2010 Supreme(Bom) 157

2010(4) ALL MR 906
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
V. R. KINGAONKAR, J.
Vaijnath s/o. Yeshwant Jadhav (since deceased by L.Rs.) Vs.
Smt. Afsar Begum w/o. Nadimuddin Kazi (since deceased by L.Rs.)
Writ Petition No.2006 of 1991 1st February, 2010.

Headnote:Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 34, 37-A, 38-C, 38-E and 90 - Certificate issued under Section 38-E of Act - Cancelled by Maharashtra Revenue Tribunal - Petition against - Contention, Tribunal committed gross error while invalidating certificate issued under Section 38-E of Act after lapse of considerable period when deceased-respondent not challenged same during his life time - Held - Petitioner’s father not shown as tenant of land owned by deceased, husband of respondent-1 - Status of petitioner’s father not that of protected tenant declared under Section 34 of Act - No bar of limitation in case of decision rendered without any legal basis, by mistake or fraud - Entry of petitioner’s father’s name in subsequent record as statutory owner under Section 3 8-C of Act be regarded as fictitious - Certificate issued under Section 38-E of Act null and void - Impugned order legal and proper and warrants no interference - Petition dismissed. - Mr. Darak seeks to rely on certain observations in Mohammad Kavi Mohamad Amin v. Fatmabai Ibrahim, 1996 DGLS (soft) 1265 : (1997) 6 SCC 71. He would submit that though no time limit was prescribed for exercise of power under Section 8 of the HT and AL Act, yet, the application filed by deceased respondent Afsar Begum could not be entertained after lapse of many years. In the given case, suo motu enquiry was started by the Mamlatdar somewhere in September, 1973 in respect of the transfer which had taken place in 1 972. The Apex Court held that the suo motu power under Section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1976 was not exercised by the Mamlatdar within a reasonable time. The facts of the given case are on different footings. In the present case, the statutory ownership certificate was issued in favour of deceased Yeshwanta Jadhav even though he was not declared as a protected tenant of land Survey No. 202-AA and his name did not appear in the relevant register. His name was surreptitiously entered and mistakenly, the certificate of statutory ownership was issued in his favour without any basis. Obviously, such inherent defect could be rectified at any time. There is no bar of limitation in case the decision is rendered without any legal basis, by mistake or fraud. In Bachan and another v. Kankar and others, 1972 DGLS (soft) 327 : AIR 1972 SC 2157, the Apex Court held that a person cannot be conferred adhivasi rights on basis of an entry incorrectly introduced in the Record of Rights in his favour. It is observed :

       "The High Court wrongly held that though the entry was incorrect it could not be said to be fictitious. It is too obvious to be stressed that an entry which is incorrectly introduced into the records by reason of ill-will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis."

       The entry of the name of deceased Yeshwanta Jadhav in the subsequent record for declaring him as person entitled to become statutory owner under Section 38-C of the HT and AL Act must be regarded as fictitious, unfounded and useless. The Maharashtra Revenue Tribunal usefully referred to observations of the Court in Vyankatesh Deshpande v. Kusum Kulkarni, 1976 BCJ 144 : 1976 Mh LJ 373. A Division Bench of this Court held that the acts of the Revenue Officer, or order which can be termed as invalid and without jurisdiction would be nullity. So, it is not necessary for anyone to object such order or act for setting aside the same. The null and void act can be challenged in any proceedings. Obviously, when the declaration of statutory ownership under Section 38(6) could not be granted in favour of deceased Yeshwanta Jadhav, for the reason that he was totally ineligible to claim status of protected tenant, in respect of the land Survey No. 202-AA, the certificate can be regarded as non est in the eye of law. Needless to say, whether the legal representatives of deceased respondent - Afsar Begum became ultimate beneficiaries of the impugned decision, though had lost the challenge to such order in the past, is of no much significance. Once it is found that the certificate issued in favour of said Yeshwanta Jadhav is null and void, there hardly appears any substantial error committed by the designated member of the Maharashtra Revenue Tribunal. The impugned order is, therefore, legal and proper.