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2011(4) ALLMR 25
In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE B.P. DHARMADHIKARI
Mesaji S/o Laxman Ubare
Versus
Dr. Ramchandra S/o Laxminarayan Toshniwal & Others
WRIT PETITION NO. 473 OF 2000
Decided on: 04-05-2011
Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 38 and 38-E-Protected Tenant-Right of-To purchase land under Section 38, tenant has to exercise rights and to decide whether to purchase or not-Determination of market price-Under Section 38-E, tenant becomes owner even against his wish-Obligation cast upon land owner to apply for determination of market price.-The protected tenant is entitled to purchase the land holders interest in the land held by him at any time as mentioned therein. Sub-section (7) only indicates the extent or area which can be purchased by him under the said provision. Sub-section (2) of Section 38 requires such protected tenant who desire to exercise that right to make an offer to the land holder stating the price which he prepares to pay. Other formalities are then taken care of by other sub-sections of this section. As against this Section 38-E statutorily transfers ownership to protected tenant. Thus, he is not expected to take any steps for acquiring ownership and therefore, only there is also a deeming fiction in opening part of Section 38-E. Proviso to this opening part then subjects such transfer to conditions (a) and (d) mentioned in sub-section (7) of the Section 38 i.e. about area or extent of which ownership can be acquired. Sub-section (3) of Section 38-E requires land holder to file an application before Tahsildar for determination of reasonable price. In other words, under Section 38, when it is for tenant to exercise the rights and to decide whether to purchase or not, under Section 38-E tenant becomes owner even against his wish and obligation is cast upon the land owner to apply for determination of market price.
Hyderabad Tenancy and Agricultural Lands Act, 1950 - Section 98-Summary eviction-Wrongful or unauthorised occupation-Section 98 conferred power upon Collector, only to summarily evict a person in unauthorised occupation or wrongful possession-It not contemplates filing of any application by any party to initiate proceedings under Section 98 of Act.-In Section 98 only Collector has been enabled to summarily evict a person in unauthorised occupation or wrongful possession. It does not contemplate filing of any application by any party to initiate proceedings under Section 98. Thus, it only casts obligation on the Collector to evict such unauthorised or wrongful occupant. The fact of such wrongful or unauthorised occupation may come to knowledge of Collector belatedly through different sources and in various situations. It is therefore, obvious that Legislature has only conferred the powers upon the authority to act in furtherance of provisions and for the purposes of 1950 Act to see that its aims and objections are achieved and preserved.
ORAL JUDGMENT :
1. By this Petition filed under Article 227 of the Constitution of India, the petitioner original tenant has questioned the Judgment dated 15.09.1999 delivered by Maharashtra Revenue Tribunal at Aurangabad in Appeal under Section 90 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. (Hereinafter referred to as "1950 Act").
2. The petitioner filed application on 12.01.1988 against the respondent no.1 and other respondents for recovery of possession of land survey no. 9/A admeasuring 10 Acres 14 Gunthas i.e. 4 H 18 R and also survey no. 9/2 admeasuring 3 H 53 R under Section 98 of the above mentioned 1950 Act. The lands are situated in village Khandarban, Tq. Basmath, Dist. Hingoli (earlier Dist. Parbhani). He contended that land survey no. 9/A was owned by one Gyanoba and survey no. 9/2 was owned by Digambar. Gyanoba expired in 1990-91 and respondent no.1-Ramchandra purchased land gut no. 9/A by registered sale deed dated 10.10.1974. Similarly, respondent no.2-Ashok purchased land survey no. 9/2 from Digambar. The petitioner pointed out that his father Laxya was recorded as protected tenant over these lands since the year 1950 and after death of Laxya, he inherited those rights. He contended that he was dispossessed from survey no. 9/A by respondent no.1-Ramchandra along with respondent nos. 2 and 3 in July of 1978-79. He further pointed out that his name was removed from the possession column in 7/12 extracts by Tahsildar under mutation entry no. 124 on 05.09.1974 without any notice. Original owner Gyanoba has not made any offer to petitioner/ his father before sale of land survey no. 9/A to Ramchandra. It was therefore contended that possession of respondents over the said lands was unauthorised and illegal. Ramchandra and other respondents came out with a defence that petitioner being legal heirs of Laxya left land survey nos. 9/A and 9/2 on his own accord between the year 1959-60 and his name was removed from column of cultivation in the year 1960-61. The alleged protected tenant according to them lost possession in the year 1959-60 and hence, application as filed in the year 1988 was not tenable under Section 32(1) of the 1950 Act. They pointed out that application under Section 32(1) ought to have been moved within two years and application under Section 98 therefore could not have been filed. Ramchandra stated that he purchased land survey no. 9/A on 10.10.1974 and respondent nos. 2 and 3 pointed out that they purchased land survey no. 9/2 on 29.03.1969. Accordingly, they also pointed out consequential mutation entries.
3. Application under Section 98 was considered by the Deputy Collector, Parbhani and vide order dated 22.02.1994, same was allowed. The possession of lands was directed to be delivered to him. This order was then questioned in appeal under Section 90 as mentioned above which came to be registered as Tenancy 13/A/94/P on the file of Maharashtra Revenue Tribunal. Maharashtra Revenue Tribunal has vide judgment dated 15.09.1999 allowed that appeal filed by respondent no.1-Ramchandra.
4. This Court while issuing Rule in the matter on 10.02.2000 directed the respondents not to alienate the suit property or create any third party interest. That interim orders continue to operate till today. In this background, I have heard Advocate Mr. Sapkal for petitioner, Advocate Mr. Kulkarni for Respondent Nos. 3A, 5 and 6 and Advocate Mr. Salunke has argued for respondent no.1.
5. After pointing out the facts in detail, Advocate Mr. Sapkal has taken the Court through the impugned judgment delivered by Maharashtra Revenue Tribunal and he points out that the notification as contemplated under Section 38E of 1950 Act for Parbhani District in which the lands are situated came to be issued on 01.02.1957. The name of the petitioner as protected tenant was entered into revenue records on 04.03.1959 and it continued till it was deleted on 05.09.1974. He has also invited attention to the sale de
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