Gokulsing Jalamsing Patil and Others vs Julalsingh Fattesing Patil and Others

Deshmukh S.B., J.—Heard learned Counsel for the respective parties.

This petition takes an exception to the judgment and order passed by the Maharashtra Revenue Tribunal, Bombay dated 23.3.1990 in Tenancy Appeal No. A-143 of 1989.

Petitioner Gokulsing was the opponent in Tenancy A-143 of 1989 decided by the learned Member of the Maharashtra Revenue Tribunal and in that proceeding present respondent No. 1 was the petitioner. Respondent No. 1 died and his legal heirs have been brought on record. Respondent No. 1 Julalsing had filed Tenancy Application No. 4 of 1988 before the Sub-Divisional Officer, Jalgaon u/s 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 ("Act of 1948"). This Tenancy Application No. 4 of 1988 has been rejected by the learned Sub-Divisional Officer, Jalgaon by order dated 13.2.1989. At the outset, it has to be clarified that Julalsing had filed an application u/s 84 of the Bombay Tenancy and Agricultural Lands Act, 1948. In that application, Gokulsingh was the opponent. Prayer made in the said application was that opponent Gokulsing of that application had possessed the subject-matter of the said application unauthorisedly since 1976-77 till 1987-88. Unauthorised possession of the agricultural land was sought by Julalsing. This application was filed in January 1988. The proceedings before the Sub- Divisional Officer was registered as Tenancy Application No. 4 of 1988. Objection has been filed on behalf of Gokulsing, who was opponent. This tenancy application has been decided by the Sub-Divisional Officer by its judgment and order passed on 13.2.1989. The application filed u/s 84 of the Act of 1948 was rejected. Powers u/s 84 have been conferred upon the Sub-Divisional Officer.

Against the judgment and order of Sub-Divisional Officer, there is no appeal provided under the Act of 1948. The appeal provided is u/s 74 in certain contingencies. In the case on hand, both learned Counsel agree that the order passed by the Sub-Divisional Officer was not appealable u/s 74 of the Act of 1948. Revision application is provided u/s 76 of the said Act. This revisional powers have been vested with the Maharashtra Revenue Tribunal. In the case on hand, aggrieved Julalsing thus had filed a revision application u/s 76 though it has been registered as Tenancy Appeal, it has to be considered as revision application u/s 76 of the Act.

Learned Member of the Maharashtra Revenue Tribunal, in paragraph No. 3 of its judgment has made a reference to the application filed by Julalsing as an application u/s 84 of the Act of 1948. History of litigation, prior to filing of the application u/s 84 before the Sub-Divisional Officer has been referred to by the learned Member in its judgment, in paragraphs 4 to 6. Learned Member has referred to the provisions of the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ("Act of 1947"). Section 9(3) and Section 22 of the Act of 1947 have been referred to. In paragraph No. 7, learned Member has observed; "I am unable to agree with this explanation. The function of the Consolidation Officer is to consolidate the pieces of agricultural land into one viable piece of land forming a compact Gat No. This scheme is to be implemented in letters and spirit of the Act of 1947. No presumption can be drawn that opponent remained in possession continuously after the completion of the consolidation scheme."

The learned Member, thereafter, in paragraph No. 8 of the judgment has resorted to Section 23 of the Act of 1947. He has also observed in paragraph No. 8 that, "The implementation of the scheme therefore, is complete under the Consolidation of Holding Act." At the close of paragraph No. 8, it has been observed by the learned Member;" The crop entries upto the year 1983-84 are made in the name of the Kabjedar in respect of entire area comprised in Gat No. 55 but from the year 1984-85 the crop entry for the area 0.21 Ares is made in the name of opponent."

In paragraph No. 9, the learned Member has observed that the opponent has not denied the implementation of the consolidation scheme. He has not proved that he is lawfully in possession of the suit land. The revision applicant has satisfactorily proved that the opponent is in unauthorised possession of the suit land.

In paragraph No. 10, the learned Member has extracted some part of the order passed by the learned Assistant Commissioner in Revision No. 361 of 1987 dated 8.12.1987 and has reproduced said observations of the learned Assistant Commissioner in paragraph No. 10 of his judgment.

Learned Member, thereafter, again has referred to Section 9(3) of the Act of 1947 and with the corollary of summary eviction powers u/s 59 of the Maharashtra Land Revenue Code, resorted to Section 84 of the Act of 1948. The learned Member has referred the judgment of the learned Single Judge of this Court Gulab Abdul Fakir Vs. Smt. Satyabhamabai G. Deshpande and Another, and allowed the said revision application.

The historiate of the case in hand needs a brief reference:

The agricultural lands S. No. 25/4 admeasuring 1 Hectare 13 Ares, S. No. 39/3 admeasuring 0.38 Ares, S. No. 55/2 admeasuring 0.52 Ares, S. No. 25/2 admeasuring 1 Hectare and 11 Ares, S. No. 39 of 2002, admeasuring 0.70 Ares and S. No. 55/1 admeasuring 0.51 Ares are situated at Village Nimgaon, Tq. Yaval, District Jalgaon. Ownership in relation to these agricultural lands is not in dispute. It is also not in dispute that the implementation of the provisions of Act of 1947 was made applicable to Village Nimgaon and was completed during the year 1972-73. While implementation of the provisions of Act of 1947, area to the tune of 0,21 Ares from land S. No. 25/2 total area 1 Hectare and 11 Ares, owned by Gokulsing was carved out and amalgamated in land S. No. 25/4 and further it was formed as Block No. 55. Julalsing had applied to the Tahsildar, Yaval (Exhibit "B") dated 14.11.1986, with further contention that his land S. No. 55/2 admeasuring 0.52 Ares was amalgamated with land S. No. 55/1 owned by Gokulsing and new block No. 121 has formed. It is also alleged by Julalsing in this application Exhibit "B" that land to the tune of 0.70 Ares from S. No. 39/2 owned by the petitioner was amalgamated in land S. No. 39/3. (0.38 Ares of land was owned by Julalsing and new block was formed). Julalsing has further alleged in the application Exhibit B" that he had delivered the possession of land to the extent of 0.52 Ares from his land S. No. 55/2 to the petitioner -Gokulsing. As per the Rules he has also taken over possession of the land to the tune of 0.70 Ares from S. No. 39/2 owned by the petitioner Gokulsingh and accordingly both of them are cultivating their respective lands. It is further alleged by Julalsing that the petitioner has obtained land to the tune of 0.21 Ares in S. No. 25/4 and now new block No. 55 has been formed. In this process, according to Julalsing, possession of the new block No. 55, in favour of Julalsing was not delivered to him by petitioner. Gokulsingh-petitioner is not ready to give this possession of land 0.21 Ares, to Julalsing voluntarily. He, therefore, prayed that action according to Section 9 of the Act of 1947 be taken and area to the tune of 0.21 Ares from land S. No. 25/2 which is amalgamated into block No. 55 in favour of Julalsing may be given in his possession.

Application Exhibit "D" filed by Julalsing has been considered by the learned Tahsildar, Yawal. Learned Tahsildar passed an order u/s 9(1) of the Act of 1947 and directed the petitioner to hand over possession of the agricultural land to the extent of 0.21 Ares to Julalsing. It is also observed by the Tahsildar that in case of failure on the part of petitioner, in delivering possession of the land to the tune of 0.21 Ares, action u/s 9(3) of the Act of 1947 and Section 59 of the Maharashtra Land Revenue Code, 1966 ("the Code of 1966") would be resorted to. Learned Tahsildar has opined that the petitioner had retained the possession of the land to the tune of 0.21 Ares unauthorisedly. This order is at Annexure "C" to the petition. Aggrieved petitioner Gokulsingh had filed revision application challenging the order passed by the Tahsildar, Yaval on 24.9.1987. Revision application filed by the petitioner was registered as Revision Application No. 361 of 1987 and has been disposed of by the learned Additional Commissioner, Nasik Division by his judgment and order passed on 8.12.1987 (Annex. "B" to the petition). Said revision has been allowed by the learned Additional Commissioner by quashing and setting aside the order passed by the Tahsildar, Yaval (Annex. "C to the petition). Parties were directed to bear their own costs.

This order passed by the learned Additional Commissioner, Nasik was challenged by Julalsing by filing a proceeding u/s 35 of the Act of 1947 before the State Government. It was registered as Com. 3288/ 79/5784/L-l. Accordingly it was communicated to Julalsing that proceeding has been received by the State Government and date of hearing would be communicated in due course of time. Said communication is at Annexure "E" to the petition. There is no dispute amongst the lawyers appearing for the parties, including learned Assistant Government Pleader appearing for respondent No. 2, that this proceeding has been withdrawn by Julalsing by seeking appropriate permission from the State Government. The communication addressed by the Secretary to Government of Maharashtra, Revenue and Forests Department, dated 14.2.1991 addressed to Julalsing is on record. Thus, the application filed by Julalsing before the Tahsildar with a grievance under the provisions of the Act of 1947 has attained its finality and against Julalsing. The learned Additional Commissioner, Nasik has observed in his order (Exhibit "D") that Julalsing, opponent in that revision application, had approached after about eight years i.e. in the year 1986, though according to Julalsing possession of 0.21 Ares of land was taken from him by Gokulsing forcibly in the year 1972. There was no complaint to police or any proceeding before the Judicial Magistrate. The learned Additional Commissioner, therefore, opined that the order passed by Tahsildar is illegal and had quashed and set aside the same.

On the premise of orders passed by the authorities, referred to in the foregoing paragraphs, under the provisions of the Act of 1947, Julalsing filed an application u/s 84 of the Act of 1948 before the learned Sub-Divisional Officer, Jalgaon Division, Jalgaon which was registered as Tenancy Application No. 4 of 1988. This application, after hearing the parties, came to be rejected by the learned Sub-Divisional Officer on 13.2.1989. It is not in dispute that meanwhile Julalsing died and his legal heirs, including Kevalsing, who was holding the power of attorney for Julalsing are brought on record.

Learned Sub-Divisional Officer, Jalgaon in paragraph No. 5 of the judgment has observed that there is nothing on record to show that opponent Gokulsing has taken possession forcibly from Julalsing. Since there was no police report, he also opined that unless it is declared under the relevant Act that possession of Gokulsing is illegal, no proceeding u/s 84 of the Act of 1948 lies. It has also noted a fact existing at the relevant time that the revision application (under the provisions of Act of 1947) was pending with the State Government on that issue and unless the said issue is fully adjudicated and determined that opponent (Gokulsingh) is illegally in possession of the suit land, no order u/s 84 of the Act of 1948 can be passed. Aggrieved Julalsing had filed a revision application before the Maharashtra Revenue Tribunal, Bombay, which was registered as Tenancy -A/143 of 1989. Obviously, the order passed by the Sub-Divisional Officer dated 13.2. 1989 was challenged before the Tribunal. As noted in foregoing paragraphs, learned Member of the Tribunal allowed the revision application and quashed and set aside the order passed by the Sub-Divisional Officer dated 13.2 .1989 and application u/s 84 has been granted and the Sub-Divisional Officer was directed to evict Gokulsing summarily from the suit land. This order is impugned in this writ petition.

The application filed by Julalsing (respondent in the writ petition) before Sub-Divisional Officer u/s 84 of the Act of 1948, was filed on 8.1.1988. This application has been rejected by the Sub-Divisional Officer on 13.2.1989. The Tribunal has allowed this application and directed eviction of the petitioner - Gokulsing. It is appropriate to consider the provisions laid down u/s 84 of the Act of 1948, which reads thus:

84-A. Summary eviction.- Any person unauthorisedly occupying or wrongfully in possession of any land:

(a) the transfer or acquisition of which either by the act of parties or by the operation of law is invalid under the provisions of this Act.

(b) the management of which has been assumed under the said provisions, or

(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such persons, may be summarily evicted by the Collector.

It is the purport of Section 84 of the Act of 1948 that if any person unauthorisedly occupies or wrongfully in possession of any land in that contingency, it is provide that the transfer or acquisition if is invalid by the act of parties or by the operation of law under the provisions of this Act summery eviction can be resorted to. It is also provided in Clause (b) of Section 84 that the management of such land if has been assumed under the provisions such summery eviction directed. It is further provided in Clause (c) of Section 84 that to the use and occupation of such land if he is not entitled under the said provision and the said provisions do not provide for eviction of such persons, may be summarily evicted by the Collector. Thus, the summary eviction is contemplated u/s 84 of the Act of 1948 in certain circumstances i.e. (a), (b) and (c). The person seeking summary eviction has to establish a case u/s 84 of the Act of 1948. On successfully establishing the said case, such person can seek eviction of a persons unauthorisedly occupying or in possession. Powers indisputably are vested with the Collector. In the case on hand, it is not the contention of respondent Julalsing that there is a transfer of 0.21 Ares land or acquisition of said land which is invalid under the provisions of Act of 1948. It also cannot be the case of such transfer or acquisition being invalid under the provisions of the Act of 1948 or by operation of the Act. The facts in the case on hand also do not attract the provisions laid down u/s 84(b) of the Act of 1948.

(Emphasis supplied).

Learned Counsel Shri S.D. Kulkarni, appearing for respondents, has invited my attention to Section 84(c) of the Act of 1948. According to him, his case is governed by Clause (c) of Section 84. He wants to impress that the use and occupation of this 0.21 Ares of land ("suit property") by petitioner Gokulsing is not legal. According to him, possession of Gokulsing over the suit property is illegal under the provisions of the Act of 1948. He also urged that petitioner Gokulsing is not entitled for use and occupation of the suit land under the provisions of Act of 1947 and therefore, his eviction has been justifiably ordered by the Tribunal. Shri S.D. Kulkarni, learned Advocate, in support of his submissions has relied upon some judicial pronouncements of this Court.

Shri S.D. Kulkarni, learned Advocate has relied upon the judgment in the case of Gulab Abdul Fakir Vs. Smt. Satyabhamabai G. Deshpande and Another, . In paragraph No. 7 of the said judgment, learned Single Judge of this Court has observed as under:

In the present case the 1st respondent as landlord obtained possession of the said land from the original tenant in view of the order of Tahsildar on 11th February, 1982 granting her application u/s 33-B. This order of the Tahsildar has been set aside by the Maharashtra Revenue Tribunal, Kolhapur under its order dated 10.11.1975. Since there is some controversy about the exact nature of the order...

In paragraph No. 8, it has been observed;

... Respondent No. 1 had no right to retain possession of the said portion of the land when her application u/s 33-B was still pending...

In paragraph No. 9, it has been observed that, the provisions of Section 84(c) of the Act of 1948, are not applicable in that case.

Shri S.D. Kulkarni, learned Advocate for petitioner has further relied upon the judgment of the learned Single Bench of this Court in the case of Maruti Ramaji Patil (since deceased by his heirs and legal representatives Ananda Maruti Patil, Smt. Jaitabai Maruti Patil and Smt. Tulsabai Maruti Patil) and Others Vs. Babu Dhondi Mohite and Others, . The facts in the case of Maruti (supra) have been listed in paragraph No. 2 of the said judgment. The facts are distinguishable. Both these reported judgments of the learned Single Bench of this Court have been delivered in the background of facts obtaining in those cases. The facts in the case on hand are clearly distinguishable and therefore, in my view, these two judgments are not helpful to the learned Counsel for respondents.

Respondent Julalsing, indisputably, approached the Sub-Divisional Officer, Jalgaon on 8.1.1988 by an application u/s 84 of the Act of 1948. His grievance was that petitioner Gokulsing was unauthorisedly or wrongfully in possession of the suit land, in view of the provisions of the Act of 1947. It was his specific contention that petitioner Gokulsing was in possession of the suit property illegally under the provisions of the Act of 1947. In foregoing paragraphs of this order, I have noted that the revision filed by respondent Julalsing u/s 35 of the Act of 1947 with the State Government has been withdrawn by him. The case u/s 84(c) of the Act of 1948 neither has been alleged nor proved by respondent Julalsing. The judgment of the learned Tribunal seems to be on the footing that petitioner Gokulsing is in wrongful possession of the suit land, in view of the provisions of the Act of 1947. Learned Member of the Tribunal has referred to the provisions of Act of 1947. In fact, Section 36-A of the Act of 1947 is important and material. u/s 36-A, jurisdiction of the Civil Court or Mamalatdar''s Court is barred to settle, decide or deal with any question which is required to be decided or dealt with by the State Government or any Officer or authority under the Act of 1947. In fact, the Maharashtra Revenue Tribunal was not competent or supposed to record any findings on the alleged illegalities or retaining possession by petitioner Gokulsing contrary to the provisions of the Act of 1947. This allegation could not have been considered by learned Tribunal assuming jurisdiction on it while exercising powers under Sections 84 and 76 of the Act of 1948. Entire judgment and exercise of the powers by Tribunal, in the case on hand, is on the footing of alleged illegality or unauthorised occupation of the present writ petitioner Gokulsing under the provisions of the Act of 1947. The order passed by the learned Tribunal, per se, is illegal and contrary to Section 84 of the Act of 1948. There is inherent illegality in the order passed by the Tribunal, which is without power and jurisdiction. This Court while exercising power under Article 227 of the Constitution of India has to consider the issue which goes to the jurisdiction of the Court or authority subordinate to this Court. This Court in fact is duty bound to see that authorities would function within the bounds of their power and jurisdiction. Considering the facts, circumstances and judgment of the Tribunal, in the case on hand, I am of the considered view that the order impugned in this writ petition is without power, authority and jurisdiction.

Shri S.A. Kulkarni, learned Counsel for the petitioners has invited my attention to Section 84 of the Act of 1948 and submitted that the application filed by respondent Julalsing on 8.1.1988 is after about 16-17 years of completion of the consolidation proceedings at Village Nimgaon. It is true that there is no limitation provided u/s 84 of the Act of 1948. The powers u/s 84 can be exercised by the authority or authority can be moved by the party aggrieved within a reasonable period of time. The reasonable period of time has been considered by this Court (Coram : S.B. Deshmukh, J.) in the case of Radhu Gokul Gawali, died, through LRs., Shamlal Gokul Gawali, died, through LRs., Shankar Gokul Gawali died, through LRs. and Babulal Gukul Gawali died, through LRs. Vs. Mohan Kishan Gawali, died throgh LRs., Bajrang Kishan Gawli, Kishor Someshwar Varma and The Maharashtra Revenue Tribunal, Aurangabad, . It is held in the said case that even though no limitation is provided u/s 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, ("Act of 1950") it has to be accepted to be a reasonable time, either for the authority initiating suo motu action or party concerned resorting to Section 98 of the Act. In paragraph No. 14 of this judgment, the Court has considered both the provisions of Section 84 of the Act of 1948 and Section 98 of the Act of 1950.

It is apposite to refer to one more judgment in the case of Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, . It has been held that when no time limit is prescribed for exercise of powers under the statute it should be exercised within a reasonable time. Exercise of power within one and half year, in the facts and circumstances of the case, was not approved by the Supreme Court. In this view of the matter, in my view, application filed by respondent Julalsing on 8.1.1988 before the Sub- Divisional Officer, could not have been entertained on this ground also by the learned Sub-Divisional Officer and/or ultimately by the teamed Member of the Maharashtra Revenue Tribunal ought not to have allowed said application. Both learned Counsel have invited my attention to the agreement between the parties, copy of which is on record at Annexure "A". In view of the view which I have taken in the case on hand, this document is not material. In the facts and circumstances of the case, order impugned in this writ petition needs to be quashed and set aside.

In the result, writ petition is allowed. Order impugned in this writ petition is quashed and set aside. Rule accordingly made absolute. Parties are left to bear their own costs.