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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2770 OF 2011
1. Vaishali Abhay Mandle,
Age: 40 years, Occ: Household
and Service,
2. Ashutosh Abhay Mandle,
Age: 15 years (Minor),
Occ: Education, under
Guardianship of her mother,
petitioner No.1 herein, namely
Vaishali Abhay Mandle.
3.
Sangita Raosaheb Mandle (died),
Age: 35 years, Occ: Household,
4. Rishikesh Raosaheb Mandle,
Age: 15 years (Minor),
Occ: Education, under Guardianship
of petitioner No.1 herein.
5. Sau. Nanda Baban Mandle,
Age: 31 years, Occ: Household,
6. Rohan Baban Mandle,
Age: 10 years (Minor),
Occ: Education, under Guardianship
of mother petitioner No.5 herein,
namely Sau. Nanda Baban Mandle.
7. Kiran Baban Mandle,
Age: 8 years (Minor),
Occ: Education, under Guardianship
of mother petitioner No.5 herein,
namely Sau. Nanda Baban Mandle.
All above R/o. Kamargaon,
Tal. & Dist. Ahmednagar. ...PETITIONERS
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VERSUS
1. Sakharam Vithal Mandle,
Age: 47 years, Occ: Labour,
R/o. Kamargaon,
Tq. & Dist. Ahmednagar.
2. Abhay Vithal Mandle,
Age: 44 years, Occ: Labour,
R/o. as above.
3. Raosaheb Vithal Mandle,
Age: 41 years, Occ: Labour,
R/o. as above.
4. Baban Vithal Mandle,
Age: 59 years, Occ: Labour,
R/o. as above.
5. Satish Chandmal Chopda,
Age: 48 years, Occ: Business,
R/o. Ramchandra Khunt,
Ahmednagar.
6. Hiralal Madhav Thokal,
Age: years, Occ: Agri. & Business,
R/o. Kamargaon,
Tal. & Dist. Ahmednagar. ...RESPONDENTS
...
Mr. Vishal S. Badakh, Advocate for petitioners.
Mr. Parikshit P. Dawalkar, Advocate for respondent
No.5.
Respondent Nos.1 to 4 & 6 served.
...
CORAM: S.S. SHINDE, J.
DATE : 17TH NOVEMBER, 2011
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ORAL JUDGMENT :
. Rule. Rule made returnable forthwith.
Heard finally with the consent of parties.
2. Brief facts as disclosed in the writ
petition are as under :
. Petitioner No. 1 is wife and petitioner
No.2 is son of respondent No.2. Petitioner Nos. 3
and 4 are wife and son of respondent No.3.
Petitioner Nos. 5 and 6 are wife and son of
respondent No.4. Respondent Nos. 5 and 6 have
purchased the suit property from respondent Nos. 1
to 4. It is the case of the petitioners that,
respondent Nos. 1 to 4 sold out the suit property
to respondent No.5, who is not agriculturist. Said
property is sold on 19-12-1995 and 15-11-1997.
3. The petitioners herein instituted Special
Civil Suit No.97 of 2008 before the Civil Judge,
Senior Division, Ahmednagar against the
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respondents for partition, separate possession and
declaration that the sale deeds dated 19-12-1995
and 15-11-1997 executed by respondent Nos. 1 to 4
in favour of respondent Nos. 5 and 6 are null,
void and not binding upon the share of the
plaintiffs-petitioners with further relief of
injunction against respondent Nos. 5 and 6.
. In response to the suit summons,
defendants appeared in the matter and filed
Written Statement denying claim/contentions of the
plaintiffs-petitioners and accordingly, issues
came to be framed at Exhibit-22.
4. On 08-12-2010 the petitioners herein
filed application at Exhibit-47 praying therein to
refer the matter to competent authority to decide
the issue as to “whether respondent No.5 is
agriculturist or not?’ contending that respondent
No.5 is not agriculturist in view of Section 63 of
the Bombay Tenancy and Agricultural Lands Act,1948
(for short, “said Act”) and respondent No. 5
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cannot purchase the agricultural land and
therefore under Section 85A of the said Act, issue
has to be referred to the competent authority to
decide the same.
. Respondent No. 5 filed his Say to the
said application. On 14-12-2010 learned Civil
Judge, Senior Division, Ahmednagar was pleased to
reject the said application. Hence this writ
petition.
5. Learned Counsel appearing for the
petitioners invited my attention to the provisions
of Section 63 and also Section 85A of the Bombay
Tenancy and Agricultural Lands Act, 1948 and
submitted that, in the light of averments in
para-5 of the plaint, it was incumbent upon the
concerned Court to frame issue with respect to
“whether respondent No.5 is an agriculturist or
not?” and further to refer the said issue to the
Revenue Authority i.e. Tahsildar for inquiry.
However, the mandate of provisions of Section 63
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and 85A of the said Act has not been followed by
the concerned Court. Therefore, the Counsel for
petitioners would submit that, this writ petition
may be allowed.
6. On the other hand, learned Counsel
appearing for the respondents submits that, the
proviso to Section 63 of the said Act enables the
purchaser to seek permission from the competent
officer and then enter into the transaction.
However, the Counsel for the respondents is not
able to inform this Court that whether such
permission has been obtained by respondent No.5
before entering into transaction. Learned Counsel
further submits that, this Court may not interfere
in the impugned order.
7. I have given due consideration to the
rival submissions. At the outset, it would be
relevant to reproduce herein-below the provisions
of Section 63 and 85A of the said Act.
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“63. Transfers to non-agriculturists
barred.–(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 person who
is not an agriculturist (or who being an
agriculturist (will after such sale,
gift, exchange,lease or mortgage, hold
land [exceeding the ceiling area0
determined under the Maharashtra
Agricultural Lands (Ceiling on Holdings)
Act, 1961 9such permission shall not be
granted, where land is being sold to a
person who is not an agriculturist for
agricultural purposes, if the annual
income of such person from other sources
is Rs.12,000 or more) or who is not an
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agricultural 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 such conditions as
may be prescribed.
(Explanation.- For the purpose of
this sub-section the expression
“agriculturist” includes any person who
as a result of the acquisition of his
land for any public purpose has been
rendered landless for a period not
exceeding ten years from the date of
possession of his land is taken for such
acquisition).
[(1A) Where any condition subject to
which permission to transfer was granted
is contravened then the land in respect
of which such permission was granted
shall be liable to be forfeited in
accordance with the provisions of section
84 CC.
(1B) Where permission is granted to
any transfer to land under sub-section
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(1) any subsequent transfer of such land
shall also be subject to the provisions
of sub-section (1)]
(2) Nothing in this section shall be
deemed to prohibit the sale, gift,
exchange or lease of a dwelling house or
the site thereof or any land appurtenant
to it in favour of an agricultural
labourer or an artisan [or a person
carrying on any allied pursuit.]
[(3) Nothing in this section shall
apply or be deemed to have supplied to a
mortgage of any land or interest therein
effected in favour of a co-operative
society as security for the loan advanced
by such society [ or any transfer
declared to be a mortgage by a Court
under section 24 of the Bombay
Agricultural Debtors’ Relief Act, 1947.]]
[(4) Nothing in section 63A shall
apply to any sale made under sub-section
(1).]”
“85A. Suits involving issues required
to be decided under this Act.- (1) If any
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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.
(2) On receipt of such reference from
the Civil Court, the competent authority
shall deal with an decide such issue in
accordance with the provisions of this Act
and shall communicate its decision to the
Civil Court and such Court shall thereupon
dispose of the suit in accordance with the
procedure applicable thereto.
Explanation.- For the purpose of this
section a Civil Court shall include a
Mamlatdar’s Court constituted under the
Mamlatdar’s Courts Act,1906.]”
8. A bare perusal of Section 63 of the said
Act would make it abundantly clear that, buyer
should be an agriculturist. Therefore, in the
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light of averments in Para-5 of the plaint, in all
fairness, the application of the petitioners
should have been allowed by the trial Court. The
point raised by the petitioners goes to the root
of the matter and therefore, such issue become
important in the facts and circumstances of this
case.
9. In the light of what is stated
hereinabove, Writ Petition deserves to be allowed.
Accordingly, impugned order is set aside. 2nd
Joint Civil Judge, Senior Division, Ahmednagar is
directed to frame the issue in respect of “whether
respondent No.5 is an agriculturist or not?” and
after hearing the respondents will consider the
prayer of the petitioners to refer it to the
Tahsildar for inquiry as provided under
Section 85A of the said Act. Writ Petition is
allowed to the above extent and stands disposed
of. Rule made absolute as indicated above.
sd/-
[S.S. SHINDE, J.]
sut/NOV11
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