When the provisions of Section 129 of the 1958 Act are looked into in this respect, Section 129 reads as under:
129. Exemption from certain provisions to lands held by local authorities, Universities, trust, etc. - Nothing in the foregoing provisions except Section 2, the provision of Chapter II (excluding Sections 21, 22, 23, 24 and 37) and Section 91 and the provisions of Chapters X and XII insofar as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply,-
(a) to lands held or leased by a local authority, or university established by law in the State;
(b) to lands which are the property of a trust for an educational purpose, hospital, panjarpole, Gaushala, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purposes of such trust; and
(c)...
(d)...
Explanation. - For the purpose of Clause (b), a certificate granted by the collector after holding any inquiry, that the conditions mentioned in the said clause are satisfied by the trust shall be the conclusive evidence in that behalf.
Thus the exemption under Section 129(b) is available to the lands, which are property of a trust for educational purposes, hostel, hospital, panjarpole, Gaushala or an institution for public religious worship provided the entire income of such lands is permitted for the purpose of said trust. It is, therefore, apparent that Section 129(b) of the 1958 Act does not require any registration as contemplated under Section 88-B of the 1948 Act. Only requisite under Section 129(b) is that the entire income of said land should be appropriated for the purpose of the Trust. The requirement that trust should be registered or should be deemed to have been registered under the Bombay Public Trust Act, 1950 is nowhere reflected in Section 129(b) of the 1958 Act. When the particular requirement is not provided for by the Legislature in Section 129(b), it is not for the Court to read such a condition in it and therefore, it cannot be held that the petitioner-trust must be registered on the tillers day for the purpose of claiming exemption under the 1958 Act.
Bombay High Court
Maroti Sansthan vs Gulab Haribhau (Dead) And Ors. on 20 July, 2006
Equivalent citations: 2006 (6) MhLj 367,2006(6)ALLMR668, 2007(2)BomCR875,
B.P. Dharmadhikari, J.
1. By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner-trust has challenged the order of Maharashtra Revenue Tribunal dated 31-3-1992, by which Maharashtra Revenue Tribunal has held that the tenancy of public trust is heritable and has relied upon the ruling of this Court reported in Khanqah-Kadria Trust (Wakf), Balapur v. Shevantabai wd/o Raoji Shivaji, 1989 Mh.L.J. 891. It, therefore, allowed the revision preferred by present respondent and set aside the order of Sub Divisional Officer, whereby the Sub Divisional Officer held that tenancy is not heritable and. there fore, passed orders under Section 120, restoring the possession to the present petitioner by ejecting the respondents.
2. Mr. Chandurkar, Advocate has filed application for consequential amendment and the same is rejected being belated. Mr. Chandurkar, while arguing the case for the petitioner has stated that the Sub Divisional Officer had relied upon the earlier judgment of this Court reported in Ramchandra Nagoji Bond re and Ors. v. Shri Mangateshwar Maharaj Sansthan and Ors. 1986 Mh.L.J. 125 to hold that the tenancy of public trust cannot be inherited. He further states that the Maharashtra Revenue Tribunal, has relied upon on a later judgment reported in Khanqah-Kadria Trust (Wakf). Balapur v. Shevantabai wd/o Raoji Shivaji. 1989 Mh.L.J. 891 to accept the contentions of respondents that tenancy can be inherited. He points out that this ruling in Khanqah-Kadria Trust (Wakf), Balapur v. Shevantabai wd/o Raoji Shivaji, 1989 Mh.L.J. 891 itself has been reversed by the Hon'ble Apex Court and the said judgment in Shrinim Mandir Sansthan @ Shri Ram Sansthan Pusda v. Vatsalabai and Ors. 1999(1) Mh.L.J. 321 (SC). According to him, therefore, the very basis of the order of Maharashtra Revenue Tribunal does not exist and the said order, therefore, needs to be quashed and set aside. He further states that the order of Sub Divisional Officer, therefore, needs to be restored. He also points out that against the other respondents in the writ petition filed by the present petitioner vide Writ Petition No. 1811/1992 same order of Maharashtra Revenue Tribunal dated 31-3-1992 was questioned. He points out that this order is common in the said Revision No. 51/1987 and also present revision which was registered as Revision No. 92/1997. He points out that the order dated 31-3-1992 in Revision No. 51/1987 is set aside by this Court in the above writ petition on 14-12-2004. Therefore, the learned Counsel urges that the matter is covered by judgment of this Court and, therefore, the present writ petition also needs to be allowed.
3. Mr. Masodkar, Advocate, who appears for respondent in the matter states that the said judgment will not apply in the facts of the present case because according to him. the petitioner-trust must be a registered trust on 1-11-1961 to enable it to claim exemption under Section 129(b) of Bombay Tenancy and Agricultural Land (Vidarbha Region) Act, 1958, hereinafter referred to as the 1958 Act. He states that admittedly, in the facts of the present case, the petitioner-trust has been registered under Bombay Public Trust Act on 19-9-1962 and, therefore, the property had vested in the respondents, on the tillers day. According to him, therefore, as the petitioner-trust was not registered trust on l-4-1961 the exemption certificate obtained by the petitioner on 13-11-1964 is of no consequence. He relied upon the Division Bench of this Court in Eknath Bhiku Yadav and Anr. v. Clanpatrao Shankarrao Dhawan and Ors. 2006(3) Mh.L.J. 288 to substantiate his contention.
4. In reply, Me. Chandurkar, Advocate argues that the point was not raised before the lower Authorities and Maharashtra Revenue Tribunal has not considered this point. He further argues that the Certificate has been given to the petitioner-Trust under Section 129(b) of the 1958 Act and in view of the explanation to that section, the certificate is conclusive evidence that the petitioner-trust fulfils the conditions mentioned in Clause (b) of Section 129 of the 1958 Act. He contends that, therefore, it is not open to this Court in the present proceeding to go into the validity or otherwise of certificate or corrections thereof. He further points out that the judgment, on which reliance has been placed by Advocate Masodkar, Eknuth Bhiku Yadav and Anr. v. Ganpatrao Shankarrao Dhawan and Ors. (supra) is a judgment, which arises in the matter, in which challenge was to the issuance of certificate itself and, therefore, the validity of act of Collector in issuance of certificate under Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948; hereinafter referred to as the 1948 Act, has been gone into. He argues that in the present case, the validity of the order or otherwise of the certificate issued to the petitioner-trust under Section 129(b) of the 1958 Act has not been challenged and it cannot be scrutinized in collateral proceedings. He further relied upon the judgment of this Court reported 1976 Mh.L.J. Note 19, Panchayat Akhada v. Chinku to contend that the date, on which certificate under Section 129(b) is granted, is not relevant in 1958 Act. He further states that the provisions of Section 129(b) of 1958 Act are not pari materia with Section 88-B of 1948 Act. The argument is that under Section 88-B the emphasis is on registration of private trust and there is no such emphasis under Section 129(b) of the 1958 Act. He argues that the registration of trust is, therefore, not an essential ingredient under Section 129(b) of the 1958 Act. He also relied on ruling in Vithal Rukhmai Sansthan, Amravati v. Chakkilal Bhagwandas and Ors. 1978 Mh.L.J. 241 to point out that certificate issued under Section 129(b) is final and in view of the explanation provided to it, the enquiry into the fulfilment of various ingredients concentrated by Section 129(b) of the 1958 Act is not open and also to the effect of certificate, cannot be questioned in collateral proceedings.
5. He also invites attention to the order dated 13-11-1964, by which exemption certificate came to be issued in favour of the petitioner-trust to demonstrate that the petitioner public trust was registered under the old Madhya Pradesh Public Trust Act and also deemed to be registered under the Bombay Public Trust Act. Advocate Masodkar, for respondents, states that the copy of order dated 13-11-1964 was not produced before the lower Authority and, therefore, the said document cannot be looked into for the first time by this Court.
6. The arguments advanced before this Court, therefore, clearly show that the controversy is concluded by judgment of this Court dated 14-12-2004 in Writ Petition No. 1811/1992, as order impugned therein and the present writ petition is common order and this order was, therefore, also an order in Revision No. 51/1987 before the Maharashtra Revenue Tribunal. The said order is quashed by this Court in Writ Petition No. 1811/1990.
7. However, the learned Counsel for the respondent has tried to distinguish the said judgment and contended that as the petitioner-Trust was not registered prior to 1-4-1961, the lands vest in the respondents and hence the subsequent registration cannot have any effect in the facts of the present case. He has also invited attention to the provisions of Section 88-B of the 1948 Act and 129(b) of the 1958 Act.
8. Perusal of the judgment of the Division Bench of this Court reported in Eknath Bhiku Yadav and Anr. v. Ganpatrao Shankarrao Dhawan and Ors.; (supra) reveals that after considering Section 88-B of the 1948 Act, the Division Bench also relied upon two earlier judgments which are reported in Laxminaravan Temple v. Laxman M. Chandore and Chhatrapati Charitable Devasthan Trust v. Parsia Appa Bhoske and ors. 1979 Mh.L.J. 163. These rulings are again on Section 88-B of the 1948 Act. Section 88-B read as under
88-B. [(1)] Nothing in the foregoing provisions except Sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of Chapters VI and VIII insofar as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above shall apply.
(a) to lands held or leased by a local authority, or University established by law in the (Bombay area of the State of Maharashtra); and
(b) to lands which are the property of a trust for an educational purpose, [a hospital, Panjarapole, Gaushala] or an institution for public religious worship.
Provided that:
(i) such trust is or is deemed to be registered under the Bombay Public Trusts Act, 1950, and
(ii) the entire income of such lands is appropriated for the purposes of such trust;
[(c) to lands assigned or donated by any person before the 1st day of August, 1956 for the purpose of rendering any of the following services useful to the community, namely: maintenance of water works, lighting or filling of water troughs for cattle;)
[(d) to lands taken under management temporarily by the Civil, Revenue or Criminal Courts by themselves, or through receivers appointed by them, till the decision of the title of the rightful holders;
Provided that, from the date on which the land referred to in clause, (d) is released from management, all the foregoing provisions of this Act shall apply thereto, but subject to the modifications that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land.
(i) the landlord shall be entitled to terminate the tenancy under Section 31 (or under Section 33B in the case of a certificated landlord) within one year from such date; and
(ii) within one year from the expiry of the period during which the landlord or certificated landlord is entitled to terminate the tenancy as aforesaid, the tenant shall have the right to purchase the land under Section 32(or under Section 33-C in the case of an excluded tenant), and
(iii) the provisions of Sections 31 to 31-D, (both inclusive) (or Sections 33-A and 33-B in the case of a certificated landlord) and Sections 32 to 32-R, (both inclusive) or Sections 33-A and 33-C in the case of an excluded tenant) shall, so far as may be applicable, apply to the termination of a tenancy or the right to purchase the land, as aforesaid.
Provided further that:
(a) in the case of a permanent tenancy the permanent tenant shall be entitled to purchase the land held by him on permanent tenancy,-
(i) within one year from the date on which the estate or land is released from management, or
(ii) where such estate or land was released from management after the tiller's day but before the commencement of the Bombay Tenancy and Agricultural Lands, (Amendment) Act, 1960, within one year from such commencement, and
(b) where such permanent tenant is desirous of exercising the right conferred on him under this proviso, he shall accordingly inform the landlord and Tribunal in the prescribed manner within the said period of one year and the provisions of Sections 32 and 32-R shall, so far as may be applicable, apply to the right of the permanent tenant to purchase the land.)
(2) For the purpose of this section, a certificate granted by the Collector, after holding an inquiry, that the conditions in the proviso to Sub-section (1) are satisfied by any trust shall be conclusive evidence in that behalf.]
in view of this it is apparent that the exemption given by Section 88-B of the 1948 Act, is available only to a trust, which is or is deemed to be registered under the Bombay Public Trust Act, 1950. Thus, mere existence of Trust is not sufficient to qualify for exemption and, there is further rider that the Trust must be either registered or deemed to be registered under the Bombay Public Trust Act, 1950. Perusal of Section 28 of the Bombay Public Trust Act, 1950 reveals that a trust registered under the provisions of enactments specified in Schedule "AA" thereof are deemed to have been registered thereunder. It is, therefore, clear that if the trust is registered under any of the enactments in Schedule A or AA of the Bombay Public Trust Act, 1950, the said trust deemed to be registered even under the Bombay Public Trust, 1950. The perusal of schedule AA reveals that a trust registered under the Madhya Pradesh Public Trust Act, 1950 is deemed to be registered under the provisions of the Bombay Public Trust Act, 1950.
9. The Division Bench in ruling reported in Eknath Bhiku Yaclav and Anr. v. Ganpalrao Shankarrao Dhawan and Ors. (supra), therefore, has found that the trust, before it namely Shri Maruti Deo Trust Pimpli Limtek was registered, for the first time on 8-8-1984 and the tenant was in possession of the lands on the tillers day i.e. 1-4-1957 (for the purpose of the 1948 Act). In view of these facts and requirements of Section 88-B it has been concluded that the trust could not have claimed exemption under Section 88-B of The Bombay Tenancy and Agricultural Lands Act, 1948 as it was not registered before 1-4-1957. The Division Bench has held that if the trust was not so registered on 1-4-1957, the tenant would become a deemed purchaser on that date and once the deemed ownership of the land vested in him on 1-4-1957 it cannot be divested by subsequent registration of the trust. In paragraph 4, the Division Bench has held that exemption granted under Section 88-B to a public trust is subject to two conditions namely (i) a trust may be registered or deemed to be registered under the Bombay Public Trust Act, 1950 and (ii) entire income of such lands should be apportioned for the purpose of the trust.
10. When the provisions of Section 129 of the 1958 Act are looked into in this respect, Section 129 reads as under:
129. Exemption from certain provisions to lands held by local authorities, Universities, trust, etc. - Nothing in the foregoing provisions except Section 2, the provision of Chapter II (excluding Sections 21, 22, 23, 24 and 37) and Section 91 and the provisions of Chapters X and XII insofar as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply,-
(a) to lands held or leased by a local authority, or university established by law in the State;
(b) to lands which are the property of a trust for an educational purpose, hospital, panjarpole, Gaushala, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purposes of such trust; and
(c)...
(d)...
Explanation. - For the purpose of Clause (b), a certificate granted by the collector after holding any inquiry, that the conditions mentioned in the said clause are satisfied by the trust shall be the conclusive evidence in that behalf.
Thus the exemption under Section 129(b) is available to the lands, which are property of a trust for educational purposes, hostel, hospital, panjarpole, Gaushala or an institution for public religious worship provided the entire income of such lands is permitted for the purpose of said trust. It is, therefore, apparent that Section 129(b) of the 1958 Act does not require any registration as contemplated under Section 88-B of the 1948 Act. Only requisite under Section 129(b) is that the entire income of said land should be appropriated for the purpose of the Trust. The requirement that trust should be registered or should be deemed to have been registered under the Bombay Public Trust Act, 1950 is nowhere reflected in Section 129(b) of the 1958 Act. When the particular requirement is not provided for by the Legislature in Section 129(b), it is not for the Court to read such a condition in it and therefore, it cannot be held that the petitioner-trust must be registered on the tillers day for the purpose of claiming exemption under the 1958 Act. It is an admitted position that the petitioner trust has been registered on 19-9-1962 and the tillers day is 1-4-1961.
11. Though Mr. Chandurkar, Advocate has produced a copy of the order dated 13-11-1964, by which exemption under Section 129(b) was given to the petitioner and relied upon objection therein that the petitioner-trust was registered under the Madhya Pradesh Public Trust Act the said document is not on record and the document, therefore, cannot be looked into. However, in view of the findings reached above I find that it is not necessary for this Court to go in more details about it.
12. Mr. Chandurkar, Advocate has further contended that the validity or effect of the certificate cannot be questioned in collateral proceedings, i.e. in the proceedings instituted under 120 of the 1958 Act by the petitioner-trust against the respondents. In other words, the arguments advanced was that the challenge to entitlement of petitioner to claim exemption ought to have been raised only in the proceeding, challenging the order dated 13-11-1964 by the present respondents. However, again in view of the finding given above, I do not find it necessary to delve on this point further in this petition.
13. As the objection raised above by the learned Counsel for the respondent is found to be not tenable, in view of the judgment of this Court delivered on 14-12-2004 in Writ Petition No. 1811/1992, the writ petition is allowed. The order dated 31-3-1992 passed by the Maharashtra Revenue Tribunal in No. A-92/1987 is hereby quashed and set aside and order dated 29-1-1987 passed by the Sub Divisional Officer in Rev. Case No. 2/1959 (32)/1985-86 is hereby restored.
Rule is made absolute in the above terms. However, in the circumstances of the case, there shall be no order as to costs.
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