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Bombay High Court
G.S.GODBOLE
Jayraj Devidas & Others
Vs
State of Maharashtra & Others
Decided On : 21/2/2012
Section 76 of Bombay Tenancy Act provided for a revision before Maharashtra Revenue Tribunal whereas Section 76-A provided for revision by the Collector. If the legislature had desired that an order under Section 76-A should not be subject to a Revision under Section 76, that could have been specifically provided for in the Act itself, which has not been done.
When the Legislature amended the Act and added Section 76-A, the Legislature was conscious that it was conferring revisional power on the Collector and it must be held to have been conscious of the fact that a Revision under Section 76 was provided against all orders passed by the Collector under the said Act. In the present case, unfortunately, this scheme of the Act and legislative intent appears to have been completely overlooked by the President of the Maharashtra Revenue Tribunal which has resulted in passing of the impugned Judgment, which is clearly unsustainable.
There is nothing in the Section 76 or Section 76-A which takes away the jurisdiction of Maharashtra Revenue Tribunal to entertain the Revision Application under Section 76 for challenging the order passed by the Collector under Section 76-A of the Act. The impugned Judgment and order passed by the President of the Maharashtra Revenue Tribunal is unsustainable and the same will have to be quashed and set aside. Tenancy Revision Application filed by the petitioners against suo motu Revisional Order under Section 76-A passed by the SDO, Thane Division, Thane is restored to file of the Maharashtra Revenue Tribunal, Mumbai.
Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 76 and 76-A - Scope of - Provisions of Sections 76 and 76-A of Act, 1948, operating in entirely different fields.
These are special powers conferred upon the Collector for the purpose of safeguarding the interest of the tenants who, being illiterate and economically backward are unaware of their own rights and are easily persuaded to forego them in favour of their landlords. It is because of this, that the Legislature has thought fit to add this section by way of conferring special supervisory jurisdiction over the illegal or irregular orders of the mamlatdaror the Tribunal so that the purpose of the Act, which, while regulating the relation of landlord and tenant, aims at improving the economic and social condition of the peasants and ensuring full and efficient use of land for agriculture, may not be defeated. These powers are to be exercised only where the parties have a right to appeal and yet have not availed of it and the order passed is such as cannot and should not stand on the grounds of legality or propriety or the irregularity of the procedure followed by the mamlatdaror the Tribunal, i.e. the Agricultural Lands Tribunal. This section, therefore serves as a. substitute for appeal to the Collector against the order of the mamlatdaror the Tribunal, when such a right is not availed of by the parties and some just and legal relief is called for in the interest of justice.
It is thus clear that Section 76 and 76-A are operating in entirely different fields.
G.S.GODBOLE, J.
1.rule. By consent, rule made returnable forthwith and heard finally. The respective advocates for the respondents waives service of rule. 2 on 22nd december, 2011, the following order was passed in this writ petition:“ 1/ not on board. Taken on board.
2. Heard mr. Karandikar, advocate for the petitioners and mr. Sandesh patil, advocate for the contesting respondents.
3. My attention is drawn to the fact that on the merits of the controversy, the learned president of mrt, mumbai passed an order holding that the order of remand passed by the sdo was unsustainable. However, only on the ground that second revision application is not maintainable, the revision application has been dismissed by the mrt. Prima faice the learned president of mrt was not justified in holding that the judgment of the full bench in the case of shireen sami gadiali & anr. Vs. Spenta cooperative housing society ltd., 2011 (3) mh.l.j. 486, was applicable. In my opinion, prima faice, the said judgment will have no application in respect of the revision application being heard by the mrt under section 76 of the bt & al act, 1948 as a revision under section 76 lies before the mrt; whereas a revision under section 76(a) lies before the collector which are two independent authorities.
4. Hence, issue notice for final disposal at the stage of admission, returnable on 01.02.2012. Learned agp waives service on behalf of the respondent no.1 and mr. S. patil, advocate waives service on behalf of the respondent nos. 2 to 5 5 till 8th february, 2012 the order of remand dated 21/05/2011 passed by the sdo, thane in tenancy revision appeal no. 15/2011 and all further proceedings after remand before the tahsildar & alt, thane will remain stayed.”
3. Accordingly, the petition is heard finally only on the question of maintainability of the revision application filed by the petitioners. The merits of the controversy involved in the petition are not gone into.
4. Very briefly facts are required to be stated and the same are as under:
(a) initially an order was passed on 25th november, 1994 in proceedings under section 70(b) r/w section 32g of the bt & al act, 1948 by the tahasildar. Aggrieved by that order, the petitioners filed tenancy appeal no.36a of 1996 before the sdo, thane who allowed the appeal on 22nd may, 2003 and the judgment and order dated 22nd november, 1994 passed by the additional tahasildar and alt, thane, was quashed and set aside.
(b) thereafter, respondent nos.2 to 5 filed fresh application bearing nos. Tenancy/32g/ mire/41/2006 before the tahasildar and alt, thane under section 32g of the said act of 1948.
(c) by order dated 31st december, 2009, the tahasildar and alt, thane dismissed the application both on merits as also by holding that the earlier order of sdo in appeal has attained finality.
(d) the aforesaid order of tahasildar and alt, thane was taken up in suo moto revision by the sdo, thane division, thane and by order dated 21st may, 2011, the said suo moto revision filed under section 76a of the said act of 1948 was allowed.
(e) aggrieved by this order, petitioners filed tenancy revision application no.243/b/2011 before the maharashtra revenue tribunal,mumbai. The respondent nos.2 to 5 objected to the maintainability of the said revision application filed by the petitioners relying upon the judgment of the full bench of this court in the matter of shireen sami gadiali and another v/s. Spenta coop. Hsg. Soc. Ltd. And othersa (f) by the impugned judgment and order dated 14th december, 2011, the learned president, maharashtra revenue tribunal, mumbai has dismissed the revision application only on the ground that the revision application is not maintainable. Submissions of respective advocates 5. Mr. Karandikar, the learned advocate for the petitioners submitted that the judgment of the full bench of this court in the case of shireen s. Gadiali (supra) has absolutely no application. He submitted that the said judgment is based on th
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