JUDGMENT

1 The petitioners in both these petitions are real brothers. During pendency of this petition, petitioner No.2 Abhay has passed away and his legal heirs have {3}

been brought on record.

2 In the first petition, the petitioner has put forth prayer clause 'B' as under:-

“ B. The impugned judgment and order passed by the Learned Member of M.R.T. in Revn. Appln. No. TNC-B-91-C on 31.1.1992 confirming the Judgment and order passed by Learned Tahsildar, Tuljapur in file No.89/TNC/CR/50 dtd. 22.5.90 and Judgment and order dated 12.8.1991 in Appeal No.90/TNC/A/19 passed by Learned Deputy Collector, Osmanabad be quashed and set aside. ”

3 In the second petition, the petitioners have put forth prayer clause 'B' as under:-

“ B. The Judgment and order dated 31.1.1992 passed in Revision application No.134-B/91-O by Member of Maharashtra Revenue Tribunal Aurangabad and confirmed by the Judgment and order passed by the Deputy Collector (L.Rs.) Osmanabad on 12.8.1991, in Appeal No.1990-TNC-A- 18 and Judgment and order dated 22.5.1990 passed by the Tahsildar, Osmanabad infile No.89-TNC-CR-49 be quashed and set-aside. ”

4 I have heard the learned Advocates for the petitioners and the learned AGP, initially on 22.6.2017. Since the Advocate for respondent No.1, who are the {4}

contesting parties Viz. Prabhakar Shivappa Mahabole, Lalsing Budha Rathod and Hariba Budha Rathod in these two petitions, remained absent, I called upon Mr. Satyajit Bora and Mr. Anand Bhandari, learned Advocates to assist the Court as Amicus Curiae.

5 I have considered the submissions of all the learned Advocates and have gone through the record available. The issue before this Court is, as to whether the declaration of protected tenant would become ineffective, as the said tenant failed to pay the purchase price that was fixed, within the time prescribed by law and refused to take possession of the land at issue. So also, whether the Petitioners have any locus-standi to resort to litigation in the facts of this case.

6 The petitioners have relied upon the Judgment of this Court in the matter of Shaikh Noor S/o Shaikh Kathu versus Shaikh Rasool S/o Shaikh Hasan (BCR-1988-3-311) and Hanmantrao S/o Vithalrao versus Bhimrao S/o Govindrao others (1983 (1)

Bom C.R.30).4

7 Mr. Bora and Mr. Bhandari learned counsel have {5}

placed reliance upon the Judgment of the learned Division Bench of this Court in the matter of Ganpat Sakharam Deshmukh versus Yeshwant Digambar Deshmukh (2000 (1) Mh. L.J. 126) and the Judgment of this Court in the matter of Datta Manika Dhobi versus Dattatraya @ Dattopant s/o Ganpatrao Kulkarni (2003 (3) Mh.L.J. 393).

8 The facts in both the cases are quite peculiar.

9 The land at issue falls in Survey Nos.240, 243, 244 and 245. Shivappa Mahabole was the original tenant, who was declared as a protected tenant (DPT) on 1.2.1957 by following the due process of law under section 38E of the Hyderabad Tenancy & Agricultural Lands Act, 1950. After this declaration was made, the price of the land was fixed. Shivappa was obliged to pay the first installment in 1960 and the second installment in 1961. It is so happened that Shivappa has neither paid the amount, nor has the said amount been recovered by the revenue authorities as arrears of land revenue though an attempt was made by the Revenue authorities.

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10 For the sake of ready reference section 38E is reproduced as under:-

“ 38E. Notwithstanding anything in this chapter or any law for the time being in force of any custom, usage, decree contract or grant to the contrary, the Government may, by notification in the (OfÏcial Gazette), declare in respect any area and from such date as may be specified therein that ownership of all lands held by protected tenants which they are entitled to purchase from their landholders, in such area under any provision of this Chapter shall stand transferred to any vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of