appeal the original appellant has expired. The legal heirs are
brought on record. In view of the clear pronouncement of law by
the Apex Court in the case of Shriram Mandir Sansthan (cited
supra) in case of the lands belonging to a trust or an educational
institution falling within Section 129(b) of the Bombay Tenancy
Act, the tenancy is not heritable on the death of the tenant. We
have made reference to this fact since the said subsequent event
has taken place during the pendency of present appeal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.39 OF 2005.
IN
WRIT PETITION NO.516 of 1992 (D).
Digamber s/o Pandhari Bhise,
V
Shri Gajanan Maharaj Sansthan,
CORAM: B.R.GAVAI AND
P.N.DESHMUKH, JJ.
DATE : 23rd NOVEMBER, 2015.
Citation:2016(5) MHLJ163
1. The appeal takes exception to the judgment and order
passed by the learned Single Judge of this Court in Writ Petition
No.516 of 1992 dated 13th of January, 2005, thereby allowing the
petition filed by the respondent and upholding the order passed
by Tahsildar dated 9th of March, 1988 while setting aside the
order passed by the first appellate authority i.e. Sub Divisional
Officer dated 27th of June, 1988 and revisional authority i.e.
learned Maharashtra Revenue Tribunal, Nagpur dated 19th of
November, 1991.
2. The facts in brief giving rise to the present appeal are
as under
The respondent is a Public Trust having registration
No.A250 (Bul) and the owner of land admeasuring 28 Acres 27
gunthas at mauza Lamkani, tahsil Akot, which is subject matter
of the present proceedings. The respondent – Trust has got
exemption under the provisions of Section 129(b) of the
Maharashtra Tenancy and Agricultural Land (Vidarbha Region)
Act. On 15th of June, 1962 alleging that the appellant tenant was
in arrears of the lease amount, notice was issued on 12th of
August, 1986 terminating the tenancy and seeking possession of
the suit land. The said notice was received by tenant on 21st of
August, 1986 and reply to the said notice was filed by tenant on
10th of September, 1986. In the reply it was admitted by the
appellant tenant that on account of drought in the year 198384
he could not forward rent though after notice he forwarded rent,
however, same was refused by the respondent. After termination
of tenancy, the proceedings were initiated for seeking possession.
The Tahsildar vide order dated 9th of March, 1988 allowed the
application and directed the appellant – tenant to pay the arrears
of rent within a period of three months from the date of said
order. Being aggrieved thereby an appeal was preferred to the
appellate authority i.e. Sub Divisional Officer. The said appeal
was allowed vide order dated 27th of June, 1988 and the order of
Tahsildar was set aside. Being aggrieved thereby the respondent
filed revision before the learned Member, Maharashtra Revenue
Tribunal, Nagpur. The same was also dismissed vide order dated
19th of November, 1991. Being aggrieved thereby writ petition
came to be filed before this Court. The learned Single Judge vide
judgment and order dated 13th of January, 2005 allowed the
petition. Being aggrieved thereby, the present appeal has been
filed.
3. Shri S.R.Deshpande, learned counsel for the appellant
submitted that the judgment of the learned Single Judge is
erroneous and not sustainable on the following grounds.
(i) that the learned Single Judge has failed to take
into consideration that the notice issued to the
appellant was under Section 106 of the
Transfer of Property Act and in view of
judgment of this Court in the case of Janrao
Jairamji Vidhale ..vs.. Devidas Deorao
Vyavhare and ors. reported in 1980 Mh.L.J.
699, the provisions of Transfer of property Act
were excluded from their operation to the
tenancies which are governed under the said
Act. He submitted that since the tenancy was
not terminated by following the procedure
prescribed under the said Act, the termination
was illegal.
(ii) On combine reading of Section 19 read with
Section 30 of the Tenancy Act unless there are
three defaults, the tenancy cannot be
terminated.
(iii) In view of the provisions of Section 46 of the
Tenancy Act since the appellant was a tenant in
possession of suit land on 1st of April, 1961, he
had become deemed owner of the said land
and as such the exemption granted under
Section 129(b) of the Act subsequently was of
no avail to the respondent.
4. We have perused the judgment and order of the
learned Single Judge, the learned Member, Maharashtra Revenue
Tribunal, the learned Sub Divisional Officer and learned
Tahsildar. Perusal of the record would reveal that though the
notice issued by the respondent mentions provisions of Section
106 of the Transfer of Property Act, it also makes reference to
Section 19 of the said Act. Not only this but perusal of
paragraph 9 of the order of the Tahsildar would reveal that he
has directed the tenant to make the payment of arrears within a
period of three months from the date of the order and has further
held that on failure to make payment within a aforesaid period,
the tenancy shall also stand terminated on the said ground and
respondent herein will be entitled to possession thereof. It could
thus clearly be seen that the Tahsildar has exercised the
jurisdiction as vested in him under Section 30 Sub Section 1 of
the said Act. Undisputedly, the appellant/tenant has not paid the
arrears within a period prescribed by the Tahsildar.
5. Insofar as the contention of the appellant tenant that
unless there are three defaults, in respect of which an intimation
is given to the respondent with regard to each default the
tenancy cannot be terminated is concerned, in our view the said
submission is without substance.
6. On conjoint reading of various Sub Sections of Section
30 of the Tenancy Act, it would reveal that the requirement of
giving three months period for making payment of arrears of rent
as per the direction of Tahsildar would not be applicable in case
where the tenant has failed to make the payment of arrears of
rent for three years and landlord has given intimation to tenant
to that effect within a period of three months, on each default.
In other words when a tenant has failed to make payment of
arrears of rent for three years and landlord has given intimation
to the tenant to that effect, within a period of three months on
each default, the requirement of the Tahsildar directing to make
payment of arrears within a period of three months from the date
of the order would not be applicable. However, such is not the
case here. In the present case, the Tahsildar has passed an order
under Sub Section 1 of Section 30 directing the appellant to
make payment of arras within a period of 30 days from the date
of the order. Undisputedly, the appellant has not paid the arrears
within the period as directed by the Tahsildar. As such, we find
that contention is without substance.
7. Insofar as the contention of the learned counsel
regrading nonapplicability of provisions of Section 106 of the
Transfer of Property Act is concerned, learned counsel Shri
Deshpande has rightly relied on the decision in the case of
Janrao Vidhale (supra) wherein it has been held that the
applicability of provisions of Transfer of Property Act are
excluded insofar as tenancy under the said Act is concerned.
However, it has been observed by the learned Single Judge that
notice was issued under Section 106 of the Transfer of Property
Act as well as under Section 19 of the Tenancy Act. The Apex
Court in the case of Municipal Corporation of the City of
Ahmedabad ..vs.. Ben Hiraben Manilal reported in 1983 SC
537 has held that exercise of power is referable to that
jurisdiction which violates the action and not the one which
invalidates it. We do not find the view taken by the learned
Single Judge insofar as that aspect of the matter is concerned,
can be said to be erroneous.
8. Insofar as the contention of Shri Deshpande regarding
nonapplicability of provisions of Section 129(b) of the Tenancy
Act, since the certificate under explanation to Section 129 of the
Act was granted on 15th of June, 1962, it will appropriate to refer
the provisions of Section 129 of the said Act.
“129. Exemption from certain provisions
to lands held by local authorities,
Universities, trusts, 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 in so far as
the provisions of the said Chapters are
applicable to any of the matters referred to in
sections mentioned above shall apply
(a)...........
(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 an inquiry, that the conditions
mentioned in the said clause are satisfied by
the trust shall be the conclusive evidence in
that behalf.
9. The perusal of the aforesaid provisions would reveal
that except what has been saved by Section 129 of the Act,
nothing in the provisions of the said Act shall apply to the lands
which are property of the 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 purpose of such trust. The explanation to
the said Section would show that for the purpose of clause (b), a
certificate granted by the Collector after holding an inquiry, that
the conditions mentioned in the said clause are satisfied by the
trust shall be the conclusive evidence in that behalf.
It could thus be seen that the effect of the aforesaid
provisions is that, once a certificate is granted by the Collector
insofar as the lands which are the property of trust, in the present
case an institution of public religious worship, that the entire
income of the said lands is appropriated for the purposes of such
trust, the applicability of said Act, except the provisions which are
saved under the said provision, is itself made inapplicable.
Therefore, the effect would be that insofar as the aforesaid lands
are concerned, once a certificate is issued by the Collector, all
other provisions of said Act shall not apply to such of the lands
covered by said Section. We may gainfully refer the decision of
the Apex Court in the case of Shriram Mandir Sansthan @ Shri
Ram Sansthan Pusda ..vs.. Vatsalabai and ors. reported in
1999(1) Mh.L.J. 321. In paragraph no.14 of the said judgment
Hon'ble Apex Court has held as under
14. Section 129 clearly seeks to protect certain
lands from the provisions of the Tenancy Act of
1958. The section thus protects lands held or
leased by a local authority or a university, 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 land
is appropriated for the purposes of such trust. It
also protects lands assigned or donated by any
person before the commencement of the said Act
for the purpose of rendering services useful to the
community, namely, maintenance of water
works, lighting or filling of water troughs for
cattle. It also protects any land taken under
management by a civil, revenue or criminal
Court as set out therein. There is a further
safeguard ensuring that the income from such
land is appropriated for the purposes of a trust
covered by Section 129(b). The explanation
provides for the grant of a certifiable by the
Collector after holding an inquiry. Thus, the
clear intention of section 129 is to protect
certain lands from tenancy legislation where the
lands or income from such lands is being utilized
for public purposes set out there. In this context,
if the tenancy of such lands are not made
heritable, this would clearly be in furtherance of
the purpose of exempting such lands under
section 129.”
10. It could thus be seen that the Apex Court in clear terms
observed that Section 129 is to protect certain lands from tenancy
legislation where the lands or income from such lands is being
utilized for public purposes set out therein. We, therefore, find
that the contention as raised by learned counsel Shri Deshpande
in that regard would not be sustainable.
11. There is an another angle. During the pendency of
appeal the original appellant has expired. The legal heirs are
brought on record. In view of the clear pronouncement of law by
the Apex Court in the case of Shriram Mandir Sansthan (cited
supra) in case of the lands belonging to a trust or an educational
institution falling within Section 129(b) of the Bombay Tenancy
Act, the tenancy is not heritable on the death of the tenant. We
have made reference to this fact since the said subsequent event
has taken place during the pendency of present appeal
12. In the totality of the circumstances, we find that the
view taken by the learned Single Judge cannot be faulted with.
Though a notice issued by the landlord also made a reference
under Section 106 of the Transfer of Property Act, the Tahsildar
while exercising the power under Section 30 Sub Section 1 of the
Tenancy Act has granted three months period to appellant
tenant to clear the arrears of rent. However, the appellant failed
to comply with the directions given by Tahsildar and as such the
tenancy also stands automatically terminated after completion of
three months period from the date on which the Tahsildar has
passed an order.
13. We, therefore, find that the appeal is without merit
and as such deserves to be dismissed. The same is accordingly
dismissed.
14. At this stage, the learned counsel Shri Deshpande
appearing for the appellant submits that this Court exercising the
powers of Tahsildar under Section 30 sub Section 1 of the
Tenancy Act would grant three months period to pay the arrears
and protect the tenancy. We find that the request as made cannot
be considered and hence rejected.
At this stage Shri S.R.Deshpande requests for stay to
the judgment and order passed by this Court for a period of eight
weeks from today.
The said request is vehemently opposed by Shri
A.R.Patil, learned counsel for the respondent.
As already discussed herein above, the original tenant
no more survives and appeal is prosecuted by his legal
representatives. As held by Apex Court in the case of Shriram
Mandir Sansthan, in view of provisions of Section 129(b) of the
said Act, the tenancy is not heritable. Prayer is, therefore,
rejected.
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