SANTU BABAJI POWAR Vs. SHANKAR NIVAS SITARAM KAMAT

JUDGEMENT

(1.) THE petitioner hereby assails the judgment and order which has been passed by learned Member of M. R. T. in Revision Application No. MRT-KP-214/1985 dated 17-11-1988 whereby he dismissed the revision application filed by the present petitioner confirmed the judgment and order passed by S. D. O. in Tenancy Appeal No. 61/83 dated 18-10-1985 and set aside the order which was passed in Tenancy Case No. 32-G Kukudwadi-14-A dated 6-6-1983. The land in question is survey No. 28 admeasuring 2 Acres and 3 Gunthas situated in the precincts of village Kukudwadi, Taluka Radhanagari, Dist. Kolhapur. The said land belonged to Shankar @ Nivas Sitaram Kamat, respondent No. 1, who was minor on 1-4-1959. Initially on 7-6-1979 Tahasildar and A. L. T. had decided the purchase ineffective as the tenant did not prove that the intimation was issued by him which was served on the landlords during the prescribed period. The present petitioner filed an appeal which was decided by S. D. O. who allowed the appeal and remanded the case back to Tahasildar and A. L. T. In view of that order passed by S. D. O. , Tahasildar and A. L. T. issued fresh notices and heard the proceedings on 6-1-1983. The evidence was recorded on 18-4-1983 and 2-5-1983 and thereafter the Tahasildar and A. L. T. decided the said proceeding by passing the judgment and order which is the order which has been set aside by the learned Member of M. R. T. bearing the date as indicated by the said judgment of M. R. T. "6. 6. 83". By virtue of the said judgment and order, the learned Tahasildar and A. L. T. declared that the tenant was entitled to purchase the said land in view of provisions of Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act for convenience) and after deciding the purchase price directed that a certificate of purchase be issued to him in view of provisions of Section 32 M of the Act.

(2.) THE said judgment and order was challenged by the present Respondent No. 1 by filing an appeal which was decided by S. D. O. in Tenancy Appeal No. 61 of 1983 which has been referred to in the abovesaid judgment passed by the learned Member of the M. R. T. which was confirmed by it. By the said judgment and order, the S. D. O. set aside the judgment and order which was passed by Tahasildar and A. L. T. in proceedings No. 32--G Kukudwadi-14-A. The learned S. D. O. held that the present petitioner was unable to prove that he had sent the intimation expressing his willingness to purchase the land in view of provisions of Section 32f (1) (a) of the Act and that point is the point of contest in the present petition.

(3.) SHRI Dalvi placed reliance on the judgment of the Supreme Court in the case of Shimla Development Authority and Ors. v. Santosh Sharma (Smt.) and Anr. , reported in (1997) 2 SCC 637, wherein while dealing with a land acquisition matter, the Supreme Court held that in view of provisions of Section 27 of the General Clauses Act, 1897, if the notice is sent by the petitioner to the respondent but neither the unserved notice nor the acknowledgment cards were received, in such case it would be presumed that notice must be deemed to have been served on the addressee. He pointed out that in the said case the notice was sent to the respondent by the petitioner as early as on 25-7-1991 but neither the unserved notice nor the acknowledgment cards have so far been received from the respondent and in that case the Supreme Court held that notice must be deemed to have been served on the respondents. By pointing out that, Shri Dalvi pointed out that in the present case as the judgment passed by S. D. O. Kolhapur shows that the present petitioner had sent the intimation by registered post with acknowledgment due system but the petitioner had not received the acknowledgment copy showing that the said notice was served on respondent No. 1. Shri Dalvi submitted that it was on record that an intimation was sent to the respondent No. 1 by the petitioner but on account of the non-receipt of the said acknowledgement copy he was unable to prove such service by said method and when that was so, it was not proper and legal for the learned S. D. O. to come to a conclusion that the petitioner had failed to establish that he had given the intimation of his willingness to purchase the land in question. He further submitted that when that was the state of affair, it was not proper and legal for the learned Member of M. R. T. to come to a conclusion that the present petitioner had not expressed his willingness to purchase the land and had not given an intimation to that effect to respondent No. 1, the landlord. He submitted that the learned Member of M. R. T. landed in error of dismissing the revision application and, therefore, this Court be pleased to grant the writ of certiorari in favour of the petitioner for rectifying the said error of law.