2009(1) ALL MR 745
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

R.M. BORDE, J.

Hirabai Baburao Shidankar & Anr.Vs.Rayat Shikshan Sanstha Satara & Ors.

Writ Petition No.160 of 2008

19th September, 2008

Petitioner Counsel: Mr. P. M. SHAH,S/Shri. S. P. SHAH , D. B. RODE
Respondent Counsel: Mr. R. N. DHORDE,Mrs. B. R. KHEKALE

(A) Bombay Tenancy and Agricultural Lands Act (1948), S.88-B(1)(b), Proviso - Tenancy - Public trust - Exemption Enquiry - Proviso to sub-section (2) of section 88-B casts a responsibility on the Collector to hold an inquiry before issuance of certificate, in respect of fulfilment of requirements by the Trust, as provided in sub-section (1) of section 88-B and only after satisfaction of the issuing authority, such certificate shall be issued, which shall be a conclusive evidence in that behalf.

Proviso to sub-section (2) of section 88-B casts a responsibility on the Collector to hold an inquiry before issuance of certificate, in respect of fulfilment of requirements by the Trust, as provided in sub-section (1) of section 88-B and only after satisfaction of the issuing authority, such certificate shall be issued, which shall be a conclusive evidence in that behalf. The nature of inquiry, required before issuance of certificate, is in respect of (i) the Trust is or is not deemed to be registered under the Bombay Public Trusts Act, 1950 and (ii) the entire income of such lands is appropriated for the purpose of such trust. The tenant, in an appropriate inquiry, can put forth his defence that the trust is not registered before the tiller's day or that the entire income of the Trust is not appropriated towards the object of the trust. Extending an opportunity of hearind is must before issuance of exemption certificate by the Collector. [Para 9]

(B) Bombay Tenancy and Agricultural Lands Act (1948), S.88-B(2) - Tenancy - Public trust - Exemption - Enquiry - Notice - When valuable property rights of the parties are affected, then, irrespective of the fact whether the statute specifically provides a notice of inquiry, the Forum is duty bound to serve notice upon the persons whose rights are going to adversely affected.

The valuable right, as provided under the tenancy law, conferred upon the tenant to protect his possession, is taken away by grant of exemption certificate and, therefore, valuable rights of tenants are prejudicially affected and as such there is need to hear the tenant before proceeding to issue exemption certificate. The trust is entitled to seek exemption certificate on fulfilment of the requirements provided under section 88-B. Sub-section (2) of section 88-B prescribes holding of an inquiry by the Collector, which necessarily presupposes extending of an opportunity of hearing to the party whose rights are likely to be affected. Therefore there is greater necessity, while holding an inquiry, to extend an opportunity of hearing to the tenant whose rights are likely to be affected by grant of such exemption certificate. It is now well settled that when valuable property rights of the parties are affected, then, irrespective of the fact whether the statute specifically provides a notice of inquiry, the Forum is duty bound to serve notice upon the persons whose rights are going to adversely affected. Matter remanded to the Collector to inquire a fresh after giving notice. [Para 13,14,33]

(C) Bombay Tenancy and Agricultural Lands Act (1948), S.88-B(2) - Tenancy - Public trust - Exemption - Enquiry - Notice - Collector issuing exemption certificate - No notice issued to tenant offering opportunity to participate in inquiry conducted - Failure to observe principles of natural justice - Exemption Certificate vitiated and can not be sustained. (Para 17)

Sub-section (2) of section 88-B deals with grant of exemption certificate by the Collector after holding an inquiry and which shall be conclusive evidence in that behalf. The Section presupposes inquiry by the Collector for the purpose of issuance of a Certificate. The Collector is bound to issue a notice to the tenant of the agricultural land during the conduct of inquiry and must permit the tenant to participate in the inquiry proceedings before a request made by the Trust for issuance of exemption certificate is granted under section 88-B of the Act. In view of the non-observance of the principles of natural justice and in view of failure to serve a notice calling upon the tenant to submit his say, in the instant case, the order in respect of the issuance of exemption certificate, as contemplated under section 88-B of the Act, is vitiated and can not be sustained. Matter remanded to the Collector to inquire a fresh after giving notice. [Para 17,33]

(D) Bombay Tenancy and Agricultural Lands Act (1948), S.88-B(2) - Tenancy - Public trust - Exemption Enquiry - Jurisdiction of Civil Court - Issuance of exemption certificate by the Collector - Question with regard to the Trust seeking exemption are required to be determined under the Act by the Authority constituted for considering such issue, which arises out of tenancy proceeding - Jurisdiction of the civil court to settle, decide or deal with such questions is taken away.

Sub-section (2) of section 88-B deals with grant of exemption certificate by the Collector after holding an inquiry and which shall be conclusive evidence in that behalf. The Section presupposes inquiry by the Collector for the purpose of issuance of a Certificate. The question whether the Trust is entitled to seek exemption under section 88-B of the Act is required to be determined under the provisions of Tenancy Act and by the Authority constituted for considering such issue. Whether a particular trust, which has leased out the land in favour of the tenant, is entitled to seek exemption in respect of operation of the provisions of the Tenancy Act, is a question which arises out of tenancy proceeding and, therefore, in view of the provisions of section 85 of the Act, jurisdiction of the civil court to settle, decide or deal with such questions is taken away. Matter remanded to the Collector to inquire a fresh after giving notice. [Para 22,33]

(E) Bombay Tenancy and Agricultural Lands Act (1948), S.88-B(2) - Tenancy - Public trust - Exemption - Enquiry - Issues - Jurisdiction of Civil Court - Issues may be arising in an incidental or subsidiary manner or may be substantial or principal - Jurisdiction of the Civil Court to deal with the question is necessarily taken away - Issue is required to be dealt with by the competent tenancy authority - Finding recorded by the Civil Court, in that regard, will have to be ignored.

Sub-section (2) of section 88-B of the Act vests in Collector jurisdiction to hold an inquiry and issue certificate. A forum is created under the Act for inquiring into the matter. The question to be determined regarding grant of exemption of Tenancy Act is necessarily a question which falls within the domain of provisions of the Act. Therefore, considering mandate of section 85 of the Act, jurisdiction of the civil court to settle, decide and deal with the question is taken away. The question which is required to be determined by the forum, created under the Tenancy Act, may be arising in an incidental or subsidiary manner. The issue may be substantial or principal, however, jurisdiction of the Civil Court to deal with the question is necessarily taken away in view of the provisions of section 85 of the Act. The issue is required to be dealth with by the competent tenancy authority. The Collector is required to go into the question and record its findings. Civil Courts jurisdiction is ousted. The finding recorded by the Civil Court, in that regard, therefore, will have to be ignored. Matter remanded to the Collector to inquire a fresh after giving notice. [Para 24,25,33]

(F) Constitution of India, Art.226 - Delay and latches - Tenancy - Public trust - Exemption - Enquiry - Notice - Exemption certificate issued by Collector in 1958 without issuing notice to tenant - Principles of natural justice not followed - Valuable property rights vested in tenant affected by issuance of exemption certificate - Tenants deprived of protection under Tenancy law - Such certificate does not seek to bind tenant-petitioner - Question of latches does not come in the way. (Para 29)

Cases Cited:
Shri. Keraba Dattu Borachate Vs. Shri. Sheshshai and Vishnu Trust, 1990(3) BCR 656 [Para 11,16,20]
Bhimrao Chandru Patil Vs. Balkrishna Dattatraya Joshi, 2002(3) BCR 731 [Para 12]
Kondiba L. Hanmar Vs. Krishnarao A. Dalavi, 2005(2) BCR 484 [Para 12]
Maneksha Ardeshir Irani Vs. Manekji Eduji Mistry, AIR 1974 SC 2123 [Para 15]
Poulad Deochand Patil Vs. Samasta Aher Nhavi Panch Trust, 1992(2) BCR 583 [Para 19,20]
Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi, AIR 1979 SC 653 [Para 23,24]


JUDGMENT

JUDGMENT :- Heard Shri P. M. Shah, learned Senior Counsel holding for S/Shri. S. P. Shah and D. B. Rode, advocates for petitioners, Shri. R. N. Dhorde, learned Counsel for Respondents No.1 & 2 and Mrs. B. R. Khekale, learned A.G.P. for Respondent No.3.

Rule. Rule made returnable forthwith and heard finally by consent of the parties.

2. Petitioners, who are tenants in respect of disputed lands, are praying for quashing and setting aside impugned order dated 15.11.1958, passed by District Deputy Collector, Parner Division, Ahmednagar, thereby granting exemption certificate in favour of Respondent No.1-Trust, as contemplated by provisions of Section 88-B (1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (herein after referred to as 'Act of 1948').

3. Respondent No.1 is a public Trust registered under the provisions of Bombay Public Trusts Act, 1950. Respondent No.1 is working in the field of education and runs many schools and colleges including one educational institution at Shrigonda.

4. According to petitioners, they are in physical possession over the agricultural lands bearing G.No.2124/1 (S.No.1040), admeasuring 5 hectares 56 ares, G.No.2124/2 (S.No.1047) admeasuring 6 hectares 36 ares and G.No.2124/18 (S.No.1048), admeasuring 9 hectares 12 ares, situate at Shrigonda, Taluka Sangamner, District Ahmednagar, as tenants thereof. The lands admittedly belong to a family member of Shinde Sarkar (Scindia).

5. Some of the admitted facts are that:

In the year 1956, Shrimant Jivojirao Madhavrao Scindia executed a deed of settlement and granted 56 agricultural lands including disputed properties in favour of the Trust. The District Deputy Collector, Parner Division, Ahmednagar, granted exemption certificate, as contemplated under Section 88-B of the Act of 1948 in favour of Respondent-Trust on 15.11.1958. It is also an admitted fact that while issuing certificate by the Deputy Collector, no notice was served on the tenants and the proceedings are concluded in the absence of tenants. It is also a fact to be borne out from the record that impugned order is devoid of reasons.

A Civil Suit bearing No.83/78 came to be instituted by the Trust in the Court of Civil Judge, Senior Division, Ahmednagar on 28.03.1978 seeking decree of restoration of possession of the suit properties and for arrears of rent against the predecessor-in-title of petitioners. The suit was partly decreed, however, relief of possession was not granted. The Trust, therefore, approached the appellate Court by filing Regular Civil Appeal No.166/98, which came to be heard and disposed of by District Judge, Ahmednagar, who was pleased to grant decree in respect of recovery of possession in favour of Respondent-Trust on 14.08.2002. A Second Appeal was presented raising challenge to the judgment and decree passed by the first appellate Court, before this Court, being S.A. No.120/2003. However, the appeal came to be dismissed by this Court thereby confirming the judgment and decree passed by the trial Court on 18.12.2002. In the concluding portion of the judgment in Second Appeal, it has been observed by this Court:

"Obviously, now it is difficult to hold that the Trust could not have claimed such certificate and that it could not be issued without giving opportunity of hearing to the appellants, particularly, while dealing with the Second Appeal. These questions can be agitated by the appellants by filing appropriate writ petition challenging the legality and validity of the said certificate. It prima facie appears that the appellants were unaware of the certificate in question and were litigating under improper impression that they could challenge the said certificate in the proceedings before the Civil Court, as per their contentions. Consequently, I do not find any substantial question of law involved in the Second Appeal, yet I deem it proper to grant reasonable time to the appellants to seek appropriate remedy regarding challenge to the certificate under Section 88-B before the appropriate Court."

It has been further observed that:

"All the questions regarding legality of the certificate, competency of the appellants to challenge the same, nature of gift or settlement deed, as it may be, including conditions imposed while granting permission by the Collector, are kept open."

6. Thus, the petitioners, availing the liberty granted by this Court in Second Appeal, presented instant petition raising challenge to the exemption certificate issued by the Deputy Collector, in exercise of powers under Section 88-B of the Act. The challenge raised to the certificate by the petitioner is on the grounds set out below :

(I) According to the petitioners, Trust is entitled to ask for exemption of certificate subject to fulfilment of three conditions :

(a) That the lands are "property" of the Trust for an educational purpose, hospital, panjarapole, Gaushala or an institution of public religious worship;

(b) The Trust is or is deemed to be registered as public Trust;

(c) The entire income of the lands is appropriated for the purpose of Trust;

(II) According to the petitioners, these three questions are required to be determined by the Collector, which require certain proof and inquiry cannot be concluded unless an opportunity is extended to the tenants who are directly affected by grant of certificate. The tenants can demonstrate, during inquiry, that the Trust is not registered before the tillers day or that entire income of the Trust is not appropriated towards object of the Trust.

(III) The Deputy Collector ought to have appreciated that the tenants can very well establish that the Trust is not entitled to be granted exemption certificate and it is not only the matter between Collector and the Trust.

(IV) Sub-section (2) of Section 88-B provides for inquiry and the inquiry has to be conducted in accordance with rules of evidence.

(V) The right conferred upon the cultivator under Section 32 of the Act stands excluded in view of grant of exemption certificate and as such it was mandatory for the Deputy Collector to extend an opportunity of hearing to the tenants before issuing such certificate.

(VI) The order is vitiated on account of failure to record reasons in support of the findings.

7. While controverting the contentions raised by petitioners, it is contended by Respondents that the challenge raised to an order granting exemption certificate in 1958, is not open for consideration after lapse of about fifty years. It is contended that while presenting written statement, petitioners herein were aware of the exemption certificate and also further raised a defence that the suit cannot proceed on the basis of exemption certificate granted without extending an opportunity of hearing to the petitioners. However, in spite of presenting written statement in 1978, no steps were taken to challenge the said certificate. Petition is, therefore, liable to be dismissed on the ground of delay and latches. It is further contended by the Respondents that securing an exemption certificate is not sine qua non for consideration of the case put up by Respondents-plaintiffs before the Civil Court. If the conditions prescribed under Section 88-B are fulfilled, the suit for possession is entertainable. It has been further brought to the notice by Respondents that the Trust has independently proved its case for grant of exemption and as such the Civil Court is empowered to grant relief even ignoring certificate issued under Section 88-B of the Act, by the Deputy Collector. It is further contended that finding recorded by the Civil Court that the Trust has proved the contentions regarding fulfilment of requirements as required under Section 88-B of the Act upon a proper contest, bars further inquiry in the matter in view of the principle of res judicata. The finding recorded by the Civil Court regarding fulfilment of the requisites of Section 88 by the Trust bars further inquiry in the matter, in the instant writ petition. It is also contended that this Court, while disposing of Second Appeal, has confirmed the finding recorded by the first appellate Court and has not further granted any blanket permission to the petitioners herein to raise the issue in writ petition. However, such issue, if raised, is required to be considered subject to the objection, including competency of the petitioners to raise challenge to the exemption certificate as well as its legality. It is, therefore, earnestly contended that the matter in respect of grant of certificate issued on 15.11.1958 shall not be reconsidered after lapse of fifty years.

8. In order to appreciate the controversy raised in the matter, it would be appropriate to refer to the provisions of Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948 which are as follows :

"88-B. (1) Nothing in the foregoing provisions except sections 3, 4-B, 8, 9, 9-A, 9-B, 9-C, 10, 10-A, 11, 13 and 27 and the provisions of Chapter VI and VIII in so far 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 Ist day of August, 1956 for the purpose of rendering any of the following services useful to the community, namely:-

(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 33-B 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 section 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 to 32-R shall, so far as may be applicable, apply to the right of the permanent tenant to purchase the land.

(2) for the purposes 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."

9. It is true that the certificate has been issued on 15.11.1958 without extending an opportunity of hearing to the tenants. Proviso to sub-section (2) of Section 88-B casts a responsibility on the Collector to hold an inquiry before issuance of certificate, in respect of fulfilment of requirements by the Trust, as provided in sub-section (1) of Section 88-B and only after satisfaction of the issuing authority, such certificate shall be issued, which shall be a conclusive evidence in that behalf. The nature of inquiry, required before issuance of certificate, is in respect of :

(i) The 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;

The tenant, in an appropriate inquiry, can put forth his defence that the Trust is not registered before the tillers day or that the entire income of the Trust is not appropriated towards the object of the Trust.

10. On consideration of proviso to sub-section (2) of section 88-B, it transpires that extending an opportunity of hearing is must before issuance of exemption certificate by the Collector.

11. It has been laid down by the Division Bench of this Court, in the matter of Shri. Keraba Dattu Borachate Vs. Shri. Sheshshai and Vishnu Trust, reported in 1990(3) BCR 656, that :

"The reliance of the learned Judge on the provisions of section 88-C of the Act to hold that the Legislature never intended that notice should be issued to the tenants and inquiry should be held in their presence before grant of exemption certificate under section 88-B of the Act is not appropriate. It is now well settled that when valuable property rights of a party are affected, then irrespective of the fact whether the Statute specifically provides for issuance of notice and inquiry, the forum is duty bound to serve notice upon the person whose rights are going to be adversely affected. The principles of natural justice demand that the valuable property rights should not be deprived without the person being given sufficient opportunity to meet the claim. The Trust is entitled to an exemption certificate provided two facts are established: (a) that the Trust is or is deemed to be registered under the Public Trusts Act and (b) the entire income of lands is appropriated for the purposes of the Trust. Now, these two questions which are required to be determined by the Collector demand proof of certain facts and it is not permissible to hold that the Collector can conclude the inquiry without giving an opportunity to the tenants who are directly affected by grant of certificate. The tenant could very well establish that the Trust is not registered before tillers day or, in any event, the entire income of the Trust is not appropriated towards the object of the Trust. By holding that the issue arises only between the Trust and the Collector, the learned Single Judge deprived the tenants from establishing that the Trust is not entitled to exemption certificate. Sub-section (2) of section 88-B of the Act prescribed by rule of evidence that the exemption certificate is conclusive evidence as regards the conditions provided under section 88-B(1)(b) of the Act and, therefore, there is a greater necessity that the tenants who are going to be seriously prejudiced by grant of such exemption certificate should be served with the notice and permitted to participate in the inquiry. The deprivation of a right in such an important inquiry conducted under the Statute, which was enacted by the Legislature for conferring valuable rights upon the Cultivators and the Legislation being a beneficial one is neither just, nor fair. Merely because the Legislature did not specifically provide for service of notice and opportunity for the tenants to participate in the inquiry, it is not permissible for the Court to deprive the tenants of their valuable rights in the agricultural lands by concluding that the enquiry is only between the Collector and the Trustees. The Collector while exercising the powers, even assuming performing administrative duties, still is bound to service notice upon the persons whose property rights are affected."

12. The aforesaid view taken by the Division Bench of this Court has been followed in a subsequent judgment in the matter of Bhimrao Chandru Patil & others Vs. Balkrishna Dattatraya Joshi & others, reported in 2002(3) BCR 731 and in the matter of Kondiba L. Hanmar Vs. Krishnarao A. Dalavi, reported in 2005(2) BCR 484.

13. It is now well settled that when valuable property rights of the parties are affected, then, irrespective of the fact that whether the statute specifically provides a notice of inquiry, the Forum is duty bound to serve notice upon the persons whose rights are going to adversely affected.

14. The Trust is entitled to seek exemption certificate on fulfilment of the requirements provided under Section 88-B, however, in an appropriate inquiry, the tenant can very well contend that on failure to fulfil the requirements mandated by the Statute, the Trust is not entitled to secure exemption certificate. Even sub-section (2) of Section 88-B prescribes holding of an inquiry by the Collector, which necessarily presupposes extending of an opportunity of hearing to the party whose rights are likely to be affected. Therefore, there is a greater necessity, while holding an inquiry, to extend an opportunity of hearing to the tenant whose rights are likely to be affected by grant of such exemption certificate. The valuable right, as provided under the tenancy law, conferred upon the tenant to protect his possession, is taken away by grant of exemption certificate and, therefore, valuable rights of tenant are prejudicially affected and as such there is need to hear the tenant before proceeding to issue exemption certificate.

15. In order to controvert the contentions raised by the petitioners, it is contended by the Respondents, placing reliance on the judgment of the Apex Court in the matter of Maneksha Ardeshir Irani & another Vs. Manekji Eduji Mistry & others, reported in AIR 1974 SC 2123, wherein it is observed that the inquiry is between the Collector and the Trust and 'conclusive evidence' clause mentioned in the section means it is a rule of evidence which would not render necessary for it to prove again the compliance with the requirements.

16. The Division Bench of this Court, in the matter of Shri. Keraba Dattu Borachate & others Vs. Shri. Sheshashai and Vishnu Trust, reported in 1990(3) BCR 656, while considering the ratio laid down in the judgment of the Apex Court, cited supra, has observed thus :

"The observations that the inquiry is between the Collector and the Trust, therefore, must be read with reference to the peculiar facts of the case before the Supreme Court. In our judgment, it is not possible to conclude that the Supreme Court intended to lay down that in the enquiry conducted by the Collector under sub-section (2) of Section 88-B of the Act, it is not necessary to serve any notice upon the tenant whose valuable property rights would be destroyed by grant of exemption certificate."

It has been further observed that:

"In our judgment, the Collector is bound to issue a notice to the tenant of the agricultural lands before holding an inquiry before granting exemption certificate under Section 88-B of the Act."

17. In view of the reasons recorded above, in my opinion, the Collector is bound to issue a notice to the tenant of the agricultural land during the conduct of inquiry and must permit the tenant to participate in the inquiry proceedings before a request made by the Trust for issuance of exemption certificate is granted under Section 88-B of the Act. In view of non observance of principles of natural justice and in view of failure to serve a notice calling upon the tenant to submit his say, in the instant case, the order in respect of issuance of exemption certificate, as contemplated under Section 88-B of the Act, is vitiated and cannot be sustained.

18. It has been contended by learned Counsel for Respondent-Trust that even in the absence of a certificate, as contemplated by Section 88-B(2) of the Act, the Civil Court can very well consider the issue in respect of exemption from operation of the provisions of Tenancy Act on fulfilment of the conditions mentioned in the Section and is entitled to grant relief in favour of the landlord. It is contended that even otherwise, the Civil Court has considered the issue and held that the Trust deserves to grant concession in view of the provisions of Section 88-B of the Act.

19. Shri. Dhorde, learned Counsel appearing for Respondent-Trust, placing reliance on the judgment in the matter of Poulad Deochand Patil Vs. Samasta Aher Nhavi Panch Trust and another, reported in 1992(2) BCR 583, has contended that notwithstanding the production of a certificate issued by the Collector, as contemplated under sub-section (2) of Section 88-B of the Tenancy Act, the Civil Court can consider the question, as to whether the Trust satisfies the requirements for grant of exemption. Learned Counsel has invited my attention to the following observations made in the reported judgment:

"It is not a condition of exemption available to a public trust under section 88-B of the Tenancy Act that it must necessarily possess the certificate issued by the Collector under sub-section (2) of section 88-B. The statute provides that if the prescribed conditions are objectively satisfied by the trust, the land in question shall be treated as exempted from prescribed provisions of the Act notwithstanding the fact that the holder of the land may not possess the certificate of exemption. If the trust produces the certificate issued under sub-section (2) of section 88-B of the Tenancy Act before the Civil Court or any other authority, production of such certificate by itself is liable to be considered as conclusive evidence of the fact that the trust has duly satisfied the prescribed conditions of exemption. If no such certificate is produced by the plaintiff-trust in the civil suit, the Civil Court is not precluded in law from considering the question as to whether the trust satisfied the requisite conditions or not for exemption. In such a case, the trust cannot avail of the presumptive rule of evidence."

20. In Poulad Patil (supra) case, issuance of certificate in favour of the Trust was without observing the principles of natural justice. The court, therefore, relying upon the judgment of the Division Bench in the matter of Kerba Dattu Borachate (supra), held that the tenant is entitled to be heard before issuance of the certificate. The matter was, therefore, remitted back to the Collector for reconsideration of the issue. The objection in respect of petitioner being guilty of latches in presenting the petition was raised. In the reported judgment in Poulad Patil's case, the certificate was issued in the year 1959 and the matter had arisen for consideration before the Court in the year 1992. However, the Court observed that as the order of grant of exemption issued by the Collector under sub-section (2) of Section 88-B is vitiated on account of non observance of principles of natural justice, the matter is required to be remitted back to the Collector for reconsideration of the issue after extending an opportunity of hearing to the tenant whose rights are being prejudicially affected.

21. The plain reading of Section 88-B makes it clear that exemption certificate can be granted in favour of the Trust which has leased out a land, provided the Trust satisfies the requirements, namely-

(a) Such trust is or is deemed to be registered under the Bombay Public Trust Act, 1950; and

(b) The entire income of such land is appropriated for the purposes of such Trust.

22. Sub-section (2) of Section 88-B deals with grant of exemption certificate by the Collector after holding an inquiry and which shall be a conclusive evidence in that behalf. The Section presupposes inquiry by the Collector for the purposes of issuance of a certificate. The question, whether the Trust is entitled to seek exemption under the provisions of Section 88-B of the Act, is required to be determined under the provisions of Tenancy Act and by the authority constituted for considering such issue. Whether a particular Trust, which has leased out the land in favour of the tenant, is entitled to seek exemption in respect of operation of the provisions of Tenancy Act, is a question which arises out of the tenancy proceedings and, therefore, in view of the provisions of Section 85 of the Act, jurisdiction of the Civil Court to settle, decide or deal with the question is taken away. Section 85 of the Act reads thus:

"85. (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question [(including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him)] which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the [Maharashtra Revenue Tribunal] in appeal or revision or the [State] Government in exercise of their powers of control.

(2) No order of the Mamlatdar, the Tribunal, the Collector or the [Maharashtra Revenue Tribunal] or the [State] Government made under this Act shall be questioned in any Civil or Criminal Court.

Explanation- For the purposes of this section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Courts Act, 1906."

23. My attention has been invited to a judgment of the Apex Court in the case of Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi, reported in AIR 1979 SC 653. The issue which came up for consideration before the Apex Court was in respect of bar created under the Tenancy Act for alienation of land in favour of a person who is not an agriculturist. The issue arose, in a matter before the Civil Court in the suit presented for seeking a decree of specific performance, was as to whether the prospective purchaser is an agriculturist. The issue as to whether the plaintiff is an agriculturist was taken up for decision in the reported judgment, by the trial Court holding that the issue, that has risen, is incidental or subsidiary issue. In an appeal presented in the matter, the High Court agreed with the finding of the trial Court as regards validity of the certificate and observed that the Civil Court has jurisdiction to entertain the suit and while considering the main issue, the Civil Court could consider as to whether the transaction is forbidden by law and proceed to decide the subsidiary issue as to whether the plaintiff is an agriculturist. The Apex Court, while dealing with the question, has expressed that it is the exclusive domain of the tenancy authorities to consider the issue and by branding it as substantial or incidental or principal or subsidiary, the Civil court cannot arrogate to itself the jurisdiction which is statutorily ousted. The Apex Court, in paragraph 10 of the judgment, has observed thus :

"Upon a proper construction the expression "any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act" in S.85-A would only mean that if upon assertion and denial and consequent contest an issue arises in the context of the provisions of the Tenancy Act and which is required to be settled, decided and dealt with by the competent authority under the Tenancy Act, then notwithstanding the fact that such an issue arises in a properly constituted civil suit cognizable by the Civil Court, it would have to be referred to the competent authority under the Tenancy Act."

The Apex Court has further observed :

"In a civil suit nomenclature of the issue as principal or subsidiary or substantial or incidental issue is hardly helpful because each issue, if it arises, has to be determined to mould the final relief. Further Ss.85 and 85-A oust jurisdiction of Civil Court nor in respect of civil suit but in respect of questions and issues arising therein and S.85-A mandates the reference of such issues as are within the competence of the competent authority. If there is an issue which had to be settled, decided or dealt with by competent authority under the Tenancy Act, the jurisdiction of the Civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the competent authority under the Tenancy Act. By such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted. This unassailable legal position emerges from the relevant provisions of the Tenancy Act."

24. After harmonious reading of Section 88-B (1) and (2), it would lead to unescapable inference that the question in respect of grant of exemption from the operation of Tenancy Act, in favour of a Trust, is required to be dealt with by the Collector who shall be competent to issue a certificate after holding an inquiry. Section 88-B provides a forum for holding an inquiry and for issuance of a certificate. The question, which arises, is in respect of exemption from operation of the provisions of Tenancy Act which is necessarily an issue arising out of the provisions of Bombay Tenancy and Agricultural Lands Act. The net result of grant of exemption in favour of a Trust is that the valuable rights, which are vested in the tenant in respect of protection under the provisions of Bombay Tenancy and Agricultural Lands Act, are taken away. Considering the consequences of action of grant of exemption certificate which results in serious consequence of taking away the rights conferred by the provisions of Tenancy Act, in a tenant, the question, necessarily shall have to be addressed by the forum which is prescribed by the Act. Sub-section (2) of Section 88 vests in Collector jurisdiction to hold an inquiry and issue certificate. A forum is created under the provisions of Tenancy Act for inquiring into the matter. The question to be determined regarding grant of exemption of Tenancy Act is necessarily a question which falls within the domain of provisions of Bombay Tenancy and Agricultural Lands Act. Therefore, in my view, considering the mandate of Section 85 of the Act, jurisdiction of the Civil Court to settle, decide or deal with the question is taken away. The question which is required to be determined by the forum, created under the Tenancy Act, may be arising in an incidental or subsidiary manner. The issue may be substantial or principal, however, jurisdiction of the Civil Court to deal with the question is necessarily taken away in view of the provisions of Section 85 of the Act. The issue is required to be dealt with by the competent tenancy authority. In my view, sub-section (2) of Section 88-B of the Act provides for a forum to deal with the question and, therefore, jurisdiction of the Civil Court to consider the question, as to whether the Trust is entitled to seek exemption on fulfilment of requirements noted in sub-section (1)(a) and 1(b) of Section 88, is taken away. While dealing with the issue in Poulad Patil's case, the attention of Court was not invited to provisions of Section 85 of the Act and the decision rendered by Apex Court in Gundaji Satwaji's case (cited supra). Therefore, the ratio laid down by Apex Court in Gundaji Satwaji's case will have to be accepted as binding precedence.

25. The argument advanced by learned Counsel for Respondent-Trust that while dealing with the appeal, the first appellate Court has given a finding that even in spite of issuance of certificate under Section 88-B in favour of the Trust and even considering the objection raised by the defendant in respect of issuance of such certificate on the ground of non-observance of principles of natural justice, the plaintiff-Trust has independently proved its entitlement to secure exemption, as the conditions enumerated under Section 88-B are fulfilled by the Trust. In my view, it was not for the Civil Court to consider the question and give finding as to whether the Trust fulfils the requirements as provided under Section 88-B for seeking exemption from the operation of provisions of Tenancy Act. A forum created under the Act i.e. in view of sub-section (2) of Section 88-B, it is the Collector, who is required to go into the question and record its finding. Therefore, jurisdiction of the Civil Court to deal with the question, which falls within the exclusive domain of Collector, is ousted. The finding recorded by the Civil Court, in that regard, therefore, will have to be ignored.

26. Learned Counsel for Respondent-Trust has invited my attention to the observations made by the first appellate Court in Regular Civil Appeal No.166/98, which reads thus :

"Therefore, I hold that though the certificate u/s.88(B) of the B.T. & A.L. Act is not binding upon the defendant No.1 but the plaintiff-trust has independently proved its case for the exemption and therefore, I hold that the plaintiff's suit for possession in the Civil Court is tenable and the suit lands are exempted from the application of S.32 of the B.T. & A.L. Act."

In view of the analogy given above, I am of the view that the Civil Court is not competent to deal with the question which falls within the domain of tenancy authorities and jurisdiction of the Civil Court to deal with the question is ousted in view of provisions of Section 85 of the Act.

27. It is contended by Shri. Dhorde, learned Counsel for Respondent-Trust that this finding recorded by the Civil Court is confirmed by the High Court in Second Appeal bearing No.120/2003, which has been summarily dismissed. In my view, the question of determination of an issue in respect of grant of exemption certificate under Section 88-B of the Act is outside the domain of the Civil Court and, therefore, there cannot be any impediment for consideration of the issue by this Court in the instant writ petition. Section 11 of the Code of Civil Procedure deals with a situation where the issue has been dealt with or decided by a Court competent to try and decide the suit or deal with an issue. However, in my opinion, Civil Court is not competent to deal with the issue which does not fall within the exclusive domain of the Civil Court and in the instant matter, in relation to grant exemption from operation of provisions of Tenancy Act in favour of the Trust, the issue was not required to be dealt with by the Civil Court. As such the bar as canvassed by learned Counsel for Respondent-Trust for consideration of the issue, which according to learned Counsel for the Respondent, has been dealt with by the Civil Court, does not arise.

28. Shri. Dhorde, learned Counsel for Respondent-Trust, has vehemently contended that the petition presented by the tenant is required to be thrown away on the ground of latches. According to him, delay in presenting the petition is not condonable. The impugned certificate in question has been issued in the year 1958, whereas challenge is raised in respect of issuance of said certificate in the year 2007, which according to the Respondent-Trust, is quite belated and on that count alone, petition shall have to be dismissed. Learned Counsel Shri. Dhorde has contended that the tenant was very much aware in respect of issuance of certificate in favour of the Trust. The suit was presented in the year 1978 by the Trust seeking possession of tenanted property. The suit was contested by the tenant by presenting written statement. In the written statement, there is a specific averment in respect of exemption certificate and it is further contended that the tenant was very much aware that the challenge is required to be raised to the exemption certificate before the appropriate authority. However, according to the Respondent, tenant has failed to raise challenge within reasonable time and, therefore, is not entitled to agitate the grievance in this petition in respect of a certificate which is issued as far as back in the year 1958.

29. If we consider the peculiar situation in the instant matter, it would be evident that the impugned certificate has been issued by the Collector admittedly without observance of principles of natural justice. Before issuing a certificate, due notice was required to be given to the tenant calling upon him as to why exemption, as prayed for, shall not be granted. It is to be taken note of that valuable property rights vested in the tenant are affected by issuance of exemption certificate in favour of the trust. The tenant looses his valuable right of becoming purchaser of the property on tiller's day. Loss of his right under Section 32 results in serious prejudice to the interest of the tenant, as the landlord, in such eventuality, need not approach tenancy authorities for recovery of possession and he can straightway proceed to institute a suit in the Civil Court on the basis of his relationship as lessor and lessee, which comes within the purview of provisions of Transfer of Property Act. The tenant, therefore, is deprived of valuable protection granted in his favour under the provisions of Tenancy Act. The impugned certificate, though issued in the year 1958, admittedly without observing principles of natural justice and, therefore, does not seek to bind the petitioners and the question of latches cannot come in the way for raising challenge to such an order which is issued without observing principles of natural justice.

30. Apart from this aspect, the landlord presented a suit claiming possession of the disputed property in 1978. The suit presented by the plaintiff came to be partly decreed in the year 1998. However, relief in respect of possession of the suit property claimed by plaintiff-Trust was refused. In an appeal presented by plaintiff-trust, being R.C.A. No.166/98, the first appellate Court has granted decree in favour of the Trust and held the plaintiff entitled to recover possession of the tenanted property. The first appellate Court took upon itself the task to enquire into whether the plaintiff-trust is entitled to seek exemption as provided under Section 88-B of the Act and after holding that the Trust fulfils the requirements within the meaning of sub-section 1(a) and 1(b) of Section 88-B of the Act, proceeded to hold plaintiff-trust entitled to secure possession. The judgment and decree passed by the first appellate Court has been confirmed in Second Appeal No.120/2003. While commenting upon the certificate issued in favour of the Trust, the learned Single Judge of this Court has held that the question can be agitated by the tenant by filing appropriate writ petition raising challenge to the legality and validity of the certificate; and while disposing of the Second Appeal, this Court has granted reasonable time to the tenant to seek appropriate remedy. This Court has specifically kept all the questions open in respect of legality of the certificate, competency of the appellants to challenge the same, nature of gift or settlement deed, as it may be, including conditions imposed while granting permission by the Collector.

31. Taking advantage of the liberty granted by this Court while disposing of Second Appeal, instant writ petition is presented. Second Appeal is disposed of by this Court on 11th September, 2007, whereas, instant petition is presented on 19th December, 2007. Considering progress of the litigation, I am of the view that instant writ petition cannot be thrown away on the ground of delay and latches.

32. Shri. Shah, learned Senior Counsel appearing for petitioners, has contended that the order passed by the Collector in respect of exemption certificate is a non speaking order. It is essential that while rendering decision, the decision making authority shall record reasons for arriving at the conclusions. The reasons in respect of the decision are required to be recorded in the order passed by the Collector, which ultimately gives an opportunity to other side to pursue the superior forum that the reasons, which persuaded the Collector to pass an order adverse to his interest, were erroneous, irrational or irrelevant and that the obligation to record reason operates as deterrent against possible arbitrary action by the executive authority invested with power to grant exemption certificate. In the instant matter, the impugned order, which does not record reasons for arriving at a satisfaction for grant of exemption certificate by the Collector, is vitiated on that count also.

33. In view of the reasons recorded above, I am of the view that the writ petition presented by petitioners-tenants needs to be allowed and same is accordingly allowed. The impugned order issued by District Deputy Collector, Parner Division, Ahmednagar, under Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948, in respect of issuance of exemption certificate dated 15.11.1958 is quashed and set aside. The matter is remitted back to the Collector, Ahmednagar, for reconsideration of the issue in respect of grant of exemption certificate, as provided under Section 88-B of the Act. The Collector may, either himself to deal with the issue or assign the matter to proper subordinate officer entrusted with the functions to deal with such an issue. The Collector or any such officer, dealing with the matter, shall, after extending an opportunity of hearing to all the parties concerned, render decision in accordance with the provisions of Bombay Tenancy & Agricultural Lands Act, 1948. Considering long pendency of the matter, it would be desirable that the Collector shall render decision in the matter expeditiously and as far as possible before end of May-2009.

34. Rule is made absolute in above terms with no order as to costs.

35. Learned Counsel for Respondent-Trust has prayed for suspension of effect and operation of this judgment for a short period to enable his client to approach the superior Court. Taking into consideration the request made, effect and operation of this judgment is suspended for a period of four weeks.

Ordered accordingly.