Writ Petition No. 2224 of 2018 · Bombaybench High Court
Case Details
2025:BHC-AUG:4577 1 2224-18-wp.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.2224 OF 2018Devidas Krishna SurwaseSince deceased through L.R’s1.Smt. Shivkanta W/o Devidas SurwaseAge: 72 years, Occu. Agri,R/o: Bhandari, Tal. & Dist. Osmanabad2.Prema W/o Mhadeo GodseAge: 52 years, Occu: Household,R/o: Loni Kalbhor, Tal. & Dist. Pune3.Balaji S/o Devidas SurwaseAge: 42 years, Occu: Agri.,R/o: Loni Kalbhor, Tal. & Dist. Pune4.Anjali W/o Shahu Mane,Age: 37 years, Occu: HouseholdR/o: Loni Kalbhor, Tal. & Dist. Pune.5.Nanasaheb S/o Devidas SurwaseAge: 32 years, Occu: Agri.,R/o: Bhandari, Tal. & Dist. Osmanabad6.Pachubai Shahaji MagarAge: 52 years, Occu: HouseholdR/o: Shindewadi, Tal. & Dist. Osmanabad ...PetitionersVersusHaribhau S/o Maruti MurumkarSince deceased through LR’s1.Balika Haribhau ShindeAge- Major, Occu- Nil.R/o. Bhandari, Tal. & Dist. Osmanabad2.Sonali Haribhau ShindeAge- Major, Occu- Nil.R/o. Bhandari, Tal. & Dist. Osmanabad3.Kuldip Haribhau shindeAge- Major, Occu- Nil.R/o. Bhandari, Tal. & Dist. Osmanabad...Respondents…..Mr. Avinash Khande, Advocate h/f Mr. Manoj Shinde, Advocate forPetitionerMr. P. K. Deshmukh, Advocate for Respondent…..SVH
Facts
2 2224-18-wp.odt CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 22nd JANUARY, 2025 PRONOUNCED ON : 17th FEBRUARY, 2025ORDER : 1.Petitioner is challenging the order dated 06/02/2015,passed by the Member, Maharashtra Revenue Tribunal, Aurangabad,in case No.51/B/2001/O, thereby rejecting the revision applicationfiled by petitioner under Section 91 of the Hyderabad Tenancy andAgricultural Lands Act, 1950 (hereinafter referred to as ‘the saidAct’) challenging the order dated 29/04/2002, passed by the DeputyCollector (L.R.), Osmanabad, in case No.2001/TNC/WS/634.2.Brief facts of the litigation between the parties are asunder:-Land admeasuring 6 Acre 39 Gunthe in Survey No.49/1at village Bhandari, Taluka and District Osmanabad, was declared astenancy land and father of petitioner Krishna Narsu Surwase wasdeclared as protected tenant over the said land under Section 38Eof the said Act. Certificate to that effect was issued in favour ofKrishna Surwase on 07/02/1958. The owner of the land was oneGovind Bali Murumkar. Petitioner submits that though thedeclaration and certificate was issued in favour of Krishna Surwaseon 07/02/1958, the original owner never challenged the same.Krishna Surwase had lost the possession of the above land when thedeclaration was made. Thereafter, the Tahsildar conducted furtherSVH 3 2224-18-wp.odtinquiry and assessed the value of land and granted ownership rightsin favour of Krishna Narsu Surwase by order dated 24/10/1960. Bythe same order Tahsildar had also directed eviction of Govind Baliand directed to handover possession of land to Krishna NarsuSurwase. However, Govind Bali did not vacate the suit premises.Hence, the Tahsildar in file No.L.R. 156/1961 issued notices toGovind Bali as well as Krishna Surwase. Still there was nocompliance of the order of eviction dated 24/10/1960. 3.In the meanwhile, protected tenant Krishna Surwasepassed away and the Naib Tahsildar (L.R.) by order dated23/05/1964 directed that petitioner Devidas Krishna Surwase, whois legal heir of Krishna Surwase, to be put into possession. Even thesaid order was not complied by the land owner and there was failureto deliver possession to the petitioner.4.In spite of order of the Tahsildar the original land ownerGovind Bali did not hand over the possession. Further in collusionwith the revenue authorities Govind Bali in the year 1976 gotMutation Entry No.238, entered on the basis of partition to the shareof respondent herein i.e. Haribhau Maruti Murumkar. In themeanwhile, the Tahsildar issued notice to Krishna Surwase for non-payment of purchase price. In reply to the notice, petitioner DevidasSurwase who is legal heir of Krishna Surwase filed applicationexplaining that, since he had lost possession of the land whichcontinued with the original land owner Govind Bali, the purchaseSVH
Legal Reasoning
15 2224-18-wp.odt29/09/1998 for giving reason for non-payment of reasonable price ofthe land and the date was fixed for hearing of the matter. Duringpendency of proceeding itself the protected tenant has filedapplication to allow the legal heirs of protected tenant to depositthe reasonable price of suit land with a prayer to issue ownershipcertificate. Therefore, it was not within the powers of AdditionalTahsildar to pass an order declaring the purchase to be ineffectiveand thereby forfeiting the petitioner’s rights of purchase.30.Learned advocate for petitioner relies on the decision ofthis Court in case of Ganpat Sakharam Deshmukh vs. YeshwantDigambar Deshmukh, reported in 2000(1) Mh.L.J. 126,wherein it has been categorically held by this Court that fordeclaring the transfer of ownership in favour of protected tenantunder Section 38E of the said Act, ineffective two conditions arerequired to be fulfilled i.e. (i) tenant commits default in payment ofentire purchase price; (ii) inspite of proceedings for recovery, thepurchase price could not be recovered from tenant, as arrears ofLand Revenue. It is also held that Section 38E provides thatstatutory right of ownership is automatically conferred from thedate notified by the Government in favour of protected tenant.There is no role assigned to the landholder except to apply forfixation of reasonable price, to make transfer under Section 38Eeffective. Provisions of Sub-section(3) of the said Section alone willSVH 16 2224-18-wp.odtapply and the provisions of clause (d) of Sub-section (6) of Section38 do not come into play at all. Hence, while concluding thereference it was held that, for declaring the purchase under Section38E of the said Act ineffective, two conditions are essential: (i)tenant commits a default in payment of entire purchase price; and(ii) inspite of the proceedings for recovery the entire price amountcould not be recovered.31.Therefore, it is the contention of petitioner that even ifthe protected tenant fails to deposit the entire purchase price fixed,steps are required to be taken by the Government to recover theamount, and only on failure to recover the amount as arrears of landRevenue, the purchase becomes ineffective. In the present case, nosuch steps for recovery have been taken by the Government formaking purchase ineffective. Hence, the case of petitioner issquarely covered by the above judicial pronouncement, which is notat all taken into consideration by the Additional Tahsildar whilepassing the impugned order. Therefore, the order dated 10/03/1999,passed by Additional Tahsildar, Osmanabad, in file No.1998/TNC/WS/140 10/03/1999 declaring the purchase ineffective, also needsto be quashed and set aside.32.Learned advocate for petitioner further submits thatwhile considering the issue of purchase becoming ineffective, theMRT has not taken into consideration the orders passed by the sub-ordinate authorities and it’s validity in it’s proper perspective. TheSVH 17 2224-18-wp.odtreliance placed by MRT on the case law cited by respondentHanmantrao Vithalrao (supra) is totally misplaced for the reasonthat the same was passed by Single Judge of this Court and later onthe issue was referred to the Division Bench and while answeringthe issue Division Bench has given the finding that two conditionsare required to be fulfilled for the purchase becoming ineffective.33.The other order which was challenged before theDeputy Collector was the order dated 09/02/2001, passed byAdditional Tahsildar in File No.2000/TNC/WS/139, wherein afterremand of the matter back to the Additional Tahsildar for initiationof proceedings under Section 38E(1) Explanation of the said Act,order came to be passed considering that the applicant wasdeclared protected tenant under Section 38E of the said Act. It isobserved that the legal heir of deceased tenant had depositedreasonable price of the suit land of Rs.1150/- in the State Bank ofHyderabad, through Challan No.39, on 12/01/1999. It was held thatthere is no impediment in issuing ownership certificate as per theRules and directed to issue ownership certificate in prescribed formunder Section Rule 22 of the said Act.34.While passing the order dated 29/04/2002, the DeputyCollector has observed that since the protected tenant has failed todeposit the purchase price within time, by order dated 10/03/1999,purchase of the suit land was declared to be ineffective as providedunder Section 38(6)(d) of the said Act. Which was challenged by theSVH 18 2224-18-wp.odtprotected tenant before the Appellate Court which was dismissed on21/10/2000, against which the tenant has not preferred any appealbefore the competent Court. Therefore, the order declaring thepurchase of the suit land ineffective has attained finality.35.Though the order declaring purchase to be ineffectiveissued by the Additional Tahsildar was challenged before the DeputyCollector, and it was dismissed, however, while dismissing theAppeal the Deputy Collector had granted liberty for filingproceedings under Section 38E(1) Explanation. It is only on accountof the declaration of purchase of suit land to be ineffective, theorder dated 09/02/2001 directing issuance of ownership certificateunder Section 22 of the said Act, has not been upheld by the DeputyCollector as well as the MRT.36.Per contra, learned advocate appearing for respondentopposes the writ petition contending that protected tenant KrishnaSurwase was not at all in possession of the suit land. The Tahsildarinitiated proceedings and issued notice against deceased Krishna inrespect of Survey No.49/1, however, the petitioner had givenstatement that his father was protected tenant who had died beforefour years and he was declared as owner of the suit land. Since hisfather cultivated the suit land only for one year prior to seven toeight years, he was not interested in the suit land. He hadsurrendered his right to owner Govind Bali. Since then owner GovindBali is cultivating the land. He further stated that he being only sonSVH 19 2224-18-wp.odtof Krishna Surwase, is not interested in the land as he himself owns9 Acres land at village Bhandari, which is sufficient. He had furtherstated that he did not have agricultural equipments or bullocks forcarrying out agricultural operations. He has expressed his inabilityto deposit the purchase price of the land and thereby surrenderedhis rights in respect of the suit land. The statement of petitioner wasrecorded before Naib Tahsildar (N.T.L.R.), Camp Bhandari, on11/03/1964, who thereafter passed order dated 23/05/1964,declaring to restore the possession of suit land in favour ofpetitioner. The Naib Tahsildar had also prepared panchanama byfollowing due procedure on 26/09/1964 for restoring possession ofsuit land in favour of petitioner who had refused to take possessionin the presence of panchas, and has surrendered his legal rights infavour of original owner Govind Bali.37.According to Mr. P. K. Deshmukh, learned advocateappearing for respondent, the petitioner has denied the surrender ofsuit land and is contending that the authorities have failed to deliverpossession which is contrary to the documents produced on record.He further contends that the petitioner is suppressing material factsfrom this Court and on that ground alone the writ petition deservesto be dismissed. It is his contention that once having surrenderedhis right by refusing to take possession in the year 1964, his rightsare extinguished and he cannot reopen the proceedings for issuingownership certificate after 34 years.SVH 20 2224-18-wp.odt38.Learned advocate for respondent further contends that,as per Section 38(5)(b) amount of reasonable price is to bedeposited in installments not exceeding 8 years. The reasonableprice of the suit land was fixed at Rs.600/- in the year 1959 to bepaid in 10 equal installments. Since the protected tenant has failedto deposit the reasonable price in time, in view of Section 38(6)(d)the purchase has become ineffective and petitioner has forfeited hisright to purchase. Therefore, in view of the provisions of law, theorder passed by Additional Tahsildar rejecting application ofpetitioner on 10/03/1999 is just and proper.39.It is his contention that the purchase price of tenancyland was already declared in the year 06/09/1959. Therefore, thesubsequent application for depositing the purchase price underSection 38(6) was not tenable. Hence, the order passed by theAdditional Tahsildar directing to issue ownership certificate underSection 22 does not deserve consideration. According to him, orderpassed by MRT is just and proper, hence does not deserveinterference.40.The learned advocate for respondent Mr. P. K.Deshmukh, has relied on Hanmantrao Vithalrao Vs. Bhimraoand Others, 1983 Mh.L.J. 434, in support of his contention thatpurchase of the land by protected tenant has become ineffective,since the protected tenant has made statement before thecompetent authority that he does not want to purchase the land. InSVH 21 2224-18-wp.odtsupport of his submission he relied on the observations in thejudgment supra, wherein it is observed that protected tenant at thestage prior to fixing of price can make statement before competentauthority that he does not want to purchase the land and on suchstatement being made the purchase becomes ineffective.41.Learned advocate for respondent places reliance on thedecision of this Court dated 08/03/2010 passed in Writ PetitionNo.4949/2000 (Gajmal Ringamali Patil Vs. Damodar AvadhutDeshmukh), in support of his contention that when protected tenantrefuses to purchase the land, statutory purchase becomesineffective. The power of MRT to resume and dispose of the landwhich is not purchased by tenant can be exercised suo moto or onapplication of the landlord. According to him, High Court can onlyexercise jurisdiction to the extent of scrutinizing whether theimpugned judgment suffers from vice of arbitrariness or perversityor is rendered without there being any material to infer thatstatutory purchase had become ineffective. The High Court cannotre-appreciate evidence as it is outside the scope of Article 227 ofthe Constitution of India.42.Further reliance is placed on Ramchandrahashadalvi(Deceased) Through LRs. Vs. D. Patwardhan, reported in 1999AIR(SC) 2039, wherein in similar facts it is observed that tenantonce having surrendered his rights voluntarily cannot againapproach the authority contending that the statement was notSVH 22 2224-18-wp.odtvoluntarily. The application was rejected by the Agricultural LandsTribunal holding that at that stage evidence could be led only withrespect to proceeding under Section 32-F of the Act and thestatutory sale in favour of tenant having become ineffective thelandlord was entitled to be put in possession of the land.43.I have heard the respective counsel for the parties, afterhearing learned advocate for petitioner as well as respondent, it isapparent that order was passed by the Deputy Collector,Osmanabad, on 24/10/1960, wherein it is observed that in spite ofdirections issued by the Collector under Section 98 of the said Act,to the original owner Govind Bali who was occupying the suit land tohand over the possession to Krishna Surwase, it has not beenfollowed and implemented.44.It is not disputed that Krishna was declared as protectedtenant and he was not handed over the possession of tenancy land.Therefore, order came to be passed by the Deputy Collector,Osmanabad, on 24/10/1960. Even on 23/05/1964 similar order waspassed observing that even on the previous occasion, in spite ofpassing order of eviction and directing to hand over possession toprotected tenant, the possession is not handed over to thepetitioner and the order has not been implemented. Therefore,again an order came to be passed directing the petitioner to be putin possession of the suit land. In spite of consecutive orders, thepossession was not handed over to the protected tenant. Therefore,SVH 23 2224-18-wp.odtthe purchase price could not be paid by the protected tenant.45.From the documents placed on record it can be seenthat in the meanwhile the original owner Govind Bali had enteredname of respondent in the land which is declared to be tenancyland, on the basis of partition by making an application. TheTahsildar has taken mutation entry to that effect on 26/11/1996.Though the Additional Tahsildar, initiated suo moto proceedingscalling upon petitioner as to why the petitioner has failed to depositreasonable price already fixed in the year 1958, the protectedtenant appeared in the proceeding and sought permission todeposit the reasonable price so fixed. In the proceedings initiatedsuo moto by Tahsildar, he has passed order dated 10/03/1999declaring the purchase ineffective under Section 38(6)(d) of the saidAct.46.So far as the declaration of purchase of the petitionerto be ineffective is concerned, it is covered under Section 38(6)(d)wherein twin conditions are required to be fulfilled before declaringthe purchase ineffective, as has been held in the judicialpronouncement of this Court in case of Ganpat SakharamDeshmukh (supra). A mechanism is provided under the said Actitself, in which the safeguards are provided in order to protect therights of tenant. The very object of the said Act is to protect thetenancy rights of the persons who are cultivating the land of theowner for years together. SVH 24 2224-18-wp.odt47.It is admitted fact that since possession was not handedover to the petitioner, he had not deposited the reasonable pricefixed. Therefore, again when he sought permission for depositingthe purchase price, the permission was granted and he haddeposited the amount of Rs.1150/- in the State Bank of Hyderabadon 12/01/1999. The other condition as provided under Section 38(6)(d) is that on failure to deposit the purchase price, steps will have tobe taken for recovery of it as arrears of land revenue. The samemay be recovered from the tenant as arrears of land revenue andunless both the conditions are fulfilled the sale does not becomeineffective. Hence, order declaring the purchase of suit land to beineffective is against the provision of law and is based on perversefinding. In view of non-compliance of Section 38(6)(d) thesubsequent orders of the Deputy Collector as well as the MRT arerequired to be quashed and set aside. Since the order of purchasebecoming ineffective itself is passed against law as well as thejudicial pronouncement of this Court as referred above, the orderdated 09/02/2001 becomes unsustainable.48.Though the Additional Tahsildar has passed an orderdirecting issuance of ownership certificate in prescribed form underSection 22 of the said Act, the Deputy Collector has set aside thesaid order on the ground that since purchase of the suit land by theprotected tenant was declared as ineffective and it was notchallenged by respondent, the order declaring purchase becomingSVH 25 2224-18-wp.odtineffective has attained finality. Therefore, subsequent order of theTahsildar dated 10/03/1999 and declaration under Section 38E is notproper and liable to be quashed and set aside. It is only on accountof the purchase having become ineffective, the order of AdditionalTahsildar dated 09/02/2001 is declared as not proper and has beenquashed and set aside and resultantly the appeal filed byrespondent herein has been allowed by setting aside the order ofthe Additional Tahsildar.49.So far as challenge to the tenancy certificate issued on07/02/1958 in favour of father of the petitioner is concerned, theDeputy Collector has quashed and set aside the same by way ofcommon order dated 29/04/2002 passed in two appeals. The orderof Deputy Collector quashing and setting aside the certificate oftenancy issued in favour of petitioner was not tenable for the reasonthat judicial pronouncement declaring ownership certificate underSection 38E which confers ownership of land in favour of tenant, is aformal certificate declaring protected tenant to be the owner thereofin relation to the property held by him. There is no adjudication ofrival claims of the party at the time of issuance of such certificate.Therefore, it cannot be termed as an order within the meaning ofSection 90 of the said Act. The authority issuing certificate underSection 38E have not passed any order as such. Therefore,challenge to the tenancy certificate is not maintainable by way ofappeal. The above position of law has been laid down by this CourtSVH 26 2224-18-wp.odtin case of Bharatlal s/o Hemraj Vs. Kondiba Govinda Jadhavand Others, reported in 2001 (3) Mh.L.J. 380.50.It also needs to be considered that though the order ispassed by the Tahsildar on 10/03/1999 holding that the purchase isnot effective under Section 38(6)(d), fact remains that before thatthe protected tenant had already deposited reasonable price ofRs.1150/- on 12/01/1999. Therefore, without taking intoconsideration the fact that reasonable price is already deposited on12/01/1999 the order is passed on 10/03/1999 holding that thereasonable price has not been deposited by the protected tenant,therefore, the purchase has become ineffective becomesunsustainable.51.Hence, in view of the observations made herein above,the order dated 06/02/2015, passed by Maharashtra RevenueTribunal in case No.51/B/2001/O, is quashed and set aside.Consequently, appeal Nos. 2001/TNC/A/WS/634 and2001/TNC/A/WS/635 are rejected and order dated 09/02/2001passed by Additional Tahsildar in 2000/TNC/WS/139 as well ascertificate issued by the tenancy authority dated 07/02/1958 isconfirmed.52.Writ petition is accordingly allowed in above terms.53.At this stage, learned advocate for respondents praysSVH 27 2224-18-wp.odtfor stay to the implementation and execution of the order for eightweeks since respondents are in possession of the property.However, I think it fit to grant stay to the order for a period of fourweeks. Therefore, the execution and implementation of the order isstayed for a period of four weeks from today. (MANJUSHA DESHPANDE, J.)SVH
Arguments
4 2224-18-wp.odtprice could not be deposited. Wife of Devidas Surwase filedapplication seeking permission to deposit the amount of reasonableprice of the land fixed by Tahsildar.5.It is the contention of petitioner that he has also filedapplications on 21/12/1998, 28/12/1998 and 04/01/1999 seekingpermission to deposit the price of the land. It is further submittedthat, the Additional Tahsildar, Osmanabad, without considering theapplications filed by petitioner and the fact that since his possessionwas not restored, he did not deposit the purchase price, concludedthe inquiry, by order dated 10/03/1999, holding that declaration ofownership right of protected tenant Krishna Surwase has becomeineffective and thereby he has forfeited his right to purchase theland.6.The Additional Tahsildar, vide order dated 10/03/1999relying on Section 38(5)(b) of the ‘said Act’, held that thereasonable price is required to be deposited in installments notexceeding eight years and in the present case since it is not paidwithin eight years, the purchase is not effective as provided underSection 38(6)(d) of the said Act. Hence, the applicant forfeits theright of purchase. It was observed that, Krishna Surwase wasdeclared as owner of the land under Section 38E of the said Act, andreasonable price was also fixed at Rs.600/- to be paid in ten equalinstallments. However, Krishna Surwase and his legal heir i.e.petitioner have failed to deposit the reasonable price for more thanSVH 5 2224-18-wp.odt30 years. Therefore, considering the default it was declared that theprotected tenant forfeited his right of purchase.7.Being aggrieved by the order dated 10/03/1999,petitioner preferred appeal before the Deputy Collector, LandReforms, Osmanabad, who by his order dated 21/10/2000, directedthe Tahsildar (TNC) to hold inquiry under Section 38E (Explanation)of the said Act. Pursuant to the order dated 21/10/2000, thepetitioner filed application before the Tahsildar, who conductedinquiry and passed order on 09/02/2001 holding that the reasonableprice of Rs.1150/- is already paid vide Challan No.39 on 12/01/1999,there is no impediment to issue ownership certificate as per rules infavour of applicant Devidas. The Additional Tahsildar has directed toissue ownership certificate as prescribed under Section 22 of thesaid Act, in respect of suit land in favour of petitioner.8.The respondent herein preferred two separate appealsbefore the Deputy Collector, Land Reforms, Osmanabad. One appealwas preferred against the order dated 09/02/2001 passed byAdditional Tahsildar, Osmanabad, directing to issue ownershipcertificate and the other was challenging the Tenancy certificateissued by the tenancy authority in favour of ancestor of thepetitioner on 07/02/1958. The Deputy Collector, by way of commonjudgment and order dated 29/04/2002 allowed both the appeals andquashed and set aside the impugned orders.9.In the meanwhile, respondent had also filed RevisionSVH 6 2224-18-wp.odtbefore the Maharashtra Revenue Tribunal, Aurangabad, challengingthe order passed by Deputy Collector (L.Rs.), dated 21/10/2000, infile No.99/TNC/A/16, directing Tahsildar to hold inquiry under Section38E (1) Explanation of the said Act. Simultaneously, beingaggrieved by the common judgment and order passed by theDeputy Collector (L.R.) on 29/04/2002, petitioner preferred revisionapplication bearing Appeal No.51-B/2002 before the MaharashtraRevenue Tribunal, Aurangabad. During pendency of the Revision thepetitioner expired on 11/07/2003, therefore, the legal heirs ofpetitioner have conducted further proceedings. Considering thatboth the Revision Applications were in respect of same tenancyland, both the revision applications were decided by the MRTsimultaneously and has passed separate judgment in the aboveRevisions on 06/02/2015. So far as revision application filed byrespondent is concerned, it was disposed of as infructuous.According to the petitioner the Revision Application filed bypetitioner is dismissed without assigning proper reasons andcontrary to the provisions of the ‘said Act’.10.The learned advocate for petitioner submits that ownerof the land has challenged the tenancy certificate issued in the year1958 in favour of petitioner in the year 2001, hence, it was notchallenged within reasonable time. Therefore, the Deputy Collectorshould not have entertained the application of the owner on thatground alone. It has also not been taken into consideration by theSVH 7 2224-18-wp.odtMRT as well as Deputy Collector, that when petitioner was declaredas Protected Tenant, in spite of orders of eviction passed against theowner he has failed to hand over the possession of the land topetitioner. Hence, he could not deposit the reasonable price whichwas fixed for the land.11.While dismissing the Revision Application, the MRT hasobserved that ownership certificate was issued in favour of father ofthe petitioner on 07/02/1958, and the price was also determined.Relying on the proceedings initiated under Section 38E (1)Explanation, it is observed that petitioner had appeared beforeTahsildar and stated that his father has cultivated the land for onlyone year and thereafter relinquished possession of the land infavour of owner of the land i.e. Govind Bali, and has declined toaccept the possession and pay the reasonable price.12.Learned advocate for petitioner, in order to counter theabove observations has drawn my attention to the Panchanamadated 26/09/1964. According to him observations made by the MRTare contrary to the Panchanama conducted by Naib Tahsildar, CampOsmanabad. He places reliance on the observation in thePanchanama wherein it is recorded that, the petitioner was calledfor handing over the possession from the original owner Govind Bali,but he was not present on the spot for handing over the possession.Learned advocate for petitioner submits that in the Panchanama itis stated that owner Govind Bali is not present and applicant isSVH 8 2224-18-wp.odtpresent, and he has refused to take possession, therefore, thepossession could not be handed over. The MRT has wronglyobserved that petitioner has declined to accept the possession andfailed to deposit the reasonable price of the land. Hence, thefindings recorded by the MRT as regards to refusal to deposit thereasonable price is contrary to the record. There is no such denial todeposit fixed price on record.13.According to learned advocate for petitioner, in thepresent case, the purchase price is already fixed on 24/10/1960, andthe statement is recorded before the Tahsildar on 26/09/1964,therefore, the case law relied upon by the MRT is not at allapplicable to the facts of the present case. Hence, the purchasedoes not become ineffective.14.According to learned advocate for petitioner merelypreparing the document of surrender under Section 19A(1) is notsufficient compliance but the procedure prescribed under Section19A(2) of the said Act is also required to be followed by theTahsildar, which reads thus:“19A. Lands or portion thereof which landholderis not entitled to retain on surrender to bedeclared as surplus: (1) Subject to the provisions of this section, where atenancy is terminated by surrender under clause (a)of sub-section (1) of section 19, the landholder shallbe entitled to retain so much only of such land as willprevent the total area which he cultivates personally,SVH 9 2224-18-wp.odtwhether as owner or tenant, or both from exceedingthree family holdings.(2) The Tahsildar shall hold an inquiry and declarewhether the whole, or what part (if any) of the landsurrendered the landholder is entitled to retain undersub-section (1), and notwithstanding anything in thatsub-section, he may adjust by reduction or increasethe area of any such part to be retained, but only soas to ensure that such part is not a fragment withinthe meaning of the Hyderabad Prevention ofFragmentation and Consolidation of Holdings Act,1956 (Hyd. Act No.XL of 1956). The Tahsildar shalldeclare any land surrendered which the landholder isnot entitled to retain under the provisions ofaforesaid, to be surplus land.”15.Hence, after due inquiry which is contemplated underSection 19A(2), the Tahsildar is required to declare, any land whichhe is not entitled to be retained under the provisions of the said Act,to be surplus land. In the present case, according to learnedadvocate for petitioner no such exercise has been undertaken bythe Tahsildar. Hence, reliance placed on the surrender as well aspanchanama is misplaced.16.It is observed by the MRT in the impugned order thatsince purchase has become ineffective the applicant does not haveany right to claim ownership well as possession over the land.Therefore, the MRT has refused to interfere with the order passed bythe Deputy Collector (L.R.) cancelling order for issuance ofSVH 10 2224-18-wp.odtownership certificate passed by the Additional Tahsildar on09/02/2001.17.So far as the issue regarding challenge to the certificatedated 07/02/1958 is concerned, according to him, there is no delaycondonation application filed along with the application challengingthe issuance of certificate. Therefore, the order passed by DeputyCollector in the said appeal is contrary to the law. However,considering that the purchase has become ineffective the certificatedated 07/02/1958 becomes inconsequential. Hence, the revision hasbeen dismissed.18.In view of aforesaid background of the facts thejudgment and order passed by the MRT is challenged by thepetitioner. The question raised in the present writ petition iswhether the sale in respect of land of which the petitioner has beendeclared as Protected Tenant, has become ineffective?19.Section 38 provides for mechanism of purchase of landby the Protected Tenant. Protected tenant is defined under Section2(r) of the said Act, which reads thus:-“Protected tenant means a person who is deemed to be aprotected tenant under the provisions of Sections 34 to 37A.”The rights of the protected tenant are provided in Chapter 4 of thesaid Act. According to Section 34, a person shall, subject to theprovisions of sub-sections (2) and (3), be deemed to be a protectedtenant in respect of the land if he has held such land as a tenantSVH 11 2224-18-wp.odtcontinuously (i) or a period of not less than six years, being a periodwholly included in the Fasli years 1342 to 1352 (both yearsinclusive); or (ii) for a period of not less than six years immediatelypreceding the 1st day of January, 1948; or (iii) for a period of not lessthan six years commencing not earlier than the 1st day of Fasli Year1353 (6th October, 1943), and completed before the commencementof this Act. Therefore, the persons who are in possession of the landfor not less than six years immediately preceding 1st January, 1948,and is in possession and cultivating the land is declared to be aProtected Tenant.20.A provision by way of an amendment to Section 37A hasbeen added, which provides that, person holding land as tenant atthe time of coming into force of the said Act, shall be deemed to beProtected Tenant, if the total area of the land owned by thelandholder including the land under the cultivation of his tenants ismore than three times the area of a family holding.21.Section 38 (2) provides that protected tenant whodesires to exercise the right conferred by sub-section (1) shall makean offer to the landholder stating the price which he is prepared topay for the landholder's interest in the land up to fifteen times fordry lands or eight times for wet lands irrigated by wells and sixtimes of wet lands irrigated by other sources, of the rent payable byhim, and where he is not entitled to purchase the whole of the land,the portion thereof which he is entitled to purchase.SVH 12 2224-18-wp.odt22.Sub-section 3 of the Section 38 provides that if thelandholder refuses or fails to accept the offer and to execute a saledeed within three months from the date of the offer, the protectedtenant may apply to the Tribunal for the determination of thereasonable price of the land.23.Therefore, once there is declaration as Protected Tenantand he offers a particular price to the landholder and the landholderrefuses to accept the offer and execute the sale deed within threemonths of the offer, the tenant has right to apply to the Tribunal fordetermination of reasonable price.24.Upon serving notice to landholder the Tribunal shalldetermine reasonable price after taking into considerationlandholder's interests in the land not exceeding the maximummultiple of rent provided in sub-section (2) in conformity with suchrules as may be prescribed.25.It is further provided that protected tenant shall depositthe fixed price in the Tribunal (a) in lumpsum within the period fixedby Tribunal or (b) in such installments not exceeding 16 and at suchintervals during a period not exceeding 8 years. On deposit orrecovery of the entire amount of reasonable price by the tenant,Tribunal issues certificate in prescribed form to the protected tenantdeclaring him to be the purchaser of the land and such certificateshall be conclusive proof of the sale as against landholder. 25.Section 38(6)(b) provides that if a protected tenant isSVH 13 2224-18-wp.odtpermitted to pay the reasonable price in installments under sub-section (5), interest at the rate of 3% per annum shall be payable byhim in respect of the balance of price due and if he commits defaultin respect of any installment, the same may be recovered by theGovernment as arrears of land revenue.26.There are two conditions provided under Section 38(6)(b). One is, the purchase price is permitted to be paid by the tenantin installment and the other is if he commits default, the amount isto be recovered as arrears of land revenue. Therefore, even if thetenant fails to deposit the installment of the price fixed which ispayable by him, the same is required to be recovered from him bythe Government as arrears of land revenue. Section 38(6)(b) and (d)reads thus:“(b) If a protected tenant is permitted to pay the reasonableprice in installments under the provisions of sub-section (5),interest at the rate of three per cent per annum shall bepayable by him in respect of the balance of the price dueand if he commits default in respect of any installment thesame may be recovered by the Governmentas arrears of land revenue.(c)…...(d) If the protected tenant fails to pay the entire amount ofthe reasonable price within the period fixed under sub-section (5), or the same is not recovered from him, thepurchase by the protected tenant shall not be effective andhe shall forfeit the right of purchase of the land, and theamount paid by him towards the reasonable price shall berefunded to him with interest at three per cent per annumtogether with land revenue paid by him if any afterdeducting therefrom the rent due from him for the period:Provided that if the amount of reasonable price in respect ofwhich the protected tenant has committed default, does notexceed one- fourth of the price fixed by the Tribunal underSVH 14 2224-18-wp.odtsub-section (5), the right of purchase of the protected tenantshall not be forfeited and the Tribunal shall cause thebalance of reasonable price to be recovered as arrears ofland revenue and paid to the landholder.” 27.Section 38(6)(d) provides that, if a protected tenant failsto pay the entire amount of reasonable price, within the period fixedunder sub-section 5 or the same is not recovered from him, thepurchase by the protected tenant shall not be effective and he shallforfeit the right of purchase of the land and the amount paid by himtowards reasonable price shall be refunded to him with interest atthe rate of 3% per annum. Therefore, there are two conditions whichare required to be fulfilled before the sale becomes ineffective.28.It is the contention of petitioner that finding recorded bythe MRT is contrary to the provisions of law, by relying on thePanchanama wherein petitioner is alleged to have declined to takepossession, the MRT has came to conclusion that by refusing to takepossession, the sale has become ineffective, this finding is contraryto Section 38(6)(d). The MRT has not taken into consideration allorders passed by subordinate Courts / Officers and cursorily passedcryptic order rejecting the revision filed by petitioner.29.Learned advocate for petitioner submits that, it is notwithin the powers of Additional Tahsildar to declare purchase of theland of protected tenant to be ineffective in pursuance to Section38(6)(d) of the said Act. In the suo moto proceeding initiated by theAdditional Tahsildar notice was issued to protected tenant onSVH