High Court
Legal Reasoning
{1} wp2478-18.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.2478 OF 20181.Gunda Rama Birajdar PETITIONERSince deceased Through LRs1A.Kamalabai Gunderao BirajdarDeceased Through LRs1B.Babu Gunderao BirajdarAge – 65 years, Occ – Agriculture1C.Kiran Gunderao BirajdarAge – 45 years, Occ – Agriculture1D.Bhanudas Gunderao BirajdarAge – 60 years, Occ – Agirculture1B to 1D R/o Ghugi SangwiYashwant School,Taluka – Shirur AnantpalDistrict – Latur1EBalaji Gunderao BirajdarAge – 52 years, Occ – AgricultureR/o Shriram Vidyalaya SansthaMamadpur, Taluka & District – Latur1F.Laxmi Balaji PatilAge – 50 years, Occ – HouseholdR/o Rapka, Taluka – Shirur AnantpalDistrict - LaturVERSUS1.Subhash Manikrao Birajdar RESPONDENTSAge – Major, Occ – AgricultureR/o Ghugi SangwiTaluka – Shirur AnantpalDistrict – Latur2.Deputy Collector for Land ReformsCollector Office, Latur
Legal Reasoning
{2} wp2478-18.doc.......Mr. Parag V. Barde, Advocate for the PetitionersMr. V. N. Patil (Jadhav) AGP for Respondent - State Mr. D. P. Palodkar, Advocate for Respondent No.1....... [CORAM : MANJUSHA DESHPANDE, J.] RESERVED ON : 5 th FEBRUARY, 2025 PRONOUNCED ON : 17 th FEBRUARY, 2025 JUDGMENT:1.Rule. Rule made returnable forthwith. Heard finally with theconsent of the learned Advocates for the respective parties.2.The Petitioners have challenged judgment and order dated6th October, 2017 passed by Member, Maharashtra RevenueTribunal, Aurangabad (to be referred as “MRT”) in Case No.8/A/2020/Latur, whereby the claim of Respondent No.1 isremanded for fresh inquiry to the Deputy Collector.3.It is the contention of the Petitioners that Respondent No.1had filed an application before Deputy Collector, Latur invokingsection 98 of the Hyderabad Tenancy and Agricultural Lands Act,1950 (to be referred as “the said Act”) for eviction of thePetitioners from the suit land. Contention of Respondent No.1 isthat father of Respondent No.1 Manikrao received a certificateunder section 38 (E) of the said Act, thereby declaring him to beowner of land admeasuring 5 Acre 36 Guntha, situated at Mauje {3} wp2478-18.docGhugi Sawangi, Taluka – Shirur Anantpal, District – Latur.Revenue entries to that effect were taken. However, there is nodocument available with Respondent No.1 as well as with theRevenue Authorities, whereby certificate under section 38 (E) ofthe said Act had been issued in favour of Respondent No.1.4.It is the case of the Petitioners that Respondent No.1 hadfiled Regular Civil Suit No. 126 of 1979 against the Petitioners forpossession of the property in question. The suit wassubsequently compromised between the parties and it wasagreed that the Petitioners will remain in possession of the landto the extent of 2 Acre 20 Guntha and Respondent No.1 willretain 3 Acre 16 Guntha land. The compromise was recorded andaccordingly acted upon. A decree to that effect was drawn by theCivil Court on 24th July, 1979. The parties remained in possessionof their respective lands as per the terms of the compromise.However, after a period of 30 years, Respondent No.1 filed anapplication under section 98 of the said Act before the DeputyCollector claiming that the compromise decree passed in theRegular Civil Suit No. 126 of 1979 is bad in law and contrary tothe provisions of the said Act. Hence Respondent No.1 claimedthe entire land ad measuring 5 Acre 36 Guntha.5.The application filed by Respondent No.1 was opposed by {4} wp2478-18.docthe Petitioners contending that Respondent No.1 has notproduced the certificate allegedly issued under section 38 (E) inhis favour, in support of his claim that he is owner of the entireland to the extent of 5 Acre 36 Guntha. It was further contendedthat in spite of taking efforts to locate the record pertaining tothe declaration of ownership to Respondent No.1, under section38 (E) of the said Act, the Revenue Authorities could not locatethe record. Therefore, considering the amicable settlementbefore the Civil Court, the Petitioners had prayed for dismissal ofthe proceedings filed by Respondent No.1.6.The Deputy Collector, by order dated 30th January, 2010has rejected the claim of Respondent No.1. Being aggrieved bythe judgment and order passed by the Deputy Collector,Respondent No.1 filed Revision before MRT. The MRT, by itsjudgment and order dated 6th October, 2017, remanded thematter back to the Deputy Collector for further inquiry. It is thisorder, which is being challenged by the Petitioners in this WritPetition.7.The facts, leading to the litigation can be encapsulated asunder:Respondent No.1 had filed Appeal before the DeputyCollector contending that certificate declaring Respondent No.1 {5} wp2478-18.docto be the protected tenant was issued on 2nd September, 1971 tothe extent of 5 Acre 36 Guntha in Survey No. 5A. Accordingly,Mutation Entry was also recorded. Respondent No.1 hascontended that, inadvertently, he had filed Regular Civil Suit No.126 of 1979 in the Court of Civil Judge, Junior Division, Nilangafor declaration of ownership and injunction. Compromise wasentered into between the parties and according to the saidcompromise, father of the Petitioners Gunda Rama, who was inpossession of the land to the extent of 2 Acre 20 Guntha, sincehis forefathers and was enjoying the yields from the said land,was allowed to continue with the possession of the portion of theland of which he was in possession since long. As against thatRespondent No.1 who was in possession of 3 Acre 16 Guntha,since his forefathers continued in possession of the land, on thebasis of certificate issued under section 38 (E) of the said Act. It is the contention of Respondent No.1 in the Applicationthat he was not aware that the Civil Court did not havejurisdiction to decide tenancy proceedings. Therefore, thecompromise, which has entered into between the parties beforethe Civil Court, is not binding on Respondent No.1. Referring tothe jurisdiction of the Court under section 99 of the said Act, itwas contended that the compromise decree is not binding onRespondent No.1. {6} wp2478-18.docThe stand of the Petitioners – non applicants before theDeputy Collector was that, only after accepting rights of thePetitioners as protected tenants on the land, which was in theirrespective possession, the compromise was entered intobetween the parties. Since decree to that effect was drawn,Respondent No.1 cannot deny the binding effect of the decree,which is drawn by the Civil Court on the basis of compromiseentered into between the parties. It is contention of thepetitioners that the suit land belonged to one Sangan BasanappaMallikarjun. Father of Petitioners – Gunda Rama was inpossession of 2 Acre 20 Guntha land from southern portion of theland and Respondent No.1 was in possession of 3 Acre 16 Gunthaland from the northern portion as tenants. Gunda Rama as wellas Manik Gopal were belonging to the same family. Name ofGunda Rama appeared in Pahani as well as Khasara Patrak andNames of Gunda Rama as well as Manik Gopal appeared incolumn of rights as protected tenants. On the basis of thecomprise entered into between them, Mutation Entry No. 73,dated 25th April, 1981 was also entered into after issuing noticeto the Respondent. The Mutation Entry was never challenged byRespondent No.1. Considering that the Petitioners are inpossession of the suit land, prior to 1940, the appeal ofRespondent No.1 was not entertained. It is also contended that {7} wp2478-18.docwhen the Petitioners filed application before the Tahsildarseeking copies of record in respect of issuance of declaration ofcertificate in favour of Respondent No.1, under section 38 (E) ofthe said Act, dated 2nd December, 1971, it was informed that therecord in respect of the land is not available. The Petitioners triedtheir best to obtain the record, but in vain. On the basis of the rival contentions of the respectiveparties and after going through the evidence of the witnesses,the Deputy Collector, recorded a finding that Respondent No.1cannot refuse the compromise, which is entered into by him withthe Petitioners. If Respondent No.1 had any grievance againstthe comprise, Respondent No.1 ought to have challenged thecompromise decree before appropriate court. Respondent No.1has admittedly not challenged the compromise decree, therefore,Respondent No.1 cannot claim that the compromise decree is notbinding on him. Similarly, the Mutation Entry which came to be effected onthe basis of comprise decree is also not challenged byRespondent No.1. It was further observed that the recorddiscloses that the Petitioners as well as Respondent No.1 belongto the same family and they share a common ancestor(grandfather). {8} wp2478-18.doc8.When the matter was taken to MRT by Respondent No.1,MRT, after taking into consideration the order passed by theDeputy Collector and also evidence, which was led by the partiesbefore the Deputy Collector, has recorded a finding that thearguments as well as documents disclose that the suit land hadtwo protected tenants i.e. forefathers of the Petitioners andRespondent No.1, while Respondent No.1 claims to be owner ofthe entire land to the extent of 5 Acre 36 Guntha and thePetitioners to be unauthorized occupants. A finding is alsorecorded that even forefathers of the present Petitioners havebeen declared as protected tenants. Since Respondent No.1could not produce certificate of ownership issued under section38 (E) of the said Act, claim of Respondent No.1 as exclusiveowner of the suit land cannot be conclusively decided.9.It is observed that the Deputy Collector has not gone intoinquiry of the ownership certificate issued under section 38 (E) ofthe said Act. Certificate under section 38 (E) is materialdocument to decide the issue whether the father of RespondentNo.1 was tenant of the entire land. Therefore, in order to verifyas to whether any certificate was issued by concerned authorityunder section 38 (E) of the said Act, the matter has beenremanded back to the Deputy Collector. It is also observed that if {9} wp2478-18.docthe Deputy Collector is satisfied about the ownership certificategranted in favour of Respondent No1, proceedings under section50B of the said Act should be initiated as per the provisions oflaw.10.It is the contention of the Petitioners that Deputy Collector,while deciding the application filed by Respondent No.1 undersection 98 of the said Act, has limited scope. The DeputyCollector has already taken into consideration that during theproceedings Respondent No.1 could not produce the certificateunder section 38 (E) of the said Act, as he was not in possessionof the said certificate. It is also recorded that original record inrespect of the certificate issued under section 38 (E) of the saidAct, was also called from the Tahsildar, however, the same couldnot be made available, since it was not available in the Tahsiloffice. Deputy Collector has recorded that though the Petitionershave taken efforts to obtain relevant record, but said recordappears to have been destroyed.11.Hence, observations reflect that during the pendencybefore Deputy Collector, the record with respect fo certificateunder section 38 (E) of the said Act could not be made available.12.It is the contention of the Petitioners though the MRT,already having considered and gone through the order passed by {10} wp2478-18.docthe Deputy Collector, has remanded the matter back to theDeputy Collector to enquire about the issue of ownershipcertificate under section 38 (E) of the said Act. It is thecontention of the Petitioners that, there is already a compromisewhich has taken place long back and on the basis of thecompromise, the parties are in possession of the respective landsfor more than 30 years. After such a long time, Respondent No.1cannot deny binding nature of the comprise decree, on theground that while entering into the compromise, RespondentNo.1 was not aware about the bar of the Civil Court under thesaid Act and hence it is not binding on him. Fact also remainsthat though Mutation Entry as well as the compromise have notbeen challenged by Respondent No.1 before appropriate forum,in view of the above, it was not appropriate for Respondent No.1to file proceedings seeking eviction of the Petitioners undersection 98 of the said Act.13.Even upon going through section 98 of the said Act, thescope of the same is limited. A person, who claims to be owneror on the basis of substantive rights invokes powers vested in theCollector under section 98 of the said Act, against the personunauthorisedly occupying or wrongfully in possession of anyland. According to the learned Advocate for the Petitioners, hecannot be termed as a person who is occupying the land {11} wp2478-18.docwrongfully, since he is in settled possession of the land since hisforefathers, much prior to 1940, which is supported by revenueentries and which are not in dispute. Therefore, invocation ofsection 98 of the said Act for his eviction is not at all tenable andthe MRT has committed an error in remanding the matter back tothe Deputy Collector for inquiry under section 38 (E) of the saidAct. The scope of section 98 of he said Act is very limited,proceedings under section 98 of the said Act are summaryproceedings, it does not contemplate any inquiry. Hence,according to the learned Advocate for the Petitioners, the orderpassed by MRT suffers from non application of mind and error oflaw.14.Per contra, Mr. Palodkar, learned Advocate for RespondentNo.1 submits that Respondent No.1 was granted certificate undersection 38 (E) of the said Act, vide case No. 148/38 E/62 dated2nd December, 1971 in respect of survey No. 5A to the extent of5 Acre 36 Guntha and he was declared as protected tenant underthe said Act. On the basis of the certificate, Respondent No.1has got his name mutated in the revenue record and entry tothat effect has been taken, wherein in the remarks it is stated 38(E) certificate, 50A received and approved. Accordingly, even in7/12 extract, name of Respondent No.1, has been entered.Though Respondent No.1 had entered into compromise with the {12} wp2478-18.docPetitioners, it is not binding on him in view of section 99 of thesaid Act, which creates a bar to the jurisdiction of the Civil Court.Therefore, considering that the compromise entered by him wasbarred by Section 99 of the said Act, was not binding onRespondent No.1, the Petitioners should be restrained fromenjoying possession of the land, of which Respondent No.1 hasbeen declared as protected tenant. Since certificate undersection 38 (E) of the said Act has been granted in his favour, thePetitioners are trespassers in the said land.15.Therefore, considering that possession of the Petitioners onthe suit land is not in the capacity as tenants, but they aretrespasses and therefore, the Petitioners need to be evicted byrestoring possession of Respondent No.1.16.After the matter was closed for placing citations on record,the Advocate for the Respondent has placed on record certaindocuments supported by affidavit. He has relied on the olddocuments of Mutation Entries recorded in the year 1963 andalso declaration issued under section 38 (E), which waschallenged by the landlord and rejected by the Naib Tahsildar on3rd August, 1962 and subsequent orders of Deputy Collectordated 4th November, 1963 and decision of the MRT dated 5thMarch, 1964 in support of his case. However, the fact remains {13} wp2478-18.docthat scope of present Writ Petition is limited only to the extent ofconsidering legality and correctness of the order passed by MRT.Reliance which is placed by learned Advocate for theRespondents, by producing documents along with affidavit onrecord, is not relevant for decision of the present Writ Petition.The scope of present Writ Petition is limited only to the extent oforder passed by the Deputy Collector under section 98 of thesaid Act and the order passed by the MRT, which was arising outof proceedings initiated under section 98 of the said Act.17.After hearing learned advocates for the respective parties,the question before this Court is whether the order passed by theMRT, thereby remanding the matter back to the Deputy Collectorfor further inquiry, is appropriate in view of scope of section 98 ofthe said Act. Section 98 of the said Act reads thus, “98. Summary eviction:Any person unauthorisedly occupying or wrongfully in possession of anyland -(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or (b) the management of which has been assumed under the saidprovisions, or (c) to the use and occupation of which he is not entitled under the said provision, may, if the said provisions do not provide for the eviction of such person, be summarily evicted by the Collector. 18.Upon going through the provisions, which are reproduced {14} wp2478-18.docherein above, it is clear that a person who claims to be lawfulowner of the land, which is occupied unauthorizedly andwrongfully, by person in possession can be evicted resorting tosection 98 of the said Act. It is claim of the present Respondentthat he is declared as protected tenant in respect of the whole ofthe suit land to the extent of 5 Acre 36 R, in Survey No. 5A.Though he had entered into compromise with the presentPetitioners, in a suit which he himself had filed, he claims that hehas inadvertently filed the suit in which he had entered intocompromise with the Petitioners, but in view of section 99 of thesaid Act, which bars jurisdiction of Civil Court, the compromisedecree is not binding on him.19.In the application filed before the Deputy Collector, theRespondent has claimed two reliefs; one is regarding eviction ofthe petitioners from the land to the extent of 2 Acre 20 Gunthaand the second is in respect of declaration that the compromiseentered into between the Petitioners and Respondent in CivilCourt on 24th July, 1979, is not binding on the Respondent. Suchrelief, admittedly, is not capable of being granted by the DeputyCollector.20.The Petitioner is aggrieved by the order, wherein appealfiled by the Respondent is partially allowed, wherein the matter {15} wp2478-18.docis remitted back to the Deputy Collector for further inquiry. 21.So far as inquiry under section 38 (E) is concerned, thesepowers are necessarily exercised by Tahsildar. No inquiry iscontemplated while exercising powers under section 98 of thesaid Act by the Deputy Collector22.In the case of “Kisan Rama Khatri V/s SanjeevanraoDattatrayrao Atre and Others” reported in 2020 Near Law(Bombay High Court, Aurangabad) online 668 in WritPetition No. 3439 of 2000, in similar facts, where the disputewas amongst the joint family members, this Court has held that,whether the tenancy was for joint family or independently of oneof the members, is the question which is required to be decidedby Competent Authority and finding on the status of thepetitioner, who claimed to be a tenant ought to have beenrecorded in appropriate proceedings. Paragraphs No. 14 to 16from the Judgment are reproduced hereinbelow:“14. Section 98 of the Tenancy Act reads thus :“98. Any person unauthorisedly occupying or wrongfully inpossession of any land -(a) the transfer of which either by the act of parties or by theoperation of law is invalid under the provisions of this Act, or(b) the management of which has been assumed under the saidprovisions, or {16} wp2478-18.doc(c) to the use and occupation of which he is not entitled underthe said provisions, may, if the said provisions do not providefor the eviction of such person, be summarily evicted by theCollector”.A plain reading of the provision would indicate that theinquiry is a summary inquiry. The petitioner is not a trespasser.Whether the petitioner was a member of joint family alongwithSandu Rama or whether the tenancy was for the benefit of the jointfamily or whether the petitioner was legal heir of Sandu Rama, arequestions which ought to have been addressed by the CompetentAuthority and finding on the status of the petitioner, who claimed tobe a tenant, ought to have been recorded in appropriateproceedings.15. Section 8 of the Tenancy Act is relevant and reads thus :“8. If any question arises whether any person is or was atany time in the past a tenant, the Tahsildar shall, afterholding an inquiry, decide such question”. It is irrefutable that the inquiry contemplated under Section 8 of theTenancy Act was not conducted nor was the finding recorded by Tahsildaras regards the status of the petitioner. Such an inquiry could not have beenconducted in the proceedings under Section 98 of the Tenancy Act.16. Even if it is assumed that in proceedings under Section 98 of theTenancy Act a finding of the status of occupier can be recorded,considering that the inquiry is summary, in contentious matters, thestatutory scheme would mandate that such inquiry be conducted bythe appropriate Authority under Section 8 of the Tenancy Act whowould reach appropriate conclusions after permitting the parties to {17} wp2478-18.docadduce evidence.”23.Section 8 of the said Act provides for enquiry to beconducted by the Tahsildar when any question of deciding statusof tenant arises. 24.Since the proceedings under section 98 of the said Act aresummary proceedings, when the status of tenancy is in question,the finding of status of tenancy cannot be recorded inproceedings under section 98 of the said Act. Therefore, thestatus of the tenancy has to be decided by the Tahsildar in aninquiry conducted under section 8 of the said Act, as mandatedunder the statutory scheme.25.In view of the scope of the powers conferred under section98 of the said Act, the inquiry cannot be conducted by theDeputy Collector, but has to be by the Tahsildar under section 8of the said Act.26.Therefore, the order passed by the MRT, remanding thematter back to the Deputy Collector for inquiry whether thefather of applicant was alone granted certificate under section 38(E) of the said Act, is quashed and set aside and the matter isremitted back to the Deputy Collector, Latur who would refer thematter to the Tahsildar for inquiry under section 8 of the said Act {18} wp2478-18.docand on receiving the report, the Deputy Collector shall decide theApplication of Respondents on the basis of the report.27.The parties are directed to appear before the DeputyCollector (Land Reforms) Latur on 20th March, 2025.28.The Deputy Collector (Land Reforms), Latur shall make areference to the Authority under section 8 of the said Act, within15 days from appearance of the parties and the Tahsildar shallconclude the inquiry within 6 months from the date of referencemade by the Deputy Collector.29.Writ Petition is allowed. Rule is made absolute in aboveterms. [ MANJUSHA DESHPANDE ] JUDGE drp/wp2478-18.doc