ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 2230 OF 1986 PETITION NO. 2230 OF 1986 PETITION NO. 2230 OF 1986 1. Parshuram Yashwant Govekar (Since deceased by his L.Rs.) 1A) Pralhad Parshuram Govekar 1B) Prakash Parshuram Govekar 1C) Suhasini Shantaram Dhuri 1D) Sushma Sudhakar Manjrekar 1E) Sulabha Parabhkar Patkar, 1F) Sagar Chandrakant Govekar, (1A, 1B, 1D to 1F residing at & Post Devali, Tq.Malwan, Dist.Sindhudurg. 1C residing at & post Pinguli, Tal. Kudal, Dist-Sindhudurg.) 2. Smt.Suvarnavati Dinkar Govekar (Since deceased by heirs Petitioner Nos. 3,4 and 5. 3. Vishwamitra Dinkar Govekar 4. Kum.Mangala Dinkar Govekar, 5. Shankar Dinkar Govekar, (Petitioner Nos. 3,4 and 5 R/o. At & Post Devali, Tq.Malvan, Dist. Sindhudurg. ...Petitioners Vs. 1. Govind Narayan Chavan (Since deceased by his L.R.s) 1A) Shri Narayan Govind Chavan R/o.Devli, Tq.Malwan, Dist.Sindhudurg. ( 2 ) 1B) Rukhaminibai Abaji Sawant, R/o. Navichi Khalchi Wadi, Navin Chawal, H.Bholck Room No.22/23, 1st floor, Grant Road, Bombay-400 007. 1C) Prabhavati Bhaskar Jagtap, Trimurti Bldg., Ground Floor, Bhagatrao Paralkar Marg, Room No.10, Parel Village, Bombay-400 012. 1D) Seetabai Madhavrao Sawant, 27/2081, Maharashtra Housing Board Colony, Gorai Road, Borivali (W), Bombay. 2. Ramesh Sambhaji Naik 3. Sharad Sambhaji Naik R/o. at Kalpana Niwas, Devipada, Borivali (E), Bombay-400 066. (W.P.stands dismissed for want of prosecution vide Addl.R’s order dated 17/10/96) 4. Smt.Ratnawati Vishwanath Govekar 5. Vasant Vishwanath Govekar 6. Devoo Vishwanath Govekar (W.P.stands dismissed for want of prosecution vide Addl.R’s order dated 17/10/96) 7. Kum.Mandakini Vishwanath Govekar. (W.P.stands dismissed for want of prosecution vide Addl.R’s order dated 17/10/96) 8. Kum.Vilasini Vishwanath Govekar. (W.P.stands dismissed for want of prosecution vide Addl.R’s order dated 17/10/96) 9. Nandkishor Vishwanath Govekar (Nos. 1,2 and 4 to 9 all residing ( 3 ) at Devali, Tq. Malvan, Dist. Sindhudurg. ...Respondents. Mr.G.R.Rege i/by Mr.S.M.Railkar for the Petitioners. Mr.A.G.Toraskar for Respondent Nos. 1-A,1-B and 1-D. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATE DATE DATE OF RESERVING THE JUDGMENT : 18TH JULY, 2008 OF RESERVING THE JUDGMENT : 18TH JULY, 2008 OF RESERVING THE JUDGMENT : 18TH JULY, 2008. DATE DATE DATE OF PRONOUNCING THE JUDGMENT: 16TH SEPTEMBER, 2008. OF PRONOUNCING THE JUDGMENT: 16TH SEPTEMBER, 2008. OF PRONOUNCING THE JUDGMENT: 16TH SEPTEMBER, 2008. JUDGMENT:- JUDGMENT:- JUDGMENT:- . Heard Mr.Rege, the learned counsel appearing for the Petitioners and Mr.Toraskar for Respondent Nos. 1-a, 1-b and 1-d. 2. The facts giving rise to the present Writ Petition are as follows:- 3. The Petition under Article 227 of the Constitution of India takes exception to the order dated 30/01/1969 passed by the Mamlatdar, Malvan in Tenancy Case No.483/1962 as confirmed by the Special Divisional Officer and Maharashtra Revenue Tribunal in Tenancy Appeal No.71 of 1977 and Tenancy Revision Application No.82 of 1981 respectively whereby and whereunder the Original Respondent No.1’s Application under Section 70(b) of the Bombay Tenancy and Agricultural Lands ( 4 ) Act-1948 (for short, "BT & AL Act") was allowed and negative declaration to the effect that the Petitioners No.1 and predecessor in title of Petitioner No.2 to 5 and Respondent Nos. 3 to 9 are not tenant in the land owned by the Original Respondent No.1. 4. The dispute is about two pieces of lands. One bearing Survey number 177, Hissa No.13 and 14 and other being Survey number 174, Hissa No.16-B, 22 and 23 situated at village Dewali Tq.Malvan of Sindhudurg district. (Here-in-after for the sake of brevity called as "the said land"). The Original Respondent No.1 in his capacity the landlord of the said land, filed an application under Section 70(b) of the BT & AL Act against the Petitioner No.1 and predecessor in title of Petitioner No.2 to 5 and Respondent Nos. 3 to 9 for negative declaration that they are not the tenant of the said land. The Mamlatdar, by his order dated 30/09/1963, held that the Original Respondent No.1 failed to prove that Application under Section 70(b) of the BT & AL Act is within the period of limitation prescribed by Section 5 of the Mamlatdar Court’s Act and accordingly, dismissed the same. ( 5 ) 5. This order was challenged before S.D.O. by filing an Appeal by the Original Respondent No.1. The Appeal, however, was also dismissed by Special Deputy Collector on 29/02/1964. The Original Respondent No.1 again carried Revision before Maharashtra Revenue Tribunal and the Maharashtra Revenue Tribunal by its order dated 27/12/1965 set aside the lower Court’s order and the matter was remanded back to the Tahasildar for retrial. 6. The Tahasildar, Malvan, thereafter, heard both the sides afresh and disposed of the Tenancy Application No. 482 of 1962 by passing an order dated 30/01/1969. The Tahasildar, by this order categorically held that the Petitioner No.1 and predecessor in title of Respondent Nos.2 to 5 and Respondent Nos.3 to 9 are not tenants in the said land and consequently their names, appearing as protected tenants of the said land in the Village record, directed to be removed. 7. The above order dated 30/01/1969 was challenged by the Petitioners by filing Tenancy Appeal No.56 of 1969 before the Assistant Collector, Sawantwadi Division, Sawantwadi. However, the same was dismissed. The Petitioner again filed Revision Application before ( 6 ) M.R.T. Bombay and M.R.T. by an order dated 29/06/1972 set aside the order of Assistant Collector, Sawantwadi and remanded the matter back to him with directions to re-hear the Appeal and decide the same on merits, after giving due consideration to the evidence on record. The Sub-Divisional Officer, Sawantwadi thereafter disposed of the Tenancy Appeal No.56 of 1969 by an order dated 09/09/1973 thereby again dismissed the Petitioner’s Appeal. The Revision was carried out by the Petitioner before the M.R.T. and M.R.T. again by an order dated 13/06/1974 remanded the matter back to the appellate authority. The Assistant Collector, Sawantwadi Division, Sawantwadi again heard the parties and passed an order on 22/12/1975 and thereby dismissed the Petitioner’s Appeal. Again Revision was preferred by the Petitioner before the M.R.T. and the M.R.T. by an order dated 27/10/1976 set aside the order or Assistant Collector and remanded the matter back to him for re-hearing. After this remand, the Appeal was transferred to the Leave Reserve Deputy Collector, Ratnagiri and the same was renumbered as Tenancy Appeal No.71 of 1977. The Leave Reserve Deputy Collector, Ratnagiri by an order dated 30/11/1977, dismissed the said Appeal. Again the Revision came to ( 7 ) be preferred by the Petitioners in M.R.T. and M.R.T. by an order dated 03/11/1979 remanded the matter back to the Leave Reserve Deputy Collector, Ratnagiri for fresh hearing. Ultimately, the Leave Reserve Deputy Collector, Ratnagiri by his order dated 08/07/1980 dismissed the Appeal. The Petitioner preferred the Revision being Tenancy Revision Application No.82 of 1981 before the M.R.T.. However, the same was dismissed by the M.R.T. by an order dated 13/08/1985 which is impugned in this Petition. 8. Mr.Rege, the learned counsel appearing for the Petitioners submits that there is no dispute and in fact it was accepted by the lower authorities that the name of Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 are recorded in the Record of Rights of the said land as protected tenant. He invited my attention to the provisions of sub-section 2 (18) of the BT & AL Act under which the term "Tenant" is defined. He also pointed out the provisions of Section 4-A of the BT & AL Act which defines the term "protected tenants" and submitted that in view of the provisions of Section 89 of the BT & AL Act readwith Provisions of Section 3, 3-A and 4 of the Bombay Tenancy Act-1939. The ( 8 ) original Respondent No.1 could not have been granted negative declaration that Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 are not tenant in the said land. He submits that though there is concurrent findings of the fact, the same are perverse and contrary to the provisions of law. Therefore, the Petition deserves to be allowed by setting aside the impugned orders. 9. Mr.Toraskar, the learned counsel appearing for the Respondent Nos. 1-a,1-c and 1-d, per contra supported the impugned order. He submits that the finding is recorded by the lower authorities that original Respondent No.1 is in possession and the Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 are not in possession of the suit land. He relied upon the provisions of Section 3 of The Bombay Tenancy Act,1939 as referred in Scheduled I of the BT & AL Act and submitted that in the absence of possession the Petitioner No.1 as well as predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos.3 to 9 cannot claim tenancy in respect of the said land. He further submits that only evidence in favour of Petitioner No.1 and ( 9 ) predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 is about Revenue entry for the year 1947-48 showing them to be protected tenant of the said land and these entries cannot be said to be conclusive on the question of title. In these facts, he submitted that Petition is devoid of any substances and deserves to be dismissed. 10. Having heard the learned counsel appearing for the respective parties and having gone through the impugned orders and Petition alongwith the annexures thereto, I am of the considered opinion that there is merit in the Petition inasmuch as the impugned orders are contrary to the provisions of BT & AL Act and same deserves to be set aside for the reasons stated here-in-after. 11. There is no dispute and in fact finding of the fact is recorded on by all the authorities below that the names of Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 were entered in the revenue record of the said land in the year 1947-48 as a protected tenants. Section 2(18) of BT & AL Act defines the term "Tenant" as follows:- ( 10 ) . Section Section Section 2 (18) 2 (18) 2 (18):- "tenant" means a person who holds land on lease and include,- a) ... b) a person who is a protected tenant; and c) ... . thus, the protected tenant is included in the definition of term "tenant". 12. Section 4A of the BT & AL Act defines the term "protected tenant" as follows:- . "For the purpose of this Act, a person shall be recognized to be a protected tenant, if such person has been deemed to be a protected tenant under Sections 3, 3A and 4 of the Bombay Tenancy Act, 1939, referred to in Schedule I to this Act." ( 11 ) 13. Under Section 89 of the BT & AL Act, the enactment specified in Schedule I is repealed to the extent mentioned in the fourth column thereof. The perusal of Schedule I of the BT & AL Act will reveal that the entire Bombay Tenancy Act-1939 is repealed except Section 3, 3A and 4 as modified in column 4 of the said schedule. Section 3A of Tenancy Act-1939, as modified in column 4 of Schedule I, reads as follows:- "3-A. Every tenant shall, from the eighth day of November, 1947 be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant." "Explanation:- A person shall not be deemed to be a protected tenant if such person has been on an application made by the owner of the land as provided in Section 3-A of the Bombay Tenancy Act, ( 12 ) 1939, declared by a competent authority not to be a protected tenant." 14. Thus conjoint reading of Provisions of Section 89 of the Bombay Tenancy Act-1939 and Section 3A of Bombay Tenancy Act-1939 as modified in column 4 of Schedule I of BT & AL Act makes it clear that if on 08/11/1947 the tenant’s name is recorded in Record of Rights, then he is deemed to be a protected tenant unless his landlord, prior to this date has made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant. In a present case, there is no dispute of the fact that prior to 08/11/1947 the original Respondent No.1 did not make any application to the Mamlatdar for declaration that the Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 are not protected tenant. 15. It is an admitted position that the name of Petitioner No.1 and predecessor in title of Petitioner Nos.2 to 5 and Respondent Nos.3 to 9 are recorded in Record of Rights of the said property in the year 1947-48. In fact to this effect finding of fact is also recorded by all the authorities below. The ( 13 ) provisions of Section 32 of the Maharashtra Land Revenue Code-1966 (for short, "the Revenue Code") defines the term "Revenue year" as - the year commencing on such date as the State Government may by notification in Official Gazette, appoint. The State Government in this regard has notified a Revenue Year as 1st August to 31st July. Thus, it is to be presumed that the name of Petitioner No.1 and predecessor in title of Petitioner Nos.2 to 5 and Respondent Nos.3 to 9 was recorded in Record of Rights of the said land as a protected tenant as on 08/11/1947. In view of this position, the Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 becomes permanent tenant under Section 3A of the Bombay Tenancy Act-1939, as modified by column 4 of Schedule I of BT & AL Act especially as the original Respondent No.1 prior to 08/11/1947 did not make an application to Mamlatdar for declaration that they are not protected tenant. If the Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos.3 to 9 are the protected tenants under Section 3A of the Bombay Tenancy Act-1939 as modified in column No.4 of Schedule I in that case they automatically become protected tenant under Section 4A of the BT & AL Act ( 14 ) and thus, falls within the definition of term "tenant" as defined under Section 2(18) of the BT & AL Act. I am fortified by the observations of the Judgment of the Apex Court in Manekji Edulji Mistry and etc. Vs. Manekji Edulji Mistry and etc. Vs. Manekji Edulji Mistry and etc. Vs. Maneksha Maneksha Maneksha Ardeshir Irani and Anr., AIR 1972 Supreme Ardeshir Irani and Anr., AIR 1972 Supreme Ardeshir Irani and Anr., AIR 1972 Supreme Court, Court, Court, 161 161 161. The Apex Court in para Nos. 10 and 16 of the aforesaid decision observed as under:- "10. The Bombay Tenancy Amendment Act-1946 was brought into force from 8 November, 1946 throughout the Province of Bombay. The effect of the 1946 Amendment Act in the present case was that the lease which was subsisting on that date, viz., 8 November, 1946 was deemed to be for a period of not less than 10 years from 1 March, 1943 when the lease came into effect. The other important change as a result of the 1946 Amendment act was that under Section 3-A of the Act the tenant was deemed to be a protected tenant for the purpose of this Act and his rights were to be recorded in the Record of Rights. The facts found by the High Court in the present case are that the tenant-respondents’ rights were recorded and the appellants did not make an application after the coming into force of the 1946 Amendment Act that the respondents were not protected tenants. Therefore, the respondents were protected tenants and the lease was effective for 10 years from the date of the lease. This extension of the lease for 5 years beyond the period of 5 years mentioned in the lease was by virtue of the provisions in the statute. 16. The 1948 Act recognised a tenant to be a protected tenant if such person had been deemed to be protected tenant under Sections 3, 3A or 4 of the Bombay Tenancy Act, 1939. Section 34 of the 1948 Act provided that notwithstanding anything contained in Section 14 a landlord might ( 15 ) terminate the tenancy of a protected tenant on the grounds and in the manner as provided in that section. It therefore follows that protected tenant had been given security under the 1948 Act for an unlimited duration and he could be ejected either on grounds mentioned in Section 14 or for grounds mentioned in Section 34 of the 1948 Act. A protected tenancy therefore did not come to an end on the expiration of any particular period. A protected tenancy could be brought to termination only on the grounds and in the manner mentioned in Sections 14 and 34 of the 1948 Act. It is also noticeable that no new protected tenancy could come into existence under the 1948 Act." . The plain reading of above observations of the Apex Court supports the submission of the learned counsel appearing for the Appellants. 16. This takes me to consider the submission of Mr.Toraskar, the learned counsel appearing for the Respondent Nos. 1-a, 1-c and 1-d that the finding of fact recorded by authorities below that Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 are not in possession of the said land and in view of the provisions of Section 3 of the Bombay Tenancy Act-1939 as modified by column 4 of schedule I they cannot said to be protected tenant. The submission is misconceived. Section 3 of the Bombay Tenancy Act-1939 as modified by column 4 of ( 16 ) schedule I, has no application in the present case and the relevant Section is Section 3-A of the Bombay Tenancy Act-1939 under which the Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 claims to be protected tenants. In my view, whether they are at present in possession of the said land or not is not relevant to decide the question of protected tenancy. What is required to be seen is only whether the names of the Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 are recorded as a protected tenant in the Record of Rights of the said land as on 08/11/1947. Since the names of Petitioner No.1 and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos.3 to 9 are recorded to the said land in the year 1947, in view of the definition of "Revenue year" in Section 32 of the Revenue Code their names presumed to have been recorded as a protected tenant as on 08/11/1947. All the lower authorities below failed to consider the above legal position and negative declaration in favour of Respondent No.1 was given under Section 70(b) of the said land which deserves to be quashed and set aside. 17. Normally, the entries in the Record of Rights ( 17 ) cannot be said to be conclusive as the same are made for fiscal purposes. It is also true that the entries in the Revenue record cannot confer any title. However, in the present case, in view of the provisions of Section 3A of Bombay Tenancy Act-1939 as modified by column 4 of schedule I, the rights are specifically created in favour of tenant whose name appears on notified date as a protected tenant of concerned land. There is no dispute that in the year 1947-48 the names of Petitioner and predecessor in title of Petitioner Nos. 2 to 5 and Respondent Nos. 3 to 9 were recorded as a protected tenant in the Record of Rights of the suit land. In that view of the matter, I do not find any merit in submission of the learned counsel for Respondent No.1 in this regard. 18. In these facts and circumstances, I am of the considered opinion that the lower authorities below committed an error in granting negative declaration in favour of Respondent No.1. The Petition, accordingly, succeeds. The impugned order dated 13/08/1985 passed by the Maharashtra Revenue Tribunal, Bombay in Tenancy Revision Application No. Ten.A.82 of 1981, as well as the order dated 08/07/1980 passed by the ( 18 ) Sub-Divisional Officer in Tenancy Appeal No.71 of 1977 and the order dated 30/09/1963 in Tenancy Case No.483 of 1982 passed by the Mamlatdar, Malvan are quashed and set aside and Rule is made absolute in terms of prayer clause (b). 19. The Petition stands disposed of in the above terms. (R. (R. (R. V. MORE, J.) V. MORE, J.) V. MORE, J.)