1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4195 OF 2001 [1] Hanmabai w/o Prabhanna, Age : 57 years, Occu.: Household, R/o : Kamjalga, Tq. Mukhed, District : Nanded [2] Venkatrao s/o Khushalrao, Age : 50 years, Occu.: Agriculture, R/o : Kamjalga, Tq. Mukhed, District : Nanded .. Petitioners Versus [1] Smt. Padmabai w/o Baba Kapale, Age: 58 years, Occu.: Household, [2] Narayan s/o Baba Kapale, Age : 35 years, Occu.: Agriculture [3] Gurbas s/o Baba Kapale, Age : 32 yeas, Occu.: Labour, (No. 1 to 3 R/o Kamjalga, Tq.: Mukhed, Dist. Nanded) [4] The Maharashtra Revenue Tribunal, at Aurangabad .. Respondents Mr. A.H. Vaishnav, Advocate for the Petitioners Mr. G.N. Chincholkar, Advocate for respondent no.1 2 Respondent nos. 2 to 3 served-absent Mr. D.V. Tele, AGP for Respondent no.4-State CORAM : V.R. KINGAONKAR, J. DATED : 18th JUNE, 2009 ORAL JUDGMENT:- 1] Rule. Rule is made returnable forthwith and heard. 2] The petitioners herein are the legal representatives of original land holder namely Khushalrao Iranna, being his sister and son respectively. The respondents are legal representatives of deceased Baba Kapale, who claim tenancy rights in respect of the land in question. Subject matter of the tenancy dispute comprises of two parcels of land bearing survey no. 103 (gat no. 292) admeasuring 23A 21G and survey no. 101 (gat no. 290) admeasuring 0A 19G situated at village Kamjalga under Mukhed tahsil of Nanded district. The lands in question were declared in the name of deceased 3 Baba Shivram Kapale, as a protected tenant. He was declared as a statutory tenant under section 38E of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short H.T. and A.L. Act). He did not, however, deposit the price which was determined in respect of both the lands declared in his favour. It appears that on two occasions the purchase price was fixed. The declared tenant Baba Shivram Kapale deposited the purchase price in the year 1986, approximately after about 17 yeas from the date of declaration of the statutory ownership. The sale certificate under section 38E of the H.T. and A.L. Act was issued in his favour. It appears that in the year 1961, the declared tenant had declined to take possession of the lands in question. The respondents approached the tahsil Mukhed, with an application for restoration of possession alleging that they were inducted in possession on 27.6.1978 but were lateron dis-possessed. They urged for eviction of the petitioners, by invoking powers under section 98 of the H.T. and A.L. Act. The Tahsildar, drew proposal for summary eviction as 4 contemplated under section 98 and forwarded the same to the Additional Collector, Nanded. By order dated 11.3.1993, the learned Additional Collector, in case no. 91/TNC/98/CR-22 rejected the proposal mainly for the reason that the declared tenant was not cultivating the lands in question as on the crucial date i.e. 12.3.1956 as a tenant. The respondents preferred appeal/revision application no. 22/A/93- Nanded, which was dismissed by the learned President of the Maharashtra Revenue Tribunal, Aurangabad (for short, the M.R.T.) by order dated 11.12.1998. The respondents filed review application which was allowed by the learned Designated Member of the M.R.T. on 11.9.2001. This judgment is impugned by the petitioners in the present petition. By allowing the review application, the learned Designated Member of the M.R.T. held that the earlier judgment rendered by the President of M.R.T. was on patently erroneous footing and was liable to be reviewed. The learned Designated Member allowed the appeal of the tenants and directed that possession shall be restored to them by accepting 5 the proposal of the learned Tahsildar. 3] Heard learned counsel for the parties. Mr. Vaishnav would submit that the learned Designated Member of the M.R.T. acted in excess of jurisdiction available in the matter. He would submit that there was no review power available to to topsy-turvy the well reasoned judgment of the president M.R.T. He would further submit that the judicial discipline required the placing of the review application before the learned President and that the Designated Member ought not to have heard the same. He would further submit that a mere erroneous decision could not be the ground to review the judgment of the learned President of the M.R.T. in it’s entirety. He contended that the parties had placed on record compromise petition which should have been given effect to and atleast it could be treated as withdrawal of the review application to the extent of the claim which was abandoned by the respondents. It is argued by Mr. Vaishnav that section 98 of the H.T. and A.L. Act is not 6 applicable in the fact situation, because it only deals with the claims against strangers and not against the landlord or anyone claiming under him. Mr. Chincholkar however, supports the impugned judgment. 4] Before I proceed to deal with the rival submissions, it is important to note that the declaration of statutory ownership was made in favour of the deceased Baba Shivram Kapale (tenant) under section 38E of the H.T. and A.L. Act, is an uncontroverted fact. The declaration so made was never challenged by the petitioners or their predecessors in title. Needless to say the declaration of statutory ownership became final. There was only delay in making payment of the price amount which was fixed on two occasions. There cannot be doubt about the fact that after the long drawn delay, the tenant deposited the price in 1986 and the ownership certificate was issued in his favour. From 1986 onwards also, the issuance of ownership certificate under section 38E was never 7 subject matter of challenge in any other proceedings. It was for the first time before the learned Additional Collector, that the status of deceased Baba Shivram Kapale was disputed on the ground that he was not in actual possession of the lands in question on the crucial date/tiller’s day. 5] The legal position regarding finality to certificate issued under section 38E of the H.T. and A.L. Act is well settled. The statutory ownership certificate attained finality and, therefore, it was no more open to the Additional Collector to enter into the arena of the dispute which was not subject matter of the lis between the parties. In “Bharatlal s/o Hemraj v. Kondiba Govind Jadhav” 2001(3) Mah.L.J. 380 this Court held that declaration under section 38E is not a decision or order within the meaning of section 90 of the Act. It is held further that section 38E(1) does not speak of any enquiry, either in detail or summary, regarding declaration of ownership of protected tenant in relation to land/s held by him. In other 8 words, the certificate of statutory ownership issued under section 30E is required to be treated as final one. 6] As to the question of availability of review powers to the M.R.T., it may be stated that the tribunal is empowered to function as per the procedure laid down under the Civil Procedure Code while dealing with the matters. The procedure is regulated under the Maharashtra Revenue Tribunal Regulations 1958. The regulation no. 31 deals with the manner in which review application can be heard. The general provisions of the C.P. Code under section 114 and Order 47 Rule 1 and 2 would be applicable to the review application filed before the M.R.T. In “Genu Laxman Shinde v. Chandrakant Dagadu Kotulkar” 1999(1) Mh.L.J. 235, this Court held that the M.R.T. has jurisdiction to review its order made in respect of the revision decided under the Tenancy Act. The single Bench expressed such view in view of the Division Bench judgment in “Raghunath Gambirshet Wani vs. Ganpat Motiram Mahar” 9 1952 (LV) BLR 298. It has been held that while exercising the revisional powers under section 76 of the Bombay Tenancy Act, the tribunal has power to review its decisions. It is imperative that the M.R.T. has inherent jurisdiction to review its judgments and orders. Consequently, I deem it appropriate to reject the contention that the learned designated Member of the M.R.T. could not have the power to review the judgment of the learned President of the M.R.T. 7] In sofar as the question of judicial impropriety is concerned, it is true that if the President would have been available at Aurangabad, then the ordinary course was to place the review application before him. What appears from the record is that the President had rendered the judgment under review on 11.12.1998 while he was at camp, Aurangabad. The Designated Member was not required therefore to forward the review application to the President at Mumbai, when the territorial jurisdiction was available at Aurangabad. 10 8] The legality of the judgment delivered by the learned Designated Member may be now considered. The learned Designated Member observed that the question pertaining to validity of declaration under section 38E was not at all involved in the proceedings under section 98 of the H.T. and A.L. Act. He held that there was no scope to deal with the question of alleged status of deceased Baba Shivram Kapale (tenant) inasmuch as it was a by-gone issue. The learned President of the M.R.T. committed patent error while re-opening the issue of declaration of statutory ownership rights under section 38E. The review powers have been invoked by the learned Designated Member in order to rectify the patent error which is apparent on face of record. It is well settled that the review power can be exercised when there is patent error, apparent on face of record. The only question for consideration of the concerned authorities was whether summary eviction of the petitioners could be effected in the fact situation of the given case. 11 There was hardly any scope to allow revival of the dispute which was not in existence at all and to put a gloss of some legality, while rejecting the application filed under section 98 of the H.T. and A.L. Act. The summary proceedings under section 98C would cover the petitioners. For their possession is unauthorised. 9] Reference is made to certain observations in “Rajkumar Ramavtar Chourasia v. Mathew Charian Christian” 1984 Mh.L.J. 898. In the fact situation of the given case the Hon’ble Bench came to the conclusion that there was no patent mistake apparent on the face of record and it was at the best mistake of erroneous application of law laid down by the Division Bench, on the basis of which the judgment in the second appeal was rendered. It has been held that mistake committed while applying the law, could not be the subject matter of review. There cannot be duality about the proposition that the review power cannot be exercised in order to completely overrule the earlier judgment, unless there is a 12 patent error found on face of the record. This is a peculiar case in which the learned Additional Collector as well as the learned President of the M.R.T. committed patent error while discarding the legal implication of statutory ownership certificate issued under section 38E of the H.T. and A.L. Act. No doubt, it is true that the tenant had deposited the price amount after a considerable delay. Still, however, in view of dictum in “Ganpat Sakharam Deshmukh v. Yeshwant Digambar Deshmukh” 2000 MCR 655, the delay by itself would not cause any invalidity of the certificate under section 38E. It has been held by the Division Bench of this Court in the given case, that provisions of sections 38 and 38E are required to be independently considered. The Division Bench held that the purchase amount could be recovered under section 38 likewise recovery of land revenue. Obviously, if the tenant failed to deposit the purchase price, it would not take away his right to claim the statutory ownership only because the purchase price was not deposited when demanded or fixed. 13 10] It is true that the parties had filed some Compromise Petition before the M.R.T. when the review application was pending for consideration. The learned Designated Member of the M.R.T. has rightly held that the compromise was not in accordance with the law and could not be therefore given effect to. It need not be emphasised that even under Order 23 Rule 3 of the Civil Procedure Code, only lawful compromise can be given effect. By virtue of compromise, implied surrender of tenancy right of the tenant is impermissible. The surrender of tenancy rights ought to be as required under provisions of the H.T. and A.L. Act and not otherwise. One cannot be oblivious of the background of the H.T. and A.L. Act. It is a social legislation, meant for protection of the rights of tenants. The provisions have been made to plug the holes which could have been availed to defeat the rights of tenants. 14 11] For the reasons aforestated, I do not find any substance in the present Petition. The Petition is accordingly dismissed. No costs. (V.R. KINGAONKAR, J.) arp/18june9/wp4195.01