DATTU HARIMALI Vs. PEER ALLI DARGA MASJID

JUDGEMENT

(1.) THIS petition under Article 227 of the constitution of India takes exception to the judgment and order passed by the Sub-Divisional Officer, Phaltan Division, Phaltan, dated April 3, 1987 in Tenancy Case No. 1 of 1981. Briefly stated, the land in question is survey No. 609, Hissa No. 1 to 5, situated at village Khatav, taluka Khatav, district Satara, totally admeasuring about 7 acres. The predecessor of the petitioners was inducted in the suit land as permanent tenant (Mirashi tenant) under Registered Mirashi Patra dated July 2 1889. The Respondents claim to be a public trust duly registered under the provisions of bombay Public Trusts Act, 1950 some time on May 29, 1955. As no proceedings for possession were pending between the parties on the tillers' day, inquiry under section 32g of the Bombay Tenancy and Agricultural lands Act was commenced in the year 1962 on the assumption that the tenant has become deemed purchaser on the tillers day, i. e. , 1st April, 1957. In the said proceedings, after hearing both sides, purchase price was determined by two separate orders dated March 15,1962. Pursuant to the said order, the tenant deposited the purchase price in the Government Treasury on June 4, 1962 and on March 13, 1963. It is much thereafter an application was addressed to the chief Minister by one Shri. A. N. Dange, pursuant to which fresh inquiry under section 32g of the Act was commenced in the year 1969. However, the tenancy authorities by order dated January 26, 1970 preferred to drop section 32g proceedings, taking the view that the earlier inquiry was void ab initio. Against this decision, matter was carried in appeal by the tenant and the appellate authority allowed the appeal by judgment and order dated October 28, 1970. The landlords filed revision which was allowed by the Maharashtra Revenue tribunal by judgment and order dated February 8,1973, restoring the order of Tahsildar dated January 26, 1970, dropping section 32g proceedings. In the circumstances, the Petitioners preferred writ petition before this Court being Special Civil Application No. 1840 of 1973. The said writ petition, however, came to be allowed by judgment and order dated 14th and 15th December, 1978. This Court took the view that if section 88b exemption proceedings were pending, the proceedings under section 32g of the Act will have to wait till the outcome of the said application. This Court observed that the Respondent being public trust was entitled to apply for exemption certificate under section 88b of the act. Both parties appearing before this Court admitted that the trust had not submitted such application contemplated by Rule 52 to the Collector before commencement of the proceedings under section 32g of the Act. In the circumstances, this Court remanded the case to the Additional tahsildar to decide the same in accordance with law giving opportunity to the Respondent Trust to make an application to the Collector as contemplated by section 88b (2) of the Act, which application be decided in accordance with law. After the said remand, the present proceedings being tenancy Case No. 1 of 1981 were cannoned before the Sub-Divisional Officer, phaltan Division, Phaltan, for granting exemption certificate in favour of the Respondent under section 88b of the Act in respect of the suit lands. This application was opposed by the Petitioners essentially on two grounds. It was firstly contended that the present application was incompetent and untenable, because similar application was already filed by the Respondent Trust, which has been dismissed on 30th March, 1970. It was also contended that, in any case, the Respondent Trust would not satisfy the requirements of section 88b, so as to be entitled for issuance of exemption certificate. Insofar as the first contention is concerned, the Sub-Divisional officer negatived the same holding that principles of res judicata will not apply in the present case, as the application has been dismissed for default. He further held that the application will have to be considered on merits in terms of the observations of the High Court. Insofar as the merits are concerned, the Sub-Divisional Officer answered the issue by observing thus :

(2.) MR. Karandikar, for the Petitioners, submits that the present application for issuance of exemption certificate under section 88b of the Act filed by the Respondents was incompetent and untenable in law. He submits that the Respondent had filed application for similar relief in the past, which was admittedly dismissed for default on 30th March, 1970. He Further submits that it now transpires that another similar application was filed by the Respondent on 1st December, 1972 and the status of that application is not disclosed by the Respondent. According to him, a fresh application as filed by the Respondent is untenable on the principles analogous to O. 9, R. 9, C. P. C. To support this proposition, reliance is placed on the decision of our High Court in the case Trimbak Purushottam Patil v. Yashodabai. A. I. R. 1971 Bom. 295 he submits that the authority below has misdirected itself in proceeding on the assumption that it was obliged to decide the application on merits and not to dismiss the same as not maintainable in the light of the remand order passed by the High Court. The learned Counsel further contends that the order as passed by the Sub-Divisional Officer cannot be sustained even on merits as no satisfaction as required to be reached in terms of section 88b (2) of the Act that the entire income of the suit lands is appropriated for the purposes of the trust is recorded; and in absence of such satisfaction, no certificate can be issued in favour of the Respondents. Mr. Karandikar further contends that even the maharashtra Revenue Tribunal misdirected itself in returning the revision application as preferred by the Petitioners as not maintainable. According to him, the order issuing exemption certificate in favour of the respondents passed under section 88-B of the Act, nevertheless, takes the colour of quasi-judicial proceedings as can be discerned from the opinion recorded by the Division Bench of this Court in the case of Kerba dattu Borachate and others v. Shri. Sheshashai and Vishnu Trust, 1990 Mh. L. J. 1183.

(3.) ON the other hand, Mr. Naik, for the Respondent, has supported the order passed by the Sub-Divisional Officer. According to him, the sub-Divisional Officer has rightly rejected the objection regarding maintainability of the application, as the previous application was admittedly dismissed for default; and if it is so, the principles of res judicata are not attracted. To support this proposition, reliance is placed on the decision of the Apex Court reported in the case of Shivashankar Prasad shah v. Baikunth Nath Singh and another, A. I. R. 1969 S. C. 971 decision of our High Court reported in the case of Nyaneshwar Bhiku Dhargalkar v. Executive Engineer, P. W. D. , God. 1999 (3) M. L. J. 86 he further submits that insofar as the conclusion reached by the Sub-Divisional Officer that the applicant has fulfilled all the provisions of section 88b of the Act is concerned, the same is unquestionable as the same is supported by the evidence on record. He further submits that remedy of revision is not available against the order such as the one passed under section 88b of the Act.