(1) lpa211-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 211 OF 2011 IN WRIT PETITION NO. 3504 OF 2011 Sangita @ Sonal d/o Nanabhau Marathe, (after marriage, named as Sau Sonal w/o Dipak Marathe), Age : 23 years, Occu. Agriculture, R/o Ranjane, Tq. Talode, Dist. Nandurbar. APPELLANT VERSUS 1. Sevakram Asodmal Khatvani, R/o Old Sindhi Colony, Nandurbar, Dist. Nandurbar. 2. Vitthal Dagdu Chaudhary, R/o Tilak Road, Nandurbar. 3. Vasudev Tarachand Chaudhary, R/o Tilak Road, Nandurbar. 4. Mahesh Nanabhau Marathe (Died) 5. Mohan Narayan Marathe, R/o Tilak Road, Nandurbar RESPONDENTS ..... Mr. R.R. Mantri, advocate for the appellant. Mr. C.R. Deshpande, advocate for the respondent No.1. ..... CORAM : SMT. NISHITA MHATRE & M.T. JOSHI, JJ. DATED : 18TH JULY, 2011 JUDGEMENT (PER : M.T. JOSHI, J.) : 1. Admit. By consent of the parties, heard finally. (2) lpa211-11 2. The appellant is challenging the order of the learned Single Judge whereby the Court refused to refer the issue to the competent authority under the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, "the B.T. & A.L. Act"), thereby confirming the order of the learned Trial Court. 3. The respondent no.1 as a plaintiff filed the suit for specific performance of contract to alienate the agricultural land. The appellant inter alia took a defence that the respondent No. 1 is not an agriculturist and, therefore, is barred from purchasing any agricultural land in view of the provisions of Section 63 of the B.T. & A.L. Act. The learned trial Court had earlier refused to frame an issue on these pleadings. Therefore, the appellant filed writ petition bearing No. 7787/2010 wherein vide order dated 04-02-2011, the then learned Single Judge directed the framing of the issue. Thereupon the appellant moved the trial Court for referring the said issue to the authorities under the B.T. & A.L. Act since in view of Section 85 of the B.T. & A.L. Act, only the said Authority has jurisdiction to (3) lpa211-11 decide the said issue. The learned Trial Judge refused to grant the said application. Therefore, the writ petition No. 3504/2011 was filed in which, by the impugned order, the learned Single Judge has held that there is no necessity to refer the said issue to the competent authority. Therefore, the present Letters Patent Appeal. 4. A preliminary objection was raised by the learned counsel for the respondent No.1 contending that the appeal against the impugned order is not maintainable since the writ petition was filed under Article 227 of the Constitution of India. The order, however, shows that besides appreciating the order of the learned Trial Judge, the learned Single Judge has also observed that the occasion for reference of the issue may arise if some land is found available with the respondent no.1/plaintiff in India and, therefore, by granting liberty to the appellant to challenge the said impugned order of rejection of referring the issue, the Writ Petition was disposed of. Thus, the order was also under Article 226 of the Constitution of India. The Letters Patent Appeal (4) lpa211-11 is therefore competent. 5. Coming to the merits, the provisions of Section 85 of the B.T. & A.L. Act, in unequivocal terms, provide that the issue as to whether a person is an agriculturist or non-agriculturist shall be decided only by the competent authority under the B.T. & A.L. Act. The learned trial Court held that none of the authorities cited by both the sides were applicable. It therefore observed that as none of the parties has averred that the provisions of the B.T. & A.L. Act are applicable, the suit land is not governed by the provisions of the said Act and, therefore, framing of the issue as to whether the plaintiff is an agriculturist or not, is unnecessary. However, the reason is misconceived. It is not necessary that the land should be governed by the provisions of the B.T. & A.L. Act. Further, in the earlier Writ Petition, the learned Single Judge has already directed the trial Court to frame the issue, on the basis of which the issue was framed. The next reason that was given by the trial Court was that since the High Court in the earlier order has not (5) lpa211-11 directed that the issue be referred to the competent authority, it is not necessary to refer the issue to the competent authority. The provisions of sections 63, 70 and 85 of the B.T. & A.L. Act are unequivocal as pointed out in this context. 6. Relevant provisions of Sections 63, 70 and 85-A run as under:- 63. (1) Save as provided in this Act – (a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist or who being an agriculturist will after such sale, gift, exchange, lease or mortgage, hold land exceeding two-thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, or who is not an agriculturist labourer: Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on (6) lpa211-11 such conditions as may be prescribed. 70. For the purpose of this Act the following shall be the duties and functions to be performed by the Mamlatdar: (a) to decide whether a person is an agriculturist; ------- 85-A. (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act, (hereinafter referred to as the “competent authority”) the Civil Court shall stay the suit and refer such issues to such competent authority for determination. --------- 7. Besides this in "Gundaji Satwaji Shinde V. Ramchandra Bhikaji Joshi" AIR 1979 SC 653, the Supreme Court had an occasion to deal with a similar situation and has directed that the issue will have to be referred to the competent authority. The learned trial Court, however, in the present case, was confused by the fact that the land was not governed by the provisions of the B.T. & A.L. Act and thus misdirected itself. 8. The learned Single Judge also observed that let the evidence be admitted and thereafter if found suitable, the issue may be referred. However when in (7) lpa211-11 fact, the evidence in this regard is prohibited, there is no question of admission of any evidence by the civil Court. In view of this, the Appeal will have to be allowed. 9. In the result, the Letters Patent Appeal is allowed with no order as to costs. The order passed by the learned Single Judge of this Court and the trial Court are set aside. Instead, the issue framed by the trial Court about the status of the respondent no.1/plaintiff as an agriculturist be referred to the competent authority under the B.T. & A.L. Act. 10. In view of disposal of the Letters Patent Appeal, the Civil Application no. 6984 of 2011 seeking stay does not survive and the same stands disposed of. Sd/- Sd/- [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] npj/lpa211-11