2003(1) ALL MR 984
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.A. BOBDE, J.
Chandrakant Sadanand Bartakke Vs. Smt. Parvatibai Namdeo Nakhate & Ors.
Writ Petition No.3425 of 1987,Writ Petition No.3426 of 1987
28th November, 2002
Petitioner Counsel: Mr. G. B. KARANDIKAR
Respondent Counsel: Mrs. ANJALI HELEKAR, Mr. B. P. APTE
Bombay Tenancy and Agricultural Lands Act (1948), S.76 - Revision - When Maharashtra Revenue Tribunal is exercising jurisdiction under S.76, it is exercising a limited revisional jurisdiction - Though it is settled law that revisional jurisdiction is part of appellate jurisdiction, the difference between the two cannot be lost sight of - Purposes of two jurisdictions are also different. (Para 5)
Maruti Bala Raut Vs. Dashrath Babu Wathare, AIR 1974 SC 2051 [Para 5]
2. Writ Petition No.3425 of 1987 is in respect of land of which the tenants are said to be members of Nakhate family. It is in respect of survey no.109/2/3 admeasuring 36 3/4 gunthas situate at village Kamshet. In Writ Petition No.3426 of 1987, the tenants are legal heirs and representatives of Maruti Janku Shinde. The tenanted land is survey no.36/2/2 admeasuring 5 acres and 26 gunthas. The petitioner obtained a certificate for exemption under section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "Act") on 6-8-1959. Upon obtaining the certificate, he filed an application under section 33B for possession of the lands held by the aforesaid respondents. These proceedings eventually reached this Court. This Court by judgment and order in Special Civil Application No.962 of 1965 decided on 13-9-1968 remanded the matter back to the Tahsildar for determining the question whether the income from the cloth shop can be said to be the income of the landlord and for determination as to the amount of income from the cloth shop. This Court directed the Tahsildar to decide the question of bona fide requirement of the landlord for cultivation after the annual income is decided. An inquiry into this question was found necessary by this Court in view of the fact that the exemption certificate under section 88C depends upon the income of the landlord.
3. After remand, on 30-6-1984 the Tahsildar ordered that possession of the entire land be given to the petitioner. The respondents in both the petitions filed appeals before the S.D.O. The S.D.O. allowed the appeals of the tenants and remanded the matter to the Tahsildar for a fresh hearing by order dated 25-3-1985.
4. This remand was challenged by the petitioner landlord before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal after an exhaustive consideration of the matter has upheld the findings of the S.D.O. that the Tahsildar did not apply his mind properly. The Maharashtra Revenue Tribunal in particular referred to the finding of the S.D.O. that the landlord seems to have obtained a house property, a truck, land, another shop, etc. The Maharashtra Revenue Tribunal was, therefore, of view that the S.D.O. was rightly critical of the Tahsildar's order. After making the observations, vide para 8, the Maharashtra Revenue Tribunal came to the conclusion that the attitude of the landlord does not deserve any relief whatsoever and that therefore the S.D.O. ought not to have remanded the matter to the Tahsildar. Adverting to certain evidence on record, the Maharashtra Revenue Tribunal itself held that the landlord did not bona fide require the land for personal cultivation and after referring to the philosophy of the legislation converted itself into an appellate Court and dismissed the landlord's application for bona fide requirement.
5. Now it is clear that when the Maharashtra Revenue Tribunal is exercising jurisdiction under section 76 of the Act, it is exercising a limited revisional jurisdiction. Though it is settled law that the revisional jurisdiction is part of the appellate jurisdiction, the difference between the two cannot be lost sight of. The purpose of the two jurisdictions are also different. The grounds on which the M.R.T. can interfere are set out in section 16. That section reads as follows :-
"16. Bar to eviction from dwelling house.- (1) If in any village, a tenant is in occupation of a dwelling house built at the expense of such tenant or his predecessor-in-title on a site belonging to his landlord, such tenant shall not be evicted from such dwelling house (with the materials and the site thereof and the land immediately appurtenant thereto and necessary for its enjoyment) unless-
(a) the landlord proves that the dwelling house was not built at the expense of such tenant or his predecessor-in-title; and
(b) such tenant makes any three defaults in the payment of rent, if any, which he has been paying for the use and occupation of such site.
(2) The provisions of sub-section (1) shall not apply to a dwelling house which is situated on any land used for the purposes of agriculture from which he has been evicted under Section 31."
In the circumstances, if the Maharashtra Revenue Tribunal was of view that the S.D.O. ought not to have remanded the matter on any of the above grounds, it could have set aside the remand order and directed the S.D.O. to decide the matter and if it was of the other view, it could have upheld the S.D.O.'s order. It could not, however, have dismissed the petitioner's application on merits which was granted by the Tahsildar and which was the function of the two Courts below i.e. the Tahsildar or the S.D.O., vide Maruti Bala Raut Vs. Dashrath Babu Wathare and ors. (A.I.R. 1974 S.C. 2051). I therefore, find that the order of the M.R.T. suffers from jurisdictional infirmity. It has resulted in removing the efficacy of the appellate decision. As a result, there is the order of the Tahsildar allowing the petitioner's application and the order of the M.R.T. and no effective appellate order by the S.D.O. who had merely remanded the matter. In the facts of this particular case, this has led to an unusual situation. The respondents had not preferred a revision before the M.R.T. presumably because they were satisfied with the order of the S.D.O. remanding the matter. In fact, before the M.R.T. they were supporting the order of remand. In this situation, the appropriate thing for the M.R.T. to do was to dismiss the petitioners' revision, if it was not inclined to entertain it. It was not proper for the M.R.T. to have dismissed the application for possession itself while considering a challenge against the order in which the respondents had already succeeded by persuading the S.D.O. to remand the matter.
6. I, therefore, find from the circumstances of the case that both these petitions deserve to be allowed. The order of the M.R.T. is set aside. The S.D.O.'s order of remand shall take effect. The Tahsildar shall decide the matter uninfluenced by any observations made by the S.D.O. or the M.R.T. Having regard to the long pending dispute, the Tahsildar, Maval, shall decide the matter within a period of six months after receipt of the writ from this Court. The rule is made absolute accordingly. No order as to costs.