HIS HOLINESS SHRIMAT SUDHINDRA THIRTH SWAMIJI OF SAMSTHAN KASHI MATH Vs. VEEKAYLAL INVESTMENT CO PRIVATE LIMITED

JUDGEMENT

(1.) As will be presently pointed out, the question arising out of this petition betrays a picture of a battle between tweedle-dum and tweedle-dee. A meaningless Appeal was filed by the present respondent to the Deputy Collector almost 12 years after the order by which he was aggrieved. He need not have filed the appeal at all. The question could have been well agitated by him in the suit which, I am told, he has already filed, because the question which was urged by him in the proposed appeal filed long after the expiration of the limitation was a neat question of jurisdiction of the trial Court which could have been and can be agitated in a civil suit. Without considering the question of limitation the Deputy Collector entertained and allowed the Appeal for a meaningless exercise of remanding the matter back to the Tahsildar. The same order is passed by the Revenue Tribunal purporting to make a slight modification which is more apparent than real. The original respondent before the Dy. Collector has filed the present writ petition. For the reasons which will be presently mentioned, I am inclined to allow the writ petition partially, but mainly because the question sought to be urged in theses proceedings is essentially meant for the suit which is already pending between the parties and not because any particular prejudice is caused to present petitioner.

(2.) The relevant facts are very simple. The property in question, extensive piece of property, situate at Dahisar, which is now within the Municipal limits of Greater Bombay, belonged at one time to one Mr. Haji. He died in 1946 and Administration suit came to be filed by the persons claiming to be his heirs on the Original side of this High Court, Suit No. 3415 of 1947. The suit is still pending. In that suit, a Receiver was appointed. The suit property forms part of the entire property left by deceased Haji. The Receiver purported to auction the suit property to respondent No. 1, M/s.Veekaylal Investment Company Pvt. Ltd. However, admittedly, a Sale Certificate has not been issued in favour of present respondent No. 1. In that sense he is not a legal owner of the property. He may possible be the equitable owner. After the auction in favour of present respondent No. 1 was made, one Bhatia Raval made an application to the Tenancy Court, viz., the Tahsildar, at Borivali, for relief under section 32-G of the Bombay Tenancy & Agricultural Land Act. He contended that he was a tenant of the said suit land and hence he asked for declaration under section 70(b) of the Tenancy Act to that effect. He also claimed that, as such tenant, he had become owner of the sane under section 32 of the Tenancy Act and by the same application asked for fixation of the price to be paid by him to the landlord. To that application, the Court Receiver was made a party. Likewise, present respondent No. 1 was also made a party defendant to that application. The Receiver, when he received the summons of the proceedings, informed the tenancy Court by a letter that he had already sold the suit land to present respondent No. 1 and had, veritably, washed his hands of the entire matter. On behalf of present respondent No. 1, one Churi, who was in the employment of respondent No. 1s Company was examined. He stated the fact that Bhatia claimed to be the tenant of the land in the suit. But from the evidence given by him it does not appear that the had admitted Bhatias contention that he had become owner of the suit land under section 32 of Tenancy Act. By his order dated 5-4-1967 Tahsildar held that Bhatia was a tenant of the suit land and that he had to become owner of the same under section 32 of the Tenancy Act. The purchase price was therefore fixed by him and the instalments by him were determined. I am told across the bar that Bhatia had in fact deposited the entire amount in the Tenancy Court. A plea is raised before me by Mr. Naik, the learned Council for the petitioner, that that amount had been even withdrawn by and on behalf of present respondent No. 1. However, there is no agreement on this point and hence, the entire question shall have to be gone into in appropriate proceedings.

(3.) Now we come to the crucial aspect of the facts. Present respondent No. 1 sat pretty for a period exceeding 11 years and thereafter filed an Appeal to the Deputy Collector as late as on 23rd March 1978 questioning the validity and legality of the impugned order of the Tahsildar dated 5-4-1967. The Deputy Collector did not apply his mind to the question as to whether the appeal should be entertrained at such a late stage. He gave Notice to the parties concerned and proceeded to hear the appeal. He set out the arguments advanced on behalf of the Appellant in that Appeal (present respondent No. 1). The arguments were that since the suit land was in the possession of the Receiver on the date of the impugned order of the Tahsildar (5-4-1967), the provisions of sections 30 to 32 did not apply to the land having regard to the provisions of section 88-B(1)(d) and that, hence the declaration of tenancy in favour of the tenant, Bhatia, and the statutory sale to him was void ab initio and bad in law. The substance of this argument has been set out by the Deputy Collector in his order. But he has not given any indication whether he was accepting that contention. He simply set out the arguments and straightaway proceeded to set aside the order of the Tahsildar passed more than 11 previous years before the date of the Appeal and to remand the case to the trial Court. The order passed by him in this behalf is as follows:---