Krishnaji Ganesh Unde vs Kaluram Baban Kamthe

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(Bom) 1236

Bombay High Court
Shri Krishnaji Ganesh Unde (Since deceased by his heirs and legal representatives namely Dhondiram Krishnaji Unde, Shri Nandkumar Krishnaji Unde and Ms. Kunda Krishnaji Unde) and Shri Vishnu Ganesh Unde (Since deceased by his heirs and legal represen
Versus
Shri Kaluram Baban Kamthe
Appellants : Shri Krishnaji Ganesh Unde (Since deceased by his heirs and legal representatives namely Dhondiram Krishnaji Unde, Shri Nandkumar Krishnaji Unde and Ms. Kunda Krishnaji Unde) and Shri Vishnu Ganesh Unde (Since deceased by his heirs and legal represen
Respondents: Shri Kaluram Baban Kamthe
Judgment Date: 14, September, 2005
Citations:
Judges:S.A. Bobde, J.

Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Section 76 - Exercise of power under Section 76 of Act. - Power under Section 76 of Act, to revise or confirm order of Collector for delivery of possession of land can be exercised unless order is one passed by Collector in an appeal under Section 73. - Section 73 which gives finality to an order in execution only subject to an appellate order of the Collector and Section 76 which empowers the Maharashtra Revenue Tribunal to revise any orders of the Collector on certain grounds, can be given effect to only by reading them harmoniously. This can be done only by holding that the powers to revise or confirm under Section 76 can be exercised in respect of the orders of the Collector unless the order is one passed by the Collector in an appeal carried to him under Section 73 from an order in execution. AIR 1958 SC 255; AIR 1997 SC 1006 - Relied on.
Bombay Tenancy and Agricultural Lands Act, 1948 - Section 76 Revision Tribunal’s jurisdiction Suit for possession Decreed As respondent was wilful defaulter in payment of rent Order of restoration of possession under Section 73 of Act became final Revision against said order not maintainable. It is clear that the order has not yet been interfered with even in the proceedings in execution. It is obvious from Section 73 reproduced earlier that an order or decision of the Mamlatdar in execution proceedings is made final, only subject to an appeal (if any) to the Collector, vide sub-section (3). Therefore, it is clear that the MRT had no jurisdiction to entertain the revision which it presumably did under Section 76. A construction of the statutory scheme must be made in such a way that it gives effect to the intention of the Legislature. The finality which the legislature has given to an order in execution proceedings cannot be said to have been taken away by the same legislature by enacting Section 76 of the Act, which provides for a revision to the MRT. Section 73 which gives finality to an order in execution only subject to an appeal, must be read harmoniously with Section 76. Construing the above provision in a manner so as to provide a revision even against an order in execution, would defeat the express provision of subsection (3) Section 73, which gives finality to the order in execution. Section 73 which gives finality to an order in execution only subject to an appellate orders of the Collector and Section 76 which empowers the Maharashtra Revenue Tribunal to revise any orders of the Collector on certain grounds, can be given effect to only by reading them harmoniously. This can be done only by holding that the powers to revise or confirm under Section 76 can be exercised in respect of the orders of the Collector unless the order is one passed by the Collector in an appeal carried to him under Section 73 from an order in execution.

JUDGMENT

S.A. Bobde, J.

1. The petitioners are aggrieved by the order passed by the Maharashtra Revenue Tribunal, Pune dated 31st July, 1991 in Revision Application No. MRT.P.V.7/91 (Tnc.B.125/1991). By the impugned order, the Maharashtra Revenue Tribunal; hereinafter referred to as "the MRT", has remanded the matter for re investigation on the point of delivery of possession of the suit land to the petitioners and to find out whether the petitioners still continue in possession of the suit land.

2. The petitioners questioned the jurisdiction of the MRT to entertain the revision in view of the finality clause in Section 73 of the Bombay Tenancy and Agricultural Lands Act, 1948; hereinafter referred to as the Act; which reads as follows :

"73. Execution of order for payment of money or for restoring possession. - (1) Any sum the payment of which has been directed by an order of the Mamlatdar or the Tribunal including an order awarding costs shall be recoverable from the person ordered to pay the same as an arrears of land revenue.

(2) An order of the Mamlatdar or the Tribunal awarding possession or restoring the possession or use of any land shall be executed in the manner provided in Section 21 of the Mamlatdars Courts Act, 1906, as if it was the decision of the Mamlatdar under the said Act :

(Provided that such order shall not be executed till the expiry of the period of appeal (or, as the case may be, of application for revision as provided) in Section 79.)

(3) An order or decision of the Mamlatdar in execution proceedings conducted under Sub-section (2), subject to appeal (if any) to the Collector, shall be final.)

(emphasis supplied)

3. In short the submission of the petitioners is that an order in execution passed by the Mamlatdar is only subject to an appeal to the collector and is thereupon made final. Therefore, no further appeal or revision is tenable against that order. The provision under which the MRT has exercised its jurisdiction is Section 76, which is reproduced hereinafter.

4. The facts of the case are as follows :

The dispute is about the agricultural land bearing Survey No. 15/2, admeasuring 2 hectare and 41 acres at Kondve Budruk, Tal. Haveli, Dist. Pune. The respondent, who was the tenant, had agreed to the rate of Rs. 20/- per year. As far as back as in 1956, the petitioners applied for possession of the suit land which was granted by order dated 9.5.1956 under Section 14, read with Section 29(2) of the Act. This order was made in the petitioners favour on the ground that the respondent was a wilful defaulter in payment of rent.

5. On 24.3.1958, the Tahsildar passed an order, directing restoration of possession of the suit land in favour of the petitioners. The petitioners accepted this order and did not file an appeal or revision against it.

6. On 11.8.1969, the Tahsildar issued a notice to the respondent to hand over possession of the suit land to the petitioners. The respondent appealed against the said notice. However, the S.D.O. dismissed the appeal by an order dated 14.10.1969 on the ground that no appeal had been preferred against the basic order dated 24.3.1958 by which the possession was ordered to be restored to the petitioners.

7. Thereafter, on 18.12.1969 the respondent resorted to Sections 70(b), 25 and 33(b) of the Act. The Tahsildar refused to entertain these proceedings, apparently on the ground that it was sent by post. Against such refusal, the respondent filed a tenancy appeal under Section 70 to the Collector of Pune, who by his judgment and order dated 4.5.1970 dismissed the appeal in view of the fact that for 12 years the respondent has not chosen to have the order set aside. The revision preferred by the respondent was also dismissed on 24.9.1970.

8. The respondent then filed regular civil suit No. 1390/1970 in the court of the second Joint Civil Judge, J.D., Pune for a perpetual injunction against the petitioners. An application for injunction made in the suit was dismissed on 17.7.197

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