TMI Blog1982 (4) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay 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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 defendant , and that after 1949 , in any event , the plaintiffs predecessor continued to remain in exclusive possession , u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancy 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 Municipal 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] 1 SCR 367 in which the Supreme Court was dealing with the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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