{"id":55527,"date":"2002-07-03T00:00:00","date_gmt":"2002-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramu-kerba-bhongarde-vs-akbar-mohamed-naikwadi-since-on-3-july-2002"},"modified":"2018-12-11T20:52:35","modified_gmt":"2018-12-11T15:22:35","slug":"ramu-kerba-bhongarde-vs-akbar-mohamed-naikwadi-since-on-3-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramu-kerba-bhongarde-vs-akbar-mohamed-naikwadi-since-on-3-july-2002","title":{"rendered":"Ramu Kerba Bhongarde vs Akbar Mohamed Naikwadi (Since … on 3 July, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ramu Kerba Bhongarde vs Akbar Mohamed Naikwadi (Since … on 3 July, 2002<\/div>\n
Author: A Khanwilkar<\/div>\n
Bench: A Khanwilkar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 A.M. Khanwilkar, J.<\/p>\n
 1. Both these writ petitions can be disposed of by
\ncommon order a sit pertain to the same land and arising
\nfrom the tenancy proceedings between the same parties.
\nThese writ petitions take exception to the common order
\npassed by the Maharashtra Revenue Tribunal, at Camp
\nKolhapur dated July 29, 1985 in Revision Nos.
\nMRT\/KP.315\/1977 and MRT\/KP.316\/1977. The suit land is
\nsituated at survey No. 227 admeasuring 8 Acres 21
\nGunthas at Village Banage, Tal Kagal, Dist. Kolhapur.
\nUndisputedly, the suit land was the Inam land i.e. Hujur
\nSanadi Inam governed by the provisions of the Bombay
\nMerged Territories Miscellaneous Alienations Abolition
\nAct, 1955. The Petitioners was inducted in the said land
\nas tenant and, as he was lawfully cultivating the suit
\nland in that capacity on the tillers day i.e. 1st
\nApril, 1957, proceedings under Section 32G of the Bombay
\nTenancy and Agricultural Lands Act, 1948 were initiated.
\nIn that proceedings, the Petitioner unambiguously stated
\nthat he was unwilling to purchase the suit land. The
\nunwillingness has been so recorded. The record also
\nindicates that the consequence of that statement were
\nalso explained to the Petitioner but he maintained his
\nposition that he was unwilling to purchase the suit land.
\nAccordingly, the tenancy authority declared the purchase
\nhaving become ineffective, by order dated 21st
\nOctober, 1960. Thereafter, the respondent landlord moved
\nan application under Section 32P of the Act. That
\napplication was granted and an order was passed directing
\nthe Petitioner to hand over possession of the suit land.
\nSubsequent to the above said order under Section 32P of
\nthe Act, the suit land which was held as Inam land was
\nre-granted to the Respondent. After the said regrant,
\nonce again enquiry under Section 32G of the Act were
\ninitiated in the year 1974. Even in this proceedings the
\nPetitioner expressed his unwillingness to purchase the
\nsuit land and it is so recorded by the authority. In
\nview of the said statement once again Tenancy Authority
\nheld that the purchase has become ineffective.
\nConsequently to the said order, proceedings under Section
\n32P were initiated and same were decided in favour of the
\nRespondent Landlord on 23rd March, 1974. Pursuant to the
\nsaid order possession of the suit land was made over to
\nthe Respondent landlord on 16.3.1975. Kabja Pavati
\nreflecting this position was prepared in the presence of
\nthe Petitioner and with his full consent and knowledge.
\nHowever, thereafter the Petitioner filed two separate
\nappeals before the Collector, Kolhapur bearing Tenancy
\nAppeal Nos. 15\/76 and 16\/76, challenging both the orders
\npassed in 32G as well as 32G proceedings. The Collector
\ndecided both the appeals by separate orders. The
\nCollector took the view that proper procedure under
\nSection 32G(3) was not complied with and, therefore, the
\norder passed under Section 32G and under Section 32P were
\ninvalid. Accordingly, the Collector set aside those
\norders and remanded the matter to the tenancy Authority
\nfor reconsideration. This order of the Collector was
\nchallenged by the Respondent before the Maharashtra
\nRevenue Tribunal by way of two separate Revision
\nApplication Nos. MRT.KP.315\/77 and MRT.KP.316\/77. The
\nTribunal, after examining the rival position and the
\nrecord held that the Collector was wrong in holding that
\nproper procedure has not been followed under Section
\n32G(3). Whereas, according to the Tribunal, the
\nPetitioner tenant had made conscious statement before the
\nauthorities on more than one occasion that he was
\nunwilling to purchase the suit land. According to the
\nTribunal, therefore, in view of the consistent stand
\ntaken by the tenant expressing his unwillingness to
\npurchase the land, the ground or challenge to over come
\nthe said position was unavailable. The Tribunal,
\ntherefore, allowed both the revision applications
\npreferred by the Respondent. Against the said order the
\nPetitioner preferred two separate Writ Petitions bearing
\nNos. 491 of 1979 and 492 of 1979. This Court, however,
\nwas of the view that the authorities have overlooked the
\ncrucial aspect of the matter that the land was Inam land
\nand the same was admittedly regrated in the year 1971 to
\nthe Respondent and as such the previous proceedings under
\nSection 32G which had terminated in favour of the
\nRespondent landlord prior to regrant were without
\nauthority of law. For taking this view the learned
\nsingle Judge of this Court placed reliance on the
\ndecision of this court in the case of Sripati Balwant
\nKonde v. Shaikh Karim 1982 Tenancy Law Reporter Page\n<\/p>\n
24. This Court, therefore, by order dated December 9,
\n1983 remanded the matter to the Tribunal to reconsider
\nthe controversy afresh. Pursuant to the remand order
\npassed by this Court, both the Revision Applications were
\nrestored to the file of the Tribunal. The Tribunal
\nexamined the question as to whether the previous
\nproceedings between the parties under Section 32G and 32P
\nof the Act prior to the date of regrant can be said to be
\ninvalid and without authority of law. The Tribunal has
\nheld that having regard to the provisions of the Bombay
\nTenancy and Agricultural Lands Act, 1948 read with the
\nprovisions of the Bombay Merged Territories Miscellaneous
\nAlienation Abolition Act, 1959, neither the authorities
\nnor the parties were precluded from maintaining or
\ncontinuing the proceedings under Section 32G or Section
\n32P of the Act before the date of regrant. For taking
\nthis view the Tribunal has placed reliance on a direct
\ndecisions of this Court in the Case of Sripati Mane v.
\nShamrao Jagdale in Special Civil Application No. 981 of
\n1966 decided on 25.9.1968 reported in 1970 Tenancy Law
\nReporter 135 as well as another unreported decision in
\nSpecial C.A.No. 374 of 1965 decided on 30th November, 1967.
\nThe Tribunal has noted that the decision in Sripati
\nBalwant Konde 1982 TLR 24 concerns the provisions of the
\nMaharashtra Revenue Patel (Abolition of Office) Act, 1962
\nwhich are materially different than the Abolition Act of
\n1955 applicable to the present case. The Tribunal
\nfurther held that no other question was required to be
\nconsidered in view of the limited remand order passed by
\nthis Court. Accordingly, the Tribunal allowed the
\nrevision applications and was pleased to set aside the
\norder of remand passed by the Collector which was the
\nsubject matter of challenge and, instead, restored the
\norder passed by the first court. It is this decision of
\nthe Tribunal which is the subject matter of challenge in
\nthe present writ petitions.\n<\/p>\n
2. Mr. Pandit appearing for the Petitioner contends
\nthat the Tribunal was completely in error in taking the
\nview that the proceedings under Section 32G and 32P of
\nthe Act could be instituted and continued even before the
\ndate of regrant in favour of the Respondent. He has
\nplaced reliance on the decision of this court in Sripati
\nBalwant Konde’s case to support that submission. He has
\nalso placed reliance on Section 32G(6) of the Act to
\ncontend that no proceedings could be initiated or
\ncontinued before the date of regrant. He further submits
\nthat in any case the Tribunal has clearly misread the
\nremand order of this Court by confining the enquiry only
\nto one question, whereas the Tribunal ought to have
\nexamined the matter on merits with regard to the
\nchallenge in relation to the factum or correctness of the
\nalleged statement recorded on behalf of the Petitioner in
\n32G and 32P proceedings. According to him, it is
\ninconceivable that the tenant would express unwillingness
\nto purchase the land when such a valuable right had
\ncrystallized in his favour by operation of law.
\nAccording to him, the Petitioner is a rustic person and
\nobviously could not have realized the consequence of the
\nstatement recorded in the said proceeding which would
\neventually disrobe him of his right to purchase the
\nsubject land.\n<\/p>\n
3. On the other hand, the learned counsel for the
\nRespondent has supported the view taken by the Tribunal
\nand, he further contends that, there is no reason to
\ninterfere with the conclusion recorded by the Tribunal on
\nthe earlier occasion.\n<\/p>\n
4. Having considered the rival contentions, to my
\nmind, the first point raised by Mr. Pandit is no more
\nres integra, for it is fully covered by the decision in
\nthe case of Sripati Mane v. Shamrao Jagdale (Supra).
\nEven in that case, the land was Sanadi Inam land. And
\nbefore the date of regrant, Section 32G proceedings were
\ninitiated. This specific question was agitated even in
\nthat case-that proceedings under Section 32G initiated
\nprior to the date of regrant were without authority of
\nlaw. This Court on examining the relevant provisions of
\nthe Abolition Act of 1955 as well as the Tenancy Act, 1948
\nhas held that such proceedings can be resorted to by the
\nparties as the same have been expressly saved by Section
\n28 of the Abolition Act of 1955. Even in the present
\ncase the land was Hujuri Sanadi Inam land which was
\ngoverned by the provisions of the said Abolition Act of
\n1955. This fact is not in dispute. In the
\ncircumstances, the above decision of this Court will
\nsquarely apply to the present case and it will have to be
\nheld that the previous proceedings initiated under
\nSection 32G and 32P, which culminated in favour of the
\nRespondent landlady even prior to the date of regrant,
\nwill be binding on the Petitioner as they are legitimate
\nproceedings between the parties. It is not in dispute
\nthat orders passed in those proceedings have attained
\nfinality as the same have not been challenged at all;
\nwhereas the present Petitions emanate from the subsequent
\naction initiated under Section 32G in the year 1974 after
\nthe regrant in year 1971. If that is so,then there is
\nno reason to examine the correctness or otherwise of the
\ndecision in the subsequent proceeding as the same could
\nnot have been resorted to in view of the finality of
\nadjudication of the issue between the parties in the
\nearlier proceedings, albeit prior to regrant. Indeed,
\nthe correctness of the orders passed in proceedings prior
\nto regrant cannot be reopened or allowed to be assailed
\nin the subsequent proceedings after regrant initiated on
\nan erroneous basis. Besides the above decision of this
\nCourt, it will be useful to advert to a decision of the
\nApex Court  in the case
\nPandurgan D. Lad v. Dada Rama Methe and Ors. The
\nApex Court<\/a> had an occasion to consider the efficacy of
\nthe provisions of the Abolition Act of 1955. In Paragraph
\n5 of the said decision the Apex Court has observed that
\nthere is no inconsistency in the provisions of the
\nTenancy Act, 1948 and that of the Abolition Act of 1955.
\nThe Apex Court has observed that Section 28 of the
\nAbolition Act, 1955 provides that nothing contained in
\nthat Act shall affect the application of any of the
\nprovisions of the Tenancy Act, 1948. Understood thus,
\nthe earlier proceedings between the parties under Section
\n32G and 32P which culminated in favour of the Respondent
\nprior to the regrant which have attained finality, cannot
\nbe reopened in this manner.\n<\/p>\n
 5. Be that as it may, the Tribunal has rightly
\ndistinguished the Judgment of this Court in  Sripati
\nBalwant Konde’s case (supra)  by pointing out that the
\nprovisions of the Maharashtra Revenue Patel (Abolition of
\nOffice) Act, 1962 are materially different from the
\nAbolition Act of 1955 with which we are presently
\nconcerned. The Tribunal was, therefore, right in
\nfollowing the direct decision of this Court which deals
\nwith the provisions of the Abolition Act, 1955.
\nAccordingly, the Tribunal cannot be faulted with the
\nview that the previous proceedings under Section 32G and
\n32P were validly maintained and continued even prior to
\nthe date of regrant in favour of the Respondent.\n<\/p>\n
 6. The next grievance made on behalf of the
\nPetitioner is that the Tribunal has not adverted to the
\nother questions on merit though the High Court had
\nremanded the case for examination of all the questions
\nafresh. There is no substance in this grievance. The
\nTribunal was right that the remand was mainly to decide
\nthe question as to whether proceedings under Section 32G
\ncommenced in 1968 were valid in absence of regrant. No
\nother enquiry was necessary or for that matter could have
\nbeen examined by the tribunal, having regard to the
\nlimited nature of remand made by this court. In the
\nearlier round, the Tribunal has adverted to all the
\nrelevant materials and contentions and has answered the
\nissues on merit against the Petitioner. The Tribunal has
\nheld that the earlier proceedings were valid and in
\nconformity with the requirements of law. It has been
\nalso found that the Petitioner was given ample
\nopportunity on more than one occasion- but on every
\noccasion, he consciously made statement that he was
\nunwilling to purchase the land. The circumstances would
\nclearly show that there was no confusion in the mind of
\nthe Petitioner at the time of making that statement of
\nunwillingness to purchase. The Tribunal has rightly
\ndiscarded the argument of fraud practised on the
\nPetitioner in the earlier proceedings. If the tenant had
\nwillingly made such statement then it was not open for
\nthe Authority to ignore the same just because the tenant
\nhad given up his statutory right to purchase the land,
\nunless there were positive circumstances to show that
\nsuch a statement was made under mistaken belief, coercion
\nor fraud etc. On the other hand, the present case the
\nAuthorities have recorded that the Petitioner was
\nexplained about the consequences of his statement but he
\npreferred to maintain his stand. There is no reason to
\ndoubt the correctness of the said record.\n<\/p>\n
 7. The next grievance made on behalf of the
\nPetitioner is that the earlier proceedings were void on
\naccount of non compliance of mandatory procedure
\nprescribed by the proviso to Section 32G(3) of the Act.
\nHowever, the learned counsel was not in a position to
\ndemonstrate as to what was the non compliance in this
\ncase that would vitiate the earlier order. On the other
\nhand, it is seen from the record and, it has been so held
\nby the first authority as well as the Revisional
\nauthority that, the tenant had appeared before the
\nauthority and he voluntarily made statement that he was
\nunwilling to purchase the land. After that statement was
\nmade by the Petitioner, the same was read over and
\nexplained to him including its consequences. Inspite of
\nthat he maintained his statement and only thereafter, the
\nthe Tribunal passed the order in writing declaring that
\nthe purchase had become ineffective. Whereas, the
\nproviso would apply only when the tenant had remained
\nabsent before the authority. This is obvious from the
\nplain language of the said proviso to Section 32G(3),
\nwhich reads thus:\n<\/p>\n
  “Provided that if such order is passed in default
\nof the appearance of any party, the Tribunal shall
\ncommunicate such order to the parties and any
\nparty on whose default the order was passed may
\nwithin 60 days from the date on which the order
\nwas communicated to him apply for the review of
\nthe same”.\n<\/p>\n
 In the present case, however, it is not the
\nPetitioner’s case that he was not personally present when
\nthe statement is stated to have been recorded. But, he
\nadmits that he was present during the enquiry and made
\nthat statement. Suffice it to point out that no case of
\nnon compliance of the mandatory procedure has been
\nestablished. The Tribunal was right in holding that the
\nCollector was manifestly wrong that there was non
\ncompliance of the procedure under Section 32G of the Act.
\nIn any case, illegality or irregularity of the earlier
\nproceedings cannot be allowed to be set up in this manner
\nwhen those orders have been allowed to attain finality.\n<\/p>\n
 8. For the aforesaid reasons, both these writ
\npetitions would fail and the same are being dismissed
\nwith no order as to costs. Rule is discharged.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ramu Kerba Bhongarde vs Akbar Mohamed Naikwadi (Since … on 3 July, 2002 Author: A Khanwilkar Bench: A Khanwilkar JUDGMENT A.M. Khanwilkar, J. 1. Both these writ petitions can be disposed of by common order a sit pertain to the same land and arising from the tenancy proceedings between the same parties. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-55527","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRamu Kerba Bhongarde vs Akbar Mohamed Naikwadi (Since ... on 3 July, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramu-kerba-bhongarde-vs-akbar-mohamed-naikwadi-since-on-3-july-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramu Kerba Bhongarde vs Akbar Mohamed Naikwadi (Since ... on 3 July, 2002 - 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