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Nilesh Construction Company and anr. Vs. Gangubai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberAppeal No. 137 of 1982 in Notice of Motion No. 1236 of 1981 in Suit No. 1811 of 1980
Judge
Reported inAIR1982Bom491; 1982(1)BomCR577; 1982MhLJ664
ActsBombay Tenancy and Agrucultural Lands Act, 1948 - Sections 45-C, 85-A and 88(1); Code of Civil Procedure (CPC), 1908 - Sections 9 - Order 6, Rule 2
AppellantNilesh Construction Company and anr.
RespondentGangubai and ors.
Appellant AdvocateR.J. Joshi,;H.C. Tunara and;C.V. Mandavia, Advs.
Respondent AdvocateS.H. Kapadia and;V. Deorukhkar, Advs., i/b., Gagrat and Co.
Excerpt:
a) it was adjudged under section 85-a of the bombay tenancy and agricultural lands act, 1948 that the issue regarding the tenancy could not be raised on the basis of vague plea made by the tenant;b) the case questioned whether the civil court had a power to determine the applicability of section 85-a of the bombay tenancy and agricultural lands act, 1948 - it was adjudged that the reference to the revenue court should not have been made as the land were excluded from the operation of the tenancy act -hence, the court had a power to determine the applicability and it would be permissible to recall the reference;c) the case dealt with the effect of the notification issued under section 88(1)(b) of the bombay tenancy and agricultural lands act, 1948, over the lands covered by the said.....chandurkar, j.1. this appeal by defendants nos.3 and 4 is is directed against the order made by kania, j. on 11th mar., 1982 dismissing the notice of motion taken out by the appellants for vacating an order of interim injunction made by modi, j. on 13th april , 1981. the contesting respondents nos.1 to 5 have filed a suit on the original side of this court asking for a permanent injunction preventing the appellants from trespassing upon or entering the lands in question; from dispossessing the plaintiffs or any of them of the said lands or any of them of the said lands or any part thereof; from constructing any structure or structures on the said lands or any part thereof and from prevening, obstructing or interfering in any manner with the exclusive possession, use and enjoyment of the.....
Judgment:

Chandurkar, J.

1. This appeal by defendants Nos.3 and 4 is is directed against the order made by Kania, J. On 11th Mar., 1982 dismissing the Notice of motion taken out by the appellants for vacating an order of interim injunction made by modi, J. On 13th April , 1981. The contesting respondents Nos.1 to 5 have filed a suit on the Original side of this court asking for a permanent injunction preventing the appellants from trespassing upon or entering the lands in question; from dispossessing the plaintiffs or any of them of the said lands or any of them of the said lands or any part thereof; from constructing any structure or structures on the said lands or any part thereof and from prevening, obstructing or interfering in any manner with the exclusive possession, use and enjoyment of the said lands or any portion thereof by the plaintiffs. It is not necessary to go into the various allegations made in the plaint on which the plaintiffs claim a right to continue in possession of the lands in dispute and it is sufficient to mention that the claim of the plaintiffs appears to be that their predecessor-in-title., Bablya who was the husband of plaintiff no.1 and the father of the other plaintiffs was in exclusive and uninterrupted possession, use and enjoyment of the lands in dispute. It may be stated that the lands in dispute, which is having an area of 8006 sq. Metres approximately, is a part of a larger piece of land having an area of 17,000 sq. Metres situate at village kurar which has been included in the municipal limits of malad municipality.

2.According to the defendants, the land in question belongs to one sukhtankar with whom the appellants had entered into a partnership for the purpose of developing the land. This partnership came to be dissolved in 1977 and as a part of the division of the assets of the partnership, the lands have been taken over by the appellants who had applied to the competent Authority under the Urban Land ceiling Act for exemption under section 20 of the Act. This application has been granted on 21st Feb., 1978 and the appellants claimed that permission to convert the land to non-agricultural purpose has also been granted on 2nd Nov., 1978.

3.In the suit, a Notice of motion was taken out by the plaintiffs for an interim order of injunction. Injunction was granted by modi, J. Restraining the appellants from in any way interfering with the possession of the disputed lands bearing CTS Nos.74, 75, 84 (1 to 7) and 95 (1 to 4) of village kurar, Diathermy Road, Malad, and from dispossessing the plaintiffs or any of them from the said lands or part thereof and from putting up any construction on or under the said land or any part thereo. The present appellants, who are defendants Nos.3 and 4 were given liberty to put up a compound wall around the said lands but so as not to obstruct in any way the possession or right to pass or repass of the plaintiffs or any of them to visit them. Defendants Nos.3 and 4 were also permitted to construct or have constructed drainage, electric cables and other facilities passing throughout the land in dispute provided, however that the same will be taken only along the periphery of the land. After having made an order of injunction, the learned judge, taking the view that the plaintiffs claimed tenancy rights under the Bombay Tenancy and Agricultural Lands Act, 1948, made a reference to the mamlatdar. In para 4 of the order modi, J. Observed as follows :

'The case of the plaintiffs based on adverse possession, prima facie, appears to be difficult to prove . However, the plaintiffs' claim in the alternative is for the tenancy rights claimed under the Bombay Tenancy and Agricultural Lands Act, 1948. This issue in my view must be referred to the proper authorities under the said Act. Hence, under the provisions of section 85-A of the said Act I stay this suit till this issue is decided and refer the said issue to mamlatdar Borivali under the provisions of the Act for decision. The mamlatdar should dispose of the matter as expeditiously as possible.

5. In case the decision is against the plaintiffs, liberty to the defendants to apply for vacating or variation of the interim order.

6. Liberty to the parties to apply also in case these there is delay in disposing of the matter by mamlatdar.'

4. The reference was dealt with by the Tahsildar, Borivali, by his order dated 20th Aug., 1981. The Tahsildar took the view that the provisions of the Tenancy Act are not applicable to the suit lands because of the proclamation made by the then Government of Bombay on 24th May, 1948. Which according to the Tahsildar had the effect of the suit land becoming a part of the municipal District of Malad, as well as in view of the provisions made in section 88 (1) (b) under which the suit lands were reserved for non-agricultural and industrial development. He, therefore, took the view that the claim of the plaintiffs for tenancy right under the Tenancy Act was not established and was, therefore, rejected. This order was upheld by the collector , by the collector who dismissed the appeal against the order of the Tashsildar. By a brief order, the Additional collector , Bom bay suburban District, upheld the decision of the Tahsildar and confirmed the declaration that, 'that appellants are not the tenants of the suit lands viz., survey Nos.32/2 and 33 of village kurar.' There is no dispute that these are the lands in question.

5.The plaintiffs have filed a revision application before the Maharashtra Revenue Tribunal which has not yet been heard. But, in the meantime, the appellants took out the Notice of motion to have the order of injunction vacated. This Notice of motion was taken out after the decision of the Additional collector dismissing the appeal of the plaintiffs. The Notice of motion was, however, dismissed by Kania, J. Giving opportunity to the appellants to take out fresh Notice of motion after the final disposals of the revision application by plaintiffs Nos.1 and 6 before the maharashtra Revenue Tribunal, and the learned judge noted the agreement of the parties that they would apply for the expeditious hearing of the application. It is this order which is now challenged in this appeal.

6. Mr. Joshi, learned counsel, appearing on behalf of the appellants had contended that in view of the fact that the lands in question have been included in the local area of the municipal District of Malad by Notification under District of malad by Notification under section 8 (1) of the Bombay District municipal Act 1901. As well as in view of the fact that the state Government has already issued a Notification on 29th Mar., in exercise of its power under section 88 (1) (b) of the Bombay Tenancy Act declaring the entire land in village kurar as being reserved for non-agricultural and industrial development, the provisions of the Tenancy Act were wholly inapplicable to the lands in question and not only were the plaintiffs not entitled to claim any right under the Tenancy Act but the reference made to the Tahsildar was also not necessary.

7.The argument in the appeal before us has proceeded on the limited question as to whether, on admitted facts in the present case, the plaintiffs were entitled to claim any right under the provisions of the Bombay Tenancy Act The Acts, which are not in dispute, are as follows :

(I) By a preliminary notification dated 24th may, 1948issed under section 8(I) of the Bombay District municipal Act 1901, the Government of Bombay had notified its proposal to constitute a local area, a permanent municipal district,under Ss.4 and 7 of the said Act under the name of municipal District to malad and many other survey numbers of village kurar including survey numbers 22 to 39 which included survey Nos. 32/2 and 33 in question.

(II) The Government by subsequent Notification dated 22nd Nov., 1950 published in the Bombay Government Gazette dated 7th Dec., 1950, part I A, after making a reference to the Notification dated 24th May , 1948, referred to above, declared under Sections 4 and 7 of the Bombay District Municipal Act, 1901, that the local area , the local limits whereof are set forth in the schedule annexed to the Notification to be a permanent Municipal District with effect from 1st April , 1951 under the name of the Municipal District of Malad. The schedule set out the limits of the permanent Municipal District of Malad and they were the same as were specified in the Notification of 24th May, 1948.

(III) The Government of Bombay had in exercise of powers conferred by Cl. (B) of sub-section (1) of section 88 of Bombay Tenancy Act, issued a notification on 29-3-1957 and had specified the area mentioned in the schedule annexed to the Notification as being reserved for non-agricultural and industrial development and Village Kurar was mentioned at serial No. 12.

8. Normally, when the matter was pending In revision before the Maharashtra Revenue Tribunal , we would not have gone into the question whether the plaintiff's were entitled to the benefit of the Tenancy Act. But the matter appears to us to be so plain and clear and beyond controversy that we do not think worthwhile to allow the litigation between the parties to be dragged on only on the issue of a claim of tenancy. It also appears to us the relevant facts were probably not brought to the notice of either Modi, J. Or Kania, J. And if the relevant provisions were brought to the notice of the learned judge who dealt with the matter earlier , we are sure that the matter could have been dealt with by this court without making a reference to the Revenue Authorities.

9. It is contented on behalf of the appellants that there was no occasion in this case to make any reference to the Tahsildar because , on admitted facts , the provisions of the Tenancy Act were not applicable at all. According to the learned counsel , having regard to the fact that notification dated 29th Mar , 1957 was issued under section 88 (1) (b) of the Tenancy Act , the provisions of the Tenancy Act became inapplicable to the lands in question. The learned counsel contented that if the provisions of the Tenancy Act became inapplicable to the lands in question , and the civil court is competent to decide the question as to whether the provisions of the Tenancy Act were attracted in the instant case or not , and further Modi , J. Having taken the view that prima facie the claim of the defendants that they were in adverse possession could not be supported , Kania J. Should have vacated the injunction issued by Modi , J. According to the contesting respondents they and their three predecessors in title were in possession of the lands in dispute since 1903 and in any case as they were in possession on the date on which the Tenancy Act had come into force , certain rights had accrued to them under the Tenancy Act and therefore , the only forum where the question as to whether the contesting respondents were tenants or not could be decided was the Revenue Authorities viz., the Tahsildar and this could be done only by a reference under section 85-A of the Bombay Tenancy Act. Reliance was placed on the provisions of the proviso to section 43 (c) of the Tenancy Act and it was contented by Mr.Kapadia that once certain rights had accrued to the contesting respondents under the provisions of the Tenancy Act , those rights were not affected either by the notification dated 29th March , 1957 or by the inclusion of the lands in question of village Kurar within the limits of the Municipality of Malad. We shall refer later to some decisions on which Mr.Kapadia had relied in support of the above contention .

10. Before we refer to the relevant provisions of the Tenancy Act , and especially to the provisions of Ss.43 (c) and 88 thereof , it is necessary to refer to certain averments in the plaint made by the plaintiff . In para 8 of the plaint the plaintiff have admitted that the area in which the plot of land in dispute is situated falls within the territorial limits of Malad District Municipality prior to 1st Feb ., 1957. Then in paragraph 12 they have stated that from and after 1st Feb 1957 the said plot of land was merged in the Municipal Corporation of Greater Bombay and certain structures standing on the plot of land have been assessed to Municipal taxes in the name of Bably , the deceased predecessor-in-title of the plaintiffs. The plaintiffs themselves have stated in para 30 that on 31st Jan , 1949 the Tenancy of Bablya Chaudhary was terminated by the mother of the first defendent , and that after 1949 , in any event , the plaintiffs predecessor continued to remain in exclusive possession , use and occupation of the land in question and , therefore , the plaintiffs were owners of the said land by adverse possession. The allegation further made is that on 1st April, 1957 plaintiffs were in exclusive possession, use and occupation of the lands were also under cultivation even as late as 24th Feb., 1979 as could be seen from the order of the Tahsildar, Birivile. That these averments were intended to support the claim of adverse possession is clear from the averments in para 30. Then in para 31 the plaintiffs have stated that Bablya had made an application on 17th April, 1965 for a declaration under section 70-B of the Bombay Tenancy Act that he was a tenent but the said application (Suit No. 5 of 1965) was subsequently withdrawn by Bablya on the ground that certain provisions of Bombay Tenancy Act did not apply and Bablya could not claim to be the owner of the land under his cultivation in view thereof. A plea of exclusive possession from 1949 onwards is once again raised in the same para and an averment has been made at the end of para 33 as follows :

' The plaintiffs therefore submit that in any event as stated herein above the aforesaid lands continue to be agricultural lands and in any event the plaintiffs are the tenents of defendants Nos 1 and 2 herein , and are in lawful possession thereof.'

These are the material averments and these averments highlight the fact that while in para 30 it is stated that the tenancy was terminated by notice dated 31.3.1949 , in para 33 a plea of tenancy is again taken and lawful possession of the land in question is claimed.

11. This court has consistently taken the view that before a reference to the Mamlatdar for deciding the issue of tenancy under the Tenancy Act is made, the alleged tenant must disclose in his pleadings details about the tenancy and the exact nature of the right which is claimed by him and that an issue of tenancy cannot be raised on a vague plea (see : AIR1975Bom52 ) . In so far as the present case is concerned , in the relevant averments referred to above , the case pleaded is that the plaintiffs were in adverse possession after the tenancy of Bablya was terminated by the notice dated 31.3.1949. The tenancy rights seem to have been claimed by the plaintiffs on the ground that they and their predecessors in title had been in lawful possession after the tenancy was terminated by notice dated 31st March 1949. The claim thus appears to be one of deemed tenancy. It is, However, not necessary for us to go into this question because if it is found that the lands in question were excluded from the operation of the provisions of the Tenancy Act, then even section 85 A of the Tenancy Act would not be attracted to the facts of the present case. If it is found on the facts of the present case that the reference to the Revenue Court should not have at all been made as the lands were excluded from the operation of the Tenancy Act, it would be permissible to recall the reference as held by this Court in Civil Revn. Appln. No 561 of 1978 decided on 17th Nov, 1978* by Pratap, J., Satwashila Daulatrao Ghorpade v. Rukminibai. If the question raised is whether the provisions of the Tenancy Act are attracted to a given case , on facts which are not in dispute, it is clearly permissible for the civil court to go into the question of the applicability of the provisions of the Tenancy Act.

12. It is, therefore, now necessary to refer to certain provisions of the Tenancy Act. Under the original provisions of section 88 (1) (c) it was provided that nothing in the foregoing provisions of the Tenancy Act shall apply inter alia, 'to any area within the limits of Greater Bombay and within limits of the municipal boroughs of Poona City and Suburban, Ahmedabad, Sholapur, Surat and Hubli and within a distance of two miles of the limits of such boroughs; or (d) to any area which the provincial Government may, from time to time, by notification in the Official Gazette, specify as being reserved for urban non-agricultural or industrial development.' BY Act 13 of 1956, in the place of original Section 88, new provisions in S. 88 (a) to (d) were substituted. We are concerned only with Cl. (B) of Section 88 which reads as follows:

'Nothing in the foregoing provisions of this Act shall apply -

(a) ... ... .. ...

(b) to any area which the the State Government may, from time to time, by notification in the Official Gazette, specify as being reserved for non-agricultural or industrial development.'

By Act 33 of 1952 Cl. (C) of Section 88 was substituted for the original Cl. (C) The new clause along with Cl. (D) reads as follows:

(c) to area which the limits of Greater Bombay, within the limits of the Municipal Corporation constituted under the Bombay Provincial Municipal Corporation Act, 1949, within the limits of the Municipal boroughs constituted under the Bombay Municipal Boroughs Act, 1925, and within the limits of any cantonment: or

(d) to any area which the State Government may, from time to time, by notification in Official Gazette, specify as being reserved for urban non-agricultural or industrial development:

By the same Act of 1956 a new provision in S. 43-C was enacted. This S. 43-C was one of the several provisions in chaps. III A and B which were added to the Tenancy Act by Act 33 of 1936. Since heavy reliance is placed on the provisions of S. 43-C along with proviso thereof, it is necessary to reproduce that provision. Section 43-C and the proviso read as follows:

'43-C. Nothing in Section 32 to 32-R (both inclusive) and 43 shall apply to lands in the area within the limits of -

(a) Greater Bombay,

(b) a municipal corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949

(c) a municipal borough constituted under the Bombay Municipal Boroughs Act, 1925,

(d) a municipal district constituted under the Bombay District Municipal Act, 1901,

(e) a cantonment, or

(f) any area included in a Town Planning Scheme under the Bombay Town Planning Act, 1954:

Provided that, if any person has acquired any right as a tenant under this Act on or after the 28th Dec., 1948, the said right shall not be deemed to have been affected by the Bombay Tenancy and Agricultural Lands (Amendment) Act. 1952, or (save as expressly provided in Section 43-D), by the Amending Act, 1955, notwithstanding the fact that either of the said Acts has been made applicable to the area in which such land is situate.'

One more amendment of the Tenancy Act which requires to be referred to was the amendment in Cl. (B) of Section 70 of Tenancy Act, by the Act 49 of 1969, which had the effect of vesting jurisdiction in the Tahsildar not only to decide whether the person is a tenant or not but also to decide whether a person 'was at any time in the past, a tenant' We have referred to this amendment because if was contended on behalf of the plaintiffs by Mr. Kapadia that since the jurisdiction of the Tahsildar extended to decide the question as to whether a person was a tenant or not, the question as to whether the predecessor-in-title of the plaintiffs was a tenant could also be decided by the Tahsildar and the reference was, therefore, validly made to him.

13. Now we have already referred to the Notification which was issued by the State Government under Section 88 (1) (b) on 29th Mar., 1957 under which 20 villages were reserved for non-agricultural and industrial development and Kurar was one of the twenty villages so notified. Kurar is the village in which the land in dispute is situated. The effect of this Notification of 29th Mar., 1957 issued under S. 88 (1) (b) of the Tenancy Act is that the lands in village Kurar including the lands in question have been totally excluded from the operation of the provisions of the Tenancy Act, because the imperative words of Section 88 are. 'Nothing in the foregoing provisions of the Act shall apply' to the area reserved for non-agricultural or industrial development. The 'foregoing provisions' are Sections 1 to 87-A and, therefore, the moment none of the provisions of Tenancy Act will been specified as being reserved for non-Agricultural or industrial development. That (b) is to exempt lands from the operation of the provisions of the Tenancy Act retrospectively is now settled by the decision of the Supreme Court in S. N. Kamble v. Sholapur Borough Municipality AIR 1960 SC 538.

14. It is, therefore, difficult to accept the contention advanced on behalf of the plaintiffs that the Notification dated 29th Mar., 1957 cannot deprive the plaintiffs of the rights which had vested in them a tenants. This argument presupposes that on the date of the coming into force of the Tenancy Act the plaintiffs' predecessor-in-title was a tenant and certain rights under the Tenancy Act had vested in him. It is not necessary to go into this question because, even assuming that Bablya had any rights under the Tenancy Act, having regard to the mandatory provisions of Section 88 (1) (b), no rights under any of the provisions of Ss. 1 to 87-A of the Tenancy Act could be claimed by the plaintiffs.

15. Reference to the provisions of section 43-C and the proviso thereto appears to us to be wholly out of place for the purposes of the present case. A bare reading of the provisions of Section 43-C in its substantive part will show that lands specified in Cls. (A) to (f) thereof, have been exempted from the operation of certain provisions viz., Section 32 to 32-R and Section 43, The lands specified in Cls (a) to (f) are lands either in the limits of Municipal Corporation or Committees or Cantonment or in any area included in any town planning scheme under the Bombay town Planning Act 1954. Now the proviso to S. 43-C merely provides that if any person has acquired any right as a tenant under the Tenancy Act on or after 27th Mar., 1948, i.e., the date on which the Tenancy Act came into force, that right shall not be deemed to have been affected by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952 or by the Amending Act of 1955, which is same as the Act 13 of 1956, notwithstanding the fact that either of the said Act has been made applicable to the area in which such land is situated. In order to understand this proviso it has to be borne in mind that when the new provision in Cl. (E) was enacted in S. 88 (1) by the Bombay Tenancy and Agricultural Lands (Amendment) Act 1952 (33 of 1952), the effect was the all the lands situated within the limits of Greater Bombay, within the limits of the Municipal Corporation under the Bombay Municipal Corporation Act, within the limits of the Municipal Boroughs constituted under the Bombay Municipal Boroughs Act 1955 and in the limits of any cantonment were exempted from the operation of the provisions of the Tenancy Act. There was, thus, a total deprivation of the benefits of the Tenancy Act to the tenants of lands situated within the municipal limits of the Corporations or municipality and cantonment specified in cl (e) This was undone partly by the enactment of the provisions of S. 43-C and the proviso. The effect of enactment of Section 43-C and the proviso thereof was that in respect of tenants of lands situated within the Municipal limits specified in Cls. (A) to (d) and other areas specified in (e) and (f) the rights of statutory ownership available to tenants of other lands could not be availed of by these tenants. The object of enacting the proviso was restore to the tenants of lands in the areas specified in Cls (a) to (f) of Section 43-C the other rights which had already accrued to them prior to the Amending Act of 1952 and the Amending Act 1955 and which had been adversely affected by those enactments. The proviso to Section 43-C however, has no relevance in the context of lands in respect of which a Notification under S. 88 (a) (b) has been issued. The effect of S. 33 (1) (b) of depriving tenants of lands which are reserved for non-agricultural and industrial development continued because such lands were not the subject matter of provisions of Section 43-C or the proviso, Section 42-C was, therefore, wholly irrelevant for the purpose of asunder Section 88 (1) (b). The authorities relied upon by Mr. Kapadia were mainly concerned with the effect of section 43-C and the proviso.

16. In Pralhad Ganaba Kapare v. Sadabe Rambhan Bhosale 1973 Mah LJ 124 : 74 Bom LR 687 : AIR 1972 Bom 172 the question was whether a Notification issued by the Government under Section 88 (1) (b) of the Act excluding the lands from the operation of Sections 32 to 32-R, after the lands had already vested in the tenants under 1982 Bom./32 XI G - 15 Section 32, divested the tenant of the ownership rights and it was held by this Court that the tenant had acquired title to the lands which could not be divested by the Notification and the Agricultural Lands Tribunal had power to determine the purchase price in respect of the land under S. 32 - G of the Act. The facis of tat decision will show that the Notification including the fields in that case within the limits of the Poona Municipal Corporation was subsequent to the Tenancy Act. The learned Judge followed an earlier decision of Division Beach of this Court which had taken the view that inclusion of the lands of which the tenants had become owner with effect from 1-4-1957 within the limits of Thana Municipal Borough did not affect the rights which had already vested in the tenants on 1st April, 1957, the tillers, day. In the case before the Division Bench the lands in question were included in the limits of Thana Muncipal Borough with effect by Government on 23rd June, 1958 when the proceedings of determination of purchase price under S. 32-G were pending before the Agricultural Lands Tribunal as the tenant had become owner of the land on 1st apr., 1957 and it was held that the jurisdiction of the Lands Tribunal to determine the purchase price was not affected by the Notification on 23-6-1958. It may be pointed out that so far as the Notification in question in the present case is concerned, it was issued on 29th Mar., 1957 which is prior to the statutory vesting date.

17. The other decision relied upon by Mr. Kapadia is in Ishverial Thakorelal Almaula v. Motibai Nagjibhal, : [1966]1SCR367 in which the Supreme Court was dealing with the scope of Section 43-C and the proviso thereto. The Supreme Court held that the effect of the Proviso was the rights other restored by the proviso retrospectively. As we have already pointed out, so far as the present case is concerned, Section 43-C is not at all relevant.

18. We may also refer to the provisions of Section 88-AI of the Tenancy Act which was inserted in the Act by Act 63 of 1958. It reads as follows:

'88-A1. Where any land being land situate in any of the villages specified in Sch. IV was not included within the limits of the former municipalities of Malad, Kandivali, Borivali, and Mulund immediately before the first day of Feb., 1957, and a tenant of the land would have been deemed to have purchased that land under Section 32 but for the Government Notification in the Revenue Department, No. TNC. 5157/31/90-M dated the 29th Mar., 1957, issued under Cl (b) of Section 88 in respect of the said villages, such tenant shall, notwithstanding the said notification, be deemed to have purchased the land under Section and the provisions of Section 32 to 37-R and Section 43 shall apply to such purchase accordingly.'

19. The Notification dated 29th Mar., 1957, referred to in S. 88-A1 above is the same Notification No. TNC 5157/31/90-M by which lands in Kurar were reserved for non-agricultural and industrial development. By this new provision it was provided that any lands situated in any of the Villages specified in Schedule 4 - Village Kurar is at Serial No. 12 in the Schedule - was not included with in the limits of former municipal limits of Malad immdiately before 1st Feb., 1957 and the tenant of the land would have been deemed to have purchased the land under Section 32 but for the Government Notification dated 29th Mar., 1957, such a tenant shall, notwithstanding the said Notification, be deemed to have purchased the land under S. 32 on the relevant date in the section and the provisions of Sections 32-R and 43 were to apply to such purchased accordingly. This provision operates only in respect of those lands which were not included within the limits of Kandivali, Borivali and Malad immediately before the 1st day of Mar., 1957. Tenants of such lands were not vested with a right of statutory purchase if the were deprived of such a right as a result of Notification dated 29th Mar., 1957.

20. The Lands in question, even as specified in the plaint are Survey Nos. 32 part and 33 part i.e., City Survey Nos. 74, 75, 84 (1 to 7), 95 and 95 (1 to 4), The proclamation dated 24th May, 1948 included Survey Nos. 22 to 39 of village Kurar as proposed to be included in the permanent Municipal District of Malad. We have also referred to the final Notification issued dated 22nd Nov., 1950 by which the area within the limits specified there was constituted to be a permanent municipal district with effect from 1st April, 1951 in the Municipal District of Malad. We have also pointed out that the limits are same as specified in the earlier Notification of 24th May, 1948, The express provisions in Section 88-A1 further reiterate the position that while in respect of certain lands which were not within the limits of Malad Municipality before 1st Feb., 1957, statutory ownership rights were to be vested in the tenant thereof, no such rights were contemplated in respect of the lands in question because they were already part of the Municipality of Malad.

21. It is thus clear that the claim made by the plaintiffs, though not in so many words in the plaint, that they are governed by the provisions of the Tenancy Act is wholly Misconceived and for the purpose or determining the question as to whether they are entitled to any interim relief or not, the determination of the alleged right as tenants was wholly irrelevant because we have already shown that the provisions of the Tenancy Act are not at all attracted in the present case. The consequence which must not follow is that the reference made to the Tahsildar was wholly unnecessary and in competent and it is liable to be recalled and must be treated as recalled with the result that the Revenue Tribunal is not required now to decide on merits the Revision application pending before it, Secondly, the appellants are entitled to have their Notice of Motion for vacation of injunction heard on merits without taking into account the fact that the plaintiffs were claiming to be entitled to the benefits of the Tenancy Act.

22. In the view which we have taken, the order made by Justice Kania rejecting the Notice of Motion No. 1236 of 1981 is set aside and the Notice of Motion will not be decided on merits. The appeal is thus allowed. In the circumstances of the case, we make on order as to cost of the appeal. The Notice of Motion to be heard in the third week of June, 1982.

23. Appeal allowed.


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