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2004 DIGILAW 18 (BOM)

Tukaram s/o Bakshu v. Dhondiba s/o Baliram

2004-01-08

A.B.NAIK

body2004
JUDGMENT A.B. Naik, J. 1. 1. The two petitioners, protected tenants (hereinafter referred to as "protected tenants") of Land Survey No. 38/1 and 39/1 admeasuring 13A 11G and 21A 20G respectively, are challenging the order dated 15th October 1987, passed by the Maharashtra Revenue Tribunal Aurangabad (for short "the Tribunal"), allowing Revision Application filed by the respondents, on the ground that there is no evidence of declaration of ownership in favour of the petitioners in respect of Land Survey No. 38/1 and 39/1 and, as such, there is no question to put them in possession of the land. 2. 2. In order to appreciate the controversy involved in this Writ Petition, the facts borne out from the record, are to be mentioned : Land Survey No. 38/1 and 39/1 situated at village Sangvi - Benak Tq. Mukhed Dist. Nanded was of the ownership of the one Devidasrao Bhavanidasrao Deshmukh. On the enforcement of the Hyderabad Tenancy and Agricultural Lands Act (hereinafter referred to as "the Act") the names of the petitioners came to be recorded in the Register of Protected Tenants as per Section 34 of the Act. It is the contention of the petitioners that as they were protected tenants of the lands they were entitled to get the ownership as per the provisions of the Act. However, they were dispossessed from the land by the landholder they could not get the benefits of the Act. The petitioners, therefore, filed an application for restoration of possession taking recourse to the provisions of 38-E(1) Explanation of the Act. It is contended that the notified date for transfer of ownership of the land for Nanded District was 25th May, 1957 and they were protected tenants of the lands on the notified date and, as such, they are entitled for the ownership under Section 38 E of the Act. The proceeding for declaration of the ownership was taken by the Naib Tahsildar and by his order dated 23rd April (year is not mentioned in Exh. A : Page 7). The relevant portion of the order reads thus : "Parties absent. DPT (Dispossessed Protected Tenant) cannot be declared owner of G. S. No. 38/1 has been sold to Dhondiba s/o Baliram after obtaining permission from the Deputy Collector, Degloor entry which has been taken in the mutation register which is approved by Naib Tahsildar." 3. A : Page 7). The relevant portion of the order reads thus : "Parties absent. DPT (Dispossessed Protected Tenant) cannot be declared owner of G. S. No. 38/1 has been sold to Dhondiba s/o Baliram after obtaining permission from the Deputy Collector, Degloor entry which has been taken in the mutation register which is approved by Naib Tahsildar." 3. The petitioners approached the Deputy Collector with request to put them in possession as they were the protected tenants of the lands but were not in possession on the notified date. On receipt of this application by the Deputy Collector, a notice came to be issued to the respondents who were purchasers from the original owner, (hereinafter referred to as "the purchasers"), appeared and contested the proceedings. The purchasers contended that the protected tenants were not in possession of the lands and the landowner, after obtaining permission from the Tenancy authorities, have purchased the lands and, as such, they are not entitled for possession, as prayed. The Additional Tahsildar heard the parties and by his order dated 24-1-1984 ordered that the purchasers were in possession of land Survey No. 38/1 and 39/1 unauthorisedly, to the extent of 12A 6G and the possession be handed over to the tenant -Bhagat Bakshu. While allowing application in respect of land Survey No. 38/2 and 39/2, the Tahsildar has not ordered the possession so far as Sy. No. 38/1 and 39/2 are concerned. The Additional Tahsildar has observed thus : "I have gone through the copies of the documents i.e. permission letter issued from the Deputy Collector, Degloor, it is seen that Dhondiba Baliram has purchased the land S. No. 38/1 39/1 measuring as 13 acres 11 gunthas and 21 acres 20 gunthas respectively, after obtaining this permission. The respondents purchased above lands so the question of invalid transaction does not arise. Further I have perused original work sheet and the Tenancy Register in which it is seen that a note has been written that as per endorsement of Naib Tahsildar, the names of Bhagat Bhakshu who was previously declared on the Survey No. 38/2 and 39/2 to the extent of 7 acres 26 gunthas and 12 acres 06 gunthas respectively, is deleted from the worksheet and tenancy register. But in the fact the names of the Tenants have not been deleted from the relevant record by quoting the order of competent authority. But in the fact the names of the Tenants have not been deleted from the relevant record by quoting the order of competent authority. From the note stated above, it is evident that no proper procedure required under Section 19 of the Tenancy Act has not been adopted. Only making endorsement that the worksheet cannot be treated as an order of acceptance of surrender. Further no record has been produced before me to prove the surrender was accepted. Only it is stated in the written statement that the tribunal has enforced on 23-4-1955 in file No. 19 dated 1M2-1954 but original record is support of his claim is not produced. Moreover, the respondents have not produced any record to prove that the final declaration under Section 38E of the H T A L Act, 1950 made in favour of the applicants was set aside, or cancelled by the Competent authority so it is evident that the final declaration of Survey No. 38/2 and 39/2 is intact." 4. As relief of possession was not granted in respect of Survey No. 38/1 and 39/1 the protected tenants preferred appeal before the Deputy Collector (Land Reforms) Nanded. The learned Deputy Collector, (Land Records), Nanded accepted the contention of the protected tenants and ordered that the possession of Survey No. 38/1 and 39/1 be handed over to the protected tenants. The Deputy Collector negatived the contention of the respondents purchasers on the ground that the right of ownership in respect of the suit land has been transferred on the date of notification i.e. 25th May 1957. Therefore, the sale deed has no effect on the right of the tenants. The Deputy Collector (Land Reforms) ordered the possession in favour of petitioners as per the provisions of Section 38E(1) explanation and held that the protected tenants are entitled for possession and set aside the order passed by the Additional Tahsildar on 28-1-1984. While allowing the appeal filed by the protected tenants, the Deputy Collector has recorded the findings which reads thus : "From perusal of the permission of the Deputy Collector, Degloor, it is evident that the permission was granted by the Deputy Collector on 1-7-1957 and the sale deed was executed by the land holder on 3-7-1957 on the basis of sale permission issued by the Deputy Collector. It is a fact that any protected tenant, who is holding tenancy certificate or his name is recorded in the protected tenancy register and if the landholder holds more than two family holding, then the protected tenant is entitled to get him declared under Section 38E of the HT and AL Act, 1950 to the extent of one family holding. The right of ownership has been transferred to such protected tenant on 25-5-1957. But the sale permission is issued after the crucial date i.e. 25-5-1957. The sale deed has also been executed after crucial date, hence view of the Agricultural Lands Tribunal who has held that the lands have been sold away with due permission of the Deputy Collector, and the sale deed has been executed in favour of Shri Dhondiba on the basis of sale permission by the Deputy Collector, and execution of sale deed is after the date on which ownership rights have been transferred in 25-5-1957. As the order of the Agricultural Lands Tribunal is contrary to the provision of the law which is liable to be set aside. The names of Tukaram s/o Bhakshu Lamani, and Bhagat Bhakshu Lamani are still appearing in the protected tenancy register. Their tenancy rights over the lands as P.T. still existing. Hence they are entitled to get declared as owner under Section 38E of the H T and AL Act, 1950, they are holding the suit lands S. No. 38/1 admeasuring 13-11 acres and S. No. 39/1 admeasuring 21-10 acres situated at Sangvi Benak Taluka Mukhed as P.T. the landholder has got the holding 125-04 acres on 25-5-1957." 1. 5. Feeling aggrieved by the judgment and order dated 31st December 1984 passed by the Deputy Collector (Land Reforms), Nanded, the purchasers preferred Revision Application before the Tribunal. 2. 6. The Tribunal disgreed with the findings recorded by the Deputy Collector and held that as there is no declaration in favour of the tenants under Section 38E of the Act, no question for order of possession will arise and as there is no declaration in favour of the tenants, the learned Member of the Tribunal set aside the order passed by the Deputy Collector and allowed the Revision. This order of the Tribunal dated 15th October 1987 in Revision Application No. 42/B/1985-Nanded is the subject-matter of challenge in this Writ Petition. 7. This order of the Tribunal dated 15th October 1987 in Revision Application No. 42/B/1985-Nanded is the subject-matter of challenge in this Writ Petition. 7. Shri Murar Deshpande, learned Advocate for the petitionerssubmitted before me that a manifest error has been committed by the tribunal in holding that for restoration of possession to dispossessed protected tenant under Section 38E(1) Explanation there should be declaration of ownership by the Tenancy authorities. He contended that the protected tenants admittedly were not in possession on the date of notification and, as such, there was no occasion for the Tenancy authorities to give any declaration of ownership or to issue certificate of ownership. The learned Advocate contended that in order to protect the right and interest of the protected tenants who were dispossessed by the land holders otherwise than the provisions of the Act and who were not in possession of the land on the date of notification, Explanation to Section 38E(1) came to be added so as to give dispossessed protected tenants the right to purchase the land which the protected tenants were entitled to. He, therefore, property. He, therefore, contended that the declaration of ownership is not a sine qua non to exercise the powers under Section 38E(1) explanation. While entertaining the application of dispossessed protected tenant, the only question that is to be considered by the authorities is that the person making an application was a protected tenant of the land. Therefore, he submitted that the Tribunal has committed an error apparent on the face of the record in misreading the provisions of Section 38E(1) explanation and dismissed the application of tenant for possession on erroneous assumption of law. 3. 8. Per contra, Shri P.G. Godhamgaonkar learned Advocate for the respondents, has submitted that it is always necessary to have a declaration of ownership then only the protected tenant can make an application for restoration of possession on the ground that he was not in possession of the land on the notified date and that he was entitled to purchase the lands held by the landholder on the material date. Therefore, he submitted that the Tribunal was justified in holding that the protected tenants in whose favour the declaration is not made, cannot claim the possession by filing an application under Section 38E(1) explanation. Therefore, he submitted that the Tribunal was justified in holding that the protected tenants in whose favour the declaration is not made, cannot claim the possession by filing an application under Section 38E(1) explanation. He submitted that as the protected tenants were not in possession of the property on the notified date, the landlord after obtaining valid permission from the Revenue authorities has sold the property and the valuable right is accrued to the purchasers and, therefore, he submitted that the order passed by the Tribunal required to be maintained. 4. 9. In order to appreciate the rival contentions of the parties noted hereinabove, I have to look at the scheme of the Act. The Section 2(r) of the Act, defines the term "protected tenant" and Section 38 enumerates the rights of the protected tenants to purchase the landholders interest in the land, held by the protected tenant. It is not disputed before me that the names of the present petitioners are recorded in the register of the protected tenant maintained as per the rules framed under the Act. The notified date for Nanded District under Section 38E was 25-5-1957, which was declared through Gazette No. TNC 5756/25704 (b) dated 22-5-1957. As per the procedure prescribed under rules for giving ownership to the tenant, a list of tenants are to be prepared by the Tribunal who are entitled to purchase the land from their landholder under Section 38. Such list has to be published. This publication of the list is called under the Rules as provision declaration. On publication of the list concerned landholder has to raise objection to such declaration. If objections are taken and it is overruled, the Tribunal has to issue certificate as contemplated under Section 38E(2). Section 38E contemplates that the ownership of lands held by the protected tenants to stand transferred to them from the notified date. From the scheme of the Act, it is manifest that tenant for becoming owner, he must be a protected tenant. If he is a protected tenant, then by virtue of Section 38E, the ownership of the land stands transferred to him. Section 38E came on the statute on 4th February 1954. To this Section, Explanation came to be added by Maharashtra Act No. XLV of 1961 and it came into effect from 17th November, 1961. If he is a protected tenant, then by virtue of Section 38E, the ownership of the land stands transferred to him. Section 38E came on the statute on 4th February 1954. To this Section, Explanation came to be added by Maharashtra Act No. XLV of 1961 and it came into effect from 17th November, 1961. Explanation to Section 38E(1) was added on finding that the tenants who were protected tenants but were not in possession on the notified date and in order to protect their interests and confer the rights of ownership under the Act, the explanation came to be added. It would be appropriate to refer to this provisions at this stage. Section 38E(1) and explanations thereof reads as under : 38E(1) : Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary, the Government may, by notification in the Official Gazette declare in respect of any area and from such date as may be specified therein that ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area under any provision of this Chapter shall stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands : Provided that transfer under this sub-section shall be subject to the conditions (a) and (b) mentioned in Sub-section (7) of Section 38 and the further condition that the extent of the land remaining with the landholder after the purchase of the land by the protected tenant, whether to cultivate it personally or otherwise, shall not be less than twice the area of a family holding. Provided further that where in respect of any such land, any proceeding under Section 19, 19A or 32 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date on which such proceeding is finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding. EXPLANATION : If a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tahsildar as provided in Section 32, is not in possession of the land on the date of the notification issued hereunder then for the purposes of this sub-section, such protected tenant shall, notwithstanding any judgment, decree or order of any Court, or the order of a Revenue Board or Revenue Tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the Tahsildar shall notwithstanding anything contained in the said Section 32, either suo motu or on the application of the protected tenant hold summary enquiry and direct that such land in possession of the land holder or any persons claiming through or under him in that area, shall be taken from the possession of the landholder or such person, as the case may be, and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect as if the protected tenant had held the land on the date of such notification with the modification that in Sub-section (8), for the words, figures and brackets "Within 90 days from the date specified in the notification under Sub-section (1) "the words, figures and brackets" within 90 days from the date of restoration of the possession under the Explanation to Sub-section (1) "shall be substituted." 10. From the provisions noted above, it is clear that even if protected tenant is not in possession of the land, the Tahsildar has to make a summary enquiry either suo motu or on an application filed by the tenant and if it is found that the protected tenant was out of possession on the notified date, he shall direct the land which is in possession of the land holder or any other person claiming through or under the landlord shall be taken from possession and shall be restored to the protected tenant. Considering the intention of the Legislature to confer the benefits of the agrarian reform to the tenants who were dispossessed by the landlords only with a view not to give them the protection of the Act explanation to Section 38E(1) was added. Considering the intention of the Legislature to confer the benefits of the agrarian reform to the tenants who were dispossessed by the landlords only with a view not to give them the protection of the Act explanation to Section 38E(1) was added. Therefore, in my judgment, the finding that has been recorded by the Tribunal that there must be a declaration of ownership before putting the tenants in possession runs contrary to the provisions of Section 38E (1) explanation. It is to be noted that after the protected tenant is put in possession, the enquiry as contemplated under Sub-section (7) of Section 38 has to be conducted and then the price is to be fixed and certificate in the prescribed form has to be issued. However, since the protected tenants were not in possession of the notified date there was no occasion for the Tahsildar to conduct this enquiry; This stage has not yet reached as the protected tenants have filed application taking recourse to the explanation to Section 38E and requesting the Tahsildar that they were protected tenants of the land and they were not in possession on the notified date, hence they are entitled for restoration of possession. With this specific prayer the protected tenants approached the Tahsildar. The Tahsildar dismissed the application of the protected tenants in respect of land Survey No. 38/1 and 39/1. The appellate authority i.e. Deputy Collector allowed the appeal and directed that the protected tenants be put in possession; but the Tribunal in exercise of its revisional jurisdiction, on an erroneous assumption that there must be a declaration of ownership, allowed the Revision. The order cannot stand to any reason as for conferring ownership of the land to the protected tenant, it is no necessity of having a declaration. Section 38E(1) makes the position very clear which shows that on the notification in the Official Gazette declared by the Government in respect of an area the land held by the tenant shall stand transferred. As from 25th May, 1957 the lands held by the protected tenants stand transferred there is no necessity for having any specific declaration from any tenancy authorities. The question of granting of ownership certificate etc. follows thereafter. Therefore, in my judgment, the Tribunal has committed an error appearing on the face of the record in misreading the provisions of Section 38E(1) explanation. The question of granting of ownership certificate etc. follows thereafter. Therefore, in my judgment, the Tribunal has committed an error appearing on the face of the record in misreading the provisions of Section 38E(1) explanation. Therefore, accepting the submission of the learned Advocate for the petitioners, I set aside the order passed by the Maharashtra Revenue Tribunal on 15th October 1987 and restore the order passed by the Deputy Collector Land Reforms, Nanded on 31st December 1984 in Case No. 1984/TNC/Appea/CR-39 Judgment No. (119/1984) and direct that the protected tenants be put in possession of Survey No. 38/1 and 39/1 to the extent of 13A 11G and 21A 20G respectively. On putting the petitioners in possession, the Tahsildar shall take up the issue of fixing the price of the land by following procedure as contemplated under the Act and the Rules. 1. 11. Rule made absolute accordingly in terms of prayer Clause "B". However, there will be no order as to costs. 2. 12. Office is directed to transmit the record forthwith.