Gajanan Maharaj Sansthan Vs Digambar Bhise

B.P. Dharmadhikari, J.@mdashPetitioner a public trust having registration No. A-250-(Bul) has filed this petition under Articles 226 and 227 of the Constitution of India challenging orders dated 19.11,1991 passed by Maharashtra Revenue Tribunal, Nagpur and order dated 27.6.1988 passed by Sub-Divisional Officer, Akot with a request to restore order of Tahsildar and Chairman, Agricultural Lands Tribunal dated 9th March, 1988.

2. The petitioner filed an application u/s 36 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as "Tenancy Act") for restoration of possession of field Survey No. 6, area 28 Acres 27 Gunthas at Mouza : Lamkani. It was their contention that being public trust, they have got exemption u/s 129 (b) of the Tenancy Act and provisions of Chap. Ill thereof are not applicable. The petitioners therefore are entitled to claim possession after issuing notice as contemplated by Section 106 of Transfer of Property Act. Accordingly the petitioners issued notice dated 12th August, 1986 and demanded possession on 31.3.1987 i.e. at the end of agricultural year. The respondent got said notice on 21.8.1986 and he replied that notice on 10th September, 1986. In his reply he contended that he is cultivating the said field since 1957 and initially rent was Rs. 461/- which was fixed at Rs. 210/- in accordance with tenancy laws. He further stated that he has given donation of Rs, 11,111 / - to the petitioner for medical college and trust cannot cultivate the said land which is at a distance of about 50 kms. He further stated that on account of drought in the year 1983-84 he could not forward rent but after notice he forwarded rent and it has been refused by the petitioner. The Tahsildar has accepted the case as pleaded by the petitioner trust and held that the tenancy of respondent is validly terminated at the end of agricultural year 1986-87 w.e.f. 31.3.1987 and within 60 days he should hand over possession to the petitioner.

3. The respondent challenged this order in appeal u/s 107 of the Tenancy Act before Sub-Divisional Officer, Akot. The S.D.O. found that the petitioner trust did not demand possession since 1957 till date and he further found that Section 106 of the Transfer of Property Act is not attracted. He further found that being trust land the respondent/tenant could not become owner and if tenant defaults in paying lease money the landlord has to issue notice u/s 19(ii) of the Tenancy Act for termination of tenancy. He further found that here tenant was not found in default of payment of lease money. He therefore, quashed and set aside the order of Tahsildar and allowed the appeal. The petitioners challenged this order by filing revision u/s 111 before Maharashtra Revenue Tribunal and the M.R.T. found that Section 106 of the Transfer of Property Act has no application and has further found that S.D.O. has passed order after giving opportunity of hearing to the parties. Hence, M.R.T. dismissed the revision. These orders are challenged by the petitioner trust in the present writ petition.

4. I have heard learned Advocate Shri M.N. Ingley for the petitioner and learned Advocate Shri S.R. Deshpande for the respondent.

5. Advocate Ingley has contended that M.R.T. has refused to interfere in the revision only on the ground that provisions of Section 106 of the Transfer of Property Act are not applicable in the facts and circumstances of the case. He contends that the said finding recorded by M.R.T. in revision and also by S.D.O. in appeal is perverse. He states that bare reading of Section 5 of the Tenancy Act reveals that Section 106 of the Transfer of Property Act is very much applicable. He further contends that notice of termination issued by petitioner on 12.8.1986 cannot be treated as notice u/s 106 of the Transfer of Property Act alone and it can also be read as notice u/s 19 of the Tenancy Act. He contends that once there is registration of petitioner as public trust and once there is order of exemption u/s 129(b) in favour of petitioner, the respondent cannot be heard and cannot make any grievance about it. He contends that no such grievance was made by the respondent before any of lower authorities and respondent never challenged exemption certificate issued in favour of the petitioner till this date. He points out that infact the respondent admitted exemption certificate in favour of the petitioner in proceedings before Tahsildar.

6. As against this Advocate S.R. Deshpande appearing for respondent/ tenant contends that the tenancy of the respondent is governed by provisions of Tenancy Act and as such notice u/s 106 of the Transfer of Property Act is not at all necessary. He relies upon judgment of Hon''ble Apex Court V. Dhanapal Chettiar Vs. Yesodai Ammal, in support. He also states that once relationship between parties is governed by provisions of Tenancy Act, only recourse available to the petitioner to terminate tenancy of the respondent is vide Section 19 of the Tenancy Act and Section 106 of the Transfer of Property Act is not at all relevant. He also relies upon judgment of this Court Janrao v. Devidas 1980 Mh. L.J. 699. He further states that there is no exemption to private trust and grant of exemption operates to the prejudice of respondent/ tenant, hence, opportunity of hearing is must. For that purpose he relies upon judgment of this Court Bhimrao Chandru Patil and Others Vs. Balkrishna Dattatraya Joshi and Others, . He further states that notice given by petitioner on 12.8.1986 is not a notice of three months as required by Section 19 of the Tenancy Act and hence, it cannot be read as notice u/s 19. He further states that u/s 30(1) of the Tenancy Act the Tahsildar has to give time of three months to the respondent to pay arrears of rent and here the learned Tahsildar has ordered delivery of possession only within 60 days. He therefore, contends that the order of Tahsildar also cannot be read as order u/s 19 read with 30(1) of Tenancy Act. He contends that Tahsildar has viewed the proceedings as proceedings u/s 106 of the Transfer of Property Act. He states that there is nothing on record to show that the trust was registered on 1.4.1961 and that it was having any exemption before 1.4.1963. He contends that therefore, the present respondent has become owner of the suit land. It is his argument that the documents produced on record reveal that the petitioner holds land that is in excess of three family holdings and the land cannot go back to the petitioner and they cannot get possession.

7. Thus, first question which arises here is to find out whether the provisions of Section 106 of the Transfer of Property Act are available to the petitioners. The petitioners have exemption certificate granted u/s 129 in their favour and as per opening part of the said Section 129, Section 2, provision of Chap. 11 except Sections 21, 22, 23, 24, 37, 91 and provisions of Chap. X and XII only applied to the petitioner trust. Section 5 Is first section appearing in Chap. II and it states that provisions of Chap. V of the Transfer of Property Act, 1882 shall apply to tenancies under Tenancy Act in so far they are not inconsistent with the Tenancy Act. This issue of inconsistency has been considered by this Court in ruling reported at 1980 Mh, L,.J. 699 (supra). Precisely same argument was advanced and in paragraph 21 (wrongly mentioned as 20) this Court has recorded thus:

In case the provisions of Chap. V of the Transfer of Property Act were intended to be made applicable for termination of tenancy to lands covered by Section 129 of "the Act", there was no sense in not exempting these lands from the operation of Section 19 and some other provisions of "the Act". This clinching circumstances coupled with the whole object and the scheme of "the Act" will show that Chap. V of the Transfer of Property Act does not freely operate upon such lands. As rightly pointed out by Shri Chandurkar for the respondent, Section 19, therefore, creates an embargo on such type of lands and the tenancies created with relation to them, as a result tenancy is terminable only in terms of "the Act" and not in terms of Transfer of Property Act.

In paragraph 23 this Court has recorded that it cannot even be imagined that the tenancies in respect of lands exempted u/s 129 of the Tenancy Act can be terminated only in terms of provisions of the Transfer of Property Act and it would defeat that very purpose of the Tenancy Act and principles underlying therein. This ruling therefore, holds that tenancy of lands covered u/s 129(b) must be terminated under Tenancy Act and not by giving notice u/s 106 of the Transfer of Property Act. In that view of the matter, the arguments of Advocate Ingley that the petitioner trust has validly terminated tenancy u/s 106 of the Transfer of Property Act are without any substance and cannot be accepted. The findings recorded by S.D.O. in appeal and by M.R.T. in revision to that extent are just and proper.

8. Coming to notice dated 12.8.1986 issued by petitioners to the respondent, the said notice (Exh. A6) reveals that the petitioner trust has made mention of exemption certificate u/s 129(b) and has mentioned that the provisions of the Chap. HI of Tenancy Act are not applicable to the suit land. The tenancy of respondent was terminated w.e.f. 31st March, 1987 and he was called upon to handover possession on 1.7.1987. Without prejudice notice also states that the respondent ought to have paid rent of land of the petitioner before 31st March of each year and respondent has failed to pay rent from the year 1980. It is further mentioned that on account of non-payment of arrears of rent within three months from the receipt of the said notice the respondents'' tenancy would stand terminated and in last line it is mentioned after this caution that "please take this notice u/s 19 of the B.T.A.L. Act, 1958." Thus, perusal of the notice clearly shows that though tenancy was terminated from 31.3.1987, three months'' time was given to the respondent to hand-over possession by the petitioner and he was called upon to hand-over the possession on 1st July, 1987. Not only this the reference to Section 19 of the Tenancy Act is also made and respondent was informed that he has not paid lease money every year as agreed and he is in arrears from 1980. He was also communicated that if he did not clear the arrears within three months, his tenancy would also stand terminated on that account. Thus, as argued by Advocate Ingley it is not only a notice u/s 106 of the Transfer of Property Act, on the other hand one can ignore the mention of Section 106 of the Transfer of Property Act or of the Transfer of Property Act itself in the said notice and still notice is valid in view of the provisions of Section 19(1)(i)(a)(i) and (ii) of the Tenancy Act. It is apparent that the Tahsildar has considered this aspect of the matter while learned S.D.O. and M.R.T, have lost sight thereof. The authorities have not considered this angle or finding about it recorded by the Tahsildar, thus, there is failure on the part of both these authorities to exercise jurisdiction available with them in accordance with law. The order of M.R.T. considers two grounds which were raised before it. First being about validity of notice u/s 106 of the Transfer of Property Act and second being not extending opportunity of hearing to the petitioner by S.D.O. While considering the point No. 1 about validity of the notice In paragraph No. 3 of its order the Maharashtra Revenue Tribunal mentions above referred ruling of 1980 Mh. L.J. 699 and concludes that Section 106 of the Transfer of Property Act has no application. It will thus be seen that while exercising revisional jurisdiction the order of Tahsildar which was in favour of the petitioner or findings recorded therein have not been looked into by the M.R.T. Insofar as order of S.D.O. is concerned, the S.D.O. again has only observed that Section 106 of the Tenancy Act (sic Transfer of Property Act) has no application and Tahsildar has wrongly passed order. He thereafter observes that the land being held by the trust the respondent does not become owner but for default in payment of lease money committed by the respondent, the petitioner trust must issue notice u/s 19(ii) of the Tenancy Act for termination of the tenancy. Thereafter the appellate authority holds that as the tenant is not found in default of payment of lease money the order of Tahsildar is wrong and erroneous. Thus, the observations of S.D.O. again reveal total non-application of mind. The Tahsildar in paragraph No. 9 of his order considered the evidence adduced before him and has found that the respondent/tenant did not pay rent because of pendency of the dispute in Court of law and he therefore, directed the non-applicant/tenant before him to clear all the arrears within three months. He has further directed that if the arrears of rent are not cleared within three months, the tenancy of the respondent shall stand terminated even on that ground and the petitioner shall be entitled to possession of the land. From paragraph 10 onwards the Tahsildar has considered applicability of Section 106 of the Transfer of Property Act and the ruling of the High Court about it. He finds that section 106 of the Transfer of Property Act is also applicable and the other factors like income of petitioner or need to augment it are not relevant. Hence, u/s 106 he has ordered that the tenancy of the respondent/ tenant is properly terminated and he should hand over possession to the petitioner within 60 days of the service of possession order upon him. It is to be seen that here also the Tahsildar has mentioned the provision of Section 106 of the Bombay Tenancy Act. Perusal of the order of Tahsildar, however, reveals that the Tahsildar has applied mind separately on the two aspects, first is tenant being in arrears of rent and the second is about applicability of Section 106 of the Transfer of Property Act. The finding reached by Tahsildar in paragraph 9 of its order dated 9th March, 1988 is overlooked by the appellate authority and also by revisional authority. The said finding is reached after appreciating of evidence on record and it has not been demonstrated before this Court that the said finding is perverse. One thing is certain that inspite of direction as contained in paragraph 9 of this order the respondent/tenant has not paid rent within period of three months as mentioned in it.

9. Advocate Deshpande appearing for respondent/tenant has contended that opportunity of hearing should have been given to the respondent before granting exemption to the petitioners. The civil applications referred to above are filed by respondent/tenant only for that purpose. However, it is to be noticed that no grievance about absence of hearing was made at any time by the said respondent either before Tahsildar or before appellate authority or even before the Maharashtra Revenue Tribunal. It is to be noticed that the respondent has not filed any return before this Court opposing the petition. Perusal of the order of Tahsildar reveals that the respondent/tenant has accepted exemption certificate with the petitioner. In paragraph No. 8 the Tahsildar has observed that the suit field belongs to applicant/petitioner and it has exemption certificate u/s 129(b) and that applicant accepts it. In such circumstances, such a stand cannot be allowed to be raised here in High Court for the first time. In fact, in view of the directions given by Tahsildar in paragraph No. 9 of his order the respondent/tenant ought to have either cleared the arrears within the period of three months or should have filed appeal u/s 107 before the Sub-Divisional Officer, Akot. The respondent has not done any of these things and also he has not raised such ground of absence of hearing either in appeal or in revision. The reliance by Advocate Deshpande upon judgment of this Court reported at Bhimrao Chandru Patil and Others Vs. Balkrishna Dattatraya Joshi and Others, clearly shows that there tenant filed petition questioning order issuing exemption certificate in favour of the landlord. Thus, the tenant claimed right of hearing and was vindicating it. Here the facts are entirely different. The respondent never claimed any right of hearing though he was aware of exemption certificate and such ground is sought to be raised for the first time in defence in the writ petition, that too without filing any return. The respondent/tenant also has not pointed out as to what prejudice has been caused to him by not extending him opportunity of hearing. He has not placed on record any material to show that he could have produced that material or he could have filed some documents before issuing authority to dissuade it not to issue exemption certificate. Thus, the respondent is pointing out breach of principles of natural justice only as a formality without pointing out as to how he could have made difference in the process undertaken by authorities for issuing such exemption certificate in favour of the petitioner. This ruling therefore, has no application in the facts and circumstances of the case. The reliance placed upon the ruling reported at 1972 Mh. L.J. 164 is only for the purpose of contending that the exemption u/s 129(b) is not available to a private trust. However, that is not the case which calls for consideration here. The petitioners have placed on record certificate of eligibility of trust for exemption issued in Form XXIX on 13.9.1963 by the Sub-Divisional Officer, Khamgaon. The fact that the petitioner is registered as Public Trust on 15.6.1962 is also not in dispute. The arguments of Advocate Deshpande are that the petitioner trust became public trust after registration on 15,6.1962 and it was not a public trust before that. He further argues that the petitioner trust became entitled to exemption on 13.9.1963 when exemption certificate was issued in its favour. By placing reliance upon the above referred 1972 Mh. L.J. 164 ruling he contends that before that the petitioner trust was a private trust and as such the respondent became owner on tillers'' day i.e. 1.4.1961 as he was cultivating the land right from the year 1957. Perusal of Section 129 of the Tenancy Act reveals that the said Section 129 only requires agricultural lands which are property of the trust for educational purpose, hospital etc., provided entire income of such land is appropriate for the purpose of such trust. The said Section 129(b) nowhere states that it should be the public trust or such trust should be registered trust. Further certificate of registration is granted by authorities under Bombay Public Trust Act after inquiry u/s 19 thereof. Thus, first activity in the nature of trust already starts functioning and thereafter it is recognised as public trust. Therefore, it cannot be said that the petitioner trust came into existence only after 15.6.1962. The registration as a public trust granted by Assistant Charity Commissioner, Buldana to the petitioner is only in recognition of an existing fact and therefore, the said certificate will always relate back to the date on which the said activity started. It will not mean that the petitioner trust became public trust only after 15.6.1962. The order of S.D.O. reveals that the petitioner trust is in existence since atleast 1957, Under these circumstances, the arguments of Advocate Deshpande depending upon date of registration of the petitioner trust are misconceived and unsustainable.

10. Perusal of explanation to Section 129 also reveals that the certificate granted by Collector after holding inquiry that conditions mentioned in the said clause are satisfied by the trust is conclusive evidence about it. The said powers of the Collector are exercised by the Sub-Divisional Officer. The Sub-Divisional Officer has issued certificate on 13.9.1963. Thus, the said certificate is in recognition of the fact that the suit lands are property of the trust as required by Section 129(b) of the Tenancy Act. Thus, the certificate also operates on facts which are in existence prior to the date of its issue and it cannot be constituted that the petitioner/trust becomes entitled to exemption only from 13.9.1963 prospectively. Thus, the arguments that prior to 15.6.1962 the petitioner trust was a private trust and prior to 13.9.1963 there was no exemption in favour of the petitioner trust are liable to be rejected and are accordingly rejected. Such certificate means that petitioner trust is exempt from its inception.

11. The judgment of Hon''ble Apex Court reported at V. Dhanapal Chettiar Vs. Yesodai Ammal, shows that notice u/s 106 of the Transfer of Property Act is not required to determine statutory tenancies infact is not relevant here. In the said case, before the Hon''ble Apex Court as is apparent from the very opening part was considering question whether in order to get decree or order for eviction against a tenant under any State Rent Control Act it is necessary to give notice u/s 106 of the Transfer of Property Act, In paragraph 18 the Hon''ble Apex Court has held that the tenant continues to be a tenant even after determination of his tenancy under Transfer of Property Act and that being so making out case under Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act. Thereafter in paragraph 19 the Hon''ble Apex Court has held that the Hon''ble High Court was therefore, right in holding that no notice to quit u/s 106 of the Transfer of Property Act was necessary in order to enable the landlady to get the order of eviction against the tenant. In so far as tenancy of agricultural land is concerned, the possession is not different. The Full Bench of this Court in judgment reported at Ramchandra and Ors. v. Janardhan 1962 Nag. L.J. 700 has observed that under the Tenancy Act. even after determination of tenancy by notice given by his landlord, the tenant has legal right to continue in possession until Tahsildar makes order restoring possession to his landlord. During intervening period, the tenant has estate in possession, of which he can only be deprived by an order of Tahsildar. Thus, the above ruling of Hon''ble Apex Court also holds good insofar as determination of tenancy under Tenancy Act is concerned. But as already held above, in view of the judgment reported at 1980 Mh. L.J. 699, tenancy of respondent/tenant is required to be determined by notice u/s 19 alone and Section 106 of the Transfer of Property Act is not available to the petitioner.

12. Here as the Tahsildar has found that respondent/tenant is in arrears of rent and has thereafter given time of three months to the said respondent to clear off those arrears within three months as contemplated by Section 30(1) of Tenancy Act and as the respondent/tenant has not cleared those arrears and did not challenge that finding, the said permission given by the Tahsildar has become final. The petitioner is therefore, entitled to possession in view of this direction issued by the Tahsildar.

13. Under these circumstances, the order of Maharashtra Revenue Tribunal dated 19.11.1991 in Revision Application No. TEN-A-132/88 and order of Sub-Divisional Officer dated 27th June, 1988 in R.A. No. TNC-107/Lamkani/15/87-88 are hereby quashed and set aside. The order of Tahsildar dated 9th March, 1988 In case No. TNC-36-Lamkani-5-86-87 is restored to the extent mentioned above.

Rule made absolute in the above terms with no order as to costs.