KISHAN RAMCHANDRA KUMBHAR Vs. KASHINATH BANDU TELI DR

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the judgment and order passed by the Maharashtra Revenue Tribunal, Pune, dated 7th April, 1989 in Revision Application No. MRT/ns/i-2 of 1987.

(2.) THIS case has a chequered history. It is suffice to mention that the petitioners claim that the petitioners predecessor was lawfully cultivating the suit land bearing R. S. No. 137 (now Gat No. 909) admeasuring 18 acres and 15 gunthas situate at village Kadhane, Taluka Patan, District Satara, since prior to the tillers day i. e. 1st April, 1957. On that premise, it is the case of the petitioners that they became deemed purchasers and entitled to purchase the suit land. In fact, sometime in 1963, the Mamlatdar initiated suo motu proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act) for fixation of purchase price in respect of the suit land. However, it appears that the statement of tenant came to be recorded that he was not willing to purchase the suit land. On that basis, the mamlatdar, Agricultural Lands Tribunal declared the sale to be ineffective by his order dated 13th March, 1963. Against that decision, the matter was carried in appeal by the petitioners which was, however, dismissed. The matter was then carried in revision at the instance of the petitioners which was allowed and the Tribunal remanded the case to the 1st Authority for appropriate inquiry, on accepting the case of the petitioners that a statement of the tenant has been falsely recorded that he was not willing to purchase the suit land. As per this order, the matter stood restored before the Agricultural Lands Tribunal who was required to undertake fresh inquiry under section 32-G of the Act to determine the purchase price in respect of the suit land. It is not in dispute that the order of the Tribunal dated 27th April, 1967 has become final, having been confirmed by this Court in writ petition preferred by the respondents vide order dated 15th June, 1972. While the aforesaid proceedings were going on, the tenant was dispossessed and instead the respondents were put in possession having regard to the declaration given by the First Authority that the sale has become ineffective. Since that order later on came to be set aside by the Revisional Authority as aforesaid, and which view was confirmed by the High Court, the Talathi took steps to restore the suit land to the tenant along with standing crops thereon. That order was passed and possession of the suit land came to be resorted to the petitioners. The respondents unsuccessfully assailed the order of restoration of possession of the land to the tenant in appeal as well as in revision and, later on, by way of a writ petition before this Court. Accordingly, the suit land has been restored to the petitioners tenants. Be that as it may, pursuant to the remand ordered by the Revisional Authority, the 1st Authority reopened the proceedings under section 32 (G) of the Act. The 1st Authority gave opportunity to both the parties to adduce evidence and on considering the evidence on record found that the petitioners were not tenants in the suit land. The 1st Authority further opined that out of 18 acres of land, 0. 15 gunthas of land was Potkharaba and 13 acres were under teak, nimb, shrubs and grass fallow on the relevant dated i. e. 1st April, 1957 and even prior to that. The authority has, however, found that the area admeasuring 5 acres was cultivated and the same was brought under cultivation for Varvadi, Groundnut, Bajari and Paddy. However, in view of the finding that the petitioners were not tenants, the proceedings under section 32-G came to be dropped as the petitioners were held not entitled to purchase the suit land. That decision was passed on 21st April, 1981. Against that decision, the matter was carried in appeal by the petitioners which was however dismissed on 24th July, 1986. The petitioners thereafter carried the matter in revision which came to be dismissed by the impugned order dated 7th April, 1989. All the three authorities below have taken the view as aforesaid. The reasons indicated by the authorities below in substance are that there was no relationship of landlord and tenant between the petitioners and the respondents because the land was Kuran (Grass) since long and, in that situation, the relationship of the landlord and the tenant cannot be presumed. It is further found that a mere entry in the record of rights was of no avail. It is further found that the evidence of the village officer who was an independent person was conclusive evidence of the nature of the land that it is used as grass land since long. It is further found that there are 3 big nallas running through the suit land and, therefore, cultivable area was in patches and cannot be cultivated permanently. It is further found that the land revenue of the suit land was paid by the landlord and there was no rent receipt and lease to establish the tenancy in favour of the petitioners. It is further found that grass grows naturally on the suit land on an area of about 13 acres and without any human efforts, therefore, the same was not an agricultural land and consequently the petitioners cannot be treated as tenants thereof. It is also found that the land is a pasture land or covered by grass or kuran and the landlord used to sell the land to the other villagers and most of the land was grass land on which the grass was naturally grown. The land was not covered by the activity of agricultural within the meaning of section 2 (1) of the Act. It is further found that unless the substantial portion of the land was under cultivation for agricultural use only then the land could be treated as agricultural land and not otherwise. It is found that since only the portion of the land was under cultivation that too in small patches, the same was not covered by the definition of "agriculture" activity for which reason relationship of landlord and tenant is not established by the petitioners. On the above reasoning, the proceedings under section 32-G for determination of the purchase price came to be dropped. This concurrent view taken by the three authorities below is subject matter of challenge in the present writ petition.

(3.) ACCORDING to Mr. Gole, learned Counsel for the petitioners, the authorities have committed manifest error in holding that the land was not an agricultural land. He submits that, in the first place, no such issue is framed. Moreover, this contention was raised for the first time only on remand of the case to the 1st authority by the Tribunal. Learned Counsel further contends that in any case the approach of the authorities below in recording the finding that the suit land was not an agricultural land is completely misdirected and has caused miscarriage of justice to the petitioners. Similarly, he contends that the finding that the petitioners were not tenants is also misdirected and is against the settled legal position. It is therefore submitted that although the present petition arises against the concurrent views expressed by the courts below as the authorities have committed manifest error, this Court will be duty bound to correct that mistake and remedy the error committed by the authorities below.