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PETITIONER: SECRETARY, DEVASTHAN MANAGEMENT COMMITTEE, WESTERNMAHARASHTR

       Vs.

RESPONDENT: BHIMANNA MALLAPPA MALI & ORS.

DATE OF JUDGMENT:       28/12/1998

BENCH: S.P. KURDUKAR, M.JAGANNADHA RAO.,

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT -------- S.P. KURDUKAR, J. ---------------- The lands bearing Survey Nos.  200/2  admeasuring  3 acres  2  gunthas  and  201/2 admeasuring 12 acres 8 qunthas 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. 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. He has also no right to claim the possession of these  lands under the  provisions  of  the  Act.    The  tenant  was not

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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 with law.  The High Court held  that  the  Revenue  Tribunal  was wrong  in  allowing  a new point to be raised as regards non application of the Act by virtue of Section 88  (1)  (a)  of the Act.    The  High Court recorded a specific finding that Section 88 (1) (a) of the Act had no application because the lands  neither  belong  to  the  government  nor  the  third respondent "held  on  lease  from the government".  The High Court, therefore, while setting aside  the  finding  of  the Maharashtra  Revenue  Tribunal,  remanded the matter back to the said Tribunal to consider the legality  and  correctness of  the  order  passed by the Tahsildar and the Collector in accordance with law.  It is against this order made  by  the High  Court  on  January  14,  1983, the Secretary, Deosthan Managing Committee, the appellant has filed a special  leave petition  in  this  Court  which  was  beyond  a  period  of limitation by 821 days.  This Court, however,  condoned  the delay  and  granted  special leave out of which Civil Appeal No.  756 of 1991 arises. Pursuant  to  the  order of remand dated January 14, 1983 passed by  the  High  Court,  the  Maharashtra  revenue Tribunal after hearing the parties by its judgment and order dated  April  24,  1985  dismissed  the revision application filed by the Revision Petitioner. Aggrieved  by  this  order passed   by  the  Tribunal,  the  appellant  preferred  Writ Petition to the High  Court,  but  the  same  was  dismissed summarily  on  August 14, 1985. It is against this order the appellant has filed Civil  Appeal  No.  757  of  1991  after obtaining the special leave. From the facts narrated above, it would  be  evident that  the Civil Appeal No.756 of 1991 arises out of an order of remand passed by the High Court on January 14, 1983,  but neither  the  appellant  non the third respondent moved this

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Court early and consequently the order or remand was  worked out.   The  Revenue Tribunal by its judgment and order dated April 24, 1985 dismissed the revision application on  merits upholding  the  orders  passed  by  the  Tahsildar  and  the Collector.  Since the parties in both these appeals as  also the  issues  involved  being common, they are disposed of by this common judgment. Mr.    Khanwilkar,   learned  counsel  appearing  in support of this appeal, urged that the order of remand dated January 14, 1983  passed  by  the  High  Court  was  totally erroneous.  He urged that Maruti Deosthan being a registered public trust, the properties held by such trust are exempted from the  application  of the Act.  He then urged that under Regulation 9 promulgated by the former ruler  of  Jath,  the lands in dispute must be held to be under the supervision of the Mamlatdar (government) and. therefore, Section 88 (1)(a) of  the  Act  will  govern  the  field.  In  support of this submission, he drew our attention to Regulation 9  which  is set out in the judgment of the Maharashtra Revenue Tribunal. He,  therefore,  urged  that  the tenant’s application under Section 29 (1) as also under  Section  84  of  the  Act  was totally  misconceived  and not maintainable and consequently the orders passed by the authorities below be set aside  and the  tenant’s  application be dismissed. The learned counsel for the tenant, however, supported the impugned judgment. Section 88 (1)(a) of the Act reads thus :- " Save as otherwise provided in sub-section (2), nothing  in the foregoing provisions of this Act shall apply (a)    to lands belonging to, are held  no  lease  from  the government. b)xxxxxxxxxxxxxx c)xxxxxxxxxxxxx d)xxxxxxxxxxxxxx It  is  not  disputed by the learned counsel for the appellant that first part of clause (a) would not  apply  to the  present  case.  The  second  part which reads: "held on lease from the government" would apply to the facts  of  the present case. 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 ruler 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 Tehsildar/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.    For   the   foregoing

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conclusions,  it must follow that the Civil Appeal No.757 of 1991 filed by the appellant must also fail. As far as the applicability of Section 84 of the Act is concerned, we are of  the  considered  view  that  having regard  to the long possession of the tenant since 1948, the Tahsildar could not have dispossessed  him  in  April,  1979 without  determining  the  rights  of  the  tenant under the Tenancy Act. It must, however, be made clear  that  it  would  be open  to  the  appellant-Deosthan Managing Committee to file appropriate  proceedings  before   appropriate   forum   for appropriate reliefs    against   the   tenant.      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.  In the result, both the appeals filed by the appellant  are  without any merit and are dismissed.  In the circumstances, there will be no order as to costs.