Mohammad Ismailkhan Mohd. Yenuskhan vs State of Maharashtra & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(Bom) 74

IN THE HIGH COURT OF BOMBAY
(Nagpur Bench)
H.W. Dhabe, J.
Mohammad Ismailkhan Mohd. Yenuskhan.... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 758 of 1986, decided on 18-2-1988.
Advocates appeared :
S.R. Deshpande P.G. Palshikar, for petitioner.
V.V. Naik, A.G.P., for respondent No. 1.
V.S. Sohoni, for respondents 2 to 4.

Headnote:Sections 45 and 49-A.
       See Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, (as amended) Sec. 19 (1).
       Section 19 (1) - Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, Sections 46 and 49-A-Resumption of land for personal cultivation by landlord -Proceedings taken by landlord for such resumption Such tenant becoming statutory owner of the land-Provisions of Section 19 not applicable-Held, proceedings for resumption liable to be rejected.
       It may be soon that either under the second proviso to Section 46 (1) or the proviso to Section 49-A (1) or Section 49-A (3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under Section 38 (1) read with Section 36 (2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.
       It is therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The pre-condition for making an enquiry under clause (b) of Section 19 viz. the right or resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case.

JUDGMENT - H.W. DHABE, J.:---This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, "the Ceiling Act"). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.

2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.

3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.

4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, "the Tenancy Act"), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated

Click Here to Read the rest of this document