1999(2) ALL MR 126
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.S. PATANKAR, J.

Bhima Nana Savekar Vs. The Collector Of Kolhapur And Ors.

Second Appeal No.716 of 1986

14th October, 1998

Petitioner Counsel: Shri G. R. REGE with S. M. RAIRKAR
Respondent Counsel: Shri K. K. TATED, Shri S. V. KURADE

Bombay Tenancy and Agricultural Lands Act (1948), S.88(1)(a) - Maharashtra Land Revenue Code (1966), S.242 - Land belonging to Deosthan - Land given to appellant for cultivation - Possession of land can be taken after following procedure under S.242.

The possession of land belonging to Deosthan was given to appellant for cultivation and therefore, he could not be said to be trespasser. Even assuming that he is wrongfully in possession, under Section 242 it was necessary for the Collector to give a notice to him and if he resists in giving possession then it will be taken over after considering objections raised on his behalf. Thus only after following the due process of law, the possession can be taken from the Appellant. [Para 3,4]

JUDGMENT

JUDGMENT :- A few facts are as under.

The suit land being Gat No.674 at village Mumewadi in Ajara Taluka of Kolhapur District admeasuring about 4 Acres and assessed at about Rs.6/-. It belonged to ex-Ruler of Kolhapur. By Vathukum No.4/33 dated 14-9-1933, it came to be gifted to Deosthan known as Bhaveshwarideo. One Malojirao Doulatrao Ghorpade was appointed as a Manager of the land for rendering the services to the said deosthan. The appellant was given the said land for cultivation. Ghorpade failed to perform the services to Deosthan and hence his management was terminated. On 31-5-1974, the State Government took possession though the appellant continued in possession. On 29-4-1978 the State Government held the auction of this land for a period of one year and Respondent No.3 had given highest bid. At that stage Appellant filed the suit for injunction restraining Respondents from disturbing his possession contending that he was a protected tenant under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as Tenancy Act). It was contended that the auction held was illegal and creates no interest in Respondent No.3. Both the Courts below held that the Tenancy Act is not applicable to those lands in view of Section 88(1)(a) of Tenancy Act. It was held that under Vathukum No.4/1933 and No.17/1884 it was contemplated that Deosthan lands be auctioned for cultivation on yearly basis (Eksali). Vathukums obviously meant for creating income for the Deosthan. The Ruler of Ex-Kolhapur State had the control and management over the Deosthan lands situated within the local limits of Kolhapur district. Ghorpade was the manager of Deosthan Bhavaneshwarideo who rendered the services to the deity. The lands were not leased to him and they were under the management of the Ex-Kolhapur State. Ghorpade ceased to render services. In such a situation the Government took over the management of the said land on 3-5-1974. In view of this it was held that the Government was free to auction these lands and the provisions of Tenancy Act are not applicable. I find no infirmity in this.

2. However the question remains whether any of the Respondents can take possession from the Petitioner without following due process of law. In fact the Courts below have termed the Appellant as a trespasser and on that footing proceeded to hold that possession can be taken from him at any time. I am afraid to subscribe to this conclusion. It is not correct. The learned Counsel for the appellant is right in relying upon the provisions of Section 242 of Maharashtra Land Revenue Code, 1966. It reads as under:

"S.242. Whenever it is provided by this Code or by any other law for the time being in force that the Collector may or shall evict any person wrongfully in possession of land, such eviction shall be made in the following manner, that is to say,

a) by serving a notice on the person or persons in possession requiring them (within such time as may appear reasonable after receipt of the said notice) to vacate the land, and

b) if such notice is not obeyed, by removing, or deputing a subordinate to remove, any person who may refuse to vacate the same, and

c) if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause, and that such resistance and obstruction still continue, may, without prejudice to any proceedings to which such person may be liable under any law for the time being in force for the punishment of such resistance or obstruction, issue a warrant for the arrest of the said person, and on his appearance commit him to close custody in the office of the Collector or of any Tahasildar, or send him with a warrant, in the form of Schedule D, for imprisonment in the civil jail of the district for such period not exceeding thirty days, as may be necessary to prevent the continuance of such obstruction or resistance."

3. Firstly it is clear that the Appellant continues in possession. He was put in possession legally by Mr. Malojirao Ghorpade, who was appointed as a Manager for rendering services to the Deosthan by Ex Ruler of Kolhapur State. Even after the Government took over management because of failure of Maljorao Ghorpade to render the services on 31-5-1974, the possession of the Appellant was not disturbed in any manner. Hence it cannot be said that he was a trespasser in the land. Even assuming that he is wrongfully in possession, under Section 242 it was necessary for the Collector to give a notice to him and if he resists in giving possession then it will be taken over after considering objections raised on his behalf. Thus only after following the due process of law, the possession can be taken from the Appellant.

4. Admittedly the Appellant is in possession of these lands since 1978 and has paid no rent whatsoever. In my opinion, the Appellant can be asked to deposit at the rate of Rs.1,000/- per year tentatively considering the area and assessment and the crops grown. The Appellant can deposit the said amount with the Collector. The learned Counsel for the Appellant states that the Appellant shall deposit the said amount within 3 months from today with the Collector. The amount can be appropriated at the end considering the liability of the Appellant to pay.

In view of this I pass the following order:

The appeal is partly allowed. The judgment and decree passed by the trial Court dated 22-12-1983 in Regular Civil Suit No.386 of 1986 and order passed in Regular Appeal No.18 of 1984 are set aside to the extent that it is held that the Respondent shall be at liberty to take possession of the land from the Appellant by following the due process of law as contemplated under Section 242 of Maharashtra Land Revenue Code, 1966. The Appellant to deposit Rs.20,000/- within a period of 3 months from today with the Collector, Kolhapur. In the facts and circumstances of the case there shall be no order as to costs.

Appeal partly allowed.