Writ Petition No. 3102 of 2014 · Bombaybench High Court
Case Details
2025:BHC-AUG:7950 -1- W.P.No.3102.2014IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3102 OF 20141.Maheboobkha S/o. Rahemankha, (Died) Through his Lrs1-a) Shaikh Rafik s/o Shaikh Meheboob, Age 38 years, Occu. Labour,1-b) Yasmeen Begum w/o Shaikh Maheboob, Age 35 years, Occu. Housewife.1-c) Ashfak s/o Shaikh Maheboob, Age 13 years, minor,.1-d) Mushtak s/o Shaikh Maheboob, Age 11 years, Occu. Nil.Petitioner no.1-c and 1-d minor U/G of their real motherYasmeen Begum petitioner no.1-bAll r/o. Indian Automobiles, Mohalla Paltan, Hingoli,Tq. and Dist. Hingoli. …. PetitionersVersus1.State of MaharashtraThrough Secretary, Revenue and Forest Department,Mantralaya, Mumbai2.The Deputy Collector (Land Reforms), Parbhani3. The Deputy Collector (Land Reforms), Hingoli4. The Naib Tahasildar (Revenue), Kalamnuri5. The Tahsildar, Hingoli6. The Talathi, Ambheri Sajja, Ta. And Dist.: Hingoli, -2- W.P.No.3102.20147. Julekha Begum W/o. Mohmad Yusuf,Age. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.8. Mohmad Yunus S/o. Mohmad Yusuf,Age. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.9. Mohmad Khalik S/o. Mohmad Yusuf,Age. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.10. Mohmad Sajid S/o. Mohmad Yusuf,Age. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.11. Shamjad Begum W/o. Mohammed KaderAge. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.12. Sabira Begum W/o. Ahmed KhalidAge. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.13. Mobin Begum D/o. Mohammed YusufAge. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.14. Kasam Begum W/o. Mohd. AkramAge. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.15. Mohamad Majid S/o. Mohmad Yusuf,Age. Major, Occ. Agril, R/o. Ambheri Tq. & Dist. Hingoli.16. Sayyad Vajid Ali Sayyad Mahemood AliAge: 38 years, Occu. Business and Agril., R/o Pensionpura, Hingoli, Tq. and Dist. Hingoli.17. Shaikh Pashu s/o Shaikh RaheemAge: 79 years, Occu. Agril., R/o Ambheri, Tq. & Dist. Hingoli.
Legal Reasoning
-12- W.P.No.3102.2014Clause (d) would apply.17.The learned Advocate for the petitioner in support of hiscontention relies on the judgment of this Court in case of GanpatSakharam Deshmukh Vs. Yeshwant Digambar Deshmukh [2000(1)Mh. L. J. 126]. The issue in the reported case was regardingdeclaration of protected tenant becoming ineffective. While decidingthe issue, this Court has held that two conditions are required to befulfilled for declaring the purchase transfer in favour of protectedtenant ineffective under Section 38E of the Act of 1950. The firstcondition is that (I) the tenant commits a default in the payment ofentire purchase price; and (II) in spite of proceedings for recovery,the entire amount could not be recovered as arrears of land revenue.This Court has observed that on failure of the protected tenant to payany installment, it has to be recovered by the Government as arrearsof land revenue. As per first proviso under Section 3(3) of Section 38of the Act of 1950, if the whole or any part of the price given to theland holder, cannot be recovered as an arrears of land revenue, thetransfer becomes ineffective. 18.This Court has further held that these steps are requiredto be taken chronologically and in continuity. Therefore, it is observedthat in order to declare that the purchase transfer under Section 38E -13- W.P.No.3102.2014of the Act of 1950 ineffective, two conditions are necessarily requiredto be fulfilled. Unless these two conditions have fulfilled, the purchasetransfer does not become ineffective under Section 38(6)(d) of theAct of 1950. 19.The learned Advocate for petitioner submits that thefinding about surrender of tenancy by protected tenant are perverse.Merely refusing to take possession of the land would not amount tosurrender of tenancy. The procedure of surrender is provided underSection 19 the Act of 1950 itself. Section 19 of the Act of 1950provides for termination of tenancy. The tenancy can be terminatedby tenant surrendering his right to the land holder or by the landholder on the ground that the tenant has failed to pay in anyparticular year the fixed rent of the land and other contingencies asprovided under Section 19(2) of the Act of 1950.20.It is contended that while surrendering his right, thetenant has to surrender it before the commencement of the year inwriting and admitting before the Tahsildar that his surrender is madein good faith and voluntarily. Only after satisfaction of the Tahsildarabout voluntary surrender and recording the same in writing, suchvoluntary surrender becomes valid. In the present case, no suchprocedure is claimed to have been followed by the Tahsildar. Rule 7 -14- W.P.No.3102.2014of the Act of 1950 provides for the procedure to be followed by theTahsildar during such surrender of tenancy. 21.The learned Advocate for the petitioner further relies onthe judgment of the Hon'ble Supreme Court which is delivered asback as in the year 1970 in case of Ramchandra Keshav Adke (Dead)by Lrs and Others Vs. Govind Joti Chavare and Others [(1973)1 SCC559]. The Hon'ble Supreme Court has held that a surrender oftenancy by a tenant in order to be valid and effective must fulfill thefollowing requirements.(I)It must be in writing;(II)It must be verified before the Mamlatdar;(III)While making such verification, the Mamlatdar mustsatisfy himself with regard to two things that (a) thetenant understands the nature and consequence ofsurrender; and (b) surrender is voluntary;(IV)The Mamlatdar must record his findings aboutsatisfaction of such surrender. 22.The Mamlatdar which has been referred to in thejudgment (supra) is Tahsildar under the Act of 1950. It is held in thesaid decision that the imperative language, the beneficent purposeand the importance of these provisions for efficacious implementationof the general scheme of the Act, unerringly lead to the conclusionthat they are intended to be mandatory. Neglect of any of these -15- W.P.No.3102.2014statutory requisites would be fatal. Disobedience of even one of thesemandates would render the surrender invalid and ineffective. Hence,all the requirements as provided under Section 5(3)(b) and Rule 2(a)of the Act of 1950 were declared to be mandatory and not directory.Unless those were fulfilled, it was held that surrender cannot be valid.23.Learned Advocate for the petitioner relies on theobservations made by the Hon'ble Apex Court in the above judgmentand submits that record discloses that no such exercise is undertakenby the Tahsildar wherein his satisfaction has been recorded that suchsurrender is voluntarily made and is a genuine surrender. Unless themandatory conditions as provided under Section 19(1)(a) of the Actare fulfilled, it cannot be held that surrender made by the father ofthe petitioner is valid surrender. 24.It is further contended by the learned Advocate for thepetitioner that even otherwise, it is not disputed that while allottingthe land to the respondent on eksala lavni basis, he has executed anundertaking that if and when the legal heirs of the protected tenantmakes a demand of the said land, he is ready to return it. Therefore,now, he is estopped from claiming otherwise. 25.According to him, the appeal filed by the respondentsseeking cancellation of his declaration as protected tenant is not -16- W.P.No.3102.2014maintainable at all. The order passed by the Deputy Collector,cancelling the declaration of ownership of the petitioner underSection 38E as well as Order under Section 38E(i) Explanation, sufferfrom total non-application of mind and arbitrariness. It is well settledthat the declaration of ownership under Section 38E, neither can bechallenged nor can it be set aside. In this regard, the learnedAdvocate for the petitioner places on reliance on the reportedjudgment of this Court in Bharatlal Hemraj Vs. Kondiba GovindaJadhav [2001(3) Mh. L. J. 380], wherein this Court has held that thedeclaration under Section 38E is not a decision or an order within themeaning of Section 90 of the Act of 1950. Therefore, no appeal in thecircumstances is maintainable. There is no provision for individualnotice before issuing declaration of ownership of land in favour ofprotected tenant under Section 38E of the Act of 1950. 26.It is held in the said judgment that ownership of land in aprotected tenant is created by virtue of provisions under Section 38E.The well established principle of law is that when a statute creates alegal fiction providing that something shall be deemed to haveresulted from the facts established in a particular circumstance, thenfull effect has to be given to the legal fiction created by the statute. 27.In view of the judgment of this Court referred supra, the -17- W.P.No.3102.2014declaration under Section 38E of the Act of 1950, not being adecision, cannot be challenged under Section 90 Act of the Act of1950. It is the submission of the learned Advocate for the petitionerthat though the Collector has committed an error in passing the order,the MRT has also failed to correct the error committed by theCollector. 28.While challenging the order passed by the MRT, learnedAdvocate for the petitioner contends that the learned Member of MRThas wrongly interpreted Section 19, of the Act of 1950 and hasrecorded a finding that though the rights of the tenant is a heritable,but considering that father of the petitioner had surrendered hisrights and had not deposited the purchase price, therefore, the findingof the Collector did not deserve any interference. Though the learnedMember has recorded that it is undisputed that father of thepetitioner was protected tenant, but has committed an error inrecording that he has surrendered his tenancy on 25.07.1962. Thefinding recorded by the Member that though the purchase price wasdirected to be deposited, but the father of the petitioner has notdeposited it within the given period, and he had already surrenderedhis right on 25.07.1962, therefore, the question of depositing thepurchase price does not arise, is contrary to the law as well as record. -18- W.P.No.3102.201429.Hence, merely on the basis of refusal by the father of thepetitioner to take possession of the land, the MRT has recorded afinding that the father of the petitioner who was a protected tenanthas surrendered his tenancy rights. The refusal to take possessiondoes not extinguish right of a Protected Tenant.30.Learned Advocate Shri. Agrawal has opposed the writpetition by filing intervention application who claims to be thesubsequent purchaser of the said land. It is his contention that sincethe father of the petitioner has refused to take possession of the saidland, he has surrendered his rights as a protected tenant. Uponrefusal to take possession of the said land, the land was taken by theGovernment in its possession and supervision on 10.06.1970. Itremained with the Government for some years and thereafter, theland was released in favour of Abdul Karim Gulam Rasool as perorder passed by the Tahsildar on 20.02.1976 and the possession washanded over to him on 10.06.1976. 31.It is his further contention that one Rehmankha Gulabshawho was the protected tenant surrendered his tenancy rights byrefusing to take possession in accordance with Section 19 read withRule 7 of the Act of 1950. The surrender was accepted and no furtherright of tenancy remained with the present petitioner and the -19- W.P.No.3102.2014Government has given the land on eksala lavani for cultivation onyear to year basis. On 14.02.1986, the son of the original protectedtenant Mehboob Khan S/o Rasool Khan filed an application forpossession of the land in question to re-establish his possession overthe said land. It is his contention that by suppressing that his fatherhad already surrendered his tenancy right, he has filed an applicationon 14.02.1986 to assert his right over the land. Irrespective of the factthat, he was not entitled to seek possession after the lapse of 22 yearsfrom the date of surrender. 32.According to him, the order passed by Tahsildar on20.02.1986 did not re-establish the tenancy rights of the petitioner.The said order did not restore original tenancy rights. The decision ofTahsildar was challenged before the Deputy Collector which wasallowed and it has been rightly held that the original tenant hassurrendered his right way back in on 25.07.1962. Even the Revisionfiled before the MRT has been rightly rejected. 33.He further submits that though the earlier revision filedby the petitioner before the MRT bearing case No. 3339/87/8 wasdismissed for default on 13.09.1989, and it had attained finality. Itwas never challenged nor any application for recalling the order wasfiled. Without making any attempt for restoration of the matter, the -20- W.P.No.3102.2014petitioner has again attempted to challenge the earlier decision byfiling fresh revision in the year 2008, which was eventually dismissedon 13.07.2013 on its own merits. 34.According to him, the petitioner did not file any separateapplication for condonation of delay. The revision application itselfshould not have been entertained by the MRT. Though eventually therevision has been dismissed, the fact remains that the petitioner hassuppressed the fact of filing earlier Revision and its dismissal, even inthe present writ petition. 35.It is his contention that a limitation of 60 days isprovided under the Act of 1950, for filing Revision Application orAppeal. Though the earlier revision filed by the petitioner wasdismissed on 13.08.1989, he has approached MRT by fresh RevisionApplication without filing any application for condonation of delay. Itis his contention throughout the proceedings, there is huge delay onthe part of the petitioner in approaching the authorities forchallenging the orders and seeking relief. 36.The Advocate for the intervenor submits that theapplicants have purchased the land in Sy. No. 32, Gat No. 91 situatedat Ambheri, Tq. Dist. Hingoli from respondents No. 8 to 16 in thepresent writ petition who are the legal heirs of Mohammad Yunus -21- W.P.No.3102.2014who claims to be the possessor of the land initially on the basis ofeksala lavni and simultaneously, on the basis of gift-deed executed inhis favour by the original owner Bhimashankar Nagoba. It is hiscontention that they have purchased the said land on 20.07.2011 fora valuable consideration by way of registered sale-deed. Hence, hehas every right to protect his interest in the land. The petitionerherein is making a time barred claim over the land which is purchasedby him pursuant to surrender of tenancy rights by his father longback. 37.It is his contention that, right from dismissal of theRevision Application filed on 13.08.1989 till the filing of freshRevision Application in the year 2008 and order dated 13.07.2013passed by the MRT, there was no stay during the pendency of theproceedings. Inspite of the fact that the petitioner was aware that thepresent intervenor have purchased the land from respondents No. 8 to16 yet he has not added the intervenor as a party respondents to thepresent proceedings. 38.The petitioner has also not challenged the mutation entrywhich have been taken in the name of intervenor in the revenuerecord on the basis of sale-deed executed in their favour. It is hiscontention that considering that the tenancy rights of the original -22- W.P.No.3102.2014tenant were legally surrendered in the year 1962, and all thesubsequent proceedings have been dismissed against the presentpetitioner, the orders passed does not deserve any interference. 39.It is his further contention that once the father ofpetitioner has surrendered the tenancy rights, they are extinguishedforever and those cannot be revived. Therefore, according to him,since it is established by the concurrent findings recorded by theAuthorities that the original protected tenant i.e. father of thepetitioner had surrendered his tenancy rights, petitioner does nothave any right to re-establish his rights which have already beenrelinquished by his father. According to him, the writ jurisdictioncannot be exercised by the Court in aid of person who is not diligentabout his rights and commits delay in pursuing the remedies. Theland was already taken in government supervision. The order oftaking the land in supervision was never challenged by the tenant.Without challenging the order, the petitioner has merely filed anapplication for restoration of the possession. In view of the same, theintervenor prays that the writ petition may kindly be dismissed.40.The initial application filed by the petitioner before theTahsildar was after a delay of 24 years and even the Revision filedbefore the MRT is after a lapse of 21 years. It is his contention that -23- W.P.No.3102.2014the petitioner is not diligent about his rights. Therefore, his rightscannot be considered at such belated stage when already rights haveaccrued in favour of all the parties due to passage of time and thosecannot be ignored. Hence, according to him, on the ground of delayand latches alone, the writ petition deserves to be dismissed.41.Upon hearing the respective parties and from the perusalof record, the following questions arise for consideration in thepresent writ petition :- (I) Whether the surrender made by theMohammad Khan Rehman Khan who was the protected tenant is avalid surrender under the Act of 1950 ? (II) Whether declaration of aprotected tenant is an order under Section 38-E of the Act of 1950 ?(III) Whether the tenancy declared under Section 38-E of the Act of1950 automatically become ineffective, upon failure to deposit thereasonable price, as provided under Section 38(6)(d) of the Act of1950 ?42.From the documents placed on record as well as thearguments advanced by the parties, it is not disputed that the fatherof the petitioner was a protected tenant under Section 38-E of the Actof 1950 to the extent of 17A-34G at village Ambheri, Tq. Kalamnuri,Dist. Hingoli. He had refused to take possession of the land and hehas filed an affidavit on 25.07.1962 accompanied by an application -24- W.P.No.3102.2014addressed to the Tahsildar informing him that he does not want totake possession of the land. The affidavit of declared tenant was takenon record by the Naib Tahsildar (Land Reforms) and the land wastaken under Government supervision on 18.08.1962. 43.The order dated 18.08.1962 is passed by the Tahsildar,Kalamnuri, in the suo-motu inquiry wherein it was held that theprotected tenant Mehboob Khan Rehman Khan had appeared inperson and submitted an application stating that he has not cultivatedsuit land, he was a servant with the original land holder. He,therefore, does not require the land for cultivation. It is observed bythe Tahsildar that the name of the protected tenant has beenascertained from the list published under Section 38-E(i) of the Act of1950. Therefore, for cancellation of declaration, he should fileappropriate proceedings. Hence, his request cannot be considered.Therefore, it was directed that the father of the petitioner should beput in possession. 44.Inspite of issuance of notices to the father of thepetitioner by the Tahsildar, Kalamnuri, he did not remain present andthe land was, therefore, taken in supervision of Government. Furtherit was granted to Mohammad Yunus Gulam Rasool on eksala lavni.Upon his affidavit dated 18.08.1970, accepting the condition that he -25- W.P.No.3102.2014will pay the amount prescribed by the Government torwardscultivation of land and if and when, the legal heirs of Rehman KhanMehboob Khan makes any demand for recovery of possession, he willhand over the possession of the land as per the rules, to the legal heirsof Rehman Khan. He has filed an affidavit to that effect on10.05.1976. Accordingly, he remained in possession as a cultivator ofthe land on year-to-year basis. 45.Though such affidavit has been executed by Abdul KarimGulam Rasool, when the present petitioner Mehboob Khan RehmanKhan filed an application for restoration of possession before theTahsildar, it was directed that the possession should be restored tohim. The order of Tahsildar dated 20.02.1986 was challenged by theYusuf Gulam Rasool.46.In the appeal before the Deputy Collector, thepredecessor of respondents No. 7 to 10, 13 and 15, have filed twoappeals. (I) Appeal File No. 86/TNC/A-38-/67 was filed on24.10.1986 with a prayer for cancellation of declaration status ofprotected tenant of Mehboob Khan Rehman Khan in respect of landSy. No. 32, Gat No. 91 at village Ambheri, Tq. Kalamnuri, Dist.Hingoli to the extent of 17A-34G. (II) Appeal File No. 86/TNC/A/38(E)(i)/48 was filed on 13.05.1986 with a prayer that the order -26- W.P.No.3102.2014passed by the Tahsildar on 20.02.1986, directing the Circle Inspectorto restore the possession of the land to the present petitioner underSection 38-E(i) Explanation should be set aside. 47.While deciding both the appeals, the Deputy Collector(Land Reforms), Parbhani has totally failed to take into considerationthat Mohammad Yunus Gulam Rasool was neither the owner of theland nor a tenant. Therefore, he did not have any right to possess theland which was already declared in favour of Mehboob Khan RehmanKhan who was declared as a Protected Tenant. Only upon anundertaking given by Mohammad Yunus Gulam Rasool in the form ofan affidavit that he has granted the possession of the land on eksalalavni, with an undertaking to return the land to the legal heirs ofdeclared protected tenant as and when such demand is made.48.The appellants before the Deputy Collector did not haveany locus either to challenge the declaration of Protected Tenant ororder of restoration of possession to the present petitioner passed bythe Tahsildar. While deciding the appeals, apart from ignoring thefact that the appellants before him did not have locus, the DeputyCollector has also relied on the affidavit filed by the declaredProtected Tenant on 25.07.1962, alongwith application addressed toTahsildar refusing to take possession of the suit land, to record a -27- W.P.No.3102.2014finding that it is a surrender of his tenancy rights. 49.It is held by the Deputy Collector that though theTahsildar, Kalamnuri, has fixed the reasonable price of the land, theProtected Tenant has failed to deposit the amount. Referring to theorder passed by the Tahsildar, Kalamnuri on 20.02.1986, it is held bythe Deputy Collector that the Tahsildar Kalamnuri has ordered thatthe price of the land should be got deposited first and file besubmitted for passing of orders on possession, but inspite of theseorders, the Revenue Inspector, Basamba has directed on 20.02.1986to hand over the possession of the suit land and the price wasdeposited by the respondent on 31.03.1986.50.It is held by the Deputy Collector that, the Tahsildar hascommitted an error in directing to restore the possession of the land,since the time for depositing the reasonable price of the land hadalready expired. It is further held that the price of the suit land wasfixed @ Rs. 11.25/- and it was to be paid in 8 equal installments ofRs. 140.62/- each. The amount of such installment was to be paidbefore 01.06.1968, which was not deposited within the timeprescribed. 51.Hence, relying on Section 38(6)(d) of the Act of 1950,the Deputy Collector has held that considering that the petitioner has -28- W.P.No.3102.2014failed to deposit the amount by 01.06.1968, the purchase made bythe declared Protected Tenant under Section 38-E of the Act of 1950becomes ineffective as provided under clause (d) of Section 38(6) ofthe Act, and therefore, the transaction of ownership, under Section38E of the Act of 1950 has automatically become ineffective due tofailure on the part of tenant to pay the reasonable price. It is held thatsince the sale itself has become ineffective, the subsequent orderpassed under Section 38-E(i) Explanation of the Act of 1950 is alsoliable to be quashed and set aside. 52.The Deputy Collector has placed reliance on Section38(6)(d) of the Act of 1950 to declare the purchase of the land underprotected tenancy as ineffective. Hence, it would be appropriate toreproduce the said provision, which reads thus :Section 38(6)(d) :“If the protected tenant [or as the case may be, ordinarytenant,] fails to pay the entire amount of the reasonable pricewithin the period fixed under sub-section (5) or the same is notrecovered from him, the purchase by the protected tenant [or,as the case may be, ordinary 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 after deductingtherefrom the rent due from him for the period : Provided that if the amount of reasonable price in respect of -29- W.P.No.3102.2014which the protected tenant [or, as the case may, ordinarytenant] has committed default, does not exceed one-fourth ofthe price fixed by the Tribunal under sub-section (5), the rightof purchase of the protected tenant [or, as the case may be,ordinary tenant] shall not be forfeited and the Tribunal shallcause the balance of reasonable price to be recovered as arrearsof land revenue and paid to the landholder.”53.It is evident from the above provision that if theprotected tenant fails to deposit the amount, the Authorities have totake necessary steps to recover the same from him as an arrears ofland revenue.54.The Deputy Collector has totally ignored the provisowhich makes it necessary to cause the balance of reasonable price tobe recovered as arrears of land revenue and pay it to the land holder.Therefore, in order to declare a purchase of Protected Tenantineffective, the two conditions are required to be fulfilled. (I) The protected tenant has failed to deposit the entireamount within a period fixed under Sub-section (5); and (II) on hisfailure, the Tribunal causes balance of reasonable price to berecovered as an arrears of land revenue and pay it to the land holder.Unless these two conditions are fulfilled, the purchase bythe protected tenant does not become ineffective. 55.This view has been taken by this Court in the reported -30- W.P.No.3102.2014judgment of Ganpat Sakharam Deshmukh Vs. Yeshwant DigambarDeshmukh (supra). Paragraphs No. 6 and 7 of the judgment isrelevant for the issue under consideration, which are reproducedhereunder. “6. It is required to be noted that the provisions of section38 of the Act are applicable for both the protected tenant aswell as ordinary tenant and they provide for a voluntary actfor transfer of ownership from the landlord to the tenant andif such voluntary exercise does not result in transfer, thetenant has a remedy of approaching the tribunal which shallin turn determine the reasonable price and transfer theownership of the land in favour of the tenant. If the tenantfails to pay entire amount of reasonable price within a fixedperiod under sub-section (5) or is the same is not recoveredfrom him, the purchase of the tenant shall not be effectiveand he shall forfeit the right of purchase of land, as per theprovisions in Clause (d) of sub-section (6) of section 38. Theword used in Clause (d) is 'or', which means either on failureto pay the entire amount of reasonable price within theperiod fixed under sub-section (5) or if the same is notrecovered from him, the purchase becomes ineffective. Thesetwo conditions are in alternate and if any one of them issatisfied, the transfer by purchase in favour of the tenantbecomes ineffective.7. Section 38-E is applicable only to a protected tenantand not an ordinary tenant and it is not by way of anyvoluntary act. As soon as the notified date is declared inrespect of any area, a protected tenant becomes owner of theland he was cultivating as a tenant and the only reliefavailable to the landlord is to apply within 90 days from suchdate before the tribunal for the determination of thereasonable price of his interest in the land which has beentransferred to the ownership of a protected tenant. Thisprovision has been incorporated with an intention to transferownership in favour of the tiller namely the protected tenant,by operation of a statute automatically and confirmation ofsuch a transfer is made by issuing a certificate in theprescribed format. It is pertinent to note that issuance ofsuch certificate of transfer of ownership under section 38 is -31- W.P.No.3102.2014only after the entire amount of reasonable price is paid bythe transferee tenant and whereas, under provisions ofsection 38-E(2) there is no such condition precedent forissuing the certificate of ownership. Failure to deposit or paythe entire amount of the reasonable price may result in nonissuance of certificate of ownership under subsection (6) ofsection 38 and till such a payment is made within the periodand instalments fixed by the tribunal, the certificate cannotbe issued. It further provides that even failure to pay theentire amount of the reasonable price within the period fixedunder sub-section (5) shall make the purchase ineffectiveunder Clause (d) of sub-section (6) of section 38. Same isnot the case under the provisions of section 38-E and thepurchase in favour of the protected tenant can be ineffectiveonly under the eventualities stipulated under the proviso ofsub-section (3) of the said section, as reproducedhereinabove. For making the purchase transfer under section38-E to be ineffective, there are two conditions to be fulfilledsimultaneously viz.(i) protected tenant commits default in payment ofthe entire amount of purchase price and (ii) if thewhole or any part of the purchase price due to thelandlord could not be recovered as arrears of landrevenue. The proviso states that if the protected tenant commitsdefault in respect of any instalment, it shall be recovered bythe Government as areas of land revenue and paid to thelandholder. The language used in this proviso is clear anddifferent from the language used in Clause (d) of sub-section(6) of section 38 of the Act. On the failure of the protectedtenant to pay any instalment, it is clear that the instalmentamount has to be recovered by the Government as arrears ofland revenue as per the first proviso under sub-section 3 ofsection 38-E and if the whole or any part of the price due tothe landholder cannot be recovered as arrears of landrevenue, the transfer shall be ineffective. These steps have tobe read one after another and in continuity. The legislaturehas, therefore, provided a separate methodology fordeclaring the transfer of ownership under section 38-Eineffective and the procedure provided for making thetransfer ineffective under section 38 of the Act cannot betransposed or implied to be included under the provisions of -32- W.P.No.3102.2014section 38-E. Though sub-section (3) states that theprovisions of sub-section (4) to (9) of section 38 shall"mutatis mutandis" apply, that does not mean that theprovisions of sub-section (6) of section 38 are madeapplicable suo motu for declaration of the transfer asineffective and the term "mutatis mutandis" means "withnecessary changes", as has been held by the Supreme Courtin the case of M/s Ashok Service Centre & Others Vs. State ofOrissa (1983)2 SCC 82.”56.Section 38-E(3) of the Act of 1950 is also relevant herewhich reads thus :Section 38-E(3) :“(3) Within 90 days from the date specified in a notificationunder sub-section (1) every landholder of lands situated inthe area specified in such notification shall file anapplication before the Tribunal for the determination of thereasonable price of his interest in the land which has beentransferred to the ownership of a protected tenant undersub-section (1) ³(and if an application is not so filed withinsuch period by a landholder but a certificate under sub-section (2) has been issued, the Tribunal may suo motuproceed to determine such price and thereupon] all theprovisions of sub-sections (4) to ¹[(9)] of section 38 shallmutatis mutandis apply to such application:Provided that if the protected tenant commits default inrespect of any installment, it shall be recovered by theGovernment as arrears of land revenue and paid to thelandholder:Provided further that if the whole or any part of the pricedue to the landholder cannot be recovered as arrears of landrevenue, the transfer shall not be effective and the amount,if any, already paid by the protected tenant towards theprice shall be refunded to him together with interest at three -33- W.P.No.3102.2014per cent. per annum and the land revenue paid by him, ifany, after deducting therefrom the rent for the period].”57.Therefore, from the decision of this Court, it is evidentthat as far as protected tenant is concerned, it would be governed bySection 38-E(3) and by the proviso thereto. This Court has made adistinction between Section 38 and 38-E of the Act. It is held thatboth the sections are required to be read independent of each other.Section 38 applies for both protected tenant as well as ordinarytenant while Section 38-E deals only with the statutory right ofownership of the Protected Tenant alone. 58.Therefore, in view of the findings recorded by this Court,it is settled law that as far as the present petitioner who is legal heirof Protected Tenant is concerned, his rights have not beenextinguished on account of failure to deposit the amount as the abovementioned conditions in the first proviso under Section 38-E(3) of theAct are not fulfilled. Therefore, the order passed by the DeputyCollector being erroneous and contrary to the provisions of the Act of1950, is required to be interfered with.59.Based on the observations regarding ownership becomingineffective, the order under Section 38-E(I) Explanation restoring theland to the petitioner has been cancelled by the Deputy Collector. The -34- W.P.No.3102.2014MRT has given a finding that considering that father of the petitionerhas surrendered the tenancy rights on 25.07.1962, there was noquestion of depositing the purchase price of Rs. 1,500/- on31.03.1986 by the legal heir Mehboob Khan Rehman Khan. 60.Relying on the 7/12 extract, the Member, MRT, hasobserved that name of Abdul Karim Gulam Khan came to be recordedon the basis of Mutation Entry No. 72 after Umashankar Nagoba i.e.original land owner. The MRT has also confirmed the view taken bythe Deputy Collector, that the protected tenant could not deposit thepurchase price within the prescribed time limit i.e. before 01.06.1968.Therefore, the tenancy under Section 38-E has become automaticallyineffective as provided under Section 38(6)(d) of the Act.61.Though it is observed by the Member, MRT that as perSection 40 of the Act of 1950, right of a tenant are heritable, yet onlyon the ground that Rehman Khan has surrendered his right and failedto deposit the reasonable price, the order passed by the DeputyCollector is confirmed by the MRT by order dated 25.07.2013. Boththe Authorities have committed error in wrongly relying on Section38(6)(d) of the Act, as observed herein above. Therefore, in my view,the purchase of the land by the Protected Tenant does not becomeineffective. In fact, record does not disclose that any steps were taken -35- W.P.No.3102.2014by the Government for recovery of the defaulted amount from thepetitioner as arrears of land revenue as provided in the proviso toSection 38-E(3) of the Act of 1950. Section 40 of the Act of 1950provides that right of tenant are heritable which reads thus.Section 40 :- Rights of tenants are heritable:“(1) Where a tenant dies, the landholder shall bedeemed to have continued the tenancy- (a) If such tenant was a member of an undividedHindu family, to the surviving members of the said family,and (b) If such tenant was not a member of an undividedHindu family, to his heirs, on the same terms andconditions on which such tenant was holding it at thetime of his death.(2) The surviving members, or as the case may be, theheirs to whom the tenancy is continued under sub-section(1) shall be entitled to partition and sub- divide the landleased subject to the following conditions:- (a) each sharer shall hold his share as a separatetenant, (b) the rent payable in respect of the land leased shallbe apportioned among the shares according to the shareallotted to them, (c) the area allotted to each sharer shall not be lessthan the unit which the State Government may, bygeneral or special order, specify in this behalf havingregard to the productive capacity and other circumstances -36- W.P.No.3102.2014relevant to the full and efficient use of the land foragriculture, (d) the area is less than the unit referred to in clause(c), the sharers shall be entitled to enjoy the incomejointly, but the land shall not be divided by metes andbounds, (e) if any question arises regarding the apportionmentof the rent payable by the sharers, it shall be decided bythe Tahsildar, whose decision shall be final].”62.Though the father of the petitioner had refused to acceptthe possession of the land and apparently, the purchase price couldnot be deposited within prescribed time, however, due to failure onthe part of Government to take steps for recovery of the amount ofreasonable price fixed by the Government does not make the purchaseineffective. As has been held by this Court in the judgment of GanpatVs. Yeshwant (supra), no steps are required to be taken by theprotected tenant once it is declared that he is a Protected Tenantunder Section 38-E of the Act, by issuance of notification. The lawtakes its own course. Only upon satisfaction of twin conditionprovided in proviso to Section 38-E(3) of the Act, the purchasebecomes ineffective.63.Aforesaid decision makes it clear that, there is no roleassigned to the land holder except to apply for fixation of reasonable -37- W.P.No.3102.2014price. Though the various objections are raised by the respondentsherein, the respondents do not have any locus to challenge thedeclaration of protected tenant in favour of the father of petitioner. 64.Even otherwise, as has been held by this Court in thedecision of Bharatlal Vs. Kondiba (supra), that declaration underSection 38-E of the Act is not a decision or order within the meaningof Section 90 of the Act of 1950, therefore, no appeal is maintainableagainst such declaration. In view of the settled legal position renderedby this Court, the right of a protected tenant continues unless hesurrenders or it becomes ineffective by operation of Section 38-E(3)of the Act. The petitioner has already given explanation for the delaycaused in the memo of the Revision before the MRT, and uponconsidering the explanation given by the petitioner, the delay hasalready been condoned by the MRT. Therefore, there is no substancein challenge raised by the respondents on the ground of delay. Once itis held that respondents do no have any locus, the challenge raised bythe respondents on any of the grounds is not capable of beingentertained. 65.In view of the findings recorded herein above, the writpetition deserves to be allowed. Hence, following order : -38- W.P.No.3102.2014ORDERI.Writ Petition is allowed.II.The order dated 25.07.2013 passed by the Member,Maharashtra Revenue Tribunal, Aurangabad, in RevisionApplication No. 2-B-2008-Hingoli, thereby confirming the orderpassed by Deputy Collector (Land Reforms), Parbhani, inAppeals filed by the respondents in Files No.80/TNC/A/38E(1)48 and 86/TNC/A-38/E-67, therebycancelling the declaration, stands quashed and set aside.III.The order dated 20.02.1986 passed in File No.LR/A3/204/38E(1) by the Tahsildar, Kalamnuri is herebyconfirmed.IV.Rule is made absolute in above terms. Writ Petition standsdisposed of. [MANJUSHA DESHPANDE, J.]Omkar Joshi
Arguments
-3- W.P.No.3102.201418.Shaikh Gulab Shaikh PashuAge: 51 years, Occu. Agril., R/o Ambheri, Tq. & Dist. Hingoli.19. Shaikh Rahim Shaikh Pashu,Age: 48 years, Occu. Agril., R/o Ambheri, Tq. & Dist. Hingoli.20.Shaikh Karim Shaikh Pashu,Age: 35 years, Occu. Agril., R/o Ambheri, Tq. & Dist. Hingoli.21.Shaikh Hanif Shaikh Gani Tamboli,Age: 57 years, Occu. Agril. R/o Pensionpura, Hingoli, Tq. & Dist. Hingoli.22. Sayeed Wazidali s/o Syed Mohd AliAge: 36 years, Occu. Agril. & Business, R/o Pensionpura, Hingoli, Tq. and Dist. Hingoli.…. Respondents…..Advocate for Petitioner : Mr. A. G. DalalAGP for Respondents-State : Ms. A. S. MantriAdvocate for Respondent No. 16 : Mr. P. D. SuryawanshiAdvocate for Respondents No. 18 to 20 : Mr. P. S. ShindeAdvocate for Respondents No. 17 to 22 : Mr. P. S. Agrawal….. CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 03 FEBRUARY, 2025 PRONOUNCED ON : 19 MARCH, 2025 ***JUDGMENT : 1.Rule. Rule made returnable forthwith. Heard finally withthe consent of parties. -4- W.P.No.3102.20142.The petitioner is assailing the judgment and order dated25.07.2013 passed in Revision Petition No.2B/2008/H byMaharashtra Revenue Tribunal, Aurangabad (henceforth ‘MRT’ forshort). As a result of dismissal of the Revision Petition before theMRT, the order dated 30.06.1986 passed by the Deputy Collector(Land Reforms), Parbhani, in two appeals filed by the respondentsunder Section 38-E(1) and 38-E(i) Explanation of the HyderabadTenancy & Agricultural Lands Act, 1950 (hereinafter ‘the Act of 1950’for short) has been confirmed. Therefore, the petitioner is challengingthe orders passed by the MRT as well as the respondent No. 2 i.e.Deputy Collector (Land Reforms), Parbhani. The appeals filed by therespondents herein have been allowed and the declaration ofownership under Section 38-E and Order under Section 38-E(i)Explanation of the Act of 1950 passed on 30.06.1986 has beencanceled.3.Learned Advocate Mr. Dalal appearing for petitionersubmits that though initially, writ petition was filed by the legal heirsi.e. son of original protected tenant Mehboob Khan Rehman Khan,however, during the pendency of the present writ petition, theoriginal petitioner has expired and the present writ petition is nowbeing pursued by the legal heirs of Mehboob Khan Rehman Khan.Similarly, during the pendency of the writ petition, one civil -5- W.P.No.3102.2014application seeking intervention in the writ petition has been filed bythe subsequent purchasers of the land in question. Vide order dated17.01.2023, this Court has allowed the intervention application andaccordingly, amendment has been carried out and they have beenadded as Respondents No. 16 to 22 in the present writ petition.4.Present writ petition is filed by the legal heirs of oneReheman Khan who was declared as a protected tenant under Section38-E of the Act of 1950 to the extent of 17A-34G from the agriculturalland in Sy. No. 32 of village Ambheri, Tq, Kalamnuri, Dist. Hingoli.The Naib Tahsildar (Revenue), Kalamnuri, passed an order to handover the possession of the tenanted land to the father of petitioner on18.08.1962. The father of the petitioner refused to accept thepossession. Therefore, the land was taken in government custody andit was given on Ek-Sala Lavni. 5.Tahsildar, by his order dated 19.05.1976, handed overthe possession of the said land on Ek-sala Lavni to Abdul Kalim GulamRasool. He had given an undertaking that Mr. Rehman Khan GulabKhan is the declared protected tenant, since he has refused to takepossession, the land was taken in Government custody, if and whenthe legal heirs of Rahemankhan would claim possession, he will handover the land to the protected tenant. -6- W.P.No.3102.20146.The petitioner who was a minor, on becoming major,filed an application seeking possession of the land for which his fatherwas declared as a protected tenant. The Tahsildar, vide his orderdated 20.02.1986, directed the Circle Inspector to hand over thepossession of the agricultural land in Sy. No. 32, Gat No. 91 to theextent of 17A-34G at village Ambheri, Tq. Kalamnuri, Dist. Hingoli,from the original land holder Umashankar Nagoba or Abdul Karim tothe legal heirs of Mehboob Khan Rehman Khan and others.Accordingly, the possession of the said land was handed over to thepetitioner by issuing possession receipt. 7.Being aggrieved by the said order of handing over thepossession, Mohammad Yusuf Gulam Rasool filed two appealschallenging the declaration under Section 38E of the Act of 1950 aswell as handing over the possession of the tenancy land to thepetitioner under Section 38-E(i) Explanation of the Act of 1950 beforeDeputy Collector (Land Reforms), Parbhani. The Deputy Collector(Land Reforms), Parbhani, by his judgment and order dated31.12.1986, has allowed both the appeals. By allowing the appeals,the declaration of ownership in favour of the petitioner under Section38-E of the Act of 1950 and order under Section 38-E(i) Explanationof the Act of 1950 has been cancelled. -7- W.P.No.3102.20148.The order passed by the Deputy Collector (LandReforms), Parbhani was challenged by the petitioner in the Revisionunder Section 91 of the Act of 1950 before the MRT. After hearing theparties and condoning the delay in filing the Revision, the MRT hasrefused to interfere with the order passed by the Deputy Collector(Land Reforms), Parbhani and confirmed the order passed in both theAppeals vde judgment and order dated 25.07.2013. Being aggrievedby the order passed by the MRT as well as Deputy Collector (LandReforms), Parbhnai, petitioner is challenging the legality, validity andcorrectness of the orders invoking Article 227 of the Constitution ofIndia. 9.Mr. Dalal, learned Advocate for petitioner contends thatthe Deputy Collector has committed grave error in allowing both theappeals filed by the respondent Mohammad Yusuf Gulam Rasool.According to him, both the appeals were not at all maintainable. It ishis contention that the order dated 31.12.1986, which has beenchallenged by the respondent is not a judicial order but it is anadministrative order. The Appeal under Section 90 of the Act of 1950is maintainable only against a judicial order. The only remedyavailable to the respondent is to file writ petition under Article 226 ofthe Constitution of India. -8- W.P.No.3102.201410.It is further contention of the learned Advocate forpetitioner that the appeal was filed beyond the period of limitationwithout any application for condonation of delay. The delay caused infiling the appeal has also not been satisfactorily explained by therespondent. The other objection raised by the learned Advocate forthe petitioner is that the respondent did not have any locus standii tofile an appeal before the Collector since he was in possession of thedisputed land on the basis of Eksala Lavni. Therefore, he did not haveany right to challenge the order passed by the Tahsildar wherein itwas directed that whoever is in possession of the tenancy land, shouldhand over possession to the petitioner. The respondent, in fact, is atress-passer and has no legal right. Though the respondent claimedthat there was a gift-deed in his favour, however, no such gift-deedhas been placed on record nor such entry is found in the revenuerecord. 11.It is undisputed that father of the petitioner is a protectedtenant. According to him, once a tenant is declared as a protectedtenant, his status as a protected tenant continues. Status of a tenant isa deeming provision. The protected tenant is created by operation oflaw and no order can set aside the status of Protected Tenancy. Thestatus of a protected tenant is a legal right conferred upon him by -9- W.P.No.3102.2014operation of law. According to the learned Advocate for thepetitioner, protected tenant loses his right of tenancy, only if hesurrenders or by way of termination of tenancy as provided underSection 19 of the Act of 1950. Legal right as a Protected Tenant cannever extinguish. 12.Learned Advocate for the petitioner submits that whilepassing the order, the Deputy Collector has wrongly relied on Section38(6)(d) of the Act of 1950, thereby cancelling declaration ofownership under Section 38E of the Act of 1950 as well as the orderunder Section 38E(i) Explanation. While passing the impugned order,it is observed that suo-moto proceedings for putting the declaredtenant in possession of land under Section 38E(i) Explanation of theAct of 1950 were initiated wherein the father of the petitioner hasfiled an affidavit on 25.07.1962 informing the Tahsildar that he wasnever in possession of the suit land and he does not wish to takepossession of the land, an affidavit to that effect has been filed andverified by the Naib Tahsildar (Land Reforms). 13.Learned Advocate for the petitioner further submits thatit is held by the Deputy Collector that on perusal of the record, itdiscloses that as per notification dated 10.06.1970, the said land wastaken under Government supervision on 02.06.1970 and the same -10- W.P.No.3102.2014remained to be in Government possession till the year 1975.Thereafter, it was released in favour of Abdul Karim Gulab Rasool asper orders of Collector on 22.10.1975 and the possession was handedover to him on 10.06.1976. Thereafter, being legal heir of deceasedprotected tenant, the present petitioner has filed application seekingrestoration of possession wherein the Tahsildar, Kalamnuri, haspassed an order directing to hand over the possession of the land tothe petitioner and submit a compliance report after handing over thepossession of the land vide order dated 20.02.1986.14.It is observed by the Deputy Collector that in fact, theouter limit of time for depositing the price fixed by the Tahsil Office,Kalamnuri had already lapsed. Therefore, the price could not havebeen deposited by the petitioner herein. The price of the land wasfixed at Rs. 140.62/- and it was to be deposited within 8 equalinstallments. The last of such installment was to be deposited before01.06.1968. Therefore, though the price has been deposited on31.03.1986, it was not within the prescribed period of limitation ashas been provided under Section 38(6)(d) of the Act of 1950. 15.In view of Section 38(6)(d) of the Act of 1950, it wasdeclared that the purchase made by the declared protected tenantunder Section 38E of the Act of 1950 has automatically become -11- W.P.No.3102.2014ineffective, and by placing reliance on the judgment of this Court, theorder passed by the Tahsildar has been set aside. 16.According to the learned Advocate for the petitioner, theimpugned order is contrary to the mandate of Section 38(6)(d) of theAct of 1950. The Collector has wrongly interpreted the said provisionsand has passed an erroneous order. The order under Section 38(6)(d)and the subsequent order of restoration of possession of the petitionerhas been set aside. It is his contention that the Collector has failed toappreciate that Clause (d) of sub-Section (6) of Section 38 of the Actof 1950, which itself provides that if the protected tenant fails to paythe entire amount of the reasonable price within the fixed period orthe same is not recovered from him, the purchase by the protectedtenant becomes ineffective and he forfeits his rights to purchase theland. Sub-section (d) cannot be read in isolation but it has to be readalongwith sub-section (e) which provides that if the tenant fails to paythe installment or he fails to obtain the extension for making suchpayment, Tribunal is empowered to grant him further time for makingsuch payment and even after granting further time for installments,which can be extended up to (16) sixteen installments and at suchintervals during a period not exceeding (8) eight years, he fails tomake payment of such installments within such extended period, onlyin that case, the purchase becomes ineffective and provisions of