Bombay High Court
Bhagwan Waman Gaikwad And Ors vs Pralhad Dunda Jadhav And Ors on 23 April, 2025
2025:BHC-AS:18249
Neeta Sawant WP-8592-2024 with WP-8593-2024-FC
I2N THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8592 OF 2024
Bhagwan Waman Gaikwad and Ors. ...Petitioners
: Versus :
Pralhad Dunda Jadhav and Ors. ...Respondents
WITH
WRIT PETITION NO. 8593 OF 2024
Bhagwan Waman Gaikwad and Ors. ...Petitioners
: Versus :
Pralhad Dunda Jadhav and Ors. ...Respondents
_______________________________________________________________
Mr. S.G. Karandikar i/b. Mr. Jayesh M. Joshi and Ms. Ankita Pandit, for the
Petitioners.
Mr. Vijay Killedar, for Respondent Nos.1 to 13.
Mr. Hamid Mulla, AGP for the Respondent -State in WP/8592/2024.
Ms. Snehal Jadhav, AGP for Respondent-State in WP/8593 of 2024.
________________________________________________________________
CORAM: SANDEEP V. MARNE, J.
Judgment Resd. on: 9 April 2025.
Judgment Pron. on: 23 April 2025.
JUDGMENT :
1) Petitioners, who claim to be Watandars, challenge the
common Order passed by Maharashtra Revenue Tribunal (MRT) on
1 April 2024 upholding the orders passed by the Sub Divisional Officer
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(SDO) by which tenancy claim of Respondent Nos.1 to 14 in the
agricultural land has been upheld and Tahsildar has been directed to fix
purchase price thereof under provisions of Section 32G of the
Maharashtra Tenancy and Agricultural Lands Act, 1948 (Tenancy Act).
2) The Petitions arise out of cross claims filed by Petitioners
and contesting Respondents about tenancy status of the contesting
Respondents. While Petitioners had instituted proceedings under
Section 70(b) of the Tenancy Act seeking negative declaration against
contesting Respondents that they are not tenants of the land, the
contesting Respondents had initiated proceedings for fixation of
purchase price of the land under Section 32G of the Tenancy Act. Both
the proceedings were initially decided against the contesting
Respondents by the Tahsildar. However, the SDO and MRT have ruled
in their favour by upholding their tenancy claim by directing fixation of
purchase price under Section 32G of the Tenancy Act.
3) Briefly stated, facts of the case are that land bearing new
Survey No. 48/1 (old Survey No.30/1) and new Survey No.48/18
(old Survey No. 30/18) situated at village Thakurli, Taluka-Kalyan,
District-Thane, which is now within the jurisdiction of Kalyan Dombivli
Municipal Corporation, is the subject matter of present Petitions
(the land). The Petitioners claim that their predecessor-Kachrya K.
Gaikwad was the owner, occupier and cultivator of the said land. After
demise of said Kacharya K. Gaikwad, names of his legal heirs i.e.
predecessors in title of the Petitioners and Respondent Nos. 15 to 17
were entered into the revenue records. This is how Petitioners and
Respondent Nos.15 to 17 claim ownership in respect of the land in
question.
PAGE No.2 of 38 WEDNESDAY, 23 APRIL 2025 ::: Uploaded on - 23/04/2025 ::: Downloaded on - 23/04/2025 22:35:05 ::: Neeta Sawant WP-8592-2024 with WP-8593-2024-FC 4) Petitioners submit that the land is Mahar Watan land and
was governed by the provisions of the Maharashtra Hereditary Offices
Act, 1874 (Hereditary Offices Act). It is submitted that after coming into
effect of the Maharashtra Inferior Village Watans Abolition Act, 1959
(Watans Abolition Act), Mutation Entry No.1915 was certified on
13 December 1962 by which the name of Government of Maharashtra
was entered in the revenue records. It is Petitioners’ case that name of
one Shri. Ganpat Kathod was inadvertently entered as tenant in the
‘Other Rights’ column of the lands vide Mutation Entry No.1590 dated
4 January 1957. According to Petitioners, the combined effect of Watans
Abolition Act and Hereditary Offices Act is such that provisions of
Tenancy Act were not applicable to the lands in question and that such
Mutation Entry No.1590 entering the name of Ganpat Kathod as tenant
is clearly erroneous. Petitioners claim that Respondent Nos. 1 to 14 took
advantage of the said entry and filed Tenancy Case No.8 of 2016 on
1 March 2016 before Tahsildar and Agriculture Lands Tribunal (ALT)
for fixation of purchase price of the lands under Section 32G of the
Tenancy Act. It was the case of the contesting Respondents that name of
Ganpat M. Kathod (Gaikwad) was entered in the revenue records of the
lands and therefore he became deemed purchaser of the lands as on
1 April 1957. Petitioners appeared in the said application and resisted
the same by filing written statement. They separately filed application
under Section 70(b) of the Tenancy Act seeking a negative declaration
that contesting Respondents are not tenants of the lands.
5) ALT passed two separate orders on 10 December 2018
rejecting Tenancy Case No.8 of 2016 filed by contesting Respondents for
fixation of purchase price and allowing Tenancy Case No.5 of 2017
holding that contesting Respondents are not tenants of the lands under
Section 70(b) of the Tenancy Act.
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which came to be allowed by two separate orders passed on
17 March 2022 and 20 March 2022. The SDO set aside ALT’s order
passed under Section 70(b) of the Tenancy Act as well as order passed
under Section 32G of the Tenancy Act. He upheld the status of the
contesting Respondents as tenants of the lands while directing
Tahsildar to fix purchase price thereof under Section 32G of the
Tenancy Act.
7) Petitioners got aggrieved by order dated 20 March 2022
passed in proceedings under Section 32G and order dated
17 March 2022 passed under Section 70(b) of the Tenancy Act and filed
Revision before the MRT. The MRT has however, dismissed both the
revisions preferred by the Petitioners by common order dated
1 April 2024, which is subject matter of challenge in the present
Petitions. The Petitioners are thus aggrieved by declaration of status of
contesting Respondents as tenants as well as by direction for fixation of
purchase price under Section 32G of the Tenancy Act.
8) Mr. Karandikar, the learned counsel appearing for the
Petitioners would submit that the MRT and SDO have grossly erred in
upholding tenancy claim of contesting Respondents. He would submit
that the land is admittedly Mahar Watan land as concurrently held by
Tahsildar, SDO and MRT. He would rely on provisions of Section 88 of
the Tenancy Act, particularly Explanation to sub-section (1) thereof,
under which land held as inam or watan for service useful to
Government and assigned as remuneration is deemed to be a land
belonging to the Government. He would therefore submit that every
inam or watan land, held for service useful to the Government and
assigned as remuneration, provisions of Section 88 would become
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applicable. Alternatively, he would rely upon Section 88CA of the
Tenancy Act, under which provisions of Sections 32 to 32R do not apply
to lands held as inam or watan for service useful to Government, but not
assigned as remuneration. He would therefore submit that there cannot
be a deeming fiction of purchase under Section 32 of the Tenancy Act in
respect of a watan land. He would therefore submit that declaration of
status of contesting Respondents as tenants under Section 70(b) of the
Tenancy Act as well as fixation of purchase price in their favour under
Section 32G of the Tenancy Act is clearly in ignorance of provisions of
Sections 88 and 88CA of the Tenancy Act.
9) Mr. Karandikar would then rely on Section 8 of Watans
Abolition Act in support of his contention that provisions of Tenancy
Act become applicable only to a watan land, which has been lawfully
leased and such lease is subsisting on the appointed date. He would
therefore submit that it is for a person claiming status of tenancy to
prove that the watan land was lawfully leased to him. He would then
rely upon Section 5 of the Hereditary Offices Act, in support of his
contention that lease in respect of watan land cannot be granted without
sanction of the Commissioner. Mr. Karandikar would therefore submit
that the combined effect of Sections 88 and 88CA of the Tenancy Act,
Section 8 of Watans Abolition Act and Section 5 of the Hereditary
Offices Act is such that person claiming status of tenancy must prove
that the Commissioner had granted permission for creation of lease of
watan land and thereafter such watan land was lawfully leased in favour
of such person. He would submit that the intention of the legislature is
not to recognise tenancy rights of any person, who does not lawfully
hold lease of watan land. That under the provisions of Watans Abolition
Act, the land vests in the State Government upon abolition of watan.
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That therefore the intention of legislature is not to recognise rights of a
trespasser in the land, who does not hold lawful lease of watan land.
10) Mr. Karandikar would submit that the contesting
Respondents neither pleaded nor proved that there was lawful lease of
watan lands in their favour after securing prior sanction of the
Commissioner under Section 5 of the Hereditary Offices Act for
application of provisions of Section 8 of the Watans Abolition Act. He
would therefore submit that provisions of Explanation to Section 88
and/or Section 88CA would clearly take the watan land out of purview
of provisions of Tenancy Act. He would submit that none of the three
authorities have conducted an enquiry into this aspect while
erroneously upholding tenancy claim of contesting Respondents. He
would rely upon judgment of coordinate Bench of this Court in Shobha
Daulatrao Bankar Versus. Sadashiv Anaji Gangurde and Others1 in
which, according to Mr. Karandikar, this Court has held that in absence
of proof of grant of lawful lease contemplated under Section 8 of
Watans Abolition Act after following provisions of Section 5 of
Hereditary Offices Act, tenancy rights in a watan land cannot be
recognised.
11) Mr. Karandikar would further submit that Watans
Abolition Act contemplates re-grant in favour of watandars, which in the
present case are Petitioners. That as of now, the land stands in the
ownership of State Government from the appointed date of 1 August
1960 and it is otherwise incomprehensible that contesting Respondents
would become tenants or deemed purchasers of land standing in the
ownership of the State Government. That the land will have to be first
re-granted in favour of watandar i.e. Petitioners and thereafter landlord-
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tenant relationship could subsist for upholding the tenancy claim.
Mr. Karandikar would therefore submit that seen from any angle, the
tenancy claim of the contesting Respondents ought not to have been
upheld by the SDO and MRT. He would accordingly pray for setting
aside the orders passed by the SDO and MRT and for confirming the
order passed by the ALT.
12) The Petitions are opposed by Mr. Killedar, the learned
counsel appearing for Respondent Nos.1 to 13. He would submit that
the SDO and MRT have concurrently upheld the tenancy claim of
contesting Respondents and in absence of any patent error or an
element of perversity, this Court need not interfere in the concurrent
findings in exercise of jurisdiction under Article 227 of the Constitution
of India. He would further submit that the contention of Petitioners
about inapplicability of provisions of Tenancy Act is an improvement
sought to be made by them before this Court, as this point was never
urged before the ALT. He would take me through the application filed
by the Petitioners under Section 70(b) of the Tenancy Act before ALT to
demonstrate that the contention of inapplicability of provisions of
Tenancy Act to watan land was never raised by the Petitioners.
He would therefore submit that Petitioners cannot now be permitted to
raise the said issue directly before this Court.
13) Mr. Killedar submits that name of Kachrya Gaikwad was
entered into revenue records as a protected tenant, under Section 3A of
the Bombay Tenancy Act, 1939. He would rely upon judgment of the
Apex Court in Sakharam @ Bapusaheb Narayan Sanas and Another
Versus. Manikchand Motichand Shah and others 2 in support of his
contention that right of a protected tenant recognised by public
2 AIR 1963 SC 354
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authorities by making the revenue entries in the Record of Rights gives
right to the landlord to seek a declaration under Section 3A(1) of the
Bombay Tenancy Act, 1939 within one year and that if such declaration
is not sought, the status of tenant can no longer be questioned
thereafter. He would also rely upon judgment of this Court in Vasudeo
Ramchandra Kale & Others Versus. Vijay Bhikaji Raut and others 3 in
support of his contention that once status as protected tenant is proved,
no further material is required to be produced to support the claim of
tenancy and it is for the landlord to produce some positive evidence to
the contrary. Mr. Killedar would further submit that Explanation to sub-
section (1) of Section 88 of the Tenancy Act has been added by Bombay
Act 63 of 1958 and therefore the said Exception cannot affect deeming
fiction of purchase on Tiller’s day of 1 April 1957. He would therefore
submit that tenancy claim can be accepted even qua watan land. In
support, he would also rely on judgment of this Court in Kondu Thaku
Chavan & Ors. Versus. Ashok Shankar Chavan & Ors.4.
14) Lastly, Mr. Killedar would rely upon judgment of the Apex
Court in Baban Balaji More (Dead) by Lrs. and Ors Versus. Babaji
Hari Shelar (Dead) by Lrs. and Others 5 in support of his contention that
the provisions of Watans Abolition Act and Tenancy Act are required to
be construed harmoniously keeping in mind the objective that they seek
to achieve and that provisions of Section 8 of the Watans Abolition Act
cannot be read in such a manner so as to defeat vested right of a tenant
under Section 32 of the Tenancy Act. Mr. Killedar would accordingly
pray for dismissal of the Petitions.
3 2001(1) Bom.C.R. 219 4 2019 (2) Bom C.R. 223 5 2024 SCC Online SC 283 PAGE No.8 of 38 WEDNESDAY, 23 APRIL 2025 ::: Uploaded on - 23/04/2025 ::: Downloaded on - 23/04/2025 22:35:05 ::: Neeta Sawant WP-8592-2024 with WP-8593-2024-FC 15) I have also heard Mr. Mulla, the learned AGP appearing for
Respondent Nos. 18 to 20 in Writ Petition No. 8592 of 2024 and Ms.
Jadhav, the learned AGP appearing for Respondent Nos. 18 to 20 in Writ
Petition No. 8593 of 2024, who would support the order passed by MRT
and pray for dismissal of the petitions.
16) Rival contentions of the contesting parties now fall for my
consideration.
17) In the present case, Petitioners and Respondent Nos.15 to
17 are successors-in-title of the original watandar-Kachrya Kalya
Gaikwad. As against this, Respondent Nos.1 to 14 represent the
successors-in-title of the person claiming to be the tenant (Ganpat
Kathod) in respect of the agricultural land. There is no dispute to the
position that by Mutation Entry No. 1590, name of Ganpat Kathod was
entered in the revenue records on 4 January 1957 as protected tenant in
respect of the land in question. Had this been a normal landlord-tenant
dispute, personal cultivation of land by Ganpat Kathod as on the Tiller’s
day of 1 April 1957 was clearly established and therefore his tenancy
right could have been easily recognised thereby allowing his heirs to
purchase the land by fixing the price fixed under Section 32G of the
Tenancy Act. As a matter of fact, name of Ganpat Kathod has been
mutated by Mutation Entry No. 1590 dated 4 January 1957 as ‘सं. कुळ’
(protected tenant). The term ‘tenant’ has been defined under Section 2(18)
of the Tenancy Act as under :
[(18) “tenant” means a person who holds land on lease and include, —
(a) a person who is deemed to be a tenant under section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant;
and the word “landlord” shall be construed accordingly;
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the one who is deemed to be a protected tenant under Sections 3, 3A
and 4 of the Bombay Tenancy Act, 1939 (Act of 1939). Section 4A of the
Tenancy Act provides thus :
4A. Protected tenants.
For the purposes of this Act, a person shall be recognized to be a protected
tenant, if such person has been deemed to be a protected tenant under sec-
tions 3, 3A and 4 of the Bombay Tenancy Act, 1939, referred to in Schedule I
to this Act.
19) Under Section 3 of the Act of 1939, a tenant is deemed to be
a protected tenant if he has held the land continuously for a period not
less than 6 years either before 1 January 1938 or 1 January 1945 and has
cultivated the land personally during that period. Section 3 of the Act of
1939 provided thus :
3. Protected tenants.
A tenant shall be deemed to be a protected tenant in respect of any land if –
(a) he has held such land continuously for a period of not less than six
years immediately preceding either –
(i) the first day of January 1938, or
(ii) the first day of January 1945; and
(b) he has cultivated such land personally during the aforesaid period.
Explanation I.- If the person who held such land on the first day of
January 1938 or the first day of January 1945, as the case may be, came to hold
the same by inheritance or succession from another person or if he has held
such land as a tenant and is an heir to such other person, the period during
which such other person held such land as a tenant shall be included in
calculating the period of six years under this section.
Explanation II.- If the person who held such land on the first day of
January 1938 or the first day of January 1945, as the case may be, held as a
tenant at any time within six years before the said date from the same
landlord in the same village any other land which he cultivated personally,
the period during which he held such other land shall be included in
calculating the period of six years under this section.
Explanation III.- Where any land is held by two or more persons jointly as
tenants, all such persons shall, if any one of them cultivated and continues to
cultivate such land personally and if the other conditions specified in this
section are fulfilled, be deemed to be protected tenants in respect of such
land.
PAGE No.10 of 38 WEDNESDAY, 23 APRIL 2025 ::: Uploaded on - 23/04/2025 ::: Downloaded on - 23/04/2025 22:35:05 ::: Neeta Sawant WP-8592-2024 with WP-8593-2024-FC 20) Since name of Ganpat Kathod is entered in the revenue
records as protected tenant on 4 January 1957, personal cultivation of
land by him prior to 1 January 1938 or 1 January 1945 will have to be
necessarily presumed. In short, there is no serious dispute about the
factum of personal cultivation of the land in question by Shri. Ganpat
Kathod as on the relevant date.
21) The whole controversy has arisen on account of special
circumstance of the present case where the land in question is Mahar
Watan land and is governed by the provisions of the Hereditary Offices
Act and Watans Abolition Act. It is the contention of the Petitioners that
under Section 5 of the Hereditary Offices Act, no lease in respect of the
watan land can be created without sanction of the Commissioner.
Reliance is also placed on Section 8 of the Watans Abolition Act in
support of the contention that the provisions of the Tenancy Act become
applicable only if the lease of the watan land is in accordance with the
provisions of the Hereditary Offices Act. It would therefore be
necessary to consider the provisions of the Hereditary Offices Act and
Watans Abolition Act and their combined effect on the provisions of the
Tenancy Act.
22) Hereditary Offices Act is enacted for regulating the services
of hereditary officers. Section 4 of the Act defines the terms ‘Hereditary
Office’, ‘Watandar’ and ‘Watan Property’ as under :
“Hereditary Office” means every office held hereditarily for the performance
of duties connected with the administration or collection of the public
revenue or with the village police, or with the settlement of boundaries, or
other matters of civil administration, The expression includes such office even
where the services originally appertaining to it have ceased to be demanded.
The watan property, if any, and the hereditary office and the rights and
privileges attached to them together constitute the watan.
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“Watandar” means a person having an hereditary interest in a watan. It
includes a person holding watan property acquired by him before the
introduction of the British Government into the locality of the watan, or
legally acquired subsequent to such introduction, and a person holding such
property from him by inheritance. It includes a person adopted by an owner
of a watan or part of a watan, subject to the conditions specified in sections 33
to 35“Watan property” means the moveable or immovable property held, acquired,
or assigned for providing remuneration for the performance of the duty
appertaining to an hereditary office. It includes a right to levy customary fees
or perquisites, in money or in kind, whether at fixed times or otherwise.
It includes cash payments in addition to the original watan property made
voluntarily by the StateGovernment and subject periodically to modification
or withdrawal.
23) Section 5 of the Hereditary Offices Act imposes restrictions
on alienation of watan land and provides thus :
5. Prohibition of alienation of watan and watan rights. – (1) Without the
sanction of [the [State]Government], [or in the case of a mortgage, charge,
alienation, or lease of not more than thirty years, of the Commissioner] it shall
not be competent-
(a) to a watandar to mortgage, charge, alienate or lease, for a period
beyond the term of his natural life, any watan, or any part thereof, or
any interest therein, to or for the benefit of any person who is not a
watandar of the same watan;
(b) to a representative watandar to mortgage, charge, lease or alienate
any right with which he is invested, as such, under this Act.
(2) In the case of any watan in respect of which a service commutation
settlement has been effected, either under section 15 or before that section
came into force, clause (a) of this section shall apply to such watan, unless the
right of alienating the watan without the sanction of [the [State] Government]
is conferred upon the watandars by the terms of such settlement or has been
acquired by them under the said terms.]
24) Thus, it is not lawful for a watandar to mortgage, charge,
alienate or lease, for a period beyond the term of natural life of watandar,
any watan property without previous sanction of the State Government
and if such mortgage, charge, alienation or lease does not exceed 30
years without sanction of the Commissioner.
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abolishing Hereditary Village Offices of lower degree than that of a
revenue or police Patel or village accountant. Section 4 of the Watans
Abolition Act abolished all inferior village watans including right to
hold office and watan property and subject to the provisions of Sections
5, 6 and 9, all watan lands are resumed by the State Government. Section
5 of the Watans Abolition Act makes a provision for re-grant of watan
land to the holders of the watan. Section 6 of the Act provides for re-
grant of watan land to authorised holders and Section 9 makes an
exception where even an unauthorised holder, in some cases, is entitled
for re-grant of watan land. Thus, unless an order of re-grant is made
under Sections 5, 6 and 9 of the Watans Abolition Act, all watan lands
automatically became property of the State Government from the
appointed date of 1 August 1960.
26) Section 8 of the Watans Abolition Act deals with
application of tenancy laws to a watan land and provides thus :
8. Application of tenancy law.
If any watan land has been lawfully leased and such lease is subsisting on the
appointed date, the provisions of the tenancy law shall apply to the said lease
and the rights and liabilities of the holder of such land, and his tenant or
tenants shall, subject to the provisions of this Act, be governed by the
provisions of the said law.
Explanation.- For the purposes of this section the expression “land” shall have
the same meaning as assigned to it in the tenancy law.
27) Thus, where a watan land has been lawfully leased and
such lease is subsisting on the appointed date, the provision of the
Tenancy laws (Tenancy Act) applies to such lease and the rights and
liabilities of holder of the land and his tenancy get governed by the
provisions of the Tenancy Act.
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Abolition Act that Mr. Karandikar has contended that the onus is on the
tenant to prove that the watan land was lawfully leased to him. He has
relied on Section 5 of the Hereditary Offices Act in support of his
contention that watan land could not be leased without prior sanction of
either the State Government or the Commissioner. It is therefore
contended by Petitioners that in absence of proof of prior sanction of
the State Government or Commissioner for lease of the watan land, it
cannot be presumed that the watan land was lawfully leased within the
meaning of Section 8 of the Watans Abolition Act. It is Petitioners’ case
that since alleged lease in favour of Ganpat Kathod was not lawful
within the meaning of Section 5 of the Hereditary Offices Act, the
provisions of Section 8 of the Watans Abolition Act do not apply in the
present case.
29) Before considering the correctness of the above contentions
raised on behalf of the Petitioners, it would also be necessary to have a
quick look at the relevant provisions of the Tenancy Act. Petitioners
have relied on provisions of Section 88 of the Tenancy Act in support of
their contention that provisions of Sections 1 to 87 of the Tenancy Act
do not apply to lands belonging to the State Government. Reliance is
placed on Explanation to sub-section (1) of Section 88, under which the
land held as watan for service useful to the Government and assigned as
remuneration to a person actually performing such a service under
Section 23 of the Hereditary Offices Act, is deemed to be land belonging
to the Government. Section 88 of the Tenancy Act provides thus :
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88. Exemption to Government lands and certain other lands.
(1) Save as otherwise provided in sub-section (2), nothing in the foregoing
provisions of this Act] shall apply,–
(a) to lands belonging to or held on lease from, the Government;
(b) to any area which the State Government may, from time to time, by
notification in the Official Gazette, specify as being reserved for non-
agricultural or industrial development;
(c) to an estate or land taken under the management of the Court of
Wards [or of a Government Officer appointed in his official capacity as
a guardian under the Guardians and Wards Act, 1890
(d) to an estate or land taken under management by the State
Government under Chapter IV or section 65 except as provided in the
said Chapter IV or section 65, as the case may be, and in sections 66,
80A, 82, 83, 84, 85, 86 and 87 :
Provided that from the date on which the land is released from
management, all the foregoing provisions of this Act shall apply thereto; but
subject to the modification that in the case of a tenancy, not being a
permanent tenancy, which on that date subsists in the land–
(a) the landlord shall be entitled to terminate the tenancy under
section 31 (or under section 33B in the case of a certified landlord)
within one year from such date; and
(b) within one year from the expiry of the period during which the
landlord or certificated landlord is entitled to terminate the tenancy as
aforesaid, the tenant shall have the right to purchase the land under
section 32 (or under section 33C in the case of an excluded tenant);
and
(c) the provisions of sections 31 to 31D, both inclusive (or sections 33A
and 33B in the case of a certificate landlord) and sections 32 to 32R
(both inclusive) (or sections 33A and 33C in the case of an excluded
tenant) shall, so far as may be applicable, apply to the termination of a
tenancy or the right to purchase the land, as aforesaid :
Provided that further that,–
(a) in the case of a permanent tenancy the permanent tenant shall be
entitled to purchase the land held by him on permanent tenancy,–
(i) within one year from the date on which the estate or land is
released from management, or
(ii) where such estate or land was released from management
after the tiller’s day but before the commencement of the
Bombay Tenancy and Agricultural lands (Amendment) Act,
1960, within one year from such commencement, and
(b) where such permanent tenant is desirous of exercising the right
conferred on him under this proviso, he shall accordingly inform the
landlord and Tribunal in the prescribed manner within the said
period of one year and the provisions of sections 32 to 32R shall, so far
as may be applicable, apply to the right of the permanent tenant to
purchase the land.
Explanation.– For the purposes of [clause (a) of sub-section (1)] of this
section land held as inam or watan for service useful to Government and
assigned as remuneration to the person actually performing such service for
the time being under section 23 of the Bombay Hereditary Offices Act, 1874,
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or any other law for the time being in force shall be deemed to be land
belonging to Government.
(2) If any land held on lease from Government or any part thereof,–
(i) is held at the commencement of the Bombay Tenancy and
Agricultural Lands (Amendment) Act, 1960, by a person under a sub-
lease from the lessee and is cultivated personally by such person, or
(ii) is sub-let after the commencement of the Bombay Tenancy and
Agricultural Lands (Amendment) Act, 1960, by the lessee to any
person for cultivation.
and such sub-letting of the land or part thereof is authorised in accordance
with the terms of the lease then all the provisions of this Act except sections
32 to 32R (both inclusive) and section 43 shall, notwithstanding anything
contained in such lease, apply to the land, or as the case may be the part
thereof, held under such sub-lease, as if the person holding it under such sub-
lease were a tenant within the meaning of section 4 of this Act and the lessee
were the landlord :
Provided that in the case of a sub-lease subsisting on the date of the
commencement of the Bombay Tenancy and Agricultural Lands
(Amendment) Act, 1960, the lessee shall be entitled to terminate the sub-lease
under section 31 within one year from such date and the provisions of
sections 31 to 31D (both inclusive) shall so far as may be applicable, apply to
the termination of the sub-lease.
Explanation.– In sub-section (2) of this section, references to a lessee
include a reference to a person to whom the entire interest in the land held on
lease or in any part thereof has been transferred or assigned.
30) Section 88CA came to be inserted in the Tenancy Act by
Bombay Act 63 of 1958 under which provisions of Sections 32 to 32R,
32A, 33A, 33B and 33C are excluded in respect of the land held as watan
for services useful to the Government but not assigned as remuneration.
Section 88CA provides thus :
88CA. Sections 32 to 32R not to apply to certain service lands.
Nothing in sections 32 to 32R (both inclusive), [33A, 33B and 33C] shall apply
to land held as inam or watan for service useful to Government but not
assigned as remuneration to the person actually performing such service for
the time being under section 23 of the Bombay Hereditary Offices Act, 1874,
or any other law for the time being in force.
31) The combined reading of the provisions of Sections 88 and
88CA of the Tenancy Act, together with the provisions of Section 8 of
the Watans Abolition Act, indicates that the land held as watan, usually
is deemed to be the land belonging to the State Government. UnderPAGE No.16 of 38
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useful to the Government and assigned as remuneration to the watandar,
Sections 1 to 87 of the Tenancy Act do not apply. As against this, under
Section 88CA of the Tenancy Act, if such watan land is held in service
useful to the State Government but not assigned as remuneration, the
provisions of Sections 32 to 32R, 33A, 33B and 33C do not apply to such
land. Thus, in either of the cases, where the watan land is held for
services useful to the Government and either assigned or not assigned
as remuneration, the provisions of Section 32 creating deeming fiction
of purchase of land by the tenant on the Tiller’s Day of 1 April 1957 do
not apply to such land. This is how Explanation to Section 88(1) and
Section 88CA seek to exclude all watan lands whether assigned as
remuneration or not from deeming fiction of purchase by the tenant as
on 1 April 1957 under Section 32 of the Tenancy Act.
32) However, Section 8 of the Watans Abolition Act opens up a
window for application of provisions of the Tenancy Act even in respect
of watan lands in case it is proved that the watan land was lawfully
leased. The Tenancy Act came into effect in the year 1948. Though
Explanation to Section 88(1) as well as Section 88CA are inserted by
Bombay Act 63 of 1958, Section 21 of the Bombay Amendment Act 63 of
1958 provided that Sections 15 to 18 thereof shall be deemed to have
been made and come into force on the day on which the Bombay
Tenancy and Agricultural Lands (Amended) Act, 1955 came into effect.
Thus, both the Explanations to Section 88(1) as well as Section 88CA
were applicable as on the Tiller’s Day of 1 April 1957. Thus, under
Explanation to Section 88(1) as well as Section 88CA, the deeming
fiction of purchase under Section 32 of the Tenancy Act was made
inapplicable in respect of a watan land. The Watans Abolition Act came
into effect on 20 January 1959. There is no dispute between the parties
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that the appointed date in respect of districts of Thane where the land is
situated is 1 August 1960. Thus, the provisions of the Watans Abolition
Act came into effect on 1 August 1960. The blockage created by
Explanation to Section 88(1) or Section 88CA for application of deeming
fiction of purchase under Section 32 of the Tenancy Act was opened up
to some extent by Section 8 of the Watans Abolition Act. Section 8
opened up a window for application of provisions of Tenancy Act and
for governance of rights and liabilities of holder of watan land and his
tenant as per the provisions of the Tenancy Act. The only condition,
according to the Petitioners, is that the watan land must be proved to
have been lawfully leased to the tenant.
33) This is how Petitioners contend that there is no lawful lease
of the watan land in the present case in favour of Ganpat Kathod by
securing the previous sanction of the Commissioner/State Government
under Section 5 of the Hereditary Officers Act. Reliance is placed on the
judgment of Coordinate Bench of this Court in Shobha Ganpat Bankar
(supra) in which it is held in paras-11 to 15 as under :
11. Heard learned counsel appearing for the parties at length. With their able
assistance carefully perused pleadings in the petition, grounds taken therein,
annexrues thereto and the findings/reasons recorded by the Maharashtra
Revenue Tribunal, Mumbai in the impugned judgment. The contention of the
counsel appearing for the petitioner that the concurrent findings of facts, that
the predecessor of the petitioner and petitioner are continuously cultivating
the subject land and there are continuous entries in the revenue record, and
same are disturbed by the Maharashtra Revenue Tribunal, cannot be accepted.
It is true that the crop inspection entries of year 1953-54 onwards are in the
name of predecessor of petitioner and the petitioner. However, Tribunal
observed that, since there is no creation of valid tenancy by way of lease, as
contemplated under Section 8 of the Maharashtra Inferior Village Watans
Abolition Act, and the initial induction of the predecessor of the petitioner on
the land was admittedly without previous approval of the Collector/State
Government, there cannot be any valid tenancy by lease. It is also observed
that, admittedly the suit land was Mahar Watan land. The land was inferior
village watan land and the same was regulated by the provisions of Bombay
Hereditary Office Act. On conjoint reading of provisions under Bombay
Hereditary Office Act and provisions of the Maharashtra Inferior Village
Watan Abolition Act, the Tribunal observed that, for creation of tenancy,
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permission from the competent authority i.e. Collector, would be required
and any lease granted without permission of Collector would be invalid
under Section 5 of the Said Act. It is also observed that, the lands in question
continue to be watan land till 1st February 1959, the date on which the inferior
watan came to be abolished. It is further observed that till 01 st February 1959,
provisions of relevant tenancy law i.e. Bombay Tenancy & Agricultural Lands
Act, 1948 were not applicable. Thus there could not have any case of deemed
tenancy under Section 4 till 01st February 1959. It is further held by the
Maharashtra Revenue Tribunal that, the person claiming to be tenant must
prove when he was inducted on watan land by watandar with previous
approval by Collector. However, in the present case no such claim is made by
the present petitioner.
12. Section 8 of the Maharashtra Inferior Village Watans Abolition Act reads
thus:–
8. If any watan land has been lawfully leased and such lease is subsisting on
the appointed date, the provisions of the tenancy law shall apply to the said
lease and the rights and liabilities of the holder of such land and his tenants
shall, subject to the provisions of this Act, be governed by the provisions of
the said law.
Explanation-For the purpose of this section the expression “land” shall have
the same meaning as assigned to it in the tenancy law.
13. Section 5 of the Bombay Hereditary Offices Act reads thus:–
5. Prohibition of alienation of watan and watan rights.
(1) Without the sanction of the State Government or in the case of mortgage,
charge, alienation, or lease of not more than thirty years, of the Commissioner
it shall not be competent.
(a) to a watandar to mortgage, charge, alienate or lease, for a period beyond
the term of his natural life, any watan, or any part thereof, or any interest
therein, to or for the benefit of any person who is not a watandar of the same
watan;
(b) to a representative watandar to to mortgage, charge, lease or alienate any
right with which he is invested, as such, under this Act.
(2) In the case of any watan in respect of which a service commutation
settlement has been effected, either under section 15 or before that section
came into force, clause (a) of this section shall apply to such watan, unless the
right of alienating the watan without the section of the State Government is
conferred upon the watandars by the terms of such settlement or has been
acquired by them under the said terms.
14. In the instant case nothing is brought to the notice of the Court that,
predecessor or the petitioner was inducted on watan land by watandar with
previous approval of the Collector as lessee. Nothing is brought to the notice
of this Court that there was creation of valid tenancy by way of lease prior to
1st February 1959 with permission of the Collector as required under the
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provisions of Maharashtra Inferior Village Watan Abolition Act, 1958. It is
true that, the petitioner is in continuous possession on the basis of crop
entries however, keeping in view the provisions of Maharashtra Inferior
Village Watans Abolition Act, and Section 5 of the Bombay Hereditary Offices
Act, it will have to be concluded that no evidence was placed on record by the
petitioner showing that the petitioner or predecessor of the petitioner was
inducted on the watan land by watandar with previous approval of the
Collector as lessee and lawful lease was created in favour of the predecessor
of the petitioner.
15. Taking overall view of the matter and keeping in view the aforesaid
provisions, and the fact that no evidence was placed on record by the
petitioner to show that there was creation of valid tenancy by way of lease as
contemplated in the aforesaid Acts, with the prior permission of the Collector
and therefore, findings recorded by the Maharashtra Revenue Tribunal,
Mumbai are in consonance with the material brought on record and also
provisions of aforesaid two Act. The view taken by the Maharashtra Revenue
Tribunal is reasonable and plausible. The Maharashtra Revenue Tribunal,
upon appreciation of material placed on record and in the light of the
provisions of aforesaid two Acts and Section 32G(6) of the Bombay Tenancy &
Agricultural Lands Act, 1948 has rightly concluded that the said provision of
Section 32G(6) is for the benefit of tenancy who was inducted lawfully and
such lease would be surviving on 1st April 1957. In that view of the matter, no
case is made out to cause interference in the impugned judgment and order
passed by the Maharashtra Revenue Tribunal, Mumbai. Hence writ petition
stands rejected.
34) By relying on judgment of this Court in Shobha Ganpat
Bankar, it is contended by the Petitioners that the lease allegedly
created in favour of Ganpat Kathod was not lawful within the meaning
of Section 5 of the Hereditary Offices Act and that therefore provisions
of Section 8 of the Watans Abolition Act would not apply to the present
case. It is contended that therefore the blockage created by Explanation
to Section 88(1) or by Section 88CA would continue to apply to the
present case.
35) On the other hand, it is the contention of Mr. Killedar that
since the name of Ganpat Kathod was entered in the revenue records as
‘protected tenant’, the provisions of Explanation to Section 88(1) or
Section 88CA of the Tenancy Act would have no application to the
present case. Reliance is placed on the judgment of this Court in
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Vasudeo Ramchandra Kale (supra) in which it is held in para-12 as
under :
12. Coming to the second point which has been argued by the learned counsel
for the petitioners, the same deserves to be stated to be rejected for the simple
reason that, it is an admitted position that the predecessor of the respondents
was declared as the protected tenant and mutation entry to that effect also
came to be recorded. It is not in dispute that the said mutation entry was
never challenged by the petitioner’s landlords. In view of the decision of the
Apex Court reported in AIR 1963 SC 354, the respondents were, therefore, not
required to bring on record any further material in support of their claim of
tenancy, but, if the petitioners who were disputing their claim of tenancy,
ought to have produced positive evidence to the contrary. Accordingly, the
contention that for want of evidence it should be held that the respondents
have failed to establish their tenancy in respect of the suit lands, also deserves
to be rejected.
36) By relying on the judgment in Vasudeo Ramchandra Kale,
it is contended by Mr. Killedar that once the name is entered in the
revenue records as ‘protected tenant’, no further material is required for
proving the claim of tenancy and it is for the landlord to produce
positive evidence to the contrary. While deciding the case of Vasudeo
Ramchandra Kale, this Court has relied on the judgment of the Apex
Court in Sakharam @ Bapusaheb Narayan Sanas (supra), in which it is
held that the right of a protected tenant accrued, while the Act of 1939
was in force, no further act on the part of the tenant is necessary. It is
held as under :
The contention is that in order that the defendants-appellants could claim the
status of ‘protected tenants’ as a right accrued under the Act of 1939, they
should have taken certain steps to enforce that right and got the relevant
authorities to pronounce upon those rights, and as no such steps had
admittedly been taken by the appellants, they could not claim that they had a
right accrued to them as claimed. In our opinion, there is no substance in this
contention. The observations, quoted above, made by the Lord Chancellor,
with all respect, are entirely correct, but have been made in the context of the
statute under which the controversy had arisen. In that case, the appellant
had obtained a grant in fee-simple of certain lands under the Crown Lands
Alienation Act, 1861. By virtue of the original grant, he would have been
entitled to claim settlement of additional areas, if he satisfied certain
conditions laid down in the relevant provisions of the statute. The original
settlee had the right to claim the additional settlements, if he so desired, onPAGE No.21 of 38
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lands under the provisions of the Crown Lands Alienation Act, 1861, but the
Crown Lands Act of 1884, repealed the previous Act, subject to a saving
provision to the effect that all rights accrued by virtue of the repealed
enactment shall, subject to any express provisions of the repealing Act in
relation thereto, remain unaffected by such repeal. The appellants contention
that under the saving clause of the repealed enactment he had the right to
make additional conditional purchases and that was a “right accrued” within
the meaning of the saving clause contained in the repealing Act of 1884, was
negatived by the Privy Council. It is, thus, clear that the context in which the
observations relied upon by the respondent, as quoted above, were made is
entirely different from the context of the present controversy. That decision is
only authority for the proposition that ‘the mere right, existing at the date of a
repealing statute, to take advantage of provisions of the statute repealed is not
a “right accrued” within the meaning of the usual saving clause. In that
ruling, Their Lordships of the Privy Council assumed that the contingent
right of the original grantee was a right but it was not a ‘right accrued’ within
the meaning of the repealed statute. It was held not to have accrued because
the option given to the original grantee to make additional purchases had not
been exercised before the repeal. In other words, the right which was sought
to be exercised was not in existence at the date of the repealing Act, which had
restricted those rights. In the instant case, the right of a ‘protected tenant’ had
accrued to the appellants while the Act of 1939 was still in force, without any
act on their part being necessary. That right had been recognised by the
public authorities by making the relevant entries in the Record of Rights, as
aforesaid. On the other hand, as already indicated, Section 3A(1) of the Act of
1939 had given the right to the landlord-respondent to take proceedings to
have the necessary declaration made by the mamlatdar that the tenant had not
acquired the status of a ‘protected tenant’. He did not proceed in that behalf.
Hence, it is clear that so far as the appellants were concerned, their status as
“protected tenants” had been recognised by the public authorities under the
Act of 1939, and they had to do nothing more to bring their case within the
expression ‘right accrued’, in clause (b) of Section 89(2) of the Act of 1948.
37) It would therefore be necessary to consider the effect of
declaration of status of protected tenant under the Act of 1939 vis-à-vis
watan land. If one has a closer look at the provisions of the Act of 1939,
there was a provision similar to Section 88 of the Tenancy Act in the
form of Section 25 under the Act of 1939 which provided thus:
25. Act not to apply to certain lands.
Nothing in this Act shall apply to lands-
(1) held on lease from the Crown or a co-operative society, or
(2) held on lease for the benefit of an industrial or commercial
undertaking.
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apply to the lands held on lease from the Crown. Though the provisions
of the Hereditary Offices Act were already subsisting since 1874, the Act
of 1939 did not exclude watan lands from application of the said Act by
creating a deeming fiction of all watan lands being treated as lands of
the Crown. In short, there was no pari materia provision like that of
Explanation to Section 88(1) or Section 88CA of the Tenancy Act in the
Act of 1939. Thus, during the regime of the Act of 1939, the provisions
of the said Act applied even to watan lands. Therefore a person treated
as ‘protected tenant’ under Sections 3, 3A or 4 of the Act of 1939 did not
attract any disqualification merely because the land held in tenancy by
such person was a watan land.
39) The issue for consideration therefore is, whether a right of
‘protected tenant’ not attracting any disqualification in respect of watan
land under the Act of 1939 would get completely destroyed after
coming into force of the Tenancy Act? To paraphrase, whether a
‘protected tenant’ not attracting any disqualification in respect of watan
land would acquire such disqualification by virtue of provisions of
Section 88(1) and Section 88CA of the Tenancy Act and whether he
needs to depend on the provisions of Section 8 of the Watans Abolition
Act for claiming back his tenancy rights? In the event of it being held
that even a ‘protected tenant’ of watan land must comply with all
conditions of Section 8 of the Watan Abolition Act, whether lease in
favour of such ‘protected tenant’ can be considered as lawful without any
requirement of producing previous sanction of State
Government/Commissioner under Section 5 of the Hereditary Offices
Act?
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enacted for the benefit of a tenant, must be harmoniously construed
with the provisions of the Watans Abolition Act and Hereditary Offices
Act. The issue of harmonious construction of the provisions of the
Tenancy Act with that of Watans Abolition Act attracted attention of the
Apex Court in Sadashiv Dada Patil Versus. Purshottam Onkar Patil
(dead) by Lrs6. The issue before the Apex Court was whether the
Proviso to Section 8 of the Maharashtra Revenue Patels (Abolition of
Office) Act, 1962 (Patels Abolition of Office Act) destroyed the right of
purchase of tenanted land under Section 32 of the Tenancy Act. Section
8 of the Patels Abolition of Office Act contains following Proviso:
“Provided that, for the purposes of application of the provisions of the
relevant tenancy law in regard to the compulsory purchase of land by a
tenant, the lease shall be deemed to have commenced from the date of the
regrant of the land under Section 5 or 6 or 9, as the case may be.
Explanation.–For the purposes of this section, the expression ‘land’ shall have
the same meaning as is assigned to it in the relevant tenancy law.”
41) Thus, under Proviso to Section 8 of the Patels Abolition of
Office Act, the lease in favour of tenant is deemed to have commenced
from the date of re-grant of the land for the purpose of application of
provisions of Tenancy Act. It was therefore sought to be contended that
since the re-grant was made after the Tiller’s day of 1 April 1957, the
lease commenced from that date and therefore the tenant was not
entitled to purchase the land as on the Tiller’s Day under Section 32 of
the Tenancy Act. The Apex Court however negatived the contention and
held that provisions of both the Acts are required to be construed
harmoniously keeping in view the purport and object of the Acts. The
Apex Court held that Section 32 confers an absolute right on the tenant.
It held that the tenant had vested right to purchase the land on
1 April 1957 and Proviso to Section 8 of the Patels Abolition of Office
6 (2006) 11 SCC 161
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Act could not be read to mean that such vested rights would get
divested. The Apex Court held in paras-19 to 24 and 26 as under :
19. Section 8 of the 1962 Act, as noticed hereinbefore, provides that the rights
and liabilities of the holder of such land and his tenant or tenants shall,
subject to the provisions of the said part, be governed by the provisions of
that law. The proviso appended thereto whereupon reliance has been placed
by Mr Dube reads as under:
“Provided that, for the purposes of application of the provisions of
the relevant tenancy law in regard to the compulsory purchase of land
by a tenant, the lease shall be deemed to have commenced from the
date of the regrant of the land under Section 5 or 6 or 9, as the case
may be.
Explanation.–For the purposes of this section, the expression
‘land’ shall have the same meaning as is assigned to it in the relevant
tenancy law.”
20. The provisions of both the Acts are required to be construed
harmoniously. They have to be construed keeping in view the purport and
object, they seek to achieve.
21. Section 32 of the Act confers an absolute right to the tenant.
22. As in 1957 the right of the respondent to purchase the land became a
vested right, the proviso appended to Section 8 of the 1962 Act could not be
read to mean that such right stood divested. The proviso appended to Section
8 refers to the application of the provisions of the relevant tenancy laws as the
same does not abrogate a vested right. The proviso, it is well known, has a
limited role to play. It may create an exception. It ordinarily does not create a
right or takes away a vested or accrued right. The proviso to Section 8 of the
1962 Act, in our considered opinion, does not take away a vested right
conferred under the Tenancy Act.
23. By construing both the Acts harmoniously, the High Court, in our opinion,
did not make a new law. It merely interpreted the same in the light of the
object of the Act. The proviso appended to Section 8 of the 1962 Act merely
postponed the operation of the statute. Fixation of price of the land in
question subject to exercise of option by the tenant was to that extent
beneficial to the landlord; but the same would not mean that legal fiction
created under Section 32 of the Tenancy Act would stand effaced.
24. We have noticed hereinbefore that 31-3-1957 was the cut-off date. A
statutory right was conferred upon the tenant. The said right was created to
fulfil the object that the tiller should become the owner; but thereby the
landlord was not to be deprived of the price of the land. Section 32-O of the
Tenancy Act would not be attracted, only because the proviso appended to
Section 8 of the 1962 Act provides for a new date. For the said purpose, it was
not necessary to make any amendment in the Tenancy Act in view of the fact
that the relevant provisions of the Tenancy Act were made part of the 1962
Act. It is not a case where the Tenancy Act was required to be made
applicable with retrospective effect, as the proviso appended to Section 8 of
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the 1962 Act was to be read in the light of Section 32-G and Section 32-O of
the Tenancy Act. The proviso appended to Section 8 of the 1962 Act has a
limited role to play.
26. The proviso to Section 8 of the 1962 Act, therefore, should be interpreted
accordingly. It did not create any right in favour of the landlord nor did it take
away the right of the tenant. It would not be correct to contend that only
because Section 31 of the Tenancy Act gives an option to the landlord to
terminate the tenancy and take the possession of the land, Section 32-O
thereof had been given a retrospective effect. The legal fiction created under
Section 32 of the Tenancy Act cannot be given a limited meaning. A legal
fiction, as is well known, must be given its full effect.
42) Following the law enunciated by the Apex Court in
Sadashiv Dada Patil (supra) that the provisions of the Tenancy Act and
Watans Abolition Act need to be construed harmoniously, in my view, it
would be too treacherous to expect a tenant to prove securing of prior
permission of State Government/Commissioner at the time of creation
of lease within the meaning of Section 5 of the Hereditary Offices Act
for the purpose of application of provisions of Section 8 of the Watans
Abolition Act. As held by the Apex Court in Sadashiv Dada Patil, the
right of a tenant to purchase the land under Section 32 of the Tenancy
Act is an absolute right. The same cannot be diluted by interpreting the
provisions of Section 8 of the Watans Abolition Act in such a manner
that tenancy of a protected tenant has become unlawful on account of
his inability to prove prior sanction of the State Government/
Commissioner under Section 5 of the Hereditary Offices Act. In my
view therefore harmonious construction of provisions of all the three
enactments will have to necessarily mean that a person, who is a
protected tenant under the Act of 1939, and who is recognised as a
tenant under the Tenancy Act, holds lawful lease of watan land within
the meaning of Section 8 of the Watans Abolition Act.
43) The judgment of the Apex Court in Sadashiv Dada Patil
has been followed in recent decision of Apex Court in
Baban Balaji More (supra) which is relied by MRT while passing its
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order. In Baban Balaji More, the issue again involved harmonious
interpretation of provisions of Hereditary Offices Act, Tenancy Act and
Patels Abolition of Office Act. In case before the Apex Court, the
predecessor of the Appellant held Patel Watan prior to August 1898.
Section 5 of the Hereditary Offices Act prohibited creation of a lease for
a period beyond the natural life of the watandar. The Respondent was
cultivating the watan properties as tenant since 1955-56. Appellants filed
proceedings under Section 5 of the Hereditary Offices Act for recovery
of possession of the land in cultivation of the tenant after the death of
the original watandar. The application was allowed directing the tenant
to handover possession of the watan land to the legal heirs of watandar.
While the order was challenged in Appeal, possession of the watan land
was handed over to the legal heirs of watandar on 22 April 1962 on
account of non-grant of stay in pursuance of order passed on
18 April 1961 by the Assistant Collector. After recovery of possession on
22 April 1962, the Patels Abolition of Office Act came into effect from
1 January 1963 under which all Patel Watans stood abolished. The
provisions of Patels Abolition of Office Act are almost similar to the
provisions of the Watans Abolition Act, wherein a provision is made for
re-grant of the watan land to the watandar. In the light of this factual
position, the question before the Apex Court was whether the right of
the tenant to purchase the land under Section 32 of the Tenancy Act got
affected on account of recovery of possession of the tenanted land on
27 March 1962 before coming into force of the provisions of the Patels
Abolition of Office Act. The Apex Court discussed the provisions of
Section 88 of the Tenancy Act, particularly the Explanation to sub-
section (1) thereof, as well as provisions of Section 88CA of the Tenancy
Act. The Apex Court held that all watan lands were not to be treated as
Government lands. The Apex Court held that the limited exemption
from certain provisions of the Tenancy Act afforded under Explanation
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to Sections 88(1) and 88CA thereof continued until Patels Abolition of
Office Act came into force on 1 January 1963. The Apex Court thereafter
discussed the provisions of Section 8 of Patels Abolition of Office Act
and held that Patel Watan land which was lawfully leased and lease
which was subsisting as on 1 January 1963 stood covered by the
Tenancy Act in its entirety and tenant of such watan land was entitled to
all the benefits including right to purchase such land. The Apex Court
thereafter took into consideration the ratio of the judgment in
Sadashiv Dada Patil and various judgments of this Court and rejected
the contention of the Appellants that there was no lease subsisting as on
1 January 1963 on account of recovery of possession of watan land on
22 April 1962 in pursuance of order dated 18 April 1961. The Apex
Court held that order dated 18 April 1961 was under challenge and
mere delivery of possession of watan land could not be construed as
absence of subsisting lease as on 1 January 1963. The Apex Court
further held that it was otherwise not lawful for the watandar to take
recovery of possession of the watan land because of the provisions of the
Tenancy Act which were very much applicable to watan land. The Apex
Court held that the tenancy was lawfully subsisting as on 1 April 1957
and the tenant was entitled to exercise statutory right of purchase under
Section 32 of the Tenancy Act. The Apex Court held in paras-25 to 28
and 35 to 38 as under :
25. A conjoint reading of the above provisions indicates that all Watan lands
were not to be treated as Government lands. The ‘Explanation’ to Section 88
clarified the position with regard to Watan lands, other than those covered by
Section 23 of the 1874 Act, as it manifests that only Watan land assigned as
remuneration to an officiator performing service under Section 23 of the 1874
Act etc. shall be deemed to be land belonging to the Government. Thus,
only Watan lands covered by Section 23 of the 1874 Act were to be treated as
Government lands as per Section 88(1)(a). This is further clarified by Section
88CA inserted in the year 1958, which stated that Sections 32 to 32-R, 33-A,
33-B and 33-C would not apply to land held as Inam or Watan for service
useful to the Government, excepting land assigned as remuneration under
Section 23 of the 1874 Act etc. It is, therefore, clear that only Watan lands
assigned as remuneration for service under Section 23 of the 1874 Act were toPAGE No.28 of 38
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the Tenancy Act. Admittedly, Balaji Chimnaji More was not an ‘officiator’
covered by Section 23 of the 1874 Act. This is also demonstrated by the fact
that his legal heirs paid only six times the assessment for regrant of
the Watan lands under Section 5 of the Abolition Act and not twelve times, as
would be applicable to an officiator. Ergo, the subject Watan lands were not
covered by Section 88(1)(a) of the Tenancy Act and could not be treated as
Government lands.
26. By virtue of the ‘Explanation’ to Section 88(1)(a) of the Tenancy Act, all
other Watan lands, including the subject Watan lands, were covered by all the
provisions of the Tenancy Act. However, Section 88CA thereof, introduced in
the statute book in July, 1958, granted such Watan lands exemption from
Sections 32 to 32-R, 33-A, 33-B and 33-C. Therefore, Sections 29 and 31 of the
Tenancy Act were very much applicable to such Watan lands all through.
Section 29, titled ‘Procedure of taking possession’, states to the effect that no
landlord shall obtain possession of any land or dwelling house held by a
tenant except under an order of the Mamlatdar and for obtaining such an
order, he should make an application in the prescribed form within the
prescribed time. Section 31 is titled ‘Landlord’s right to terminate tenancy for
personal cultivation and non-agricultural purpose’ and provided the mode
and method in which a landlord could terminate the tenancy of any land,
except a permanent tenancy. Thereunder, the landlord had to file an
application for possession before the Mamlatdar before Tillers’ Day. This being
the position, the heirs of the original Watandar could not have aspired to
secure possession without reference to this procedure.
27. The limited exemption from certain provisions of the Tenancy Act,
afforded by Section 88CA thereof, continued until the Abolition Act came into
force on 01.01.1963. Thereafter, as the very institution of Patel Watan stood
abolished, the limited exemption extended to such Watan lands under Section
88CA of the Tenancy Act also ceased. This is made clear by Section 8 of the
Abolition Act, which reads as under:
‘8. Application of existing tenancy law-if any watan land has been
lawfully leased and such lease is subsisting on the appointed day, the
provisions of the relevant tenancy law shall apply to the said lease,
and the rights and liabilities of the holder of such land and his tenant
or tenants shall, subject to the provisions of this Part, be governed by
the provisions of that law:
Provided that, for the purposes of application of the provisions of
the relevant tenancy law in regard to the compulsory purchase of land
by a tenant, the lease shall be deemed to have commenced from the
date of the regrant of the land under section 5 or 6 or 9, as the case
may be.
Explanation-For the purposes of this section, the expression
“land” shall have the same meaning as is assigned to it in the relevant
tenancy law.’
28. Therefore, after the advent of the Abolition Act, Patel Watan land which
was lawfully leased, and the lease of which was subsisting as on 01.01.1963,
stood covered by the Tenancy Act in its entirety and the tenant of
such Watan land was entitled to all the benefits under the provisions thereof,
including the right to purchase such land. The proviso to Section 8 indicates
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that, for the purpose of fixing the purchase price under the provisions of the
Tenancy Act so as to enable the purchase of such land by the tenant, the lease
shall be deemed to have commenced from the date of regrant of the land
under Sections 5, 6 or 9, as the case may be.
35. We find ourselves in respectful and complete agreement with the views
expressed by the Bombay High Court in the above decisions. In the case on
hand, it is the contention of the appellants that there was no lease subsisting
as on 01.01.1963, owing to the order dated 18.04.1961 passed upon the
application made by the legal heirs under Section 5 of the 1874 Act after the
death of the original Watandar. They would further contend that as the
possession of the Watan lands was actually restored to the legal heirs on
22.04.1962, the tenants were not even in possession on the appointed
date, viz., 01.01.1963. In effect, their argument is that neither a lawful lease
was in existence nor were the tenants in physical possession on the said date.
However, this argument loses sight of the fact that the order dated 18.04.1961
had not attained finality inasmuch as the tenants subjected it to challenge
before the higher authorities and their challenge was still pending. No doubt,
the High Court erroneously referred to the ‘misconceived appeal’ filed by
them as ‘revisional proceedings’ but notwithstanding the nomenclature, the
inescapable fact remains that the challenge to the initial order dated
18.04.1961 was subsisting as on 22.04.1962, the date of delivery of possession,
and such proceedings of challenge concluded in favour of the tenants when
their revision was allowed, vide the order dated 03.05.1982. Merely because no
stay was granted in such proceedings and, in consequence, the tenants stood
divested of actual physical possession, it did not lend any finality to the order
impugned in those proceedings and, therefore, the purported termination of
the lease still hung in balance.
36. Further, in the light of the aforestated discussion, the argument of the
appellants that the tenants ought to have challenged the regrant order dated
27.11.1964 is without merit. In fact, the tenants were benefited by the said
regrant order as the exercise of their right to purchase the land hinged upon
the passing of that regrant order, in terms of the proviso to Section 8 of the
Abolition Act. The argument to the contrary is, therefore, rejected.
37. It appears that during the pendency of this litigation, the subject
agricultural Watan lands became part of the extended city limits of Pimpari
Chinchwad Municipal Corporation and are presently reserved for Defence
purposes (Red Zone) in the development plans sanctioned by the
Government of Maharashtra. In consequence, these lands cannot be alienated
without the prior approval of the Government of India and the Government
of Maharashtra. While so, we find that both sides have been merrily entering
into transactions with third parties to alienate/transfer the subject lands.
However, our decision in this case relates back to a time when the subject
lands were still agricultural in nature and use and it would have no impact on
the present position and the consequences flowing therefrom. Further, inter
se disputes, be it betwixt the appellants or betwixt the tenants, are not the
subject matter of this appeal and have not been dealt with. All such disputes
would have to be addressed independently before the appropriate forum in
accordance with law, if still permissible.
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38. On the above analysis, we hold that it was not open to the appellants to
proceed against the tenants under the provisions of Sections 5, 11 and 11A of
the 1874 Act after the death of Balaji Chimnaji More, the original Watandar, in
February/March, 1958. This is because the provisions of the Tenancy Act
were very much applicable to the subject lands by then and more so, Sections
29 and 31 thereof. Therefore, the legal heirs of the original Watandar could not
have taken lawful possession of these lands from the tenants pursuant to the
order dated 18.04.1961 passed under Sections 5, 11 and 11A of the 1874 Act.
The same was rightly held to be invalid in the revisionary order dated
03.05.1982 and that finding was correctly held to be justified by the Bombay
High Court. We also hold that the tenancy was lawfully subsisting on
01.04.1957, i.e., Tillers’ Day, and the tenants were entitled to exercise their
right of statutory purchase of these tenanted agricultural Watan lands under
Section 32 of the Tenancy Act in terms of Section 8 of the Abolition Act, after
the exemption afforded by Section 88CA ceased to exist. That right became
operational on 27.11.1964, when these Watan lands were regranted to the heirs
of the original Watandar.
44) Though the issue before the Apex Court in
Baban Balaji More was not exactly identical to the one involved in the
present case, the Apex Court followed the principle of harmonious
construction of the three enactments of Hereditary Offices Act, Tenancy
Act and Patels Abolition of Office Act for the purpose of upholding the
statutory right of a tenant to purchase a watan land under Section 32 of
the Tenancy Act. In my view, similar approach needs to be adopted in
the present case as well by harmoniously constructing the provisions of
the three enactments for upholding tenant’s statutory right of purchase
of the land under Section 32 of the Tenancy Act.
45) In the present case, personal cultivation of the watan land
by a tenant is clearly proved. Mutation Entry No.1590 records that the
tenant was personally cultivating the land from 1946-47 to 1955-56. The
said finding is recorded in Mutation Entry No.1590 dated 4 January
1957 after perusal of the entries in Village Specimen No.7A. This is the
reason why name of Shri. Ganpat Kathod was entered as a ‘protected
tenant’ by Mutation Entry No. 1590, which entry remained
unchallenged. As observed above, a protected tenant under the Act of
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1939 did not attract any disqualification in respect of watan land. The
Act of 1939 did not intend to treat watan land as Government Land for
excluding tenant’s rights in respect thereof as is done subsequently by
Sections 88(1) and 88CA of the Tenancy Act. Therefore, in my view,
protected tenant under the Act of 1939 would stand on a better footing
than an ordinary tenant under the Tenancy Act when it comes to
tenancy in respect of Watan land.
46) The ALT had grossly erred in holding that tenancy rights
cannot be recognised in respect of watan land under Section 88 of the
Tenancy Act. The ALT failed to appreciate the provisions of Section 8 of
the Watans Abolition Act. His orders dated 10 December 2018 do not
even refer to the provisions of Section 8 of the Watans Abolition Act.
47) The SDO rightly appreciated the position that name of
Shri. Ganpat Kathod was entered as protected tenant in the revenue
records on the basis of entries of personal cultivation by him from
1946-47 to 1955-56. The SDO also independently considered crop entries
for the years 1952-53 to 1975-76 in which again name of Shri. Ganpat
Kathod is reflected as a cultivator. The SDO rightly held that
Shri. Ganpat Kathod was cultivating the land as a ‘protected tenant’ as on
1 April 1957. After his death, names of his legal heirs were mutated to
the revenue records vide Mutation Entry No. 3629 dated 8 October 1977.
48) In my view, once it got conclusively established that the
tenant-Shri. Ganpat Kathod was personally cultivating the land as a
protected tenant from 1946-47 till filing of cross proceedings by the
parties, it would be too iniquitous to expect the protected tenant to
prove that the tenancy created in his favour was with the previous
sanction of the State Government/Commissioner under Section 5 of the
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Hereditary Offices Act. The judgment of Coordinate Bench of this Court
in Shobha Daulatrao Bankar is delivered in the unique facts of that
case. The case before this Court did not involve the status as ‘protected
tenant’ under the Act of 1939. The tenancy was apparently created in the
year 1953-54 and in the light of this position, this Court held that there
was no creation of valid tenancy by way of lease as contemplated under
Section 8 of the Watans Abolition Act. This Court held that the view
taken by MRT was reasonable and plausible and refused to interfere in
the order of the Tribunal considering the facts and circumstances of the
present case. Therefore the judgment in Shobha Daulatrao Bankar,
rendered in the facts of that case, cannot be read in support of an
absolute proposition of law that in every case inability of tenant
(particularly protected tenant) to prove lawful lease would deny him
protection under Section 8 of the Watans Abolition Act. In the present
case, when Shri. Ganpat Kathod has been recognised as ‘protected tenant’
under the Act of 1939. As observed above, there were no pari materia
provisions under the Act of 1939 for exclusion of provisions of that Act
in respect of any watan land. The provisions of Section 88, particularly
Explanation to sub-section (1) thereof and of Section 88CA which seek
to exclude certain provisions of Tenancy Act to watan land, cannot apply
in respect of tenancy created prior to the coming into effect of the
Tenancy Act. It is in the light of these peculiar circumstances that I am
inclined to hold that tenancy of a protected tenant under the Act of 1939
cannot be construed as unlawful tenancy within the meaning of Section
8 of the Watans Abolition Act. As observed above, this Court has held in
Vasudeo Ramchandra Kale by relying on judgment of the Apex Court
in Sakharam @ Bapusaheb Narayan Sanas that once a person is
declared as a ‘protected tenant’ by certification of mutation entry to that
effect, nothing further is required to be proved and it for the person
disputing the claim of tenancy to produce negative to the contrary. In
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that view of the matter, the tenant cannot be made to prove valid
creation of tenancy under Section 5 of the Hereditary Offices Act.
49) The landlords have failed to aver or prove that the tenancy
created in favour of the tenant was in contravention of the provisions of
Section 5 of the Hereditary Offices Act. In fact, perusal of the pleadings
in Tenancy Case filed by the Petitioners seeking negative declaration
under Section 70(b) of the Tenancy Act would indicate that the
Petitioners never pleaded that creation of tenancy in favour of the
tenant was in contravention of provisions of Section 5 of the Hereditary
Offices Act. Their application was premised on pleadings that
Shri. Ganpat Kathod or his heirs never cultivated the land and that the
land was always cultivated only by the landlords. It would be relevant
to reproduce the pleadings of the Petitioners in Tenancy Case
No.5/2017 filed under the provisions of Section 70(b) of the Tenancy
Act as under :
३) वर उल्लेख केले ली मि ळकत हे अर्जदार यांची वडि लोपार्जिर्जत ालकीची व कब्र्जे वमिहवाटीची
मि ळकत आहे. पूव% सदर मि ळकत काचऱ्या काळया गायकवा यांचे नावे होती. कचऱ्या काळया
गायकवा यत झाल्यानंतर त्यांच्या वारसांची नावे फेरफार नं.४४९६ नुसार सदर मि ळकतीच्या
७/१२ सदरी लागले ली आहेत. त्यापैकी वा न काळया गायकवा हे यत झाले ले असून त्यांचे
वारस फेरफार नं. ४५११ नुसार लागले ले आहेत. अर्जदार हे वा न काळया गायकवा यांचे वारस
आहेत. अशाप्रकारे सदर मि ळकत ही वडि लोपार्जिर्जत मि ळकत आहे. सदर मि ळकत वाढ
वडि लांपासुन अर्जदार व इतर सह ालक यांचे ताब्यात व वमिहवाटीत आहे. अर्जदार यांचे कुटू ंमि:य
सदर मि ळकतीचा स्वतः उपभोग घेत आहेत. सदर मि ळकतीवर अर्जदारांचा त्यांच्या
वा वडि लांपासुन कब्र्जा आहे. पूव% अर्जदारांचे वा वडि ल सदर मि ळकतीतून भातशेती आणि@
नाच@ी, वरी याचे उत्पन्न घेत होते. त्यानंतर पुढील मिपढीने भातशेतीच्या उत्पन्ना :रो:रच भार्जीपाला
देखील लावून उत्पन्न घेतले ले आहे. अर्जदार हे गेल्या काही वर्षाापासुन व सध्या देखील सदर
मि ळकतीतून भार्जीपाले चे उत्पन्न का तात व काही भागात भातशेतीचे उत्पन्न घेतात तसेच काही
भागात म्ह@र्जेच स.नं.३० र्जुना नवीन स.नं.४८, मिह.नं.१ ध्ये फक्त गवताचे उत्पन्न अर्जदार घेतात.
पूव% अर्जदारांचे वा वडि ल व त्यानंतर पुढील मिपढी व सध्या अर्जदार हे सदर मि ळकतीत त्यांची
:ैल, गाय, म्हशी असे गुरे चरमिवत होते. गेल्या २ ते ३ वर्षाापासुन गुरे चरमिव@े :ंद केले आहे. पंरतु
गवत उगवून उत्पन्न घेत आहेत. तसेच दस ु ऱ्या मि ळकतीत भार्जी पाल्याचे उत्पन्न घेत आहेत.
स.नं.४८. मिह.नं.१ ही वरकस र्ज ीन आहे. वरकस र्ज ीनी ध्ये को@तेही भातशेतीचे मिपक येत नाही.
त्या ुळे अशा र्जमि नीला कुळाची नोंद हो@े पू@प@े चूकीचे आहे. अर्जदार वर उल्लेख केले ली
स.नं.४८, मिह.नं.१८ ही मि ळकत वा वडि लांपासुन स्वतः कसत आहेत व उपभोग घेत आहेत. सदर
मि ळकतीत सा नेवाले व त्यांचे वा वडि ल कधीही कुळ नव्हते व त्यांनी कधीही सदरची र्जमि न
कसले ली नाही. सा नेवालें नी अथवा त्यांचे वा वडि लांनी कधीही र्जमि नीचा खं अर्जदारांना व
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त्यांचे वा वडि लांना मिदले ला नव्हता व नाही. सदर मि ळकतीत म्ह@र्जेच स.नं.४८, मिह.नं.१८ ध्ये
अर्जदारांच्या वा वडि लांनी त्यावेळी मिवहीर पा ले ली होती. सदरची मिवहीर आर्जूनही अस्तिस्तत्वात
असुन अर्जदारांनी डितचे र्जतन केले ले आहे व सदर मिवहीरीचे पा@ी पूव% मिपण्यासाठी, आं घोळीसाठी
इतर का ांसाठी वापरत असत. सध्या सदर मिवहीरीचे पा@ी अर्जदार भार्जी पाल्यासाठी व शेतीसाठी
वापरतात. अर्जदारांनी मिवहीरीवर पा@ी खेचण्यासाठी मिवद्युत पंप लावले ला आहे.
४) सा नेवाले यांचा को@ताही सं:ध ं कब्र्जा, वमिहवाट सदर मि ळकतीवर कधीही नव्हता. सदर र्ज ीन
सा नेवालें नी अथवा त्यांचे वाढ वडि लांनी कधीही कसले ली नव्हती व नाही. सदर मि ळकती ध्ये
पूव% कधीही को@ीही कुळ म्ह@ून सदर मि ळकत कसत नव्हते. कै. द्रौपदी:ाई ढु ंदा र्जाधव ही ग@पत
काथो हार (गायकवा ) यांची ुलगी नव्हती. तरी देखील मि ळकतीच्या हव्यासापोटी सो नेवाले
नं. १ व २ यांनी सं:डिं धत ं ळ अडिधकारी व तलाठी यांना हाताशी धरून द्रौपदी:ाई दद ं ु ा र्जाधव ही
ग@पत काथो याची ुलगी होती व डितचे नाव सदर मि ळकतीला लावण्याचे राहून गेले होते असे
भासवून डितघे पश्चात डितघे वारस म्ह@ून सा नेवाला नं. १ व २ यांची नावे नोंदमिवण्या:ा:त फेरफार
नं ४७६२ ंर्जूर करून घेतले ला आहे व ते सदर मि ळकतीत कुळ आहे असे भासमिवले ले आहे सदर
मि ळकतीत ुळातच को@ी कुळ नव्हते ग@पत काथो याचे कुळ म्ह@ून लागले ले नाव चुकीचे होते.
ग@पत काथो हे सदर मि ळकतीत कधीही कुळ नव्हते. ग@पत काथोल यत झाल्यानंतर पुढे
वारसा गणि@क सा नेवाले यांची नावे वारसाने वेग वेगळ्या फेरफारने सदर मि ळकतीला लागले ली
आहेत. ुळांतच ग@पत काथो हे कुळ नसल्याने सा नेवालें ची वारसाने लावले ली नावे देखील
चूकीची आहेत व :ेकायदेशीर आहेत. सा नेवाले व त्यांचे वाढवडि ल हे कधीही कुळ नव्हते.
कार@ासाठी र्जरी असे गृमिहत धरले की, ग@पत काथो हार (गायकवा ) हे सदर मि ळकतीत कुळ
होते. तरी देखील कल्या@ हानगरपालिलका अस्तिस्तत्वात येईपयYत ग@पत काथो अथवा त्यांच्या
वारसांनी सदर मि ळकत त्यांचे नावे होण्या:ा:त को@तीही कायवाही केले ली नाही. सन १९८२-८३
साली कल्या@ हानगरपालिलका अस्तिस्तत्वात आली व सदर मि ळकत ही हानगरपालिलकेच्या
अत्यारी खाली आली. त्या ुळे सदर मि ळकतीला कायद्यातील तरतूदीनुसार कुळ कायद्याच्या
तरतूदी, कुळांचा हक्क लागत नाही. तसेच कुळ कायद्या खाली कुळ म्ह@ून हानगरपालिलकेच्या हद्दी
मि ळकत मिवक्री करता येत नाही. सदरची मि ळकत ही हानगरपालिलकेच्या हद्दीत असल्याने कुळ
कायद्यातील कुळाच्या तरतूदी सदर मि ळकतीला लागू होत नाही. त्या ुळे सा नेवालें ना कुळ म्ह@ून
सदर मि ळकतीत को@ताही हक्क प्रस्थामिपत झाले ला नाही किंकवा करता येत नाही. तसेच कुळ म्ह@ून
सदर मि ळकत मिवक्री करुन ागण्याचा हक्क देखील सा नेवालें ना प्राप्त होत नाही.
५) अर्जदारांचे असे म्ह@@े आहे की, सा नेवाले हे सदर मि ळकतीत कुळ असल्या:ा:तचे सांगुन
गैरफायदा घेण्याचा प्रयत्न करीत आहेत. सा नेवाल्यांना सदर मि ळकतीत कुळ म्ह@ून हक्क सांगता
येत नाही. त्या ुळे सदर मि ळकत हानगरपालिलकेच्या क्षेत्रात येत असल्याने सा नेवाले हे सदर
मि ळकतीत कुळ नाहीत. असे र्जामिहर करून मि ळण्यासाठी सदरचा अर्ज अर्जदारांना दाखल कर@े
भाग प ले ले आहे. त्याचप्र ा@े सा नेवाले व त्यांचे वाढ वडि ल यांनी कधीही सदर मि ळकत स्वतः
कसले ली नाही व त्यातून उत्पन्न घेतले ले नाही. सदर मि ळकत कुठे आहे हे देखील सा नेवालें ना
ामिहती नाही. सदर मि ळकतीचा धारा अर्जदार हेच दरवर्षा% भरतात. सा नेवालें ने कधीही खं
वस्तूच्या स्वरुपात / धान्याच्या स्वरूपात अथवा रोख रक्क ेत अर्जदारांना अथवा त्यांचे वाढ
वडि लांना कधीही मिदले ला नव्हता व नाही.
६) सदर मि ळकत ही शहरी भागात असल्याने गेल्या अनेक वर्षाापासून तेथे को@तेही मिपक मिनघत
नाही. तसेच गवत ही उगवत नाही. त्या ुळे सदर मि ळकती ध्ये सा नेवाले यांनी कसण्याचा प्रश्नच
मिन ा@ होत नाही. सदर मि ळकतीच्या काही भागात अर्जदार हे भार्जीपाला लावून उत्पन्न घेतात. पूव%
त्यांचे वाढ वडि ल शेती करून उत्पन्न घेत होते. सा नेवाले यांच्याक े नांगरकीसाठी गुर,े :ैल
काहीही नाही. त्या ुळे सा नेवालें नी र्ज ीन कसण्याचा प्रश्नच मिन ा@ होत नाही.
७) अर्जदारांचे असे म्ह@@े आहे की, सा नेवाले सदर मि ळकती ध्ये कुळ नाहीत असे ठरवून
मि ळण्यासाठी अर्जदारांना सदरचा अर्ज दाखल कर@े भाग प त आहे. सदरची मि ळकत ही अर्जदार
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यांचे ालकीची असून ती त्यांचे कब्र्जे, वमिहवाटीत आहे. अर्जदार हे स्वतः ागास वगातले म्ह@र्जेच
दलिलत स ार्जाचे आहेत. त्या ुळे सदर मि ळकतीला कुळ लागु शकत नाही. फेरफार क्र.१५९० ध्ये
नावात खा खो केले ली मिदसत असून :ेकायदेशीररिरत्या ंर्जूर केले ला मिदसत आहे. तसेच फेरफार
क्र.४४९६ हा ुळ फेरफार क्र.१५९० शी मिवसंगत मिदसत आहे. यावरुनच सा नेवाले यांनी
ल:ा ीने ते सदर मि ळकतीत कुळ आहेत असे भासमिवले ले आहे. प्रत्यक्षात सा नेवाले हे सदर
मि ळकतीत कुळ नाही. त्या ुळे सा नेवाले हे कुळ नसल्या:ा:त र्जामिहर करुन मि ळ@े आवश्यक
आहे म्ह@ून अर्जदारांनी सदरचा अर्ज दाखल केले ला आहे.
50) Thus, there is no assertion by Petitioners before the ALT
that creation of tenancy in favour of Shri. Ganpat Kathod was in
contravention of the provisions of Section 5 of the Hereditary Offices
Act. Therefore there was no lis between the parties about the lawful
nature of creation of tenancy. The only factual dispute which existed
before the ALT was about personal cultivation of the land by a tenant as
on the Tiller’s Day of 1 April 1957. On account of non-raising of any
contention regarding unlawful creation of tenancy, the ALT was not
even required to take into consideration the provisions of Section 8 of
the Watans Abolition Act. The ALT accordingly did not even refer to the
provisions of Section 8 of the Watans Abolition Act.
51) The importance of pleadings filed in tenancy case cannot be
ignored altogether, especially when it comes to pleadings in application
filed by a landlord seeking negative declaration of non-existence of
tenancy. Section 71 of the Tenancy Act provides thus :
71. Commencement of proceedings.
Save as expressly provided by or under this Act, all inquiries and other
proceedings before the Mamlatdar or Tribunal shall be commenced by an
application which shall contain the following particulars :–
(a) the name, age, profession and place of residence of the applicant
and the opponent;
(b) a short description and situation of the property of which
possession is sought, or the amount of the claim, as the case may be;
(c) the circumstances out of which the cause of action arose;
(d) a list of the applicant’s documents, if any, and of his witnesses, and
whether such witnesses are to be summoned to attend or whether the
applicant will produce them on the day of the hearing;
(e) such other particulars as may be prescribed.
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52) Section 72 deals with procedure for making enquiries and
deciding the proceedings. Section 72 of the Tenancy Act provides thus :
72. Procedure.
In all inquires and proceedings commenced on the presentation of
applications under section 71 the Mamlatdar or the Tribunal shall exercise the
same powers as the Mamlatdar’s court under the Mamlatdars’ Court’s Act,
1906, and shall [save as provided in section 29] follow the provisions of the
said Act, as if the Mamlatdar or the Tribunal were a Mamlatdar’s Court under
the said Act and the application presented was a plaint presented under
section 7 of the said Act. In regard to matters which are not provided for in
the said Act, the Mamlatdar or the Tribunal shall follow the procedure as may
be prescribed by the [State] Government. Every decision of the Mamlatdar or
the Tribunal shall be recorded in the form of an order which shall state
reasons for such decision.
53) Thus, under the provisions of Section 72 of the Tenancy
Act, the application presented before the ALT needs to be in the form of
plaint presented under Section 7 of the Mamlatdars’ Court’s Act, 1906. It
was therefore incumbent for the Petitioners to specifically plead in their
application that creation of tenancy in favour of Shri. Ganpat Kathod
was unlawful for want of valid sanction from the State
Government/Commissioner under Section 5 of the Hereditary Offices
Act. In absence of a pleading to that effect, there was no necessity of
framing any issue relating to unlawful creation of tenancy within the
meaning of Section 8 of the Watans Abolition Act. The SDO was
required to refer to the provisions of Section 8 of the Watans Abolition
Act only for the purpose of dealing with erroneous finding of ALT that
provisions of the Tenancy Act can never apply to a watan land.
Petitioners cannot be permitted to take benefit of reference made by
SDO to provisions of Section 8 of the Watans Abolition Act for the
purpose of setting up a new (unpleaded) case before the MRT that
tenancy in favour of Shri. Ganpat Kathod was not lawfully created
within the meaning of Section 8. Infact, perusal of the Revision Memo
filed before the MRT would indicate that no specific averment was
made in the said Memo that prior permission of the State
Government/Commissioner under Section 5 of the Hereditary Offices
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Act was not obtained before creation of tenancy in his favour. The said
contention was apparently raised directly in the written note of
arguments. Thus, throughout the pleadings filed before the ALT, SDO
and MRT, no averment was ever ever made by the Petitioners about the
tenancy created in favour of Shri. Ganpat Kathod being unlawful. In my
view, therefore it would not be appropriate to raise a presumption of
unlawful tenancy against the tenant in absence of a pleading or proof to
that effect. It is also inappropriate to expect the tenant to prove lawful
creation of tenancy both on account of absence of any assertion to that
effect by the landlords as well as on account of harmonious construction
of the three enactments as done above.
54) I therefore do not find any valid reason to interfere in the
concurrent findings recorded by the SDO and MRT against the
Petitioners. The petitions are devoid of merits and deserve to be
dismissed.
55) Both the petitions are accordingly dismissed. There shall
be no order as to costs.
[SANDEEP V. MARNE, J.]
56) After the judgment is pronounced, Mr. Karandikar would
pray for stay of operation of the judgment for a period of four weeks.
Mr. Killedar, the learned counsel appearing for the contesting
Respondents would oppose the request. Operation of the judgment
shall remained stayed for a period of four weeks.
Digitally
signed by
[SANDEEP V. MARNE, .]
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.04.23
18:32:31
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