1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 2818 OF 1990 *** Kalyan Swami Math Sansthan, Domgaon, Trust R.No.A 2566 Osmanabad (Through Shri Hamnant S/o Shriram Buwa Jahagirdar, Age: 72 years, Occu.: Agriculture, R/o Domgaon, Taluka: Paranda, District: Osmanabad. ... PETITIONER. Versus 1. The State of Maharashtra. 2. The Maharashtra Revenue Tribunal, Aurangabad. (Notices of Respondent Nos.1 and 2 to be served on the Government Pleader.). 3. Dattu S/o Deu Gardade, Age: 40 years, Occu: Agriculture, R/o Mugaon, Taluka: Paranda, District: Osmanabad. 4. Hariba S/o Deu Gardade, Age: 35 years, Occu.: Agri., R/o Mugaon, Taluka: Paranda, Dist. Osmanabad. 5. Kalawati W/o Deu Gardade, Age: 65 years, Occu.: Agri., R/o Mugaon Taluka Paranda, District: Osmanabad. ... RESPONDENTS. *** Mr. S. Y. Mahajan, Advocate for the Petitioner. Mr. D. R. Korde, A.G.P. for Respondent Nos.1 and 2. Mr. Suresh Kulkarni, Advocate for Respondent 2 Nos.3 to 5. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 9th FEBRUARY, 2011. ORAL JUDGMENT: 1. By this petition filed under Article 227 of the Constitution of India the petitioner Public Trust has challenged the orders of Maharashtra Revenue Tribunal dated 8th June, 1990 in Appeal No.55/A/89-0 filed by present Respondent Nos.3 to 5. Respondent Nos.3 to 5 filed that appeal against the delimitation of surplus land by the Chairman, S.L.D.T. on 11th September, 1989 to the extent of their interest. They claim that they were tenants of survey No.86/1, admeasuring 11 Acres 14 Gunthas of village Mugaon and as the land was encumbered it could not have been declared as surplus. Maharashtra Revenue Tribunal has accepted that contention. 2. Learned counsel Mr. Mahajan appearing for the petitioner trust has contended that the Petitioner is a public trust registered in 1968 and all lands with it are Atiyat Grants as defined in section 2 (i) (b) of the Hyderabad Atiyat Inquiries Act, 1952. (1952 3 Act, for short, hereafter). Attention is invited to section 6 thereof to urge that such land cannot be transferred or cannot be attached by any Court. In view of this legal position, according to learned counsel, the case of tenancy pressed into service by Respondent Nos.3 to 5 before Maharashtra Revenue Tribunal is itself unsustainable. The reliance is being placed upon judgment of this Court in the case of "Bhiva S/o Gangaram Landge and others V/s State of Maharashtra and others" reported in 2004 (3) Mh.L.J. 609 in support of this contention. The other contention is, Maharashtra Revenue Tribunal has declared Respondent Nos.3 to 5 as tenants and that is again in violation of above provisions of 1952 Act. The learned counsel has stated that the return filed under section 12 of the Maharashtra Agricultural Lands Ceiling on Holdings Act, 1961 (Ceiling Act, for short, hereafter) itself discloses that these lands were not in possession of petitioner trust and as the lands were/ are not "held" by petitioner, in view of this position, the choice exercised by trust 4 declaring the land at Mugaon as surplus and for its delimitation, as accepted by S.L.D.T., could not have been interfered with by Maharashtra Revenue Tribunal. To support this, reliance is being place on the judgment in the case of "Sayyada Kamarunnisa Kutub Alam Bukhari V/s State of Maharashtra and others" reported in 2009 (2) Mh.L.J. 214. 3. Shri Suresh Kulkarni, Advocate for Respondent Nos.3 to 5 and learned A.G.P. for Respondent Nos.1 and 2 have supported the impugned order. They urged that the status of land as tenanted land is being pressed into service for the first time and it being the disputed question of fact, the said issue cannot be examined here. In the alternative, and without prejudice, they pointed out that the petitioner trust had already moved State Government under section 47 of the Ceiling Act and sought exemption but that application was rejected. The inquiry into determination of surplus holding began thereafter. The order rejecting the exemption has attained finality. It is further urged that the Maharashtra Revenue Tribunal has relied upon 7/12 extract 5 to note that Respondent Nos.3 to 5 are tenants since 1958-59. The learned counsel, therefore, stated that as land is found to be encumbered the Maharashtra Revenue Tribunal has correctly directed S.L.D.T. to delimit some other land from the holding of the petitioner. It is pointed out that order of S.L.D.T. delimiting the lands at village mugaon, village Karla and village Kardali as surplus was not question by petitioner trust at any point of time. The Respondent Nos.3 to 5 questioned that order in appeal only to the extent of their interest i.e. village Mugaon. Hence, remaining order has attained finality. It is urged that if entire land was Atiyat land, the delimitation of lands at Karla and Kadali ought also to have been assailed by petitioners by filing appeal before Maharashtra Revenue Tribunal. 4. The perusal of definition of "Atiyat Grants" as given in section 2 (i) (b) of 1952 Act reveals that it means Inams to which the Hyderabad Abolition of Inams Act 1954 is not applicable. It is not in dispute before me that such Inams ought to have been given 6 before 1952. If it is an Atiyat grant, then only section 6 applies and it states that such Atiyat is not liable to be transferred or encumbered in any manner or to any extent whatsoever and it is not liable to any Court attachment or sale any Atiyat grant or any portion or any scheme thereof. Proviso thereto permits attachment of half income of such Atiyat in execution of a decree through revenue department. Thus, this section 6 itself raises some questions of fact. Here, careful perusal of records reveal that the petitioners have not placed anything record to indicate that land at Mugaon has come to them prior to 1952. In that view of the matter, the contention being raised for the first time before this Court, is not a pure and simple question of law but it depends upon adjudication of certain facts. As those facts are on record and lower authorities have not applied mind to those facts, the question cannot be looked into, at this stage, by this Court. It can be safely concluded that there is no material on record to show that the land at village Mugaon which is the subject matter 7 of present petition, is an Atiyat grant. 5. The petitioners have also contended that the land at Mugaon is not held by them. The provisions of section 2 (14) of Ceiling Act, 1961 are relied upon with the judgment of this Court in the matter of Sayyada Kamarunnisa Kutub Alam Bukhari V/s State of Maharashtra and others (supra) in support. The said judgment shows that it was necessary to establish that petitioner (there) before this Court was either a tenant or owner of the lands and he was actually in possession of those lands to enable Ceiling Authorities to include the same with the holding of the petitioner. The petitioner had some tenants on lands which were in their possession. Apart from this, the lands of Devasthan of which the petitioner was found Wahiwatdar also could not be included in the petitioners holding. The consideration in the judgment shows that the petitioner had total 66 Acres and 13 Gunthas land and she claimed exemption for 32 Acres and 19 Gunthas. These lands consisted of Devasthan Inam Lands, lands in possession of tenands, lands transferred 8 pursuant to orders of various Courts, fallow lands and grass lands. S.L.D.T. found that on 26th September, 1990 she was holding 66 Acres of land. The transfer of 17 Acres 7 Gunthas of land between 27th September, 1970 till 2nd October, 1975 to tenants was also accepted. The Tribunal, therefore, excluded those lands and found that holding of petitioner was limited to 49 Acres and 16 Gunthas and hence she was not a surplus holder. In suo-motu revision under section 45 (2) of Ceiling Act, the Additional Commissioner found that Devasthan Inam Lands of which petitioner was Wahiwatdar as well as lands in possession of tenants were liable to be included within holding of petitioner. It is in this background that the controversy has been considered. Thus, between 27th September, 1970 to 2nd October, 1975 the petitioner had transferred tenanted lands to tenants and those transfers were accepted by S.L.D.T. This being the position, it is apparent that this judgment does not lay down a ratio that tenanted lands belonging to petitioner cannot be included withing the holding of petitioner. 9 Reliance upon this judgment for said purpose is, therefore, misconceived. 6. Here, in return as filed, petitioner disclosed total 79.26 Acres of land as its holding. These lands of village Mugaon have been included therein. However, in form No.3 column No.2 of the return, the petitioner also pointed out that this land at Mugaon was not in its possession. That by itself does not mean that petitioner is not holding that land. On the contrary, as petitioner was holding that land, while submitting choice for retention in form No.7, the petitioner has surrendered said land at Mugaon for its delimitation as surplus land. S.L.D.T. has accepted that choice and delimited said land at Mugaon as surplus. It, therefore, does not lie in mouth of petitioner that it is not holding said land. 7. The petitioner as a trust had sought exemption under section 47 of the Ceiling Act, 1961. This Act of seeking exemption militates with the contention that being Atiyat land the provisions of Ceiling Act could not have been extended to it because of section 6 of 1952 10 Act. The conduct of permitting delimitation of Mugaon lands as surplus again militates with the contention that said land is not held by petitioner. 8. The Maharashtra Revenue Tribunal has correctly applied the law on the point. It has noted that since 1959-60 revenue records revealed possession of Respondent Nos.3 to 5 as tenants. It has, therefore, found the lands encumbered and in view of that finding and provisions of section 16 of 1961 Act, it directed S.L.D.T. to delimit any other land to the extent of 11.14 Acres as surplus from the holding of the petitioner. No objection can be taken to this application of mind. 9. The reliance upon judgment in the case of Bhiva S/o Gangaram Landge and others V/s State of Maharashtra and others (supra) is to urge that Atiyat lands cannot be encumbered, transferred or attached. As the land at Mugaon is not Atiyat grant it is apparent that raito of the said judgment is not applicable to the case on hand. I, therefore, do not find anything warranting interference in exercise of jurisdiction under Article 227 of 11 the Constitution of India. Petition is, therefore, rejected. However, in the circumstances of the case, there shall be no order as to costs. [B.P.DHARMADHIKARI, J.] Dated:-09/02/2011. ans/2818 12 WRIT PETITION NO.: 2818 OF 1990 Date of decision: 9th FEBRUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE