant or was not a tenant in view of the reference made by the civil court. The MRT confirmed the view taken by the Tahsildar that there was a prior agreement of sale before the registered lease deed which was executed in 1979 and the said lease deed essentially was executed to secure the money which was advanced by the Petitioner to the Respondent - Bhika Deore. The MRT has arrived at the said conclusion on the basis of various statements which it has considered and has thereafter confirmed the order passed by the Tahsildar. This court while exercising its writ jurisdiction is not expected to substitute its own view to the 21 (WP717/92) view taken by the Tahsildar and confirmed by the MRT. 14. In my view, the submissions made by the learned Counsel appearing on behalf of the Petitioner that the finding of the MRT is perverse cannot be accepted. The MRT has taken into consideration the finding recorded by the Tahsildar and has confirmed the finding of Tahsildar and also has taken into consideration various other aspects which were not considered by the SDO and which were conveniently overlooked. Hence, in my view, this is not a fit case for interfering with the order passed by the MRT. It has to be noted here that the matter was referred to the Civil Court and atleast on 3 to 4 occasions after the order was passed in favour of the Respondents, the matter was remanded by the SDO. Ultimately, there has to be a finality to the order passed by the Court and the matter cannot remain in dispute for an indefinite period of time. Therefore, taking into consideration the aforesaid facts, no case is made out for interfering with the order passed by the MRT. 15. So far as the judgments on which reliance is placed by 22 (WP717/92) the learned Counsel viz the judgment in Shamrao Maruti Patil and another vs. Shantabai Dattatraya Salokhe1 and in S. Saktivel