Chidanand Ogyappa Yammi & Ors. v. Girish Sahakari Samudaik Krishi Sangh & Ors.

2 The dispute between the parties has a chequred history. Respondent No.1 who was the applicant before the Maharashtra Revenue Tribunal (MRT) in the Revision proceedings, is a Co-operative Society, formed with an object of joint cultivation inter alia, of sugarcane, fruits or flowers, etc. The Appellants who are the opponents in the said revision, are the owners of the suit land.

3 Respondent No.1 had taken the suit lands on lease from the Petitioner under a registered lease deed dated 2nd December, 1950 and 5th December, 1950 for a period of 50 years. These leases expired in the year 2000. The case of Respondent No.1 and much prior to the expiry of S.R.JOSHI 3 of 16 the leases was to the effect that it was entitled to purchase of the lands in question as Respondent No.1 had become a deemed tenant under the provisions of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “the BT & AL Act”). In making such claim, Respondent No.1 contended that the bar under Section 43-A of the BT & AL Act is not applicable to Respondent No.1, as an exemption was granted to Respondent No.1 from the applicability of the provisions of Section 43A of the BT & AL Act by virtue of a Certificate of Exemption, issued in its favour by the District Deputy Registrar Co-operative Societies, Sangli.

4 Respondent No.1 asserted that in the year 1968, Respondent No.1-Society had made an application under Section 32-G of the Act to the A.L.T. Jat, District Sangli for fixing the purchase price of the land in question. It appears that such application of Respondent No.1 was dismissed on the ground that Respondent No.1, had not produced an exemption certificate, as contemplated under Section 43A of the said Act. Assailing the decision on the said application, Respondent No.1-Society preferred an appeal before the Collector, Sangli being Tenancy Appeal Nos. 1/1968 and 2/1968. By an order dated 24th May, 1969, the Collector dismissed the said Appeal for want of a Tenancy Certificate, granting exemption to Respondent No.1 under the provisions of sub-section (2) of S.R.JOSHI 4 of 16 Section 43A of the Tenancy Act. Being aggrieved by the said decision, Respondent No.1-Society preferred a Revision Application before the MRT. The Revision was adjudicated by the MRT by an order dated 15th June, 1970 by which the MRT remanded the case to the Tahsildar -Jat, (District Sangli) for a further enquiry, on the claim of the Respondent No.1-Society, that it had obtained an exemption certificate, subsequent to the decision of the Collector dated 24th May, 1969. It appears that between the period 1970 till the year 2001, the proceedings were dormant.

5 However, the record reveals that on remand, the Tahsildar, Jat, District Sangli, initiated an inquiry under Tenancy Case No. Nigdi Bk- 32G/227/2001 and passed an order dated 29th September, 2001, inter alia holding that the provisions of Section 32G of the said Act were not applicable to the land in question in view of the applicability of Section 43A. Against the said order, Respondent No.1-Society preferred Tenancy Appeal No. 21 of 2001 before the Sub Divisional Officer (SDO), Miraj. The Tenancy Appeal came to be adjudicated by an order dated 5th March, 2002, whereby Respondent No.1’s appeal came to be dismissed, thereby confirming the order dated 29th September, 2001 passed by the Tahsildar. It is against the such order passed by the Sub Divisional Officer, the Revision in question came to be filed by the Respondent No.1-Society S.R.JOSHI 5 of 16 before the MRT which has been allowed by the impugned order.

6 As seen from facts as noted above, the controversy as involved in the present proceedings is as to whether Respondent No.1- Society was at all exempted from the applicability of Section 43A(1) of the said Act, inasmuch as Respondent No.1 claimed to have an exemption from the applicability of the said provision, by virtue of an exemption certificate as issued in its favour. The MRT, proceeded in allowing Respondent No.1’s Revision Application accepting, Respondent No.1’s case that Respondent No.1 had obtained necessary Certificate of Exemption, immediately after the Collector passed an order on 12th December, 1969, as noted above. The relevant observations in that regard, reads as under:- “ It is seen that the revision applicant society could not become deemed purchaser u/s. 32G of the Tenancy Act because they could not produce the necessary certificate issued by the competent authority specifying that provision of 32 to 32R were attracted as provided in section 43A (2) of the Tenancy Act. The claim of the society u/s 32G was rejected by A.L.T and Collector, Sangli only because they failed to produce the said certificate. It is seen that the society obtained the necessary certificate on 12/12/1969 i.e. immediately after order of Collector dt. 24/5/1969. This certificate was available when the dispute was taken up with MRT, Kolhapur. MRT Kolhapur remanded the cases to ALT Jat for fresh enquiry and decision in the light of the certificate issued by District Deputy Registrar on 12/12/1969. However, it is noticed that both Tahasildar and S.D.O. did not take cognizance of observation of MRT in its decision dt. 15/6/1070 and went on to pass the impugned orders ignoring the said certificate which exempted the society from section 43A(1) of the Tenancy S.R.JOSHI 6 of 16 Act. In other words, it was alleged that section 32 to 32R became applicable to society and disputed property by virtue of this certificate and society could become deemed purchaser u/s 32G of the Act. It is observed that both Tahsaildar and SDO did not even make any observations of comments on this certificate in their impugned orders.”

7 Mr. Deshmukh, learned Counsel for the Petitioner has contended that the entire basis for the MRT to remand the proceedings to the Tahsildar, ALT, Jat, by setting aside the orders of the authorities below in favour of Respondent No.1, is on the presumption that Respondent No.1-Society had obtained the Certificate of Exemption on 12th December, 1969 under the provisions of Section 43-A(1) of the said Act. Mr. Deshmukh submits that in fact the record reveals that no such certificate was issued as per the requirements of the said provision, hence, there was no justification for the learned Member of the MRT to come to such conclusion of a valid exemption on being possessed by Respondent No.1. Mr. Deshmukh’s contention is that almost for more than 50 years, the controversy has been successfully kept alive by Respondent No.1-Society, under the garb of an exemption certificate being obtained, and on such basis, the proceedings have travelled to and fro between different authorities including two rounds before the MRT in the span of last about 50 years. Mr. Deshmukh in supporting such contention, has drawn the Court’s attention to the various observations made in the impugned order. S.R.JOSHI 7 of 16

8 Considering the nature of controversy as noted above, on 13th January, 2023, this Court had passed the following order:- “ I have heard Mr. Deshmukh, learned Counsel for the Petitioners, Mr. Patil, learned Counsel for Respondent No.1 and Ms. Shrivastav, learned AGP for Respondent No.4.

2 The impugned order dated 19th April, 2014 passed by the Maharashtra Revenue Tribunal, Pune is on the sole basis that there was an exemption certificate as granted in favour of private Respondent. It is stated to be certificate dated 12 December, 1969 issued by the District Deputy 43(1)(c) of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “the Act”).

3 The question is whether the District Deputy jurisdiction under the Bombay Tenancy and Agricultural Lands Act, 1948 along with Rules made thereunder to issue an exemption under Section 43A(1) of the said Act. In any event, before the Court proceeds to pass further appropriate orders on the present proceedings, Respondent No.4/State through its appropriate department in Kolhapur Division is directed to place on record an affidavit within one week from today as to whether under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 along with rules, any exemption certificate in favour of Respondent No.1 could be issued and if it was issued, a copy of the same be placed on record. This, more particularly, as none of the proceedings have referred to such certificate issued by the Competent Authority under the Act.

4 Accordingly, stand over to 20 January, 2023 (HOB).” 9 When the proceedings were listed before the Court on 20th January, 2023, this Court had passed the following order:- “ Stand over to 03 February, 2023 to enable the learned AGP to comply with the directions as contained in paragraph 3 of the order dated 13 January, 2023. There shall not be further extension. S.R.JOSHI 8 of 16 The learned AGP intends to place on record a compilation of documents. Let the documents form part of reply affidavit which would be filed. The documents are accordingly returned to the learned AGP.”

10 Accordingly, Respondent No.4 through its appropriate department at Sangli was directed to place on record, an affidavit as to whether under the provisions of BT & AL Act along with allied Rules, Respondent No.1 was issued any exemption certificate exempting Respondent No.1 from the bar as created under Section 43A of the BT & AL Act. It was directed that if such certificate was issued, a copy of the same be placed on record.

11 In pursuance of such directions of this Court, the learned AGP has placed on record affidavit of Shri Mangesh B. Surwase, District Deputy Registrar, Co-operative Societies, Sangli who has stated that, the District Deputy Registrar has no jurisdiction under the BT & AL Act along with Rules made thereunder to issue any exemption certificate under Section 43A(2) of the said Act. It is stated that only the designated Authority has jurisdiction under the said Act to issue such exemption after an adequate enquiry being made as per the provisions of section 43A(2) of the BT & AL act, in consultation of the District Deputy Registrar Cooperative Societies, Sangli. It is stated that, however, the opinion of the District Deputy Registrar Co-operative Societies, is not a final decision on S.R.JOSHI 9 of 16 any exemption, to be granted under Section 43A(2) of the BT & AL Act as the final decision is of the State Government as provided under Section 43A(2). In paragraph 5 of the affidavit, it is stated that there is no record of any exemption being issued as claimed by Respondent No.1 and that the official Respondents also cannot produce any such certificate or its copy.

12 Thus, the controversy in the proceedings being limited as to whether any exemption was granted to Respondent No.1 under the provisions of Section 43A(2) of the BT & AL Act, as also as to whether the District Deputy Registrar Co-operative Societies, Sangli at all had jurisdiction under the BT & AL Act to issue an exemption certificate under Section 43-A(1) of the said Act as claimed by Respondent No.1, attains a quietus in view of the affidavit filed on behalf of the State Government. It appears that, successive authorities have proceeded on a misconception not only in appreciating the clear consequences as brought about by Section 43A(1) read with Section 43A (2) of the said BT & AL Act, in granting benefit to Respondent No.1, under the said provisions, whereunder such benefit could be granted only by a notification issued by the State Government as prescribed under Section 41A(2) of the BT & AL Act. S.R.JOSHI 10 of 16

13 To address the question as involved in this Petition, it would be necessary to note the provisions of Section 43A of the said Act. Section 43A was incorporated under the BT & AL Act by an amendment to the BT & AL Act which was brought about by Bombay Act No. 13 of 1956, by virtue of which, Chapter III-A was inserted, incorporating special provisions for lands held on lease by industrial or commercial undertaking and by certain persons for the cultivation of sugarcane and other notified agricultural products. Section 43A of the Act stipulates that some of the provisions as specified therein shall not apply to leases of land, obtained by industrial or commercial undertakings, certain co-operative societies or for cultivation of sugarcane or fruits or flowers. Section 43A(1) of the Act needs to be extracted which reads thus:- “Section 43A – Some of the provisions not to ally to leases of land obtained by industrial or commercial undertakings, certain cooperative societies or for cultivation of sugarcane or fruits or flowers:- (1) The provision of sections 4B, 8, 9, 9A, 9B,9C, 10, 10A, 14, 16, 17A, 17B, 18, 27, 31 to 31D (both inclusive), 32 to 32R (both inclusive) [33A, 33B, 33C], 43, 63, 63A, 64 and 65, shall not apply to - (a) land leased to or held by any industrial or commercial undertaking (other than a Co-operative Society) which in the opinion of the State Government bona fide carried on any industrial or commercial operations and which is approved by the State Government; (b) leases of land granted to any bodies or persons other than those mentioned in clause (a) for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of live stock;

(c) to lands held or leased by such co-operative societies as are approved in the prescribed manner, by the State Government which have for their objects the improvement of the economic and social S.R.JOSHI 11 of 16 conditions of peasants or ensuring the full and efficient use of land for agriculture and allied pursuits. (2) The State Government may by notification in the Official Gazette, in this behalf direct that the provisions of the said sections shall not apply to a lease of land obtained by any person for growing any ether class of agricultural produce to which it is satisfied that it will not be expedient in the public interest to apply the said provisions. Before the issue of such notification, the State Government shall direct an inquiry to be made by an officer authorised in this behalf by the State Government and shall give all persons who are likely to be affected by such notification, an opportunity to submit their objections. (3) Notwithstanding anything contained in sub-sections (1) and (2), it shall be lawful for the State Government to direct, by notification in the Official Gazette, that the leases [or lands, as the case may be] to which the provisions of subsections (1) and (2) apply, shall be subject to such conditions as may be specified in the notification, in respect of- (a) the duration of the lease; (b) the improvements to be made on the land and the formation of cooperative farming societies for that purpose and financial assistance to such societies;