Mr. Gole, learned counsel for respondent No. 1. however, submitted that the order in the present proceedings setting aside the order in 32G is based on cogent and reliable evidence and, therefore, it would not be a proper exercise of jurisdiction by this Court to set aside those proceedings. This submission is clearly not tenable. As seen, the tenancy Court had no jurisdiction to set aside the certificate to purchase under Section 32M as a result of proceedings under Section 32G which had already concluded in favour of the petitioner-tenant and, therefore, the orders passed in these proceedings must be quashed and set aside. It is the duty of this Court to interfere with findings which are in excess of the jurisdiction conferred on Court by the respective statutes.
S.A. Bobde, J.
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Bombay High Court
Jagu Tukaram Waghamale vs Dnyandeo Bala Waghmale, Since ... on 20 January, 2003
Equivalent citations: 2003 (2) BomCR 465, 2003 (2) MhLj 475
S.A. Bobde, J.
1. The petition is filed by Jagu Tukaram Waghamale against the orders of the tenancy Courts, confirmed by the Maharashtra Revenue Tribunal that he is not a tenant in spite of the fact that 32G proceedings concluded much earlier, he has been declared to be a tenant and he has paid the purchase price and a certificate under Section 32M has been issued to him.
2. The petitioner Jagu Tukaram,Waghamale claims to be a tenant of the land in question i.e. survey No. 414, now gat No. 1004, admeasuring 5 acres and 5 gunthas, situate at village Arale, taluka Satara, district Satara. He has been found to be a tenant in possession of the land on 1.4.1957. Proceedings for purchase of the land under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "Act") were concluded in his favour in the year 1965 and a certificate under Section 32M has also been issued to him. These proceedings were concluded between the petitioner Jagu and the earlier owner of the land i.e. the respondent No. 2 Dada Ram Kadam.
3. The earlier owner Dada Rama Kadam has sold the land to the respondent No. 1 Dnyandeo Bala Waghmale, since deceased and now represented by his legal heirs, on 31.5.1961 by a registered sale deed.
4. The petitioner seems to have been dispossessed sometime after the respondent No. 1 Dnyandeo Bala Waghmale purchased the lands in question. He, therefore, filed R.C.S. Suit No. 245 of 1967 praying for possession of the suit land from respondent Nos. 1 &
2. In this suit, the Civil Court framed the following issues for determination by the tenancy Court and referred it for decision under Section 85A of the Act. The issues are:-
"Issue (1-A) - Whether the plaintiff proves that he was a tenant in the suit property, as on 1-4-57 and become purchaser of the suit property under Section 32-G of the B.T.& A.L. Act?
(1-B) Whether the sale deed dated 30.5.1961 passed by Defendant No. 2 in favour of Deft. No. 1 is valid in view of the alleged tenancy of the
plaintiff ?"
These issues were taken up for decision by the Tenancy A.K. The Tenancy A.K. found that the petitioner is not a tenant and there was no evidence to the effect that he was a tenant. The Tenant A.K. found that one Ambir Dada Musalman had cultivated the land upto 1955-56. The petitioner's name was entered for the first time as a tenant in the tenant and rent column in 1956-57. The Tenancy A.K. observed that this entry which showed that the petitioner is paying rent of Rs. 50/- appears to be more than five times the assessment which the tenants are required to pay. In particular, the Tenancy A.K. ignored the earlier decision under Section 32G of the Act under which the purchase price was determined and paid on the ground that Jagu, the subsequent purchaser, was not served with any notice on the 32G proceedings. 32G proceedings were commenced in the year 1965 by which time, according to Jagu, he had become the owner of the land. The Tenancy A.K. finally found that the petitioner has not been able to prove that there was a contractual tenancy in his favour and, therefore, he cannot be described as a tenant.
5. The petitioner preferred an appeal before the Asstt. Collector, Satara Division. The appellate authority concurred with the finding of the Tenancy A.K. and held that since the petitioner does not have any land revenue receipts or contract such as Kabulayat or rent receipt, he is not entitled to be a tenant. The appellate authority also held that the petitioner is not entitled to the benefit of Section 32G since he had failed to obtain possession under Section 29 within a period of two years. The appellant authority held that though the tenancy of Ambir Dada Musalman was there upto 1956, since Ambir Dada Musalman did not take steps for taking possession within two years, his tenancy was extinguished on 1.4.1958. The appellate authority, therefore, upheld the order of the Tenancy A.K. The petitioner's revision to the Maharashtra Revenue Tribunal has been dismissed on 13.10.1980. The Revenue Tribunal also took the view that 32G proceedings were of no avail to the petitioner since no notice of those proceedings had been given to the respondent No. 1, Jagu, who had purchased the land in 1951. It is this order which is challenged before me.
6. Mr. Kharidi, learned counsel for the petitioner, submitted that it is an undisputed position that the petitioner became a deemed purchaser of the land from his landlord on 1.4.1957. That on this date the landlord was Dada Rama Kadam who had admittedly been issued notices under Section 32G. According to the learned counsel, these proceedings culminated in the issue of a certificate under Section 32M which is considered to be a conclusive proof of purchase of the suit land. The proceedings under Sections 32G and 32M not having been challenged by anybody before any forum, they must be deemed to have assumed finality. Therefore, they could not have been reopened, or their effect nullified in the present proceedings which arose upon a reference by a Civil Court for determination of the issue whether the petitioner is a tenant.
7. Mr. Gole, learned counsel for the respondents, submitted that the 32G proceedings are not binding on respondent No. 1, since he was not a party to the said proceedings, no notice having been issued to him in those proceedings. Therefore, according to the learned counsel, the tenancy Courts while deciding the reference were entitled to go into the question of tenancy and come to a conclusion contrary to the proceedings under Section 32G.
8. Having considered the rival submissions and the provisions of law that the position that emerges is as follows:-
The petitioner claims that he was a tenant in possession on 1.4.1957. Section 32 declares that a tenant shall be deemed to have purchased the land held by him as a tenant on 1.4.1957, from his landlord. Obviously, in the present case, on 1.4.1957 the landlord was the respondent No. 2 i.e. Dada Rama Kadam. Therefore, when 32G proceedings were initiated in the year 1965 for determining the purchase price of the land, the person to whom it was necessary to issue notice was the landlord i.e. Dada Rama Kadam. There is no dispute that such a notice was issued to him. Subsequent to that, the petitioner also paid the purchase price and a certificate of purchase was also issued to him under Section 32M. Section 32M declares that such a certificate shall be a conclusive evidence of purchase.
9. Now the Act provides that proceedings under Section 32G or a certificate under Section 32M can be challenged and set aside in an appeal to the Collector under Section 74 of the Act. Section 74 reads as follows:-
"74. (1) An appeal against the orders of the Mamlatdar and the Tribunal may be filed to the Collector in the following cases--
(a) .....
.....
(mb) an order under Section 31, 32F, 32G, or 32P.
(n) an order under Section 32K, 32M, 32MM or 32Q.
Thus, the Act provides an appeal as the only mode for challenging an order under Section 32G or 32M. Admittedly, this has not been done.
10. The question, therefore, is whether these proceedings under Section 32G and the certificate under Section 32N could have been set aside by the tenancy Courts while answering a reference under Section 85A. In my view, the answer must be in the negative. The Act prescribes a procedure and mode for setting aside orders under Sections 32G and 32M. That must be taken as the only mode prescribed for having those orders set aside. The tenancy Courts while answering a reference by a civil Court are not seized of the legality or validity of the decision under Section 32G or the certificate under Section 32M and are barred by earlier decisions.
11. Mr. Gole, learned counsel for respondent No. 1. however, submitted that the respondent No. 1 is not bound by the proceedings under Sections 32G and 32M since no notices were issued to him and he was not a party to these proceedings. The respondent No. 1 is said to have purchased the land in question on 30.5.1961 by registered sale deed. According to the learned counsel, he ought to have issued a notice under Section 32G in the year 1965 when the proceedings under Section 32G were initiated and concluded. The argument appears to be plausible at first blush. However, on a closer scrutiny, it is not sustainable. The respondent No. 1 purchased the land in the year 1961. In proceedings under Section 32G of the Act, the Mamlatdar was required to determine the purchase price for giving effect to the deemed purchase under Section 32 as on 1.4.1957 from the landlord. In those proceedings, therefore, the Agricultural Lands Tribunal was bound to issue notice to the landlord from whom the tenant was entitled to purchase. That landlord was Dada Rama Kadam. Thus, those proceedings though initiated and culminated in 1965, were intended to determine the purchase price in favour of the tenant who is deemed to have purchased the land on 1.4.1957. The proceedings, therefore, cannot be said to be illegal or void because notice was not issued to the purchaser to purchase it subsequent to the relevant date i.e. on 1.4.1957 nor can the subsequent purchaser be heard to say that the order under Section 32G passed in such proceedings or the certificate under Section 32M can be ignored by him since he was not a party to the proceedings. In any case, it is clear that those proceedings having been concluded and no appeal or any proceedings having been adopted against them, they could not have been set aside by a side wind by the tenancy Court while answering a reference made to him by the civil Court under Section 85A.
12. In a slightly different set of facts, while deciding the validity of an order by which proceedings were dropped under Section 32G, which order had become final, the Supreme Court observed that such an earlier decision becomes final and binding on both the parties. In V.S. Charati v. Hussain Nhanu, reported in 1999 (1) Mh.L.J. 782, the Supreme Court has observed as follows:-
"The order of 31-5-1961 had become final and the decision rendered by the
Agricultural Lands Tribunal as between the appellant and the respondent was binding on both the parties. A
decision, simply because it may be wrong, would not thereupon become a nullity. It would continue to bind the parties unless set aside."
13. Mr. Gole, learned counsel for respondent No. 1. however, submitted that the order in the present proceedings setting aside the order in 32G is based on cogent and reliable evidence and, therefore, it would not be a proper exercise of jurisdiction by this Court to set aside those proceedings. This submission is clearly not tenable. As seen, the tenancy Court had no jurisdiction to set aside the certificate to purchase under Section 32M as a result of proceedings under Section 32G which had already concluded in favour of the petitioner-tenant and, therefore, the orders passed in these proceedings must be quashed and set aside. It is the duty of this Court to interfere with findings which are in excess of the jurisdiction conferred on Court by the respective statutes.
14. In the result, the petition is allowed. The rule is made absolute. The impugned order of the Maharashtra Revenue Tribunal dated 13.10.1980 confirming the orders of the Courts below is set aside. Issue No. 1(A) is answered in the affirmative. The civil Court shall decide issue No. 1(b). There shall be no order as to costs.
15. P.S. to give ordinary copy of this judgment to the parties concerned.
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