The ownership certificate under Section 38-E of the Hyderabad Tenancy Act, 1950 is a formal declaration of ownership conferred on the protected tenant by virtue of the statutory provisions, and the issuance of notice to the landholder before the grant of the ownership certificate is not peremptory.

JUDGMENT

N J Jamadar, J. - Rule. Rule made returnable forthwith and with the consent of learned Counsels for the parties, heard finally at the stage of admission.

2. The petitioners assail an order passed by the Tahsildar/Agricultural Lands Tribunal, Paithan [ALT] dated 05.02.2009 in OW No.2008/Bhusudhar/Kavi, whereby the ALT was persuaded to grant Ownership Certificate in respect of Agricultural Land bearing Gat No.1044 [Old Survey No.564 and 565] admeasuring 9 Acres and 16 Gunthas [suit land] in favour of deceased respondent Shankar Kanhuji Kothimbire, under the provisions of Section 38-E of the Hyderabad Tenancy and Agricultural Lands Act, 1950 [the Hyderabad Tenancy Act, 1950].

3. The background facts leading to this petition can be stated in brief as under :-

a] Late Champalal s/o. Jagannath was the original holder of the suit land. After his demise in 1348 Fasli, Asrabai - his wife, became holder thereof. Her name came to be mutated to the record of rights [Khasra Patrak]. The names of Vishwanath Kondaji and Kanhu Tukaram were entered as the protected tenants of the suit land. After the demise of Kanhu Tukaram, the name of Shankar, the deceased respondent came to be entered in the Khasra Patrak as the protected tenant of the suit land, in the year 1953. However, Shankar was then a minor.

b] The landlady Asrabai initially executed a general power of attorney in favour of Badrinarayan Totla on 08.01.1979. Later on, the landlady Asrabai executed a registered gift-deed dated 22nd January, 1979 in favour of Narmadabai w/o. Badrinarayan Totla and gifted the suit land thereunder to the latter. The name of Narmadabai came to be mutated to the suit land vide Mutation Entry No.781. Narmadabai expired on 29.12.2010. The petitioner Nos.1 and 2 are the daughters of Narmadabai and Badrinarayan Totla.

c] The deceased respondent initiated the proceedings before the ALT for grant of ownership certificate under section 38-E of the Hyderabad Tenancy Act, 1950, culminating in the impugned order dated 05.02.2009. The petitioners aver that the ALT did not issue any notice to either the original landlady Asrabai or their deceased mother Narmadabai, nor any enquiry was conducted before granting the certificate under Section 38-E of the Hyderabad Tenancy Act. In any event, without impleading the land owners, the ALT could not have conducted the enquiry and issued the certificate. Even after the grant of the ownership certificate, no notice or intimation was given to the petitioners. The tenancy under the Hyderabad Tenancy Act, 1958 is not heritable. The deceased respondent was thus not entitled to inherit the alleged protected tenancy. The ALT thus committed a grave error in granting the ownership certificate in complete derogation of the legislative prescription. Since there is no other remedy, the petitioners were constrained to invoke the writ jurisdiction of this Court. Thus, the petitioners have prayed that the impugned order granting the ownership certificate be quashed and set aside and the ownership certificate dated 05.02.2009 issued under Rule 22 of the Hyderabad Tenancy and Agricultural Lands Rules, 1958, be cancelled.

4. The original respondent No.1-Shankar died during the pendency of this petition. The respondent Nos.1(a) to 1(f) came to be impleaded as the legal representatives of deceased respondent No.1.

5. I have heard Mr. Patki, learned Counsel for the petitioners and Mr.Gangakhedkar, learned Counsel for respondent Nos.1(a) & 1(d), Mr. Boiwar, learned Counsel for respondent Nos. 1(e) & 1(f) and Mr.R.D. Sanap, learned AGP for respondent Nos.2 and 3.

6. Mr.Patki, learned Counsel for the petitioners made brief submissions. A twofold challenge was mounted by Mr.Patki. One, protected tenancy under the Hyderabad Tenancy Act, 1950 is not heritable in view of the amendment in Section 40 of the Hyderabad Tenancy Act, 1950, as substituted by the Act No.32 of 1958. Two, the proceeding before the Tribunal for grant of ownership certificate suffere