(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 384 OF 2002 Vithal Rukhimini Devasthan Trust through : It’s Secretary, Genu Khandu Bagade, Age : 70 years, Occu.: Agri., R/o Hanga Tal. Parner, Dist. Ahmednagar .. Petitioner Versus 1] Smt. Anusaya Kondiba Nagare Age : 73 yrs., 2] Dnyandeo Kondiba Nagare since deceased thorugh Lrs. 2A] Janabai Dnyandeo Nagare Age : 45 yrs., At post Hanga, Tq. Parner, Dist. Ahmednagar 2B] Surekha Dattatraya Londhe, Age : 25 years, at and Post Hanga, Tq. Parner, Dist. Ahmednagar 2C] Chaya Satish Lalbage, At Bhingar, Gondhali Mala, Mahatma Phule Chowk, Dist. Ahmednagar 3] Smt. Kamal Kanifnath Nagare, Age : 38 years, 4] Ganesh Kanifnath Nagare, Age : 12 years, Minor 5] Manisha Kanifnath Nagare, Age – 7 yrs., Minor (2) 6] Shivaji Chandrarao Dalvi Age : 70 years, 7] Sambhaji Chandrarao Dalvi Age : 65 years, 8] Krushnarao Chandrarao Dalvi Age : 60 years, All Occu.: Agri., R/o Hanga, Tal. Parner, Dist. Ahmednagar .. Respondents WITH WRIT PETITION NO. 3467 OF 2003 1] Dnyandeo Kondiba Nagare Age : 55 yrs. Died through LRs. 1A] Smt. Janabai w/o Dnyandeo Nagare, Age : 52 years, Occu.: Agri., R/o Hanga, Tal. Parner, Dist. Ahmednagar 1B] Sau. Surekha Dattatraya Londhe, Age : 30 yrs., Occu.: Household R/o : Hanga, Tal. Parner, Dist. Ahmednagar 1C] Sau. Chaya Satish Lalbage, Age : 22 yrs., Occu.: Household work, R/o Gondhalemala, village : Nagadevale, Tq. Nagar, Dist. Ahmednagar 2] Smt. Anusaya Kondiba Nagare, Age : 73 yrs., 3] Smt. Kamal Kanifnath Nagare, Age : 38 yrs., 4] Ganesh Kanifnath Nagare, Age : 12 yrs., (3) 5] Manisha Kanifnath Nagare Petitioner no. 4 and 5 through N.G. Petitioner no.3 Kamal All R/o Hanga, Tal. Parner District : Ahmednagar .. Petitioners Versus 1] Vithal Rukhmini Deosthan Trust through it’s Secretary Mr. Genu Khandu Bagade, Age : 70 years 2] Shivaji Chandrarao Dalvi deceased through LRs. 2A] Pratap s/o Shivajirao Dalvi, Age : 44 yrs., Occu.: Agri., R/o Hanga, Tal. Parner, Dist. Ahmednagar 2B] Sau. Jayshri Yashwantrao Bhosale, Age : 43 years, Occu.: Household, R/o Sakari, Tal. Sakari, Dist. : Dhule 2C] Sau. Alka Santosh Somwanshi, Age : 38 years, 2D] Sau. Nanda Rajendra Somwanshi, Age : 36 years, Occu.: Household, R/No.2C and 2D are R/o Sarola Somwanshi, Tal. Shrigonda, Dist. Ahmednagar 2E] Sau. Pushpa Sanjay Zende, Age : 29 years, Occu.: Household, R/o Chikhali, Tal. Shrigonda, Dist. : Ahmednagar (4) 3] Sambhaji Chandrao Dalvi, Age : 68 years, 4] Krushnarao Chandrao Dalvi, Age : 70 years Resp. nos. 1 to 4 R/o Hanga, Tal. Parner, Dist. Ahmednagar 5] State of Maharashtra, through Spl. Land Acquisition Officer No. 12, Behind I.B. Aurangabad Road, At and Dist. Ahmednagar .. Respondents In W.P. No. 384 of 2002: Mr. S.D. Kulkarni, Advocate for the Petitioners Mr. A.B. Gatne, Advocate for Respondent nos.1 to 5 Mr. D.R. Jaybhar, Advocate for Respondent nos.6 to 8 In W.P. No. 3467 of 2003: Mr. A.B. Gatne, Advocate for the Petitioners Mr. S.D. Kulkarni, Advocate for Respondent no.1 Mr. D.R. Jaybhar, Advocate for Resp. nos. 2A to 2E CORAM : V.R. KINGAONKAR, J. DATE OF RESERVING THE JUDGMENT : 09.06.2009 DATE OF PRONOUNCING THE JUDGMENT : 24.06.0009 JUDGMENT:- 1] Both these petitions are being decided (5) together inasmuch as they are inter-linked and inter-dependent. 2] The dispute is between a temple trust styled as “Vithal Rukhmini Devasthan Trust” and persons claiming tenancy rights in respect of agricultural land which is now acquired for MIDC under the provisions of the Land Acquisition Act. 3] Respondent nos. 1 to 5 in writ petition no. 384 of 2002 are the petitioners in writ petition no. 3467 of 2003. They are legal heirs of deceased Kondiba Nama Nagare. They claim that said Kondiba was tenant in possession of the land in question and was entitled to purchase the same as the statutory purchaser. 4] The case of the petitioner-temple trust is that the land in question, i.e. Survey no. 307, admeasuring 10H 51 Aars was allotted to Vitthal Rukmini Devasthan by Sir William Robert, the then Governor of Bombay State on 31.1.1846. On 20.9.1989 (6) it was registered as a public trust under the provisions of the Bombay Public Trusts Act, 1950. In the year 1992, proceedings were initiated by the State Government for acquisition of the land in question for establishment of MIDC area in the outskirts of Parner taluka. The land in question was taken over in the year 1994 and award for payment of compensation has been rendered by the Land Acquisition Officer. The respondents 1 to 5, who are the legal heirs of deceased Kondiba Nagare, filed proceedings under section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “B.T. and A.L. Act”) for fixation of purchase price, alleging that they were in possession of the land in question. They asserted that deceased Kondiba Nagare, who died in 1980, was in actual possession of the land in question as on the tiller’s day. They submitted that they were ready and willing to deposit the purchase price as would be fixed in respect of the land in question which was converted to gat no. 797 from survey no. 307. The Tahsildar, Parner by judgment and order dated 19.12.1998 held (7) that the respondents 1 to 5 were tenants of the land in question and as such were entitled to purchase the same under section 32(G) of the B.T. and A.L. Act. The price of the land was fixed at Rs.19,204/-. The respondents 1 to 5 were directed to deposit the price amount within a period of three months. It was directed that thereafter certificate under section 32M shall be issued in their favour. The petitioner-temple trust preferred an appeal (appeal no. 1 of 1999) which came to be dismissed as per the judgment and order rendered by the learned Sub Divisional Officer, Parner on 29.4.1999. The petitioner-temple trust challenged the judgment and order of both the tribunals before the Maharashtra Revenue Tribunal (“M.R.T.” for short) in revision case no. 42/B/1999/AL. The M.R.T. dismissed the revision application by judgment and order dated 12.12.2000. Being dis-satisfied with the three concurrent judgments and orders of the tenancy tribunals, the temple trust has filed the instant writ petition. (8) 5] In the meanwhile, the legal heirs of the tenants filed reference application, seeking payment of compensation to them. They asserted that they were entitled to receive compensation for the acquired land in question. The Land Acquisition Officer referred the application filed under section 35 of the Maharashtra Industrial Development Act, 1961 to the Civil Court. The learned Civil Judge (S.D.), Ahmednagar by order dated 23.10.2002 dismissed the reference application, because the writ petition filed by the temple trust was pending in this Court. So, being aggrieved by the dismissal of the revision application, the heirs of the original tenants have filed writ petition no. 3467 of 2003. 6] Heard learned counsel for the parties. 7] At the outset, it may be stated that the reference application filed by the legal representatives of deceased tenant could not be out- rightly dismissed only for the reason that the writ (9) petition filed by the temple trust was sub-judice. The claim put forth by the heirs of deceased Kondiba Nagare would depend upon the fate of judgment in writ petition no. 384 of 2002. The learned Civil Judge ought to have, therefore, kept the reference application pending for decision until the writ petition 384 of 2002 could be finally decided. 8] The three tribunals have concurrently held that deceased Kondiba Nagare was a tenant of the land in question. The three concurrent findings are to the effect that he was in actual possession of the land in question as on the tiller’s day and was therefore entitled to purchase the same as provided under section 32G of the B.T. and A.L. Act. The findings of fact, as regards possession of said Kondiba on the appointed day, cannot be up-setted in the exercise of supervisory jurisdiction. The provisions of section 32G(1) of B.T. and A.L. Act reads as follows:- “32G. Tribunal to issue notice and determine price of land to be paid by tenants- (10) [1] As soon as may be after the tillers’ day the Tribunal shall publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon, [a] all tenants who under section 32 are deemed to have purchased the lands, [b] all landlords of such lands, and [c] all other persons interested therein, to appear before it on the date specified in the notice. The Tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other person calling upon each of them to appear before it on the date specified in the public notice.“ The right of a tenant to purchase the land in question could not be taken away when he was found in possession on 1.4.1957 (appointed day). In “Anna Balu Sul v. Laxman P. Tiwatne” 1998(1) All. M. R. 269, this Court held that an inalienable and unfettered right has been conferred on the tenant who is in possession of the land on 1st April, 1957. It has been held that such right cannot be taken (11) away by the uni-lateral action of the landlord. Needless to say, once a finding is arrived at that Kondiba was in possession of the land in question on the appointed day, then his rights to purchase the land in question were crystallised. The rights available to him and his legal heirs could not be abrogated unilaterally by the subsequent act of the landlord or any authority. 9] Mr. Kulkarni would submit that the principles of natural justice were not followed while deciding the claim of the heirs of deceased Kondiba. He contended that procedure envisaged under section 70 of the B.T. and A.L. Act was not followed and proper finding was not reached as regards status of deceased Kondiba qua the temple trust. He would submit that section 32G is not attracted unless the land in question was the inam land allotted to the religious trust and, therefore, section 88B of the B.T. and A.L. Act, could be availed in order to seek an exemption from the provisions of the Tenancy Act. The last limb of his (12) argument is that the land in question was acquired by the Government in the year 1992, it stood vested in the Government and, therefore, landlord-tenant relationship did not exist thereafter and particularly when the proceedings were initiated belatedly in the year 1997 by the respondent nos. 1 to 5. He would submit that there is no other evidence except certain revenue entries to show that deceased Kondiba Nagare was in possession of the land in question as a tenant on the appointed day. According to him, all the three tribunals have erroneously granted the application of the heirs of deceased Kondiba Nagare without proper finding on the issue pertaining to nature of tenure. He would submit that unless it has been proved that the grant was on “old tenure” the statutory ownership could not be bestowed on the respondents nos. 1 to 5. Per contra, Mr. Gatne, supports the concurrent findings of the three tribunals and also urged to set aside the order of the learned Civil Judge in the reference application. He would urge to restore the land acquisition reference case. (13) 10] On perusal of the entries in the register of alienated village and land, it would appear that the land was allotted to Shri Vithal Rukhmini Devasthan, through Managers. The identity of the managers is explicit from entries in column no.3. The devasthan was being managed by Patil and Kulkarnis. It was a class-3 inam. It is important to note that the temple was managed by village Patil and Kulkarnis until it was registered as a public trust on 20.9.1989. It is amply clear that as on the appointed day, the petitioner-temple trust was not a registered public trust. The petitioner- temple trust has not produced any record to show that the land in question was being personally cultivated by the managers of the temple trust or inamdar. 11] The learned Tahsildar, gave a categorical finding that the land in question was under cultivation of deceased Kondiba Nagare on the tiller’s day. It is explicit further that the petitioner-temple trust was a party to the (14) proceedings before the learned Tahsildar cum Tenancy tribunal. During enquiry of the application under section 32G of the B.T. and A.L. Act, there is no material on record to infer that the petitioner- temple trust was not given opportunity of hearing in the said proceedings. On the other hand, it may be gathered from the judgment and order rendered by the learned Tahsildar (exhibit D) that the contentions of the petitioner-temple trust, were duly considered. The petitioner-temple trust had filed written argument before the Tahsildar. It is clear from the record that the petitioner-temple trust was given due opportunity of hearing by all the three tenancy Tribunals. Under these circumstances, there is no substance in the contention of the petitioner- temple trust regarding denial of reasonable opportunity and violation of the principles of natural justice. 12] The contention of the petitioner-temple trust that the inam land is exempted from application of provisions contained in the B.T. and (15) A.L. Act, is also without any substance. The temple trust was registered as on 20.9.1989. The question about the statutory ownership is required to be determined having regard to the juxtaposition on the appointed day. In “Chhatrapati Charitable Devasthan Trust v. Parisa Appa Bhoske” AIR 1979 BOMBAY 218 the Division Bench of this Court held that in view of proviso to section 88B a trust cannot apply for exemption unless it has been registered under the Bombay Public Trusts Act. It has been further held that when the trust was not registered on the tiller’s day i.e. 1.4.1957, the trust cannot get exemption under section 88B in respect of the land and divest the tenant of his vested rights. In “Kacharu Lakhu Aher v. Masjid Mandwad Deosthan and others” 1990 Mh.L.J. 440 the single Bench of this Court held that land granted in favour of masjid as inam would not be covered by section 88(1)(a) of the B.T. and A.L. Act when it could be gathered that the same was not given for services useful to the Government. It is nobody’s case that the land in question was given for community services. The (16) further contention of the petitioner-temple trust that due to land acquisition, the land in question had vested in Government in 1992, and therefore, the landlord-tenant relationship had no more existed when the application for grant of statutory certificate under section 32G was moved, is fallacious. The land might have been acquired by the Government when the proceedings were initiated for determination of the price under section 32G payable by the tenant. Subject matter of such enquiry was in respect of the tenancy rights which had crystallised on the appointed day. The subsequent development viz. the acquisition of land would not deprive the tenant from claiming the rights which had already accrued to him. 13] Mr. Kulkarni, seeks to rely on certain observations in “Dattu Dnyanu Padalkar v. Hari Natha Patil and anr.” 1979 Mh.L.J. 628. In the given case, Full Bench of this Court held that if the land is leased out from the Government then also the exemption is available under section 88(1)(a) of the (17) B.T. and A.L. Act. It has been held that wherever the lessor is Government either directly or through its agent the leasing out would be by the Government and the person holds the land on behalf of the Government. There is absolutely no material on record to infer that the land in question was leased in favour of deceased Kondiba Nagare by the Government and therefore, he was in actual possession thereof on the appointed day. With respects, therefore, the authority referred to above would not be applicable to the facts of the present case. Reliance is also placed on certain observations in “Hanmanta Daulappa Nimbal since deceased by his heirs v. Babasaheb Dajisaheb Londhe” AIR 1996 SC 223. The Apex Court held that mere entries in revenue records and payment of land revenue without giving notices to the landlord would not be sufficient to establish the lawful possession of tenant. Mr. Kulkarni seeks to rely on judgment in “Rangnath Dashrath Vadar since deceased through heirs Kalavati Rangnath Vadar and others V. Bhagatsing Vithalsing Kotwal” 2003(2) Mh.L.J. 381. (18) The single Bench of this Court held that the B.T. and A.L. Act does not contemplate the State Government in whom the lands would vest on resumption if not re-granted as landlord. It has been held that unless the land is re-granted after resumption, provisions of B.T. and A.L. Act, particularly, section 32 to 32R are not applicable. The fact situation in the given case stands on a different footing. In the said case, the respondent Watandar was a minor when the proceedings were initiated under section 32G. It was a case of land governed by Bombay Inferior Village Watan Abolition Act, 1958. In the present case, the land in question was inam of the petitioner-temple trust. 14] It is well settled that disputed questions of fact cannot be considered in the exercise of supervisory jurisdiction. The three tribunals have concurrently held that deceased Kondiba Nagare was in actual possession of the land in question as on the appointed day. The rights of his heirs could not be taken away by unilateral act of the temple (19) trust or on account of subsequent acquisition of the said land. The petition filed by the temple trust is without substance and hence liable to be dismissed. It follows therefore that the dismissal of the reference application by the Civil Court is quite improper and arbitrary. 15] For the reasons aforestated, the writ petition no. 384 of 2002 filed by the temple trust is dismissed. The writ petition no. 3467 of 2003 filed by Dnyandeo and others is allowed. The reference application in LRA no. 169 of 1998 stands restored to its original position and the learned Civil Judge is directed to decide the same on merits after considering the claim of the tenants for apportionment of the compensation as per the law. No costs. Sd/-- (V.R. KINGAONKAR, J.) arp/24june9/WP384.02