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1983 Supreme(Bom) 163
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
M.P. Kanade, J.
Kerba Bhivaji Shinde .... Petitioner.
Versus
Salubai w/o Nagorao others.... Respondent.
Writ Petition No. 3352 of 1981, decides on 29-6-1983.
Advocates appeared :
D.Y. Lovekar with A.H. Vaishnav, for petitioner.
A.G. Godhamgaonkar, for respondent Nos. 1 2.
Section 32 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 is not merely a procedural section but also creates a substantive right in favor of tenants to make an application for possession under section 32(1).
Headnote:
TENANCY ACT - SECTION 32(1) - SECTION 98 - PROCEDURE FOR TAKING POSSESSION - SUMMARY
Fact of the Case:
Petitioner, claiming to be a tenant of the disputed land, filed an application under section 32(1) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (Tenancy Act) against the respondents, alleging that he was dispossessed by them. The application was dismissed by the Tahsildar, and the petitioner's appeal to the Dy. Collector was also dismissed. The petitioner then filed a revision application to the Maharashtra Revenue Tribunal, which held that the application under section 32(1) was not maintainable and should have been filed under section 98 of the Tenancy Act.
Finding of the Court:
The court held that section 32 of the Tenancy Act is not merely a procedural section but also creates a substantive right in favor of tenants to make an application for possession under section 32(1). The court further held that an application under section 32(1) by a tenant for possession is always against the landlord, and if a tenant is dispossessed by a third person, an application under section 98 may be the proper remedy.
Issues: 1. Whether section 32 of the Tenancy Act is merely a procedural section or it creates a substantive right in favor of tenants to make an application for possession under section 32(1). 2. Whether an application under section 32(1) by a tenant for possession is always against the landlord, and if a tenant is dispossessed by a third person, an application under section 98 may be the proper remedy.
Ratio Decidendi: The court held that section 32 of the Tenancy Act is not merely a procedural section but also creates a substantive right in favor of tenants to make an application for possession under section 32(1). The court further held that an application under section 32(1) by a tenant for possession is always against the landlord, and if a tenant is dispossessed by a third person, an application under section 98 may be the proper remedy. The court reasoned that the scheme of section 32 itself indicates that it is both a procedural law and creates a substantive right to claim possession against the landlord under section 32(1). The court also noted that there are other sections in the Tenancy Act that provide remedies for possession, such as sections 38-E(1) and 98, but these are not alternative remedies and deal with different claims and rights of the parties.
Final Decision: The court set aside the order of the Maharashtra Revenue Tribunal and the order of the Dy. Collector, Land Reforms, Nanded, and remanded the matter to the Dy. Collector for decision of the appeal on merits.
2. By this writ petition under Article 227 of the Constitution of India the petitioner-Kerba Bhivaji Shinde who claims to be a tenant of Land Survey No. 2 (2-A) admeasuring 12 acres and 13 gunthas situated at village Rohi-Pimpalgaon, Taluka and District Nanded, challenged the order passed by the learned member of Maharashtra Revenue Tribunal, dated Occupier 12, 1981, whereby it is held that the application against the landlord would not be maintainable under section 32(1) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as 'the Tenancy Act') but the application ought to have been filed under section 98 of the Tenancy Act.
3. Few facts leading to this petition are:---That Santuka Nagorao (respondent No. 3) herein is the recorded landholder of Land Survey No. (2-A). The respondent No. 1 Salubai is the mother of respondent No. 3 and respondent No. 2 Venubai is the married sister of respondent No. 3. By an application dated May 18, 1976. Kerba-petitioner herein filed an application under section 32(1) of the Tenancy Act against all the respondents. He contended in the application that he was a tenant of the said land with effect from 1966-67 on behalf of Santuka, (respondent No. 3) and accordingly the entries in the revenue register have been made in his favour. It is also contended that there was an agreement of sale of the said land dated April 15, 1968 and for that reason he filed a suit for specific performance in the Civil Court. The said application was opposed by written statement by the respondents and the claim of the petitioner was denied. After the due enquiry the Naib Tahsildar, Nanded, by his judgment and order dated December 24, 1980 allowed the application holding the petitioner to be the tenant of the land. The respondent preferred an appeal against the judgement and order before the Dy. Collector and the Dy. Collector, land reforms, Nanded allowed the appeal by judgment and order dated May 22, 1981, by setting aside the order of the trial Court. Feeling aggrieved by the judgment and order of Dy. Collector the petitioner filed a revision application to Maharashtra Revenue Tribunal. That application was dismissed by judgment and order dated October 12, 1981. It is that judgement and order that is challenged in this writ petition.
4. Shri D.Y. Lovekar, the learned Counsel appearing in support of this petition, submitted that the view taken by the learned Member of the Tribunal that the application of the petitioner under section 32(1) of the Tenancy Act is not maintainable is erroneous and contrary to the provisions of Tenancy Act. It is pointed out by Shri Lovekar that the said application for possession is filed against the landlord of the said land and the application under section 98 of the Tenancy Act would not be maintainable against the landlord. It is, therefore, the view taken by the learned Member of the Tribunal is erroneous on the face of the record and is liable to be set aside.
5. Shri A.G. Godhamgaonkar, the learned Counsel appearing in support of the respondent submitted that section 32 of the Tenancy Act is a procedural section and unless the petitioner shows that he is entitled to possession of the land the application under section 32 of the Tenancy Act would not be maintainable. In the instant case it is urged by Shri Godhamgaonkar that the petitioner has not shown that under any of the provisions of the Act he is entitled to the po
