( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 276 OF 1993 1. Ganpat Dula Patil, Since deceased, by L.Rs. 1a. Smt. Saraswatibai Ganpat Patil 1b. Dnyandeo s/o Ganpat Patil 1c. Sopan s/o Ganpat Patil 1d. Arun s/o Ganpat Patil 1e. Dilip s/o Ganpat Patil 1f. Vimal w/o Chhebu Patil All r/o Nashirabad, Tq. And District Jalgaon. 2. Namdeo Dula Patil, R/o Nashirabad, Tq. And District Jalgaon. PETITIONERS VERSUS Vishwanath Vithal Wani, through his Power of Attorney Ratnakar Mahadeo Wani, R/o Nashirabad, Tq. and District Jalgaon. RESPONDENT …. Mr. S.S. Patil, advocate for the petitioners. Smt. S.D. Tambat-Dhumal, advocate for the respondent. …. [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th June, 2010] ( 2 ) ORAL JUDGEMENT : 1. By this petition, the petitioners seek to challenge judgement and order rendered by Maharashtra Revenue Tribunal in tenancy appeal No. 85/1996. By that judgement, the Maharashtra Revenue Tribunal confirmed part of the judgement of learned Sub-Divisional Officer and held that the petitioners were not entitled to purchase the land in question. 2. The present litigation has a chequered career. The petitioners are sons of deceased Dula Patil. Said Dula Patil was original tenant in respect of the agricultural lands bearing Survey No. 92/1 and Survey No. 105/2 as well as the suit land i.e. Survey No. 106, admeasuring 5 acres 33 gunthas, situated at village Nashirabad. The original landlord had given those lands to him on lease somewhere in 1937. In the earlier round of litigation, the landlord filed proceedings under sections 29 and 31 of the Bombay Tenancy and Agricultural Lands Act (old) for recovery of possession of the lands on the ground of requirement for personal cultivation. His application was partly allowed except the suit land. The tenant subsequently filed proceedings under section 32-G of ( 3 ) the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT&AL Act”) for fixation of the price in respect of the suit land. The price was fixed and the tenant was directed to deposit the same. The tenant complied with the directions. The landlord filed another application under section 34 (5) of the BT&AL Act on the ground that the tenant was holding the lands in excess of the permissible ceiling area. His contention was that the tenant was not entitled to purchase the suit land i.e. Survey No. 106 because holding of the tenant was much in excess of the ceiling limit as provided under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. It appears that the High Court partly allowed special civil application No. 102/1966 and directed that holding of the tenant as on the tillers' day i.e. 15th June, 1955 may be determined for such purpose. This direction of the High Court was considered by the concerned revenue authorities. The revenue authorities held that the holding of the tenant was in excess of the ceiling limit. The orders were, however, challenged before the High Court and ultimately, this Court held that the tenant was not having excess holding beyond permissible limits as provided under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act. In the meanwhile, the petitioners (tenants) filed application ( 4 ) under section 32-G of the BT&AL act for issuance of sale certificate. The Tahsildar allowed the application and directed the issuance of certificate under section 32-M of the BT&AL Act. This order dated 12-10-1984 rendered by the Tahsildar was challenged before the Sub-Divisional Officer, Jalgaon in tenancy appeal No. 5/1985. The Sub-Divisional Officer allowed the appeal on the ground that the provisions of section 32-G are not attracted in view of the fact that the suit land is a bagayat land and the purpose of lease was to give the suit land for cultivation as an orchard. It was held that in view of section 43-A of the BT&AL Act, the relevant provisions were not applicable and, therefore, the petitioners were not entitled to purchase the suit land. On basis of such reasoning, the order of the Tahsildar was set aside by allowing the appeal. The Maharashtra Revenue Tribunal confirmed the said order, except modification that the tenants/petitioners were not holding more than the ceiling area of land. Feeling aggrieved, the tenants (petitioners) have preferred this petition. 3. Heard learned counsel for the parties. 4. The short question involved in the petition is : ( 5 ) “Whether the petitioners could be denied the issuance of sale certificate under section 32-M of the BT&AL Act for the reason that the relevant provisions were not attracted to the suit land which was leased out for bagayat purposes, being an orchard as fruit growing land or flowers growing land, in view of section 43-A of the BT&AL Act ?” 5. Mr. Patil, learned counsel for the petitioners, would submit that the Maharashtra Revenue Tribunal and the Sub-Divisional Officer committed patent error holding that the petitioners were not entitled to exercise the right of purchase because the suit land is a fruit growing land. He would submit that the question was concluded in the earlier round of litigation and could not have been re-opened by the learned Sub-Divisional Officer as well as the Maharashtra Revenue Tribunal. He contended that such question ought not to have been allowed to be re-agitated. He argued that denial of the sale certificate in favour of the petitioners was not in keeping with the letters and spirit of section 32-G of the BT&AL Act. On the other hand, Smt. Dhumal, learned counsel for the respondent, supports the impugned judgements and ( 6 ) orders. Mr. Patil seeks to rely on certain observations in “Jagu Tukaram Waghamale v. Dnyandeo Bala Waghmale and another” 1998 (2) Bom.C.R. 433. A Single Bench of this Court held that the revenue authorities could not have re-opened the same issue and disturbed the earlier finding in the proceedings under section 32-G of the BT&AL Act in order to frustrate the purchaser's right. The fact situation in the given case shows that section 32-G proceedings do not conclude in favour of the tenant. It was found that the tenant had become the purchaser of the land in question. The only part which remained was of fulfilling certain conditions. The learned Single Judge ultimately directed the civil Court to decide the suit within a specified time-frame. The learned Single Judge held that the issue of tenancy could not be re-agitated and re-decided by the revenue authorities. 6. What appears from the fact situation of the present case is that not only the suit land but other two (2) lands were leased out to the original tenant, namely, Dula Patil. It was admitted by petitioner – Ganpat that the suit land was having fruit bearing trees. The learned Sub-Divisional officer noticed from recitals of the rent note dated 31-03-1993 that the suit land was leased out for cultivation of fruits i.e. an ( 7 ) orchard of banana and sugarcane plants. Not only that, but entries in the 7/12 record indicated that uptill 1951-1952, the suit land was utilized for cultivation of bananas and sugarcane plants. The learned counsel for the petitioners would submit that nature of the cultivation as on the tillers' day would be relevant. There is presumption, however, in favour of continuity of the affairs. The petitioners never adduced any tangible evidence to show that the cultivation of the suit land as an orchard or for the purpose of sugarcane plantation was discontinued after 1951-1952. The original purpose of the lease itself is explicitly for cultivation of cash crop like sugarcane and the orchard of bananas. These subsequent developments could not have been totally ignored by the competent revenue authorities before issuance of the sale certificate in favour of the petitioners. The issuance of sale certificate is not mere an empty formality. The competent revenue authority was required to conduct the enquiry as regards the eligibility of the petitioners to get statutory ownership under section 32-M. The ineligible tenants cannot be bestowed with rights of statutory purchasers. Considering these aspects, I am of the opinion that the case of “Jagu Tukaram Waghamale” (supra) is on different footing and could be distinguished on facts. ( 8 ) 7. Taking overall view of the matter, I do not find substance in the petition. Hence, it is dismissed. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp276-93