wp2247.11.odt 1/9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.2247/2011 The Public Welfare Society -vs- Smt.Mithilesh Ambikaprasad Harde and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri R. L. Khapre, learned counsel for the petitioner. Shri S. R. Deshpande, learned counsel for the respondents. CORAM : R. M. SAVANT, J. DATED : 15/07/2011. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 18/04/2011 passed by the Maharashtra Revenue Tribunal, Nagpur, by which order the order dated 06/10/2010 passed by the Sub-Divisional Officer, Achalpur in Tenancy Case No.5/59(32)/2008-09 refusing to grant exemption certificate under section 129 (b) of the Bombay Tenancy & Agricultural Lands (Vidarbh Region) Act, 1958 (hereinafter referred to as the “said Act”) came to be confirmed. The petitioner herein claims to be a Public Trust registered under the provisions of the Bombay Public Trust Act, 1950, which was registered on 18/03/1963. Prior to the said registration under the Public Trust Act, 1950, the petitioner- Trust was a society registered under the Societies Registration Act on 04/08/1950. One Tulsabai Tarachandji Bhinda was the original owner of two fields, reference to which has been wp2247.11.odt 2/9 made in the proceedings filed by the petitioner under Section 129 (b) of the said Act. It appears that Tulsabai on 10/06/1958 executed a Deed of Administration in favour of the petitioner- society, which was registered on 09/09/1958 and by virtue of the said Administration Deed, the petitioner-Trust laid a claim to the said properties. It is required to be noted that the respondent Nos.1 to 4 claim to be the legal heirs of the original tenant, who was sitting on the property in question. On the said Act coming into force by virtue of the deeming fiction, which is contemplated under the said Act, the original tenant claimed to be a deemed owner by virtue of the said deeming fiction. The original tenant of whom the respondents are the heirs was sitting on the property in question since the year 1958 or there abouts and it is the case of the said respondents that the original tenant had paid the rent in question to the trustees of the petitioner-Trust for the period 1958 to 1961. It is provided in the said Tenancy Act that if the tenants name appears in the register of tenants under Section 8 (1) and if the same is not challenged under Section 8 (3) of the said Act, the said entry becomes final. The instant proceedings have arisen on account of the application under Section 129 (b) of the said Act, which inter alia reads as follows - 129. Exemption from certain provisions to lands held by local authorities, Universities, trusts etc. – Nothing in the foregoing provisions except Section 2, the provision of Chapter II (Excluding Sections 21, 22, 23, 24 and 37) and Section 91 and the provisions of Chapters X and XII in so far as the wp2247.11.odt 3/9 provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply, – (a) ......... (b) to lands which are the property of a trust for an educational purpose, hospital, panjarpole, Gaushala, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purposes of such trust; and The said application was considered by the Sub-Divisional Officer and by his order dated 06/10/2010, the said application filed by the petitioner came to be rejected. The Sub-Divisional Officer rejected the said application inter alia on the grounds that it has not been proved by the petitioner that the proceeds out of the land in respect of which exemption is sought have been appropriated towards the purposes and objectives of the Trust as envisaged under Section 129 (b) of the said Act. The Sub-Divisional Officer further recorded a finding that since 1958 the rights of the tenant, who was sitting on the property in question, have been established. It is further recorded in the said order that the rights of the tenants were established prior to the petitioner being registered under the Bombay Public Trust Act. Being aggrieved by the said order dated 06/10/2010 passed by the Sub-Divisional Officer, the petitioner-Trust filed a Revision before the Maharashtra Revenue Tribunal, Nagpur, which was numbered as Tenancy Revision No.10/B/110/2010. The Maharashtra Revenue Tribunal by the judgment and order dated 18th April, 2011 has wp2247.11.odt 4/9 rejected the said Revision Application. The gist of the reasoning of the Tribunal is that since the pre-requisites for an exemption under Section 129 (b) of the said Act is the appropriation of the proceeds of the Trust property towards the purposes of the said Trust, it was for the petitioner to prove by material on record that the same has been done. The Maharashtra Revenue Tribunal inter alia held that the petitioner-Trust has not adduced any proof that income from the suit land was spent for said purposes as mentioned in Section 129 (b) of the said Act. The Tribunal further held that the financial statements filed on record for the year 1959-60 onwards showed that they are of Rashtriya High School and there is no mention of any agricultural income from the suit land. In so far as the respondents tenants are concerned, the Tribunal observed that the said respondents were in actual cultivating possession of suit land on both dates i.e. 01/04/1961 and 01/04/1963 as their names were duly entered into the list of the tenants prepared under Section 8 (1) of the said Act and if the said entries in the tenant register are not challenged by having recourse to Section 8 (3) of the said Act, they became final and no proceedings can be taken for setting aside those entries. This observation was made by the Tribunal in the context of the application filed by the petitioner-Trust seeking exemption under Section 129 (b) of the said Act. The Tribunal, therefore, in so far as the sine quo non for exemption viz. that the proceeds are being used for the purposes of the Trust, recorded a finding against the petitioner-Trust and wp2247.11.odt 5/9 thereby held that the petitioner was not entitled to the exemption sought for. It is also required to be noted that in so far as the person, who had filed the said proceedings, one Sudhir Kherde is concerned, the Tribunal was of the view that the locus standi of the said person was questionable. The Tribunal arrived at the said conclusion, in view of the fact that though the proceedings were purportedly filed by President Ratankumar Madan Gopal Chaudhari, he had not even signed them and it was signed by Sudhir Kherde. Thereafter the President had died on 26/10/2008 and in spite of the new body coming in office, no entry was taken on P. T. register of the Public Trust and since out of the new body, some have died, the Tribunal was of the view that the locus standi of Sudhir Kherde was questionable. It is pertinent to note that Sudhir Kherde had admitted his ignorance about the financial matters pertaining to the education as according to him the said matters were looked after by the Headmaster and the other financial matters were looked after by the President or the Secretary of the society. Heard the learned counsel for the parties. On behalf of the petitioner. Shri Khapre, the learned counsel for the petitioner submitted that since the Trust was deemed to have been registered, in view of its registration under the Societies Registration Act, 1950, the Sub-Divisional Officer and the Tribunal ought to have considered the said aspect of exemption from the said angle. The learned counsel wp2247.11.odt 6/9 would further contend that in view of the fact that the respondents herein have admitted that they have not paid rent to the petitioner, the question of income being appropriated for the purposes of that Trust could not be held against the petitioner. The learned counsel in so far as the locus of Kherde was concerned would contend that even a de facto trustee can file proceedings for eviction of a trespasser and for the said purpose relied upon a judgment of the learned Single Judge of this Court reported in 1981 Mh.L.J. 573 in the matter of Lalji Dharamsey and others vs. Bhagwandas Ranchchoddas. Per contra, it is submitted by Shri S. R. Deshpande, the learned counsel appearing for the respondents-tenants that the petitioner has failed to demonstrate that the income out of the suit land has been appropriated towards the purposes of the Trust and, therefore, the findings recorded by the Sub-Divisional Officer as well as the Tribunal cannot be faulted with. The learned counsel for the respondents would contend that the tenants have been sitting on the property in question since the year 1958 and till 1961 they have paid the rent to the petitioner society and it was for the petitioner-Trust to bring the relevant material on record, but they have failed to do so and, therefore, the rejection of exemption by the Sub-Divisional Officer has confirmed by the Maharashtra Revenue Tribunal cannot be found fault with. The learned counsel further submitted that the tenants, who are sitting on the property in question, have acquired a right under Section 8 (1) of the said Act and they have been sitting on the property from the last 40 wp2247.11.odt 7/9 years and, therefore, by this method of seeking an exemption under Section 129 (b) of the said Act, their rights cannot be extinguished. The learned counsel lastly contended that even though the trust can be said to be deemed to be registered under the Bombay Public Trust Act, since the petitioner has failed to prove that the income has been appropriated towards the purposes of the Trust, the finding recorded by both the Sub- Divisional Officer as well as the Tribunal calls for no interdiction in the writ jurisdiction of this Court. Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions of the parties. In the instant case a finding of fact has been recorded as can be ex facie seen from the order passed by the Sub-Divisional Officer as well as the Maharashtra Revenue Tribunal that the respondents-tenants are sitting on the property in question and were on the property at both the relevant times i.e. on 01/04/1961 and 01/04/1963 and that their names were duly registered in the list of the tenants prepared under Section 8 (1) of the said Act and since unless there is a challenge by having a recourse to Section 8 (3) of the said Act, they became final and no proceedings can be taken thereafter for setting aside those entries. It is pertinent to note that the proceedings under Section 129 (b) of the said Act have been filed almost after 48 years of the Trust being registered and the tenants sitting on the property. It is in the said context that the submissions of the learned counsel for the petitioner wp2247.11.odt 8/9 would have to be considered, the exemption under Section 129 (b) of the said Act envisages that certain provisions, except the provisions, which are referred to in Clause (b) of Section 129, are not applicable to the Trust, which is granted an exemption. However, a prerequisite for the same is that the proceeds out of the Trust property have to be appropriated towards the purposes of the said Trust. To say that there could have been no proceeds as the tenants in question have not been paying rent, would not in no way absolve the petitioner-Trust from proving that the income has been appropriated towards the purposes of the Trust and would not therefore in any manner extinguish the rights of the tenants to be deemed owners in respect of the property in question. The argument of the learned counsel, therefore, in view of the fact that the tenants were not paying the rent, there could have been no income of the Trust, cannot be countenanced since the tenants have an independent right of a deemed ownership, if they qualify for the same under the provisions of the said Act. In the instant case, it is pertinent to note that the Sub-Divisional Officer as well as the Maharashtra Revenue Tribunal has gone thread bare into the material placed on record by the parties. The Maharashtra Revenue Tribunal on the consideration of the same has come to a conclusion that the petitioner has failed to prove that the income out of the land in question of the Trust has been appropriated towards the purposes of the trust. As indicated herein above, the fact that the tenants were paying or not paying the rent would make no material wp2247.11.odt 9/9 difference, as the petitioner Trust is independently obliged to prove that the income has been so appropriated. Both the Sub-Divisional Officer and the Maharashtra Revenue Tribunal having recorded findings of facts on the said aspect, in my view, the said findings do not merit any interference in the writ jurisdiction of this Court. Now coming to the aspect of the locus of the said Kherde, it is expected that in a matter as serious as an application under Section 129 (b) of the said Act, the person has to be properly authorized to file the same. As indicated above, the Tribunal has observed that though the application was purportedly filed on behalf of the President of the Trust, the President himself has not signed the same, but it is signed by Kherde. How the said Kherde had derived the authority to file proceedings begs the question as admittedly he has not been authorized by any authority of the Trust nor any authority has been conferred on him by the Trust. Therefore, the finding of the Tribunal that the locus standi of the said Kherde is questionable is justified in the facts and circumstances of the case. In that view of the matter, no case for interference is made out. The writ petition is accordingly dismissed. JUDGE KHUNTE