C Vs. MAMLATDAR AND AGRICULTURAL LANDSTRIBUNAL

JUDGEMENT

(1.) THE short facts of the case are that the petitioners/their forefathers purchased various parcels of the land, which are subject matter of the petitions in capacities as tenants of the concerned land as per the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act" ). It is an admitted position that when the properties were purchased or the sale certificates were issued in favour of the concerned petitioners, no sale certificate contained the right in favour of the concerned petitioners/the predecessor in title, as unrestricted tenure or with a transferable right. It is also not in dispute that all the petitioners purchased the property as per the Scheme of the Act being Tenants of the land in question either themselves or their forefathers after the tenancy rights were adjudicated and ultimately as there is statutory right of purchase the price was fixed and the sale certificates have been issued.

(2.) IN the year 1960 by amendment in Section 43 of the Act, Sub-section (1b) has been inserted in the statute book, providing that the requirement for payment of the premium as per Sub-section (1) of Section 43 shall not be applicable, if the land is purchased by a permanent tenant provided prior to the purchase, such permanent tenant by usage or custom or by agreement or decree by the order of a Court held a transferable right in the tenancy of the land. The State Government, after the amendment issued circular dated 22nd October, 1965 and clarified that if the tenant has purchased the property and the certificates are already issued prior to the amendment, but it is proved that such tenant had a transferable right, they would be entitled to the benefits of Sub-section (1b) and the certificates are not required to be corrected. Thereafter on 26. 9. 1967, the State Government issued another circular further clarifying the position that in the event the certificates are already issued and if the transferable rights were already proved, prior to issuance of the certificate the condition of restricted tenure may be deleted. It was also provided in the said circular that in the event there is no adjudication by the competent authority regarding the transferable right of the permanent tenant, whose certificate is already issued under Section 32g of the Act, such tenant if makes application, the matter may be examined by the Mamlatdar under Section 70 (o) of the Act and if the transferable rights are proved, the certificates issued under Section 32g of the Act may be amended accordingly. It appears that thereafter again the circular came to be issued by the State Government on 18. 3. 1996 reiterating the provisions of the statute and further clarifying that whether the tenant, who has claimed the tenancy right as the permanent tenant or not is an aspect to be considered on the basis of Village Forms No. 7, 7a and 12 in the revenue record and contingencies including that of establishment of the right as the permanent tenant by entry in the revenue record for cultivation by forefathers of the person concerned prior to 1. 8. 1956 and even for the cultivation shown in the revenue record for last 15 years from 1. 1. 1936 to 1. 8. 1956 may be considered for declaring the person as the permanent tenant, while deciding the application under Section 70 (o) of the Act. It was also provided in the said circular that if the person is declared as permanent tenant under Section 70 (o) of the Act, the matter is required to be forwarded for scrutiny to the Dy. Collector (Land Reforms) and the Dy. Collector (Land Reforms), if required, may forward the papers for observations to the Collector with his opinion and if the power is not properly exercised and the matter may also be considered for exercise of the revisional power if the power is not properly exercised by the Mamlatdar. Various other instructions are mentioned in the said circular, which to the extent of relevance shall be referred to hereinafter. Thereafter, another circular came to be issued on 18. 9. 1997, whereby the period of 15 years is reduced to 10 years prior to 1. 8. 1956 for declaration as permanent tenant.

(3.) THE petitioners herein have made the application to the concerned Mamlatdar and ALT under Section 70 (o) of the Act for declaration of their status as the permanent tenant and as per the petitioner, it was also prayed that it may be declared that the restriction under Section 43 of the Act are not applicable to the land held by the petitioner as the permanent tenant and the revenue record be corrected accordingly. It appears that the Mamlatdar and ALT entertained the application of the petitioner as under Section 70 (o) of the Act and he found that the possession for the requisite period is established by other evidence but such is not reflected from the revenue record since the revenue record itself is not available and ultimately the Mamlatdar has dismissed the application. It is under these circumstances, the petitioners have approached this Court by preferring the present petitions, challenging the order of the Mamlatdar dismissing the application under Section 70 (o) of the Act for the declaration of the status as permanent tenant with a transferable right.