1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2383 OF 1991 Vishwambhar S/o Keshavrao Deshmukh } Age : 65 Years, Occ. : Agriculture, } R/o : Kallam, Dist. : Osmanabad. } .... PETITIONER V E R S U S 1. The State of Maharashtra } Through Govt. Pleader, } High Court, Aurangabad. } 2. Narayan S/o Ramabhan Karajkar } Age : 67 Years, Occ. Agriculture, } R/o : Kallam, Dist. : Osmanabad. } .... RESPONDENTS Mr. M.M.Patil (Beedkar), , Advocate for Petitioner. Mr. D.R.Kale, A.G.P. for State – Respondent No. 1 & 2. Mr. S.S.Choudhari, Advocate for respondent no. 3. WITH WRIT PETITION NO. 2384 OF 1991 Amrutrao S/o Keshavrao Deshmukh } Age : 56 Years, Occ. : Agriculture, } R/o : Kallamb, Dist. : Osmanabad. } .... PETITIONER 2 V E R S U S 1. The State of Maharashtra } Through Govt. Pleader, } High Court, Aurangabad. } 2. Dy. Collector, } Land Reforms, Osmanabad. } 3. Narayan S/o Ramabhan Karajkar } Age : 67 Years, Occ. Agriculture, } R/o : Kallam, Dist. : Osmanabad. } .... RESPONDENTS Mr. M.M.Patil (Beedkar), , Advocate for Petitioner. Mr. D.R.Kale, A.G.P. for State – Respondent No. 1 & 2. Mr. S.S.Choudhari, Advocate for respondent no. 3. CORAM : V.R.KINGAONKAR, J. JUDGMENT RESERVED ON : 26/02/2010 JUDGMENT PRONOUNCED ON : 12/03/2010 COMMON JUDGMENT : 1. By these petitions, the petitioners are challenging common Judgment and Order rendered by Maharashtra Revenue Tribunal ( For short, ‘ M.R.T. ’ ), Aurangabad in Appeal Nos. 5.A.91.0 and 7.A.91.0 dated 26/6/1991, whereby their Appeals were dismissed and orders rendered by the Dy. Collector ( L.R. ) in the proceedings for possession of tenanted land, were confirmed. 3 2. Both the petitions involve common questions of facts and law and hence are being decided together. The petitioners are landlords in respect of agricultural land bearing S.No. 210/A admeasuring 6 Acres 29 gunthas situated at Kallamb ( Dist. Osmanabad ) to the extent of 1/3rd share each. The third respondent is original tenant of the land in question. It appears that the petitioners had filed application under section 44 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 ( For short, ‘ the H.T. and A.L. Act). They were successful in getting possession of the tenanted land by following due process of law. They were inducted in actual possession of the tenanted land on 13/12/1960 and are continued to be in possession thereof. The land S.No. 210-A is Inam land. The competent authority held that it was a service Inam and was abolished under the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. With the result, the third respondent (Narayan) was held as occupant of the land in question as he was in possession thereof on 1/7/1960. Though he was declared as occupant, in proceedings of Inam abolition vide file No. RB-AR-I -25 of 1962 with retrospective date mentioned above, yet, he had not taken any step to obtain possession of the said land in his capacity as an occupant, until before institution of the proceedings before the Dy. Collector (L.R. ). He instituted the proceedings vide an application dated 2/8/1995 claiming restoration of the land in question. He asserted that the order of the Dy. Collector (Inams) was confirmed by the Assistant Commissioner, Aurangabad and thereafter 4 Writ Petition No. 1779 of 1981 filed by the petitioner Vishwambhar was dismissed by the High Court and as such the declaration of his status as occupant of the land in question was finally determined. 3. The respondent no. 3 – Narayan alleged that the Tahsildar had decided the matter in his favour and direction was issued to hand over possession to him. He, therefore, sought recovery of possession as a result of the final out come of the proceedings under the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954, which had attained finality after dismissal of the Writ Petition NO. 1779 of 1981. The learned Dy. Collector ( L.R. ) allowed the application and issued direction to deliver possession of the land in question to the respondent no. 3 – Narayan. Feeling aggrieved, the petitioners Vishwambhar and Narayan preferred two Appeals under section 90 of the H.T. and A.L. Act. Their Appeals have been dismissed by the M.R.T. 4. Heard learned counsel for the parties and the learned A.G.P. 5. Chiefly, two questions are required to be determined in this petition. They are : (i) Was it competent for the learned Dy. Collector (L.R.) to issue order of eviction 5 under section 98 ( c ) of the HT and AL Act to deliver possession to the respondent no. 3 – Narayan by evicting the petitioners, who were the previous landlords before declaration of occupancy rights in favour of respondent no. 3 – Narayan ? (ii) Whether the proceedings after a long drawn period could be entertained by the learned Dy. Collector (L.R. ) without appropriate explanation regarding the delay when the application was filed by the respondent no. 3 – Narayan on 2/8/1985 though the possession was delivered to the landlords on 13/12/1960 in the previous proceedings instituted under section 45 of the HT and AL Act by them ? 6. There is no dispute about the fact that the petitioners were placed in possession of the leased land on 13/12/1960 as a result of the order rendered by the tenancy Tribunal under section 44 of the HT and AL Act. It appears that tenancy rights of the respondent no. 3 – Narayan were determined because of the requirement of the land for personal and bonafide cultivation by the land holder . The right of the landlord to seek possession under section 44 could be exercised under certain conditions. The tenant also could have reclaimed the said land if cultivation of the land was not being done by the landlord. It is important to note that the respondent no. 3 – Narayan was declared as 6 occupant of the leased land. The declaration of occupancy in his favour had become final as a result of dismissal of the Writ Petition filed by the petitioners ( W.P. No. 1729 of 1981 ). The legal impact of provision of section 3 (h) of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 may be duly appreciated. It is explicit that relation with regard to the Inam land between the Inamdar and the tenant stood extinguished by operation of law w.e.f. 1/7/1960. In other words, the petitioners were not the landlords of the respondent no. 3 – Narayan w.e.f. 1/7/1960. It follows, therefore, that the petitioners were not the landlords as on the day they were actually put into possession by the revenue authority on 13/12/1960. They were deprived of their status as landlords. They were not entitled to seek restoration of possession of the leased land for the purpose of personal cultivation under section 45 of the HT and AL Act. It has come on record that the land was previously a Deshmukh Inam, which came to be abolished under the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. Needless to say, since inception, the entry of the petitioners in the land in question was akin to the possession by an unauthorized person. Though they were previous landlords, yet, they were stripped of such status due to operation of law i.e. Hyderabad Abolition of Inams and Cash Grants Act, 1954. Mr. M.M. Patil (Beedkar) would submit that possession of the petitioners could not be termed as that of “ unauthorized persons ” for the purpose of eviction under section 98 of the HT and AL Act. He seeks to rely on certain observations in “ Bhiva 7 Landge V/s State of Mharashtra and others ” ( 2004 (3) Mh. L.J. – 609 and “ Sandu @ Jamaluddin Madarbhai V/s Maruti “” ( 2005 (1) Mh. L.J. 521. In Sandu @ Jamaluddin, a Single Bench of this Court held that in absence of relationship of landlord and the tenant between the parties, the status of the respondent no. 1 as a tenant under the provisions of the HT and AL Act was not established and, therefore, proceedings under section 98 thereof could not be resorted to by him. It is observed that the Dy. Collector had no power, authority and jurisdiction to entertain the application under section 98 of the HT and AL Act. In Bhiva Landge, the learned Single Judge held that the provisions of the HT and AL Act were not applicable in respect of the lands which were governed by the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. The petitioners did not remain landlords qua the respondent no. 3 – Narayan is discernable from the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. In Sandu @ Jamaluddin, there was specific finding that status of the respondent no. 1 there is was not proved to be that of a tenant due to lack of relationship as landlord and tenant between the contesting parties. In the present case, the respondent no. 3 – Narayan was declared as occupant for the reason that he was originally the tenant of the land in question. He can fall back to the original tenancy rights for the purpose of appropriate relief under the provisions of the HT and AL Act. It need not be reiterated that since the petitioners were no more landlords in relation to the respondent no. 3 – 8 Narayan w.e.f. 1/7/1960, their entry in the land in question was itself illegal. They had no authority to continue the possession after 1/7/1960. In other words, their possession was unauthorized. Hence the tenant could have fallen back on his tenancy rights for recovery of the possession. One can not be oblivious of the fact that there is no separate provision under the Hyderabad Abolition of Inams and Cash Grants Act, 1954 to restore possession in favour of tenant/occupant. Therefore, I find it difficult to countenance the argument that proceedings could not be initiated against the petitioners under section 98 of the HT and AL Act because their possession could not be termed as “ unauthorized possession ” in view of the fact that they were original landlords. 7. The next contention of Mr. M.M. Patil is that the application could not have been entertained after a long drawn period of 25 years after declaration of the occupancy rights in favour of the respondent no. 3 – Narayan. It is true that the application was filed on 2/8/1985. Still, however, it can not be overlooked that the previous litigation under provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 was pending at various levels from time to time and ultimately the finding was confirmed by the High Court while dismissing Writ Petition No. 1779 of 1981 filed by the petitioners. It is conspicuous that somewhere in 1981/1982 the cause of action arose for the respondent no. 3 – Narayan to file application for recovery of the 9 possession. From such date i.e. after 1982 till the date of the filing of the application, the delay can not be termed as unreasonable. It is well settled that ordinarily 3 years period is taken as reasonable one. 8. Mr. M.M. Patil seeks to rely on certain observations in “ Radhu Gauli V/s Mohan Gauli ” ( 2007 (6) Mh.L.J. 117 and “ Mohd. Kavi V/s Fatimabai ” ( 1997 ) 6 SCC 71, it is held that sue motu enquiry under section 84 – C of the HT and AL Act ought to be exercised within a reasonable time. In Radhu Gauli and others, the learned Single Judge held that belated application under section 98 could not have been entertained after 18/19 years. With due respect, there is no warrant to say that the application was filed by the respondent no. 3 – Narayan after the delay of 25 years as such. In fact, his right was crystallized after the dismissal of the Writ Petition filed by the petitioner in or about 1981/1982. Thereafter the respondent no. 3 – Narayan filed the proceedings within a reasonable period and hence though there appears delay from the date of the order rendered by the competent authority under the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954, yet there is no such long drawn delay, in view of the time taken to attend finality to the proceedings. It is also argued by Mr. Patil that Section 98 of the HT and AL Act is not applicable to the proceedings, because relationship between the parties was no more in existence as that of landlord and tenant. It is pertinent to note that jurisdictional issue was not raised before the learned Dy. 10 Collector. More over, as stated before, in the absence of particular provisions under the Hyderabad Abolition of Inams and Cash Grants Act, 1954, the occupant could have fallen back to his original status as a tenant in order to evict the unauthorized possessor. For a moment, even assuming that the application could not be entertained under section 98, then also it can be said that the proceedings are not vitiated because identical power is available under section 59 (a) of the Maharashtra Land Revenue Code, 1966, of which revisional jurisdiction is available to the M.R.T.. So, at the most, it could be treated as erroneous quotation of relevant provisions though the concerned authority had the power to order eviction of unauthorized person from the land in question. 9. For the reasons discussed hereinabove, the petitions are liable to be dismissed. Hence, they are accordingly dismissed with no order as to costs. Rules discharged. [ V.R.KINGAONKAR ] JUDGE knp/WP 2383.91,2384.91