Chimaniram Gyanbha Dhotre Since … vs Vishwanath Ramchandra Ipparkage … on 31 August, 1989

Bombay High Court
Chimaniram Gyanbha Dhotre Since … vs Vishwanath Ramchandra Ipparkage … on 31 August, 1989
Equivalent citations: 1990 (1) BomCR 274
Author: S Manohar
Bench: S Manohar


JUDGMENT

Sharad Manohar, J.

1. Both the above writ petitions arise out of a common judgment of the Maharashtra Revenue Tribunal stemming from a thoroughly mala fide proceeding set in motion by the respondent No. 1 in Writ Petition No. 2539 of 1980.

A brief statement of the relevant facts would show how the proceedings were thoroughly malicious.

2. For the sake of convenience, the parties will be referred to with reference to their position in Writ Petition No. 2539/80.

Respondent No. 1 in that petition was the owner of the land in question. It was an agricultural land. There was no tenant on the same. Hence, there arose no question of respondent No. 1 being a “landlord” of the land. He was the “owner”; not the “landlord” within the meaning of section 32-P of the Bombay Tenancy Act.

Likewise, the land which was the agricultural land ceased to be so after the same was admittedly converted to N.A. use by virtue of the order dated 7-1-1962 passed by the authority under the Land Revenue Code as also by virtue of the Sanad granted by the authorities for N.A. use on 28-8-67. The impugned order is passed by the Asstt. Collector under section 84CC of the Tenancy Act, thus, in connection with the land which is not an agricultural land at all. Under section 2(8) of the Tenancy Act, “land” means land used for agricultural purposes : In other words, an agricultural land. The land contemplated by section 8-CC of the Tenancy Act is agricultural land. The Asst.. Collector, therefore had not a ghost of jurisdiction to pass any order pertaining to such land. All the same, he has purported to pass the order at the instance of respondent No. 1, who, I am told, was a Tahsildar at one time.

3. Coming back to the statement of relevant facts, the land in question which admittedly belonged to respondent No. 1 was intended to be purchased by the mother of the present petitioner, Yamunabai. She was not an agriculturist. She, therefore, made an application to the Collector under section 63 of the Tenancy Act for permission to purchase the land. The application was made on 28-8-1961 and in the application she stated that the land was to be converted to N.A. use and was to be used for the purpose of construction of residential houses & shops. The permission was granted to her by the Collector, but he called upon Yamunabai to obtain N.A. permission from the authorities concerned. Yamunabai, accordingly, applied for N.A. permission was granted to her by the authorities concerned on 27-1-1962. Condition Nos. 2 & 4 of the order, are quite material. They run as follows:—

“(2) The N.A. use for which permission is granted must be commenced within a period of six months from the date of this order failing which the occupant will be liable to pay N.A.A. and fine and the N.A. permission will be liable to be cancelled.

(3) ……………………………

(4) The occupant shall execute a sanad in form ‘M’ within two months from the date of actual commencement of the N.A. use.”

Since the N.A. use was to commence within 6 months, failing which the N.A. permission was liable to be cancelled, Yamunabai started the N.A. user of the land and made an application to the authorities concerned for preparation of the panchanama for satisfying themselves that needful was done as required by Clause (2) of the order dated 27th January, 1962. The authorities made the panchanama on 8-8-1967. Report in that behalf was submitted by the officer concerned to the Collector on 12-8-1967, as per which report the N.A. use had duly started. In that view of the matter, the Collector even granted Sanad for N.A. use of the land on 28-8-1967. It needs to be mentioned here that after the permission was received by Yamunabai for purchase of the land, a Sale Deed was in fact executed by present respondent No. 1 in favour of Yamunabai, on the basis of which alone the N.A. use was started by Yamunabai and on the basis of which Sanad was granted by the Collector to Yamunabai as the owner of the land.

4. Mr. Kankaria invited my attention to the letter dt. 19-9-1968, which shows that after selling the land to Yamunabai, this Ex. Tahsildar made an application to the Collector for cancellation of the Sale Deed on the ground that the construction work had not been started. He also sent a reminder. His evidently crafty move was to have the Sale Deed cancelled and to get the land allotted to him by the Collector superficially in exercise of the power under section 32-P of the Bombay Tenancy Act. The fact that section 32-P did not come to his aid at all is a different matter. The greed of respondent No. 1 evidently prevented him from understanding the manifest meaning of said section 32-P of the Tenancy Act. He was never the landlord of the land. He was only the owner. The word “landlord” postulates existence of tenancy on the land. Admittedly, the land did not have any tenant. If there was tenant on the land, Yamunabai could not have purchased the land at all, because under section 64 of the Tenancy Act land would have to be offered to the tenant in preference to others by the landlord for its purchase. As stated above, respondent No. 1’s greed clouded his reason & understanding as also conscience and he set in motion the proceeding under section 84-CC of the Tenancy Act with a view that the Collector should cancel the permission for sale of the land should take possession of the land back from respondent No. 1 and to hand it over to him on a platter as if respondent No. 1 had done a great service to humanity.

5. It appears that the Asstt. Collector fell easy prey to the machinations of respondent No. 1. He passed an order cancelling the sale. However, even the Asstt. Collector could not be persuaded to take the view that section 32-P of the Act gave him power to give the land back to respondent No. 1. He passed an order cancelling the previous order of permission to sell, but directed the Tahsildar to pass an appropriate order under section 32-P of the Act, while rejecting the respondent’s prayer for allotment of the land to him.

In the meantime, Yamunabai had died. The present petitioners are her heirs.

6. Against the order of the Asstt. Collector, two Revision Applications came to be filed to the Maharashtra Revenue Tribunal; one by the present petitioners and the other by present respondent No. 1.

Before the Tribunal, the present petitioner contended that section 84-CC had no application to the facts of the case, because the land was not an agricultural land; the land was not being used for agricultural purposes; the land was not assessed for agricultural purposes; the N.A. user of the land was not duly cancelled at all. It was also pointed out that even on merits there was no justification for the Asstt. Collector to pass any order of cancellation of the order passed under section 63 of the Act.

All these contentions have fallen on deaf ears so far as the Revenue Tribunal is concerned.

The reasoning of the Tribunal is somewhat un-intelligible. A judgment of the learned Single Judge of this Court (Bhasme, J.) in Special Civil Application No. 2393 of 1970 decided on 14-8-1974 was relied upon before the Tribunal by the petitioner in support of the contention that once N.A. use permission was granted and land was used for non-agricultural purposes, the Collector ceases to have jurisdiction to function under section 84-CC of the Act or, for the matter of that, under any of the provisions of the Tenancy Act, for the simple reason that Tenancy Act applies to agricultural land and a land which is not used for agricultural purposes and which is not assessed for agricultural purposes cannot be the subject matter of the Collector’s jurisdiction. All that the Tribunal has done as regards this judgment and as regards this point is to wish away the same. I have gone through the reasoning of the learned Judge, but to put it plainly the judgment was not intelligible to me. One cannot make any head or tail out of the reasoning.

Even on merits, it is impossible to appreciate the reasoning of the Tribunal. The factual position is that sanad was granted to the petitioner on 28-08-1967. Present proceedings were set in motion by the Machiavellian respondent in September 1968. The result has been that the construction activity had been brought to a virtual standstill. The obviously legitimate grievance of the petitioner is that the construction activity suffered on account of the fact that a respondent No. 1 managed to get the order of the Asstt. Collector under section 63 of the Tenancy Act cancelling the permission under section 63 of the Tenancy Act and without considering all the aspects of the matter, the Tribunal has practically put the rubber-stamp upon the said illegal order of the Asstt. Collector. I strongly disapprove of the reasoning and the ultimate order passed by the Tribunal. The order shows nothing but that the Tribunal has fallen prey to the Machiavellian and malicious craft of respondent No. 1. The very statement of the above facts shows that both the orders, the one passed by the Asstt. Collector and the other passed by the Tribunal, are required just to be read to be rejected and set aside.

The order passed by the Asstt. Collector is, firstly, wholly devoid of jurisdiction. The Order purports to be passed under section 84-CC of the Tenancy Act, but section 84-CC applies only to the agricultural lands. This can be readily seen from the definition of the word “land” contained in section 2(8) of the Tenancy Act. If the order was passed under section 63, giving permission for sale of the land to be used by a non agriculturist who wanted to take to agriculture but who had failed to take to agriculture, then the Collector would, perhaps, have jurisdiction to set aside the permission for sale. But the moment the land ceased to be used for agricultural purposes and the moment the sanad for N.A. use was granted pursuant to the permission for N.A. use followed by the commencement of the N.A. use, the Collector’s jurisdiction under section 84-CC ended. In this connection, it needs to be noted that it is nobody’s contention that the land was being used for agricultural purposes as on the date when the proceedings were set in motion. It is not even the case of anybody that it is being used for agricultural purposes even on this date or at any time during the pendency of these proceedings. One can go through all the orders, from left to right and from top to bottom and still one cannot find any observation or finding that the land was and is being used for agricultural purposes by the present owner viz. respondent No. 1. If this is the position, then section 84-CC read with section 2(8) of the Tenancy Act wholly precludes the jurisdiction of the Collector to resort to that section for passing the impugned order.

The order is bad also on merit (upon the assumption that the Collector had the jurisdiction). The facts stated above clearly show that sanad was granted by the Asstt. Collector himself pursuant to the Report given by his own officer after making the necessary panchanama which showed that the N.A. use in fact started. If the construction stopped subsequently the position would at the most be that the N.A. permission would be “liable” to be rescinded (I make it clear that I wish to express no opinion on this point). There is no ipso facto rescission of N.A. permission. Point is that the N.A. permission in fact has not been rescinded and the land is not put to agricultural use. If the construction did not complete thereafter, the reason is obvious. The reason must have been that the present proceedings were set in motion. No sensible person will continue with the construction with any seriousness when the sword of cancellation of the permission under section 63 of the Tenancy Act was hanging on his head.

In my opinion, there is no room for doubt that the entire proceeding stinks of mala fides of the Ex-Tahsildar, viz. respondent No. 1, who has engineered all these proceedings with a view to swallow the land after pocketing the price received by him for the same.

7. However, there is yet another aspect of both these petitions.

So far as the respondent’s Petition No. 29 of 1981 is concerned, it is difficult to understand the reason as to why even Rule was issued.

The real contesting party in these matters would be the Government and the Government pleader has not taken any part in these proceedings before me at all. In fact for most of the time he was not even present.

Mr. Kankaria states that the Rule in the petition was issued because it was issued in the Companion Writ Petition No. 2539/80. Probably, he is right. The point to be noted is that Writ Petition No. 29/81 is thoroughly devoid of any merits. As stated at the outset, permission was granted by the Collector for the sale by the “owner”; not by the “landlord”. Section 32-P gives jurisdiction to the Collector to return the land to the “landlord” meaning thereby after taking the land from the tenant or the erstwhile tenant. It is nobody’s case that the present petitioner was a tenant or the erstwhile tenant of respondent No. 1. As held by both the Courts below, the provisions of section 32-P(2) (b) of the Tenancy Act do not come into picture at all. Even if the order of cancellation of the permission under section 63 of the Tenancy Act was a valid & legal order, still the land would be available for distribution under section 32-P(2)(c) of the Act, not under section 32-P(2)(b) of the Act. This is the view taken by both the courts below concurrently and no fault can be found with the same. If this is the position, then Writ Petition No. 29/81 is thoroughly misconceived.

It also follows that present respondent No. 1 did not have even the locus either to file the application or to file the Revision Application or to file the Writ Petition No. 29 of 1981 or to defend the writ petition filed by the present petitioner in Writ Petition No. 2539/80. Whichever way one looks at it, one cannot escape from the conclusion that the position of present Respondent No. 1 is thoroughly unenviable.

8. In view of the fact that this most vicious & malicious proceedings have been instituted or set in motion by respondent No. 1, resulting in immeasurable loss to the petitioner, in that the entire construction activity suffered heavily from the year 1968 till this date, that is to say for a period exceeding 20 years, a very stiff order as to costs must be passed against present Respondent No. 1.

9. The result is that (A) Writ Petition No. 2539 of 1980 succeeds.

The Rule earlier issued is made absolute and the order passed by both the courts below is set aside.

(B) Writ petition No. 29 of 1981 fails and the Rule issued therein is discharged.

(C) Respondent No. 1 in W.P. No. 2539/80 and the petitioner in W.P. No. 29/81 shall pay the costs to the contesting party, which are taxed at Rs. 1000/- each.

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