High Court
Facts
116 W.P. 12411-2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 12411 OF 2019Usha W/o Sopanrao Suryawanshi,Age : 61 Years, Occ. Household,and agriculture, resident ofSahakarnagar, Near Varad Hospital,Aurangabad. ….Petitioner (Orig. Respondent No.1)VERSUS1.The State of MaharashtraRevenue Department, Mantralaya,Mumbai.2.The Deputy Collector,( General Administration),Collector Office, Aurangabad.3.The Tahsildar,Tahsil Office, Aurangabad.4.Dattatraya s/o Suryabhan Tupe,Age : Major, Occ. Agriculture &Business , resident ofAt present New Hanuman Nagar,Near High Court Cidco Aurangabad5.Pandit s/o Namdeo Mule,Age : Major, Occ. AgricultureR/o. Mitmita Tq. And DistrictAurangabad.6.Girjabai w/o Gangadharrao Dhopeshwarkar,Age : Major, Occ. Household,R/o. Uma Nagar, adjacent toGopal Cultural Hall, Osmanpura,Aurangabad. ..Respondents 216 W.P. 12411-2019.odt WITHWRIT PETITION NO. 1075 OF 20201.Amit S/o Jawahar Gandhi,Age : 39 Years, Occ. Business,R/o. 19, Amitambar, ShantiniketanColony, Aurangabad.2.Ambar S/o Jawahar Gandhi,Age : 37 Years, Occ. Business,R/o. As above.3.Lalit Vasantlal Gandhi,Age : 49 Years, Occ. Business,R/o. 18, Mangesh Nagar, Jalna Road,Aurangabad.4.Ganesh S/o Shankarlal Darakh,Age : 53 Years, Occ. BusinessR/o. Bunglow No. 25, Cantoment,Aurangabad.5.Dinesh S/o Shankarlal Darakh,Age : 50 Years, Occ. Business,R/o. As above6.Hanif Mohd. Harish Mohd. Kadar,Age : Major, Occ. Business,R/o. Jaysingpura, Near University Gate,Aurangabad. ..Petitioners VERSUS1.The State of Maharashtra, 316 W.P. 12411-2019.odt2.The Deputy Collector,(General Administrtion),Collector Office, Aurangabad.3.The Tahsildar,Aurangabad.4.Dattatraya Suryabhan Tupe,Age : Major, Occ. Business and Agri.R/o. New Hanuman Nagar,Near High Court, Aurangabad.5.Pandit Namdeo Muley,Age : Major, Occ. Agriculture,R/o. Mitmita, Aurangabad.6.Girjabai Gangadharrao Dhopeshwarkar,Age : Major, Occ. Household,R/o. Umanagar, Near Gopal Cultural Hall,Osmanpura Aurangabad. .. Respondents….. Advocate for the Petitioner in W.P. 12411/2019 : Mr. V.G. MeteAdvocate for the Petitioner in W.P. 1075-2020 Mr. P. N. KalaniAGP for Respondent Nos. 1 to 3: Mr. A.S. ShindeAdvocate for Respondent No.4 : Mr. D.P. Palodkar .... CORAM : S. G. MEHARE, J.DATE : 09.01.2024PER COURT : 416 W.P. 12411-2019.odt1.Heard the learned respective counsels at length.2.The petitioners are the purchaser of the disputed lands. Thedispute has a checkered history. One Punjaba Dhondiba Tupe had filedan application before the Tahsildar on 16.09.2004 against thecontesting respondent No.4 Dattatraya, claiming that the suit landswere under cultivation of Punjaba as a tenant. He was an ordinarytenant of land Survey No 213 (Gut No. 301) of village Mitmita, Talukaand District Aurangabad, to the extent of 5 Acres 10 gunthas. UnderSection 38 (G) of the Hyderabad Tenancy and Agricultural Lands Act,1950, the ownership certificate was issued on 16.08.1969. However,the present petitioners are the purchasers from the original purchaserGirjabai. She was the party to that proceeding. She had contested theapplication filed by Dattatraya and Gayabai. After hearing the parties,a third-party application by Girjabai was rejected, and the price for 5Acres and 10 gunthas of the land was determined. The Tahsildar calledthe copy of 7/12 extract of the land and rough map from Talathi forfixation of the boundaries. Thereafter, boundaries of the land werefixed in the presence of the applicant. Further, it has been directed thatafter fixing the boundary marks and depositing the reasonable price bythe applicant, the ownership certificate under Section 38(6) was issuedto him. The Tahsildar had passed the above order on 06.10.2008. 516 W.P. 12411-2019.odt3.Admittedly, as per the argument advanced by the learnedcounsel for the petitioners, Ushabai had purchased the land on 13October 2010. She preferred an appeal before the Deputy Collectoragainst the order of Tahsildar dated 06.10.2008, along with a delaycondonation application. The Deputy Collector has condoned the delayby order dated 11.08.2016. The present respondent/original applicant,Dattatraya, had impugned the said order before the MaharashtraRevenue Tribunal. The present petitioners raised an objection that therevision against the order of condonation of delay under Section 91 ofthe Hyderabad Tenancy and Agricultural Lands Act, 1950, is notmaintainable. Dattatraya preferred an application dated 15.10.2018claiming the relief that respondent No.1 has to come forward andshow that she had not purchased or had purchased the declaredportion. If she had not purchased, she is not an aggrieved party, andher appeal is not maintainable before the Deputy Collector,Aurangabad and thus, the revision filed by the revisional petitioner isliable to be allowed. In the said application, it has also been prayedthat if the respondent/present petitioner is not aggrieved by thejudgment and order of the Tahsildar, her appeal is not maintainablebefore the Deputy Collector at Aurangabad, and alternatively, she may
Legal Reasoning
1016 W.P. 12411-2019.odtfor that issue. Unless the opportunity is granted to the respectiveparties to hear on merits, the decision on merit is legally not correct.Hence, this case is fit for remittance.12.As far as the stay of the proceeding Outward No.2020/19- MaujeMitmita- CRA-13 is concerned, prima facie, it appears that it goes tothe root of the dispute. However, considering the experience of thesnail speed of the proceeding before the revenue authority, it would beinappropriate to stay that proceeding. The said proceeding mayproceed subject to the decisions of the issues raised before this Court inthis petition. The appellate authority shall ensure that the issues inthat appeal do not conflict with those involved in the earlierproceeding, i.e., revision application No.12-B/2017/Aurangabad and13/B 2017/A. In view of the above, the following order is passedORDER(i)The Writ Petitions are allowed.(ii)The impugned judgment and order of Member, Maharashtra Revenue Tribunal Aurangabad passed in revision application No. 12/B/2017/A and 13/B 2017/A/ dated 19.07.2019 stands quash and set aside. (iii)The matter is remitted to the Member, Maharashtra Revenue Tribunal Aurangabad, for deciding the issue of the tenability of the revision petitions under Section 91 of the Hyderabad 1116 W.P. 12411-2019.odtTenancy and Agricultural Act 1950 within three months from theappointment of the Administrative Member of Maharashtra Revenue Tribunal, Aurangabad.(iv) The appeal/proceeding, Outward No. 2020/19 Mauje Mitmita- CRA-13, would proceed ahead. However, the authority dealing with said proceedings should ensure that its findings do not conflict with the issues involved in revision before the Member, Maharastra Revenue Tribunal Aurangabad. ( S. G. MEHARE, J. )ysk
Arguments
616 W.P. 12411-2019.odtbe directed to say and submit, whether she had purchased declaredportion 5 Acres 19 gunthas.4.In a nutshell, it is the contention of the present respondentDattatraya, that the appeal preferred before the Deputy Collector wasnot maintainable. The point of maintainability was to be decided as apreliminary issue.5.The petitioners have replied that the said application was mainlyopposed, contending that the revision preferred by the respondentDattatraya itself is not maintainable under Section 91 of theHyderabad Tenancy and Agricultural Lands Act, 1950. Even then, theMember, Maharashtra Revenue Tribunal, Aurangabad, decided the saidapplication on 15.10.2018 by the impugned order dated 19.07.2019.6.The main grievance of the petitioners before this Court is thatthe Member, Maharashtra Revenue Tribunal, instead of deciding theobjection of tenability of the revision, has decided the application onmerits and illegally imposed the negative burden upon the petitionersto prove whether she had purchased the land from the declaredportion. It is a grievance of the petitioners that they were not heard on 716 W.P. 12411-2019.odtmerit, but on the preliminary issue, the entire application has beendecided, and the matter was illegally remitted to the Collector for afresh decision. They also contended that when the application wassimply filed, raising objections to the tenability of the revisionapplication, the Maharashtra Revenue Tribunal ought not to havedecided the issues on merits; therefore, the impugned order is illegal.7.The learned counsel for the petitioners Mr P. N. Kalani, in WritPetition No. 1075 of 2020, prayed to remit the matter with direction tothe Member, Maharashtra Revenue Tribunal to decide the issue oftenability of the revision against the impugned order. The learnedcounsel for the petitioner in Writ Petition No. 12441 of 2019 alsoconceded that this is a fit case to remit the matter.8.Per contra, the learned counsel for the respondent, Dattatraya,has vehemently opposed the application. He would submit that therevision is very well maintainable under Section 91 of the HyderabadTenancy and Agricultural Lands Act, 1950. Law is not remediless.Against the order of the Collector, the only remedy lies before therespondent to approach to the Maharashtra Revenue Tribunal. By theimpugned order, no prejudice is caused to the petitioners. He prayed todismiss the petition. He also added that though the objection was to 816 W.P. 12411-2019.odtthe tenability of the revision application was raised, they have putforth their entire case, and the Maharashtra Revenue Tribunal correctlyconsidered it. The learned counsel for the respondent Dattatrayawould submit that the petitioners have also preferred the appealchallenging the ownership certificate dated 16.08.1969 under Section38(e), 38(f) and 38(g) and certificate dated 05.01.2012 under Section38(6) of the Hyderabad Tenancy and Agricultural Lands Act, 1950.He would submit that this Second Appeal goes to the root of thematter; therefore, the said appeal is liable to be stayed. He moved theCivil Application, and this Court had stayed the proceeding. He prayedto continue the stay to the said appeal.9.The learned counsel for the petitioners has strongly opposed thecontention and submitted that another appeal for cancellation of thecertificate is an independent proceeding and has no bearing on thiscase. He relied on the case of Vaijinath Yeshwant Jadhav Versus AfsarBegum Ndimuddin Kazi 2010 (6) Bombay Cases reporter 784. 10. The forceful argument advanced by the learned respectivecounsels pertains to the impugned orders, and the serious objection ofthe petitioners is that the impugned order is passed on merit withouthearing them. They had plainly raised an objection about the tenability 916 W.P. 12411-2019.odtof the revision, and it was not decided properly. Therefore, this Courtis of the view that the ratio laid down in the case of Vaijnatha (supra)may not be considered at this juncture.11.Perusal of the impugned order reveals that there was a disputeregarding the tenability of the revision before the MaharashtraRevenue Tribunal against the order of the Deputy Collector condoningthe delay in preferring the appeal against the order passed by theTahsildar in favour of the respondent Dattatraya. The openingparagraph of the impugned order reveals that the MaharashtraRevenue Tribunal intended to decide the application on 15.10.2018.The said application was replied to, and the main objection was raised,that the revision itself is not tenable. The order does not reflect anycomment on the objection to the tenability of the revision application.Though it reflects the discussion on merit, a serious objection has beenraised that the revision application was not argued on merit. This is adisputed issue. The question was very simple: Can the revision againstthe delay condonation application be entertained under Section 91 ofthe Hyderabad Tenancy and Agricultural Lands Act, 1950. TheMaharashtra Revenue Tribunal was expected to decide the tenabilityissue first, but the Tribunal has decided the revision on merit except