SAYYED ABDUL SATAR SAYYED MUNIR OF FAKIRWADA Vs. MUJFARKHAN MOHINUDDIN MUTVALLI TRUSTEE ON BEHALF OF RODGA MASJID TRUST OF PANCHPIR

JUDGEMENT

(1.) THESE two Writ Petitions can be decided and disposed of by this common judgment as they arise out of the same order dated 25/7/1980 passed by the Member, Maharashtra Revenue Tribunal, Pune in Revision bearing Nos. TRA/AH/9/7/79 and TRA/AH.IX/6/79.

(2.) CERTAIN admitted facts leading to this litigation and necessary for the decision can be stated thus :- The property involved is an agricultural land bearing Survey No:270/1 admeasuring 10 acres and 21 gunthas and assessed at Rs.17.62 situated at village Savedi, Tq.& Dist. Ahmednagar. It belonged to one Bismillabee, a widow, who executed a lease-deed in favour of Sayyed Abdul Sattar (petitioner in Writ Petition No.3027/1989 and respondent no.2 in Writ Petition No.3274/1989) in 1958-59 and since then it is in actual occupation and cultivation of Sayyed Abdul Sattar. On 4/8/1961 Bismillabee gifted this property in favour of Mujffarkhan Mohinuddin Mutavali (respondent no.1 in Writ Petition No: 3274/89). Bismillabee died on 14/4/1962. After her death, dispute arose over the title between the respondent nos. 3 to 5 in Writ Petition No: 3027/1989 and the title of the trust-respondent no.1 came to be denied. A mutation entry no.2058 was, however, finalised and certified in the village record on 25/3/1965 in favour of respondent no.3-Sardarkhan Mahadkhan, showing him as her heir. The said Sardarkhan issued a notice to Sayyed Abdul for reasonable and bona fide need to cultivate the property personally under sections 29 and 31 of the Bombay Tenancy & Agricultural Lands Act. The tenant-Sayyed also served Sardarkhan for purchase of the property and Sayyed and Sardarkhan mutually agreed on 9/10/1965 for the price of the property at Rs.4,000/- and an agreement to sell was executed and an earnest amount of Rs.500/- was also paid. Sardarkhan, then, moved the Tenancy authorities under section 64 of the Bombay Tenancy Act for fixation of price and also for permission to the said transaction of sale. The inquiry was held in Tenancy Case No.32/G/64/1/66 and by an order dated 8/3/1966, the A.L.T. Ahmednagar granted the said permission under section 64 and 32-G of the tenancy Act. The respondent no.3 - Sardarkhan never challenged the said permission. The tenant-Sayyed also challenged the gift-deed executed by Bismillabee in favour of respondent no.1 - trust under section 63 of the Act on 13/5/1967 on the ground that the respondent no.1-Trust was not an agriculturist. The proceeding was numbered as Tenancy Case No.35/67 and the Tahsildar, Ahmednagar by an order dated 25/4/1968 rejected the application of the petitioner. The petitioner-Sayyed, then, took up the matter to the Sub-divisional officer, Ahmednagar in Tenancy Appeal No: 31/69, which was allowed on 16/1/1970 and the matter was remanded for retrial. After remand, the proceeding was numbered as Tenancy Case No.33/70 and the Tahsildar by an order dated 30/10/1971, again, rejected it. The petitioner-Sayyed, then, again filed Tenancy Appeal No: 3/72 and by an order dated 31/5/1972, the Sub-Divisional officer held the gift as violative of section 63 and declared it invalid and further directed the disposal of the land under section 84-C of the Tenancy Act. This order was challenged by both Sayyed as well as the Trust in MRT 9-ll/72 and 9/15/72. The Revenue Tribunal, Pune by an order dated 21/11/1973 remanded it to ascertain as to whether the Trust had secured exemption certificate under section 88B of the Tenancy Act. The order of remand was, then, challenged by the present petitioner-Sayyed before this Court in Special CA.No:759/74 and this Court allowed the Civil Application by setting aside the order of remand and directing the M.R.T. Pune to decide the matter on its merits. As directed, the M.R.T. Pune decided the matter on its merits as per the order dated 23/3/1978. The proceeding was then numbered before the Revenue Tribunal after remand as Nos. TRA/AH TRA/AH/IX/7/79 and TRA/AH.IX/6/79; the first pertaining to the present petitioner while the second the respondent no.1/Trust. By an order dated 25/7/1980, the Maharashtra Revenue Tribunal, Pune dismissed both the revisions and confirmed the order of the trial Court. As such, the gift executed by Bismillabee in favour of respondent no.1- Trust was held invalid and the action of forfeiture of the property to the Government under section 84-C also came to be confirmed. It is this order dated 25/7/1980 that has given rise to these Writ Petitions and it is being challenged by tenant-Sayyed in Writ petition No: 3027/89, while by the Trust in writ petition No: 3274/89. Inasmuch as these two writ petitions are between the same parties and arose out of the same proceedings, they are being decided and disposed of by this common judgment.

(3.) SECTION 88B of the Act exempts the trust property from the application of certain SECTIONs under the Tenancy Act, but it is required to be proved that such land is the property of the trust and is held by the trust. This is admittedly to be ascertained in an inquiry contemplated under sub-section(2) of SECTION 88B and it is only on the satisfaction of the Collector in respect of the compliance of the conditions mentioned in SECTION 88B(1) that an exemption certificate can be issued in favour of the Trust. Such a certificate, then, gets the status of conclusive evidence under the said proviso. It is, therefore, clear that unless the conditions mentioned in sub-section(1) of section 88B of the Act are proved to have been complied with and unless the authority in an inquiry is satisfied that the conditions are duly fulfilled, no question of issuance of certificate arises. In this connection, a useful reference may be made to the ruling of this Court in Laxman Sidhu Vs. Shri Govindrao Korgaonkar; (1981 Mh.L.J. 338). In the said case, there was also a tenant in the land and the land was gifted to the public trust which was not an agriculturist within the meaning of that word in the Tenancy Act. The tenant in the case cited above was also declared as an owner and had paid all the installments and the certificate u/s 32M was also issued to him and, thereafter, the Trust initiated the proceedings u/s 88B of the Act for the exemption certificate in which the tenant himself gave no objection to the exemption certificate and a certificate was, then, accordingly issued by the authorities. On these facts it has been ruled in the said case that the Collector, gets jurisdiction to grant exemption certificate only in case where the land is admittedly proved to be belonging to the trust or is duly proved to be belonging to the Trust. It is further held that when the transferee-Trust was not an agriculturist on the date of the transfer, the gift was bad in its inception and the Trust, therefore, had no title to the land in question and, as such, had no right even to make an application for exemption certificate. In the said case, the certificate issued by the Collector was ultimately held to be of no legal consequence even though the tenant had given no objection for such issuance and the tenant was, therefore, found perfectly justified and within his right to totally ignore such a certificate. Coming to the facts involved in the case at hand, it may be reiterated that the gift is executed in favour of a non-agriculturist and in the absence of the necessary permission under section 63 and 64 of the Act and further more than the Trust has not even initiated the proceeding u/s 88B nor secured any exemption certificate under sub-section (2) of section 88B. As per the above ruling, even if a certificate is issued in respect of a land not proved to be belonging to the Trust and when the transfer by the owner of the land to the Trust was in the absence of the necessary permission under sections 63 and 64 of the Act and when the tenant was in actual possession of the property, such certificate has been held to be of no legal consequence and the transfer of the land to the Trust cannot be justified and the rights of the tenant cannot be defeated. The case at hand stands on a better footing. As stated above, not only there is a transfer of the property by Bismillabee, the owner, in favour of non-agriculturist i.e. the Trust, and in the absence of necessary permission under section 63 of the Tenancy Act, as stated above, but the tenant Sayyed had himself initiated the proceedings u/s 64 of the Tenancy Act and is armed with the order dated 8/3/1966 granting him permission to purchase the property and fixing the agreed consideration of Rs.4,000/- as reasonable. Furthermore, in the present case, no inquiry has been held by the Collector as provided by sub-section (2) of SECTION 88B for getting satisfied about the compliance of the conditions mentioned in sub-section (1) of the said section nor the Trust has approached the authorities for the issuance of any such exemption certificate. In view of these, the submissions made on behalf of the Trust in respect of applicability of section 88B of the Act, cannot be accepted as the land in dispute has been gifted away by a widow to the Trust - a non-agriculturist, without obtaining the necessary permission under section 63 of the Act and, as such, the transaction is hit by the said provisions and is illegal since inception and, therefore, does not confer any rights upon the Trust. The property in dispute, therefore, cannot be held to be the land as the property of the Trust as contemplated by section 88B of the Act. It may be noted that it is not each and every Trust which would fall within the purview of section 88B of the Act, but the said SECTION is applicable only to those lands which are held to be the properties of the Trust and a certificate granted by the Collector under sub-section(2) after holding an inquiry would prove the compliance of the conditions mentioned in the SECTION. Therefore, it is only in respect of such trust properties that the provisions of certain sections of Tenancy Act would become inapplicable The learned Member of Maharashtra Revenue Tribunal, committed, therefore, no error in holding the transfer of the suit land by Bismillabee in favour of the Trust as invalid and violative of the provisions of SECTION 63 of the Tenancy Act. The order of rejecting the revision filed by the Trust bearing No: TRA/AH.IX/6/79 is, therefore, proper, legal and cannot be found fault with. In consequence, the Writ Petition No.3274/89 filed by the Trust is, therefore, devoid of any substance and is required to be rejected.