2004 Supreme(Bom) 933

IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
Ashok Baburao Ingavale others .... Petitioners.
Versus
Pralhad Hari Bhate others.... Respondents.
Writ Petition No. 2749 of 1985, decided on 8-7-2004.
Advocates appeared :
P.L. Naik, for petitioners.
P.J. Shinde, for respondent No. 1.
A.H. Palekar, A.G.P., for respondent No. 4.

Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 32-P, 43 and 76 - Transfer of land by tenant. - Transaction entered into by tenant for transfer of suit land without prior permission of Collector is illegal. - After having considered the rival submissions, Court shall first deal with the issue of locus standi of respondent No. 1. The Tribunal has negatived that objection taken by the tenants in revision application. Indeed, respondent No. 1 was neither party to the suo motu proceedings initiated by the Tahsildar or in the appeal proceedings before the appellate authority, but the fact remains that respondent No. 1 is the erstwhile owner of the suit land. No doubt, the petitioners may be justified in contending that only persons, who are referred to in Section 32-P of the Act, can be said to be "interested persons". However, the fact remains that the suo motu proceedings have been initiated by the Tahsildar on receipt of complaint in respect of the alleged transactions. If it is so, even if the respondent No. 1 had no locus standi to maintain the revision application, this Court in exercise of writ jurisdiction will be justified in maintaining the order passed by the revisional authority, if it was more than convinced that the reasons recorded by the revisional authority are sound and tenable. Moreover, this Court will be loath to exercise writ jurisdiction if the erroneous order of the first Appellate Court was to be restored. Viewed in this perspective, Court saw no reason to reverse the order as passed by the revisional authority merely because the revision was filed by the respondent No. 1.

       Bombay Tenancy and Agricultural Lands Act, 1948 - Section 43(2) - Sale transaction by tenant. - Sale transaction entered into by tenant in respect of suit land without prior permission of Collector illegal. - That takes Court to the next argument canvassed on behalf of the petitioners. According to them, the conclusion reached by the appellate authority was appropriate and ought not to have been interfered with by the revisional authority. Court find no substance in this argument. To Court’s mind, the revisional authority has rightly interfered in exercise of revisional jurisdiction, having regard to the fact situation of the present case. The revisional authority has adverted to the documents on record, which clearly establish that the sale deed was executed in favour of Shaikh Akbar Ibrahim and no steps have been taken by the petitioners to seek declaration that the sale-deed was sham and bogus. Mere denial of execution of sale-deed cannot absolve the petitioners, especially when the Index Register extract of the sale has been entered into for consideration of Rs. 8,000/-. Besides the sale-deed, the revisional Court has also adverted to the civil suit filed by the subsequent purchaser Shaikh Akbar Ibrahim being civil suit No. 262 of 1981 asserting that portion of 55 per cent. share in the suit land has been purchased by him. Besides, even the Mutation Entry No. 426 effected on 6h August, 1972 clearly states that 55 per cent. share in the suit land has been sold by the petitioners to the said Shaikh Akbar Ibrahim for consideration and that Mutation Entry has been certified. It is well-settled that the Mutation Entry occurring in the village record will raise presumption, although the same is rebuttable. It is also noted by the revisional authority that the 7 x 12 extract indicates that the said Shaikh Akbar Ibrahim was in possession of the suit land to the extent of 55 per cent. share. All these factors were more than sufficient to hold that the petitioners, have entered into sale-deed with the said Shaikh Akbar Ibrahim for consideration in respect of the 55 per cent. share in the suit land. This by itself was sufficient for the authorities to initiate suo motu proceedings because the said transaction was effected without obtaining prior permission of the Collector, as was required by Section 43 of the Act. The said transaction by operation of law will have to be held as invalid, having regard to Section 43(2) of the Act. The first authority, in fact, proceeded to decide the matter on the basis of materials, which has also weighed with the Tribunal, as referred to above. If it is so, no fault can be found with the said decision of the Tribunal, which is founded on materials on record and which is a legal evidence pressed into service by the authority while deciding the case against the petitioners. Besides the transaction of sale-deed, the first authority has also found that the lease deed in favour of Anandrao Pandurang Dhombre is also established and the said lease has been entered into without obtaining prior permission of the Collector. However, according to the petitioners, the factum of execution of lease deed has not been established by legal evidence. Assuming that the petitioners may be justified in contending that there is no legal evidence to establish the transaction of lease deed, however, the transaction of sale-deed having been established beyond any reasonable doubt and the said transaction having been effected without obtaining prior permission of the Collector, the rigours of Section 43 of the Act were clearly attracted. Even if portion of the land purchased by the tenant under the statutory provision was to be transferred without obtaining previous sanction of the Collector under Section 43 of the Act, that would tender such a transaction invalid and the entire land will have to be resumed by the State Government in terms of Section 84-C(4) of the Act, because Section 43 of the Act opens with the expression "no land", which would mean that even if portion of the land is transferred without previous sanction of the Collector, the entire land will have to be resumed and would vest in the State Government free from all encumbrances for disposal in terms of Section 84-C of the Act. In any case, even with regard to the lease transaction, the revisional authority has rightly reversed the conclusion reached by the appellate authority and, instead, affirmed the view taken by the first authority. The factum of entering into lease with Anandrao Pandurang Dhombre is also established by the revenue record, including the admissions of the concerned persons and the averments made in the Regular Civil Suit No. 265 of 1981. As mentioned earlier, the transaction of sale-deed was good enough for the authority to invoke action under Section 43 of the Act and to pass consequential order under Section 84-C for resumption of the land and for its disposal.