High Court
Legal Reasoning
1 289-18-WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.289 OF 2018WITH CIVIL APPLICATION NO.63 OF 20251)Dinaji s/o Laxmanrao Navghare,Age 67 Years, Occ. Agri,2)Bapurao S/o Ramrao Navghare,Age 57 years, Occ. Agri,Both R/o Pokharni, Post. Limbgaon,Tal. & Dist. Nanded.… PetitionersVersus1)Kishan s/o Laxman Kokate,Age 62 years, Occ. Agri.R/o Chimegaon, Tal. & Dist. Nanded.2)Girji S/o Laxya Athwale (Deceased through L.R),Savitribai W/o Kishan Khirade,Age 59 years, Occ. Household,R/o Pirpuran Nagar, Tal. & Dist. Nanded3)Parasram s/o Dattatraya Dhutraj,Age 61 years, Occ. Agri,R/o Sonkhed, Tal. Loha, Dist. Nanded.4)Kamlabai D/o Kishan Gache,(Deceased) Through his L.Rs.4A) Satvashila Yashwant Thorat, Age 40 years, Occ. Housewife,R/o Rahul Colony, Bhangi, Tal. & Dist. Nanded5)Khemaji S/o Raghoji Pohare,Age 63 years, Occ. Agri,R/o Marlak, Tal. & Dist. Nanded6)Subhadrabai W/o Bramhaji Dhutraj,Age 66 years, Occ. Household,R/o Sonkhed, Tal. & Dist. Nanded7)Pramilabai D/o Srinivasrao DeshpandeAge 66 years, Occ. Agri, R/o Sayal, Tal. & Dist. Nanded(Deleted as per order dated 29/03/2019) … Respondents…..Mr. V.D. Sapkal, Sr. Advocate i/b Mr. A.B. Jagtap, Advocate forSVH 2 289-18-WP.odtPetitionersMr. P.R. Katneshwarkar, Sr. Advocate i/b Mr. G.G. Suryawanshi,Advocate for Respondent Nos.1 to 3, 5 & 6.….. CORAM : MANJUSHA DESHPANDE, J. DATE : 27th JANUARY, 2025JUDGMENT : 1.In the present writ petition, petitioner has challengedorder dated 03/11/2017, passed by the President, MaharashtraRevenue Tribunal, Mumbai, Camp Aurangabad, in caseNo.21/B/2015/N, thereby rejecting the Revision filed by petitionersunder Section 91 of the Hyderabad Tenancy And Agricultural LandsAct, 1950 (for short ‘the said Act’), which was filed against the orderdated 18/10/2014, passed by the Additional Collector, Nanded, incase No.Tenancy/Appeal/CR-88/2013, filed by respondents underSection 98 of the said Act. By the order dated 18/10/2014, theAdditional Collector, Nanded, has allowed the appeal filed byrespondents, thereby declaring ownership of respondents over theland Survey No.71, Gut No.139, admeasuring 13 Acre 29 Gunthe outof 26 Acre 33 Gunthe, under Section 38E of the said Act. Petitionersare basically challenging the powers of Additional Collector to passan order under Section 98 of the said Act, which is titled as‘Summary eviction of any person unauthorisedly occupying orwrongfully in possession of any land’.2.Learned Senior Counsel Mr. Sapkal appearing forSVH 3 289-18-WP.odtpetitioners submits that the Additional Collector has committedjurisdictional error by passing an order which is beyond the scope ofSection 98 of the said Act. The relief which was not even prayed hasbeen granted by the Additional Collector vide order dated18/10/2014. According to him, appellants i.e. respondent Nos.1 to 4herein had filed appeal before the Collector for possession of landSurvey No.71, Gut No.139, to the extent of 13 Acre and 20 Gunthesituated at Sayal, Tal. and District Nanded. The relief claimed wasfor the possession of land to be handed over to respondents bydispossessing petitioners from the said land. With total disregard tothe prayers made by respondents in their appeal, the AdditionalCollector has allowed the appeal and has granted declaration underSection 38E of the said Act, to the effect that appellants/respondents are declared to be the owners of land Survey No.71,Gut No.139, admeasuring 13 Acre 29 Gunthe out of 26 Acre 33Gunthe.3.The brief facts of the litigation which culminated intothe order passed by Maharashtra Revenue Tribunal are that:According to petitioners, they are the owners andpossessors of the suit property vide registered sale deed No.2250,dated 22/10/1973, which was executed by respondent No.7Pramilabai S. Deshpande who was the original land owner. Uponexecution of the sale deed they held a legal and valid title of theagricultural land Survey No.71, Gut No.135, to the extent of 12SVH 4 289-18-WP.odtAcres out of 26 Acres and 33 Gunthe . According to petitioners, afterthe sale deed was executed on 22/10/1973, respondents for the firsttime after 31 years filed application in the year 2004 beforeTahsildar, Nanded, under Section 32 of the said Act, for possessionof land Survey No.71, Gut No.135, admeasuring 13 Acres 20 Guntheand in Survey No.29, admeasuring 7 Acre 11 Gunthe situated atvillage Sayal, Nanded. The application of respondents was rejectedby the Tahsildar vide order dated 01/11/2006. The order of Tahsildarwas subject matter of Appeal before the Additional Collector,Nanded. The Additional Collector, vide order dated 06/11/2007 hasallowed the appeal by setting aside the order of Tahsildar and hasobserved that original applicants may file an application underSection 98 of the said Act, for claiming possession of the suitproperty. Pursuant to the said order, respondents have filedapplication under Section 98 of the said Act before the Collector,Nanded, wherein it is prayed that:-“That, application may kindly be allowed and possession ofland G.No.139, S.No.71, Area 13 A, 20 Gs. and S.No.29,admeasuring 7 Acre 11 Gunthe, situated at Sayal Tq. &Dist. Nanded may kindly be delivered to applicants bydispossessing respondents anybody claims through themand direction may please be issued to concerned authorityto record name of applicants in revenue record of aboveland and oblige.” 4.Petitioners herein filed their written statement to theapplication filed under Section 98 of the said Act, raising variousobjections including that of limitation and locus of applicants, on theSVH 5 289-18-WP.odtground that applicants are not legal heirs and successors ofprotected tenant Laksha Raghaya, since there is no heirshipcertificate of Laksha Raghaya and without proving the relationshipwith him the application is not tenable. After recording thesubmissions of respective parties, the Additional Collector hasdecided the application vide order dated 18/10/2014 declaring theapplicants to be the owners of land Survey No.71, Gut No.139, tothe extent of 13 Acre 29 Gunthe out of 26 Acre 33 Gunthe.5.The order dated 18/10/2014, passed by AdditionalCollector, is challenged by petitioners in Revision application beforethe Maharashtra Revenue Tribunal, Aurangabad. Upon notices beingserved, respondents caused their appearance and filed their sayopposing the Revision. The President, Maharashtra RevenueTribunal, Aurangabad, by order dated 03/11/2017 has rejected theRevision filed by petitioners and confirmed the order dated18/10/2014 passed by Additional Collector, wherein respondentswere declared as owners of the suit land.6.The learned Senior Advocate for petitioners submits thatscope of Section 98 of the said Act, is limited and circumscribed bythe opening words used in the section itself that the summaryeviction can be resorted to only when a person is unauthorisedlyoccupying or wrongfully in possession of the land. According to him,since petitioners are valid owners of the land as they haveSVH 6 289-18-WP.odtpurchased the land from original owner Pramilabai Deshpande,therefore, he cannot be categorized as unauthorised occupant or inwrongful possession of the land. He also relies on the sub-section (c)of Section 98 of the said Act, which provides that if a person isunauthorized occupant or in wrongful possession of the land whichhe is not entitled under the said provisions, may, if the saidprovisions do not provide for the eviction of such person, besummarily evicted by the Collector. Therefore, according to him,Section 98 which is summary proceedings cannot be invoked toseek possession from petitioners. The other ground raised by thelearned Senior Advocate for petitioner is that the respondent hasfiled Application under Section 98 of the said Act, however, theAdditional Collector has granted relief under Section 38E of the saidAct, by making a declaration that respondent is owner of 13 Acre 29Gunthe land of Gut No.139 as per Section 38E of the said Act. Therelief granted was not according to the prayer made. The prayerwas made as per Section 98 of the said Act. The power to grantrelief under Section 38E, lies with the Tahsildar. Only after dueinquiry the relief under Section 38E can be granted. Therefore, theorder passed by Collector is ex facie beyond the powers of Collector.Therefore, it is required to be set aside. 7.According to learned Senior Counsel for petitioners, theremedy which is available to respondents is under Section 38ESVH 7 289-18-WP.odt(Explanation) as well as Section 32, which provides for procedure fortaking possession. Remedies provided under Sections 32 and 38Eare required to be resorted to for seeking restoration of possession.So far as powers under Sections 32 and 38E are concerned, they areexercised by the Tahsildar, only after making due inquiry orders arepassed by the Tahsildar. Therefore, the order passed by AdditionalCollector amounts to usurpation of powers of the Tahsildar, which isnot permissible. When the statute provides for exercise of powersby a particularly authority, it has to be exercised by that Authorityonly. Order passed by Additional Collector, therefore, is passed byexceeding the powers conferred upon him by the statute.8.Learned Senior Counsel for petitioners though initiallyraised issue of limitation, however, in view of the judgment cited bylearned Senior Counsel Mr. Katneshwarkar for respondents, he notpress the issue of limitation.9.Although learned Senior Counsel for petitioners hasargued on the merits of the matter in detail, however, consideringthat the challenge is raised on the ground of usurpation of powersby the Collector, the details of the facts of the case are not requiredto be gone into.10. Learned Senior Counsel for petitioners has drawn myattention to the findings recorded by Additional Collector in hisSVH 8 289-18-WP.odtorder, wherein it is observed that the predecessor in title of thepetitioners i.e. Pramilabai Deshpande and others are lawful ownersof land Survey No.71, Gut No.139 to the extent of 12 Acres fromtotal holdings of 26 Acre and 33 Gunthe. Respondents herein aredeclared as protected tenants of the land to the extent of 13 Acre29 Gunthe from total 26 Acre and 33 Gunthe in Survey No.71, on30/03/1960. According to petitioners respondents have sold theirland during the subsequent years by way of various sale deeds andnow they are claiming to be the protected tenants of the land whichremained with the owner and the owner has executed sale deed inthe favour of petitioners, on the basis of which they are inpossession. In support of his submissions, learned Senior Counselhas relied on the document which is titled as gDdkps i=d whereinEntry No.67 is recorded on 28/08/1978 in respect of land SurveyNo.71 to the extent of 13 Acre 29 Gunthe land in favour of Raghos/o Laxman, Munjaji s/o Laxman and Nivrutti s/o Gangaram. He hasalso drawn my attention to the column where it is recorded thatprotected tenants are in possession of that land. Hence, accordingto him the tenants were already in possession of the land. Theyhave sold their share of land which was declared as land ofProtected Tenant in their favour and now they are claiming the partof land of which the petitioners are in possession on the basis ofsale deed executed by original owner.SVH 9 289-18-WP.odt11.Per contra, learned Senior Counsel Mr. Katneshwarkarfor respondents submits that the scope of powers of Collector underSection 98 are wide. In fact, according to him, it is not evennecessary to file application before the Collector for restoration ofpossession, as it is his duty to restore the possession of tenants whohave been wrongfully and unauthorisedly dispossessed. The Sectionis self explanatory. He has drawn my attention to the observation ofthe Maharashtra Revenue Tribunal, wherein it is recorded thatcertificate under Section 38E issued in favour of tenant by thecompetent authority and confirmation of ownership, illustrate thedescription of 13 Acres 29 Gunthas of the property which, onperusal of the subject sale deed, fully matches with the suitproperty. It is apparent that the original owner has, prior to22/10/1973 sold the other portion of the land which was not underrestriction of tenancy rights. According to him, owner of theproperty, has disposed the property which was subject matter ofdeclaration. Hence, the property which is declared to be of theProtected Tenant under Section 38E, is the property which is sold bythe owner to present petitioners. No prior permission was taken bythe owner before executing sale deed dated 22/10/1973.12.According to learned Senior Counsel for respondents,the permission which is placed on record is a permission obtainedunder the Bombay Prevention of Fragmentation and Consolidation ofSVH 10 289-18-WP.odtHoldings Act and Section 31 of that Act creates bar to the saleagricultural property in fragments. Therefore, according to learnedSenior Counsel for respondents, the petitioners are in thepossession of property which is declared to be the property ofprotected tenants. Hence, they have a right to seek restoration ofpossession of the property of which petitioners are in possession.13.On being confronted with the order of the AdditionalCollector, learned Senior Advocate concedes that relief which hasbeen granted by the Additional Collector is not the relief which wasprayed in the application. The application was filed under Section 98of the said Act and the relief was granted under Section 38E of thesaid Act.14.After hearing the respective parties and on perusal ofthe application filed by present respondents, it is evident that therelief sought by respondents was that of restoration of possessionand the order passed by the Additional Collector is a declarationunder Section 38E. Powers under Section 38E are conferred uponthe Tahsildar whereas powers under Section 98 are conferred uponthe Collector. Hence, there is jurisdictional error committed by theAdditional Collector, Nanded, while granting relief under Section38E, when the application was filed for relief under Section 98 of thesaid Act. This jurisdictional error was not corrected by theMaharashtra Revenue Tribunal in the Revision filed by petitioners.SVH
Decision
11 289-18-WP.odtTherefore, the order passed in Revision becomes unsustainable andis required to be quashed and set aside.15.The writ petition is partly allowed. The order dated03/11/2017, passed by the President, Maharashtra RevenueTribunal, Mumbai, Camp Aurangabad, in case No.21/B/2015/N, isquashed and set aside. Similarly, the order dated 18/10/2014,passed by the Additional Collector, Nanded, in case No.Tenancy/Appeal/CR-88/2013, is also quashed and set aside. The AdditionalCollector is hereby directed to decide the application of respondentsherein afresh taking into consideration the prayer made byrespondents and also the scope of powers of Collector under Section98 of the said Act. It is also made clear that while deciding theapplication of respondents before Additional Collector all pointsregarding jurisdiction and powers of the Collector under Section 98,are kept open to be agitated, by respective parties. The AdditionalCollector shall decide the application of respondents preferablywithin a period of four months from the date of receipt of this order.Rule is made absolute in above terms. The writ petition is disposedof in the above terms, as a result pending civil application alsostands disposed of. (MANJUSHA DESHPANDE, J.)SVH