Dismissed

Amir Aga v. Shaikh Abdulla Shaikh Yunus (Decd.)by Lrs.- Abdulla Rehman Abdulla Shaikh and Ors.

Bombay HC2 Jul 2012WP/3447/2009

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a writ petition challenging orders declaring the petitioner not a tenant of agricultural lands. The Court held that no error was committed by the authorities in concluding the petitioner did not establish tenancy rights due to procedural defects in the mutation entry and unreliable witness testimony.

What did the court decide?

The writ petition fails and is dismissed.

Amir Aga Vs Shaikh Abdulla Shaikh Yunus (Decd.)by Lrs… — Landlord and Tenant | Bombay HC (2012)

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Tapadia RR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3447 OF 2009

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Amir Aga, Mohammed Aga

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..Petitioner

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Shaikh Abdulla Shaikh Yunus and ors

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.. Respondents

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Shri A.S.Khandeparkar with Mr. Amogh Karandikar i/b Khandeparkar & Associates, Advocates for the petitioner. Shri S.G.Karandikar, Advocate for respondent no.1.

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CORAM : R.G.KETKAR,J. DATE : 02/07/2012

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PC:

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Heard Shri A.S.Khandeparkar, learned counsel for the petitioner and Mr S.G.Karnadikar, learned counsel for respondent no.1 at length.

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Leave to amend so as to challenge orders passed by the Tahasildar, Kudal and Sub-Divisional Officer, Sawantwadi. Amendment shall be carried out during the course of the day. 3. By this writ petition under Article 227 of the Constitution of India, the petitioner has challenged (i) the Judgment and order dated 16.11.1998 passed by the Tahasildar, Kudal (ii) the Judgment and order dated 20.3.2003 passed by the Sub Divisional Officer, Sawantwadi, and (iii) the Judgment and order dated 11.2.2009 passed by the learned President, Maharashtra Revenue Tribunal, Mumbai. By these orders, the authorities below came to the conclusion that the petitioner is not a tenant in respect of the agricultural lands bearing survey no.2/1 and survey no.2/7, situate at village Vatal-Bambarde, Taluka Kudal, District sindhudurg. (for short, ‘suit lands’).

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In the proceedings under section 70 (b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short,’Act’), it was

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held by the Tahasildar that the petitioner is not a tenant in respect of the suit lands. The Tahasildar directed that the name of the petitioner as tenant be deleted from the 7/12 extract after the appeal period is over. Aggrieved by the decision, the petitioner preferred the appeal before the Sub Divisional Officer, Sawantwadi, who dismissed the appeal on 20.1.2003. The petitioner challenged these decisions by filing revision before the MRT, who dismissed the same on 11.2.2009. It is against these decisions, the petitioner has instituted the present petition under Article 227 of the Constitution of India.

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In support of this petition, Mr Khandeparkar strenuously contended that respondent no.1 did not challenge mutation entry no.715 which was made in the year 1960. He further submitted that earlier the Tahasildar declared that the petitioner is a tenant in respect of the suit lands and accordingly purchase price was fixed. Even certificate under section 32-M of the Act was issued in favour of the petitioner. However, respondent no.1 preferred appeal before the Sub Divisional Officer who allowed the appeal and set aside the order passed by the Tahasildar. He submitted that it was not open to the Tahasildar to conduct the proceedings under section 32-G of the Act. He, therefore, submitted that the petition raises arguable questions and, therefore requires consideration.

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On the other hand, Shri Karandikar invited my attention to the mutation entry no.715 and submitted that the said entry was made without issuing notice to the landlord. Apart from that, the said mutation entry was also not certified. In so far as Akarphod Patrak Patra is concerned, the learned President of MRT observed that the entry made in the said Akarphod Patrak is suspicious. He further invited my attention to the testimonies of witnesses examined by

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the petitioner and submitted that the authorities below rightly came to the conclusion that the petitioner has not established the tenancy rights.

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I have considered the rival submissions made by the learned counsel appearing for the parties. The mutation entry no.715 was made in the year 1960. The authorities below have recorded finding of fact that no notice was given to the landlord and the said mutation entry was not certified. It is in these circumstances the submission made by Mr Khandeparkar that respondent no.1 did not challenge the mutation entry is without any substance. Perusal of the order of the Tahasildar shows that the proceedings were initiated under section 70(b) of the Act. It was, therefore, but natural for the authorities below to find out whether the petitioner is a tenant of the suit land or not. I, therefore, do not find any substance in the submission made by Shri Khandeparkar that the authorities below could not have conducted the proceedings for finding out whether the petitioner is a tenant or not. Apart of mutation entry no.715, the petitioner relies upon Akaphod Patrak. The MRT found that the entry made therein is suspicious. The witnesses examined by the petitioner have no personal knowledge. They even do not know the lands involved in the matter. After considering the material on record the authorities below concurrently held that the petitioner is not a tenant. I do not find that the authorities below have committed any error in holding that the petitioner is not a tenant. No case is made out for exercising the powers under Article 227 of the Constitution of India. The writ petition fails and the same is dismissed.

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(R.G.KETKAR, J.)

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Amir Aga v. Shaikh Abdulla Shaikh Yunus (Decd.)by Lrs.- Abdulla Rehman Abdulla Shaikh and Ors.

Case brief

What is this about?

What did the court decide?

Amir Aga v. Shaikh Abdulla Shaikh Yunus (Decd.)by Lrs.- Abdulla Rehman Abdulla Shaikh and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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