State Of Maharashtra & Ors. vs Dr. Shri Narendra Bhikulalji Rathi & Ors.

Heard the learned Counsel for the parties and perused the record.

As the facts and substantial questions of law involved in all these appeals are identical they are decided by this common judgment.

Second Appeal No.97/2022 arises out of judgment and decree passed by the District Judge-6, Akola in Regular Civil Appeal No.186/2015 which arose out of Special Civil Suit No.12/1992 filed by the respondent Dr. Narendra Rathi for declaration that his status over the suit property is that of occupant Class-I and that the defendants are not entitled to withhold the process of recording status of respondent in property card as per the sale deeds.

In Second Appeal No.97/2022 the respondent Dr. Narendra herein is the plaintiff who filed the civil suit seeking a declaration that he is a Class-I occupant. The suit was dismissed by the learned trial Court, against which he preferred an appeal and the appeal was allowed. In other appeals i.e. Second Appeal Nos.354/2021 and 355/2021 the suit was allowed and the appeal filed by the State was dismissed. Therefore, the State has filed these appeals on the following substantial questions of law:-

The facts of Second Appeal No.97 of 2022 are stated as follows:-

The appellants are the original defendants and the respondent is the original plaintiff in Special Civil Suit No. 12/2012 instituted before the learned 2nd Joint Civil Judge, Senior Division, Akola, wherein the respondent sought, inter alia, a declaration that he be declared as an occupant Class-I in respect of Nazul Plot No. 19, admeasuring approximately 891.9 square metres (9,600 square feet), and Nazul Plot No. 20, admeasuring approximately 237.91 square metres (2,560 square feet), both situated at Akola and bearing Nazul Sheet No. 62-B, along with consequential directions for recording his name in the property card based on registered Sale Deeds dated 06.04.2010, bearing Serial Nos. 1479/2010 and 1480/2010 respectively, executed in his favour by Mr. Mahesh @ Bandu Vinayakrao Sapre, the recorded holder of Nazul Plot No. 19, and Mr. Pramod Vinayakrao Sapre, the recorded holder of Nazul Plot No. 20. The respondent's case was that although the properties were recorded in the revenue record as “B-Tenure” lands, the original rights therein had arisen from leases granted by the State in the years 1925 and 1926, which, according to him, were renewable in perpetuity, and consequently the original lessees had acquired permanent, heritable and transferable rights to confer upon him the status of an occupant Class-I under Sections 29 and 337 of the Maharashtra Land Revenue Code, 1966.

After execution of the aforesaid sale deeds, the respondent submitted an application dated 07.01.2011 before the Taluka Inspector of Land Records, Akola, seeking mutation of his name; however, the mutation was not effected on the ground that the properties were B-Tenure lands and that their transfer and consequential mutation could not be acted upon without obtaining the requisite permission of the Collector or competent authority. The respondent nevertheless contended that no such prior permission was necessary in view of the alleged nature of his rights under the Maharashtra Land Revenue Code. The Appellants specifically disputed the said claim and consistently maintained that the rights of the original lessees were governed by the terms, conditions and covenants contained in the respective lease deeds, which were binding upon the parties; that the original leases had not been duly renewed in accordance with the applicable conditions; and that the transfer of the leasehold properties in favour of the respondent without obtaining prior permission from the competent authority constituted a breach of the conditions governing the said lands.

The facts of Second Appeal No.354 of 2022 are briefly stated as follows:-

The respondent-plaintiffs claimed rights over Flat Nos. FF101 and FF103, situated in the multi-storied building “Shri Gajanan Vihar” constructed on Nazul Sheet No. 75-A, Plot No. 9, admeasuring 6498.36 sq. ft., on the basis of registered Sale Deeds dated 18.06.2007. The plaintiffs claimed that their vendors had validly acquired title through a chain of registered transactions originating from the original occupant Jaykumar Devidas Chaware and that the names of successive transferees had been duly mutated in the record of rights. They contended that, by virtue of Sections 54(2) and 56 of the Berar Land Revenue Code, 1928 and Sections 29 and 337 of the Maharashtra Land Revenue Code, 1966, the restrictions applicable to the original occupancy had ceased and the land had acquired the status of occupant class-I, thereby becoming heritable and transferable. After purchasing the flats, the plaintiffs sought mutation of their names; however, the revenue authorities refused to effect mutation on the ground that the property was recorded as “B” tenure and that prior permission of the competent authority was required. The plaintiffs disputed the said requirement, contending that the property had already ceased to be B-Tenure and that, in view of the earlier mutations effected pursuant to registered transactions, no separate No-Objection Certificate or permission from the Collector was necessary for recording their names.

The facts of Second Appeal No.355 of 2022 are briefly stated as follows:-

The respondent/plaintiff instituted Regular Civil Suit No. 63/2014 before the learned 2nd Joint Civil Judge, Senior Division, Akola, seeking a declaration that he was an occupant class-I in respect of Plot No. 8/1, Nazul Sheet No. 36-C, admeasuring 295.7 sq. metres (approximately 3175 sq. ft.), and consequential directions for mutation of his name and status in the relevant revenue and City Survey records based on the registered Sale Deed dated 25.03.2008 executed in his favour by Kamalkishor Fulchand Baheti. The plaintiff claimed that the property was originally granted by the Government to Ramchandra K. Kelkar under a 30-year lease renewable in perpetuity and that, by virtue of Sections 54(2) and 56 of the Berar Land Revenue Code, 1928, the original lessee had acquired occupant Class-I rights, which subsequently passed through registered transfers to Gaurabai Sunderlal Phapat and thereafter to Kamalkishor Baheti, whose names were mutated in the revenue records.

Upon his purchase, however, the plaintiff's request for mutation was declined by the Revenue Authorities on the ground that the property continued to be recorded as “B” Tenure and required prior permission of the Revenue Department. The plaintiff thereafter sought correction of the revenue record before the Sub-Divisional Officer and, upon the alleged failure of the authorities to grant relief, issued notice under Section 80 of the Code of Civil Procedure, 1908 and instituted the suit. The State/original defendants disputed the claim and maintained that the property continued to be “B” Tenure Government land and that successive sale deeds or mutation entries could not, by themselves, confer occupant class-I status or dispense with the requirement of permission from the competent authority. Thus, the facts of S.A. No. 355 of 2022 principally concern the nature of the original leasehold rights, the alleged conversion of B-Tenure land into Occupant Class-I land, and the respondent's entitlement to mutation on the basis of the subsequent registered sale deeds.

It is submitted on behalf of the appellants that the learned Court below has erred in holding that the suit was maintainable merely on the ground that the respondent-plaintiff had submitted an application for mutation which was neither decided nor rejected by the Revenue Authorities. The true scope and applicability of Section 11 of the Maharashtra Revenue Jurisdiction Act could not have been determined merely with reference to the absence of a formal order on the mutation application.

The grievance arises out of an act or omission of a Revenue Officer and the statute provides a remedy by way of appeal; the party must exhaust such statutory remedies before invoking the jurisdiction of the Civil Court. In the present case, the respondent's claim was not merely for a simple mutation entry but for a substantive declaration of his status and rights in the suit property as a Bhumiswami/Occupant Class-I, together with consequential alteration of the revenue record. Such determination necessarily involved examination of the nature of the original grant, the terms and conditions of the lease, the effect of the provisions of the Berar Land Revenue Code, 1928, the subsequent transfers and the applicability of the restrictions governing the property.

The reliance placed upon Ramrao Jankiram Kadam v. State of Bombay, 1962 SCC OnLine SC 345, since the said judgment itself explains that Section 11 is attracted where there is an act or omission of a Revenue Officer giving rise to a claim against the Government, where the law provides an appellate remedy against such act or omission, and where the party has failed to avail himself of such remedy. The principle laid down therein is therefore required to be applied after examining the nature of the relief actually claimed and the statutory remedies available in the present case.

The status of a Bhumiswami and the legal consequences flowing from Sections 54(2) and 56 of the Berar Land Revenue Code, 1928, were required to be determined with reference to the nature of the original grant and the statutory conditions governing the land. In the case of Jaikumari Amarbahadursingh Vs. State of Maharashtra reported in 2009(1) ALL MR 343 Madaras High Court in para 43 has observed as under:-

In the case in hand, the holder of land possessed permanent and transferable right in property, he would fall within definition of ‘Occupants -Class-I within the meaning of Section 29 of the MLRC Act.

As per the provisions of Section 11 of the Bombay Revenue Jurisdiction Act no Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that before bringing such suit, he had preferred all such appeals those were allowed by the law for the time being in force and which, within the period of limitation allowed for bringing such suit, it was possible for him to prefer.

The plaintiff had filed an application seeking mutation of his name as Class-I occupant. However, the said application was neither decided by the revenue authority nor was any action taken, and there was no order passed regarding it. Therefore, there is no question of filing any appeal, and consequently the declaration was the only remedy available to the plaintiff. Hence, the plaintiff has rightly filed the civil suit seeking declaration. Therefore, substantial question of law No.1 is not in favour of the appellants.

The respondents further relied upon Ramrao Jankiram Kadam v. State of Bombay and others, 1962 SCC OnLine SC 345, wherein the Hon'ble Supreme Court observed as under:

The respondents have relied on the observations made in paragraph No.42 of Jaikumari (supra) which read as follows:-

As per the provisions of the Berar Land Revenue Code, the respondent i.e. plaintiff is a Bhumiswami and, therefore, in view of the observations made by High Court in Jaykumari (supra), there is no question of facts to be examined by the appropriate authority on that basis. Hence, the judgment of Jaykumari (supra) is in favour of plaintiff only.

As per the judgment of this Court in Writ Petition No.4373/2008 (Raoji Hambarde Charitable Trust, Amravati V/s. The State of Maharashtra and others), delivered on 20.3.2018, the contention that the lease was temporary is wiped out and no permission would be required in view of Sub-Section (2) of Section 54 of the Berar Land Revenue Code.

In view of above observations, I accordingly answer the substantial questions of law framed in this appeal that they are not in favour of the appellants.

In view of my answers to the above substantial questions of law, I pass the following order:-

The appeals stand dismissed with no orders as to costs.