YAMA TUKARAM MAHAR Vs. RAMCHANDRA DAMU CHOUDHARI

JUDGEMENT

(1.) THE petitioners- Yama Tukaram Mahar and Soma Tukaram Mahar of village Varkhed, tq. Bhadgaon, district Jalgaon, filed an application before the Assistant Collector, Chalisgaon Division, Jalgaon, on 1st March, 1984, thereby challenging the notice dated 6-2-1984, issued by the Tahsildar, Bahadgaon, asking the petitioners to remain present to hand over the charge on 22nd February, 1984 in between 12. 00 to 5. 00 p. m. in accordance with the order dated 24-7-1970 passed by the Sub-Divisional Officer, Chalisgaon Division, Jalgaon. By this order, from the record, it appears that the Sub-Divisional Officer had held the petitioners to be the trespassers on Field Survey No. 135-3 H. 25. R. , situated at village Varkhed. This decision appear to have been given, as is clear from the record, on the basis of the application of the respondents, who are the owners of the field in question. The record indicates that the respondent No. 1 - Ramchandra Damu Choudhari had purchased the field in question on 14-12-1981 from rest of the respondents for Rs. 15,000/- and which was illegally occupied as trespassers by the present petitioners. The order dated 24-7-1970 appear to have not been executed for a considerable long period and in view of the above referred sale transaction, it appears that necessary application for executing the order by evicting the petitioners was filed. This notice dated 6-2-1984, which is issued by the Tahsildar was challenged by way of an appeal before the Assistant Collector, Chalisgaon Division, at the instance of the present petitioners. This appeal was registered as TNC/appeal No. 5 of 1984. It is necessary to note at this stage that the appeal memo filed before the Assistant Collector specifically indicates in the title Clause that the appeal is under section 74 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act for short ). The learned Assistant Collector, Chalisgaon Division, after hearing the parties rejected the appeal on the ground that the appeal itself was not tenable, as according to the learned Collector, the order dated 24-7-1970 passed by the Sub- Divisional Officer, Chalisgaon Division, Jalgaon, was for solitary eviction of the petitioners, which order had remained to be executed. The Assistant Collector further rightly observed that at no point of time, the petitioners did challenge the order dated 24-7-1970 passed by the Sub-Divisional Officer, Chalisgaon Division, Jalgaon and hence that order had become final. The appellate authority, therefore, observed that the learned Tahsildar had simply issued notice for solitary eviction in order to execute the order of the Sub-Divisional Officer. The Assistant Collector, therefore, rejected the appeal by his order dated 30-1-1985 on the ground that it was not maintainable and further did vacate the interim order which was passed by way of stay in favour of the petitioners.

(2.) A revision at the instance of the petitioners before the Maharashtra Revenue Tribunal against the order of the Assistant Collector dated 30-1-1985 was registered as TEN-A-72 of 1985. The learned Member of the Maharashtra Revenue Tribunal, Bombay, who dealt with the matter, observed that the revision before the Maharashtra Revenue Tribunal itself was not maintainable, as according to the learned Member, the notice was issued in execution proceedings of the order dated 24-7-1970 and according to the learned Member since in accordance with the provisions of section 73 (3) of the Act, the order of Mamlatdar in execution proceedings is made final subject to appeal, if any, to the Collector, which means that there was no scope of any revision to be preferred at the instance of the petitioners in the instant matter. The Revision Application thus came to be rejected by the judgment and order dated 10th April, 1985 by the Maharashtra Revenue Tribunal,. It is this order, which is under challenge before this Court in the present petition.

(3.) ADMITTED position is that the order dated 24-7-1970 passed by the Sub-Divisional Officer in summary eviction proceedings against the petitioners was not challenged by the petitioners at any point of time before any competent authority. So the position is that the said judgment is final. The Tahsildar issued a notice bearing No. TEN/rr/72 of 1984 dated 6-2-1984, whereby he simply directed the party concerned to remain present to hand over the possession of the field in question to the respondents. Thus it is absolutely clear that the said notice dated 6-2-84 by no stretch of imagination can be said to be any order or decision by the Tahsildar. In fact, the petitioners also did not raise any objection before the Tahsildar, much less in writing, challenging the validity of that notice, at least whereon the Tahsildar in ordinary course would have passed necessary orders. However, instead of adopting a proper legal procedure, the petitioners preferred an appeal under section 74 of the Act. Section 74 of the Act gives various kinds of orders passed by the Revenue Authorities under various sections of the Act passed by the Mamlatdar and the Tribunal against which an appeal is provided to the Collector. This list of sections do not provide for an appeal against the notice of the instant type. Since the Tahsildar has not passed any order, but has simply issued the notice, the question of appeal under section 74 of the Act did not arise. The Assistant Collector, therefore, was justified in rejecting the appeal on the ground that it was not maintainable.