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1998 Supreme(SC) 1090
1998(8) Supreme 200
Supreme Court of India
(From Bombay High Court)
S.P. Kurdukar & M. Jagannadha Rao, JJ.
Secretary, Devasthan Management Committee, Western Maharashtra, Kolhapur -Appellant
versus
Bhimanna Mallappa Mali & Ors. -Respondents
Civil Appeal No. 756 of 1991
(With Civil Appeal No. 757 of 1991)
Decided on 28-10-1998
Counsel for the Parties :
For the Appellant : A.M. Khanwilkar, Advocate for Mrs. V.D. Khanna, Advocate.
For the Respondents : S.M. Tripathy, Advocate for Ms. Rani Jethmalani, Advocate.
Important Point
Merely because land held by Devasthan was leased out by public auction through Tahsildar, it could not be said that successful bidder to whom possession was given, by dispossessing original protected tenant, could ‘held on lease from Government’ within meaning of Section 88(1)(a) of Bombay Tenancy and Agricultural Lands Act so as to say that application for repossession u/s 29 by original tenant is not maintainable.
Headnote:Bombay Tenancy and Agricultural Lands Act, 1948-Section 88 read with Section 29-Land held on lease from Government-Land in question belonged to Devasthan-Tenant in possession since 1948-Tenant recorded in revenue records as protected tenant-In 1979 Devasthan leased land to 3rd respondent through public auction through Tahsildar thus dispossessing tenant - Tenants application under Section 29(1)/84 for repossession-Application held not maintainable on ground that lease given to 3rd respondent amounted to lease from Government - High Court held Section 88(1)(a) had no application as land neither belonged to Government nor 3rd respondent held lease from Government-Whether correct-Held, yes.
Held : From the material on record, it is clear that the tenant was in possession of these lands as a tenant since 1948 and for the first time he came to be dispossessed in April, 1979. The tenant was also recorded in the revenue records as a protected tenant. In Kabjedar column, Maruti Deosthan has been recorded as kabjedar. Regulation 9 indicates that the Deosthan lands could be leased out by auction by the Mamlatdar Jath. In the present case, in fact, the appellant - Managing Committee had resolved to move the Collector to hold the auction in respect of these lands. It is pursuant to this resolution, the Mamlatdar held the auction of these lands. Now, the question is holding of such auction by the Mamlatdar at the request of the appellant - the Managing Committee would be covered by the expression “held on lease from the government” under clause (a) of sub-section (1) of Section 88. It is true that the regulation framed by the former rule of Jath would indicate that the Collector and/or Tahsildar will have a supervisory power over the income and expenditure of the trust property. Assuming that in exercise of such supervision, the Tahsildar/Collector had leased out these lands to respondent No. 3 in an auction, it cannot be said that such an action on the part of the Tahsildar and a lease given to the third respondent would be “held on lease from the government”. In this view of the matter, the High Court was right in deciding the issue as regards the applicability of Section 88(1)(a) of the Tenancy Act. (Para 8)
If the appellant-Deosthan Managing Committee is of the opinion that the lands in dispute are exempt from the application of the Act because of various provisions contained in the Act as well as under the Trust Act, it would be open to them to adopt appropriate proceedings. It must also be made clear that this judgment does not determine the issue as to whether the provisions of the Act are applicable to the lands in dispute and whether the first respondent could be said to be a tenant under the Act by virtue of the Trust Act. All issues except one under Section 88(1)(a) of the Act are kept open. (Para 10)
Judgment
S.P. Kurdukar, J.-The lands bearing Survey Nos. 200/2 admeasuring 3 acres 2 gunthas and 201/2 admeasuring 12 acres 8 gunthas situate at village Madgyal admittedly belonged to Maruti Deo, a deity, through V.M. Kulkarni. It is also not disputed that the said Deosthan is managed by a Managing Committee which is under the supervision of the Secretary, Deosthan Managing Committee, Western Maharashtra, Kolhapur. It appears that since 1948, these lands were in possession of Bhimanna Mallappa Mali the first respondent as a protected tenant on payment of rent to the Deosthan Managing Committee. The Deosthan Managing Committee found that the income received from the lands was too inadequate to manage Deosthan and, therefore, in a meeting of Deosthan Managing Committee, it was resolved to give these lands on lease for a period of five years. It was further resolved that the Managing Committee should move Tahsildar Jath to hold an auction in respect of these lands. Accordingly, the Tahsildar Jath held the auction sometime in 1978 and Rachappa Shivrudra Hiremath, the third respondent, being the highest bidder, the lands were allotted to him on lease for a period of five years. Consequently, on June 20, 1979, the tenant was dispossessed and possession of these lands were given to Rachappa. Immediately sometime in July, 1979, the tenant applied to Tahsildar Jath under Section 29(1) of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short Act) for possession of these lands on the ground that he was illegally dispossessed from the tenanted lands.
2. This petition of the tenant was contested by the appellants as also by the third respondent. The appellant, however, did not file any written statement but the third respondent filed his say. According to him, the Managing Committee was fully authorised to request the Tahsildar to auction these lands and he being the highest bidder is entitled to continue in possession in terms of the auction. The tenant has no right to challenge the auction. He has also no right to claim the possession of these lands under the provisions of the Act. The tenant was not unlawfully dispossessed from the lands. He being the highest bidder in public auction, he cannot be dispossessed from the lands in a proceeding initiated under Section 29(1) of the Act. The Tahsildar Jath granted the application filed by the tenant holding that he could not be deprived of the possession of these lands being the tenant and accordingly directed that the possession be restored. Being aggrieved by the order passed by the Tahsildar, the appellant and the third respondent filed two separate appeals before the Collector who after hearing the parties by his judgment and order dated 16.8.1979, upheld the direction given by the Tahsildar for restoring the possession of these lands but, however, he held that the tenant’s application would more appropriately fall under Section 84 of the Act and not under Section 29. Accordingly, in exercise of his jurisdiction under Section 84 of the Act, he directed that the third respondent be evicted and the tenant be put in possession of these lands. Feeling aggrieved by this order, the respondent No. 3 preferred a revision application before the Maharashtra Revenue Tribunal, Kolhapur. Learned Single member of the said Tribunal held that these lands were exempted from the operation of the Act by virtue of Section 88(1)(a) of the Act. Consistent with this finding, the Tribunal dismissed the application filed by the tenant as not maintainable and consequently, set aside the order passed by the Tahsildar and the Collector. Aggrieved by this judgment and order passed by the Maharashtra Revenue Tribunal, the tenant preferred the Writ Petition under Article 227 of the Constitution of India. The Bombay High Court, after hearing the parties, by its judgment and order dated January 14, 1983, allowed the Writ Petition partly and remanded the matter back to the Tribunal for disposal in accordance
