1 wp473.00 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 473 OF 2000 Mesaji S/o Laxman Ubare, Age : 70 years, Occ : Agril., R/o Budh Wada, at post and Tal. Basmath, Dist. Hingoli. ..PETITIONER -VERSUS- 1. Dr. Ramchandra S/o Laxminarayan Toshniwal, age : 56 years, Occ : agril and medical practitioner, r/o Mondha, Basmath Nagar, at Post. and Tal. Basmat, Dist. Hingoli. 2. Ashok S/o Waman Dubbewar, age : 39 years, Occ : agril., R/o Shankar Peth at and post Basmath, Tq. Basmath, Dist. Hingoli. 3. Gynoba S/o Satwaji Chaure, since deceased through L.Rs. 3a. Ramrao S/o Gyanobarao Chaure, age : 58 years, Occ : agril., r/o Shamnagar, at Nanded, Tal. & Dist. Nanded. 3b. Shivajirao S/o Gyanobarao Chaure, age : 45 yeas, Occ : service at Purna Shetkari Sakhar Karkhana, Basmathnagar, Tal. Basmath, Dist. Hingoli. 3c. Jagannath Gyanobarao Chaure, age : 43 years, Occ : Agril., R/o Indira Co-op. Hsg. Society Ltd., at Nanded, Tal. & Dist. Nanded. 3d. Venkat S/o Gyanobarao Chaure, age : 40 years, Occ : agril., r/o Indira Co- operative Hsg. Society Ltd., at Nanded, Tq. & Dist. Nanded. 3e. Sheshikalabai W/o Wamanrao Pakhne, age : 61 years, Occ : 2 wp473.00 household, R/o at post Gaur, Tal. Purna, Dist. Hingoli. 3f. Sumanbai W/o Raghunathrao Dube, age : 50 years, Occ : household, R/o Gokulnagar, at Nanded. 4. Digambar S/o Jaiwant Chaure, Age : 51 years, Occ : Agirl., r/o Jawle Tarfe, Babhulgaon Post. Tal. Basmath, Dist. Hingoli. 5. Gangadhar Dnyaneshwar Sadhu, age : 50 years, Occ : R/o Mangalwar Peth, at Basmath, Dist. Hingoli. 6. Mrs. Suvarnalata Gangadhar Sadhu, age : 45 years, Occ : Household, r/o Mangalwar Peth, at Basmath, District Parbhani. RESPONDENTS ..... Mr. V.D. Sapkal, Advocate for petitioner. Mr. S.M. Kulkarni, Advocate for Respondent Nos. 3A, 5 and 6. Mr. V.D. Salunke Advocate for respondent no.1. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 4th MAY, 2011. 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 3 wp473.00 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 4 wp473.00 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. 5 wp473.00 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 deeds as already mentioned above. According to him, after coming into force the notification under Section 38E, the father of petitioner became owner and therefore, thereafter there could not have been any sale deed by earlier land owners either in favour of respondent no.1 or respondent nos. 2 and 3. The consideration by Maharashtra Revenue Tribunal is therefore urged to be totally erroneous. It is argued that Section 98 which provides for summary 6 wp473.00 eviction does not deliberately contain any period of limitation and the finding by Maharashtra Revenue Tribunal that application filed in the year 1988 was not maintainable, is therefore misconceived. The finding that he ought to have filed application under Section 32(1) of 1950 Act within a period of two years is also assailed on the ground that the petitioner was not tenant after 01.02.1957. 6. To demonstrate that there is no time limit deliberately prescribed in scheme of Section 98 attention has been invited to the judgment of this Court reported at "2010(6) Bom.C.R. 124"- Kisan Sayaji Shelke V/s Madhukar Mohan Deshpande and others. Similarly, the judgment reported at "2010(2) Bom.C.R. 739"- Limbaji Shankar Mundhe (Deceased) Through L.Rs. & ors. V/s Bhaurao Baliram Munde (Deceased Through L.Rs.) and others is also pressed into service to show how the remedy under Section 98 is only available remedy and the bar of limitation is not attracted. Judgment of the Hon'ble Apex Court reported at "1998 (1)Bom.C.R. 786"- Uttam Namdeo Mahale V/s Vithal Deo and others, particularly paragraph no.14, is also relied upon to urge that when there is absence of any specific limitation in a provision by necessary implication it follows that general law of limitation provided in Limitation Act stands excluded. According to learned Counsel therefore, the finding of Maharashtra Revenue 7 wp473.00 Tribunal in this respect is misconceived. Judgment of this Court reported in "1991 Law Suit (Bom) 234"- Eknath S/o Raghoba V/s Somla S/o Lalu Lamani is also pressed into service for the same purpose. It is urged that similar contentions raised are looked into by this Court there and this Court has found that those contentions misconceived. Discussion on scope of Section 98 therein is also relied upon to support the case of the present petitioner. 7. Mr. Kulkarni, learned Counsel appearing for Respondent no.3 A, 5 and 6 has contended that entry in relation to father of petitioner as protected tenant was deleted way back in 1959-60. Provisions of Section 38, 38E or 38G do not provide for any remedy to him in this connection. As petitioner was attempting to recover possession, he ought to have move application under Section 32(1) only and that application can be filed within two years of the alleged dispossession. He further states that admittedly sale deeds have been executed in favour of the respondent no.1, 2 and 3 and original land owner has lost title to that property. Provisions of Section 98 are pressed into service in this connection to show that possession of such purchaser can not be viewed as unauthorised in this background. 8 wp473.00 8. Without prejudice to the contention that remedy under Section 32(1) is the only available remedy in such circumstances and the provisions of Section 98 are not applicable, the learned Counsel has urged that in any case action under Section 98 also ought to have been initiated within reasonable time. To support this contention, the reliance is placed upon the judgment of the Hon'ble Apex Court reported at "2007(9) SRJ 545" (Mahabir Singh V/s Subhash and others, Judgment of this Court reported at "2009(5) Mh.L.J. 442"-Waman Atmaram Lavand and another V/s Dattatraya @ Dattu Baba Lavand and others, judgment of the Hon'ble Apex Court reported at "2010 (2) Mh.L.J. 150"- Santoshkumar Shivgonda Patil and others V/s Balasaheb Tukaram Shevale and others" and the Judgment of learned Single Judge of this Court reported at " 2007(6) Mh.L.J. 117"- Radhu Gokul Gawali and others V/s Mohan Kishan Gawali and others. It is contended that this judgment considers the provisions of Section 32 and Section 98 of 1950 Act and is in favour of the present respondents. Judgment of the Hon'ble Apex Court reported at (1997) 6 Supreme Court 71"- Mohamad Kavi Mohamad Amin V/s Patmabai Ibrahim is also relied upon for very same purpose. 9. To point out the scope and limits of jurisdiction of this Court under Article 227 of the Constitution of India, reliance is 9 wp473.00 placed upon the judgment of the Hon'ble Apex Court reported at "2010 (9) SCC 385"- Jai Singh and others V/s Municipal Corporation of Delhi and another and " 2009(5) SCC 616"- Radhy Shyam and other V/s Chhabi Nath and others. 10. Lastly without prejudice to these arguments, it is contended that the respondent nos. 5 and 6 are subsequent purchasers, who have been added for the first time before this Court as party respondents and as they did not get any opportunity in the case, this Court if inclined to interfere, the matter should be remanded back to the trial Court namely Deputy Collector. 11. In the alternative, it is also requested that if any adverse order is passed, its operation and execution should be stayed for a period of three months to enable the respondents to take further appropriate steps in the matter. 12. Advocate Mr. Salunke for respondent no.1 has adopted the arguments of Advocate Mr. Kulkarni. He has invited attention to the provisions of Section 32(1)(2) and to Explanation of Section 38A(1) to urge that these are the only two provisions made by Legislature for recovery of lands by tenant. According to him, Section 98 is a provision for eviction of unauthorised persons and it 10 wp473.00 is not a remedy for dispossessed tenant to recover possession. He states that procedure as contemplated by Section 98A or to 98C needs to be followed while undertaking inquiry under Section 98. He reiterate that as in the present matter transfer in favour of respective respondents is valid, there can not be any recourse to Section 98. He therefore prays for dismissal of Writ Petition. 13. I find that the petitioner had moved two separate applications before the Deputy Collector under Section 98 of 1950 Act. In the application he contended that his father namely Laxya was the protected tenant of the entire land admeasuring 17 A and 18 R and it was so recorded in tenancy rights. He then pointed out that after death of his father in 1959 his name was mutated vide entry no. 18 on 04.03.1959 and he became protected tenant. He continued in possession till he was dispossessed by the respondents in 1978-79 after obtaining illegal mutation entries 101, 124 and 123. Consideration of this aspect by Deputy Collector is important. The Deputy Collector has perused abstract of copy of tenancy register and noted that Laxya son of Gundya (father of petitioner) was declared as protected tenant as per entries therein. Pahani Patrak for the year 1958-59 is also perused to note that present petitioner cultivated the land in his capacity as successor of protected tenant. Village form No. VII, XII in the year 1958-59 11 wp473.00 and 1960-61 are also looked into to note that the petitioner cultivated the suit land but thereafter his name disappeared from the cultivation column. The Deputy Collector noted that this prove that petitioner cultivated the suit lands in his capacity as protected tenant. In other matter, on different date Deputy Collector has recorded same findings. The matter was then looked into by the Maharashtra Revenue Tribunal in appeal and the Maharashtra Revenue Tribunal has found that name of Laxya was recorded as protected tenant in tenancy register and his name also appeared in other right column in Pahani Patrak and 7/12 extracts. After his death his son inherited tenancy rights in respect of land survey nos. 9/A and 9/2 as per revenue records. Maharashtra Revenue Tribunal also noticed that name of the petitioner was removed by Talathi from the column of cultivation in the year 1961-62 under mutation entry 125. Thus, both the authorities namely Deputy Collector and Maharashtra Revenue Tribunal have found that earlier Laxya and after Laxya present petitioner was cultivating the lands as protected tenant till 1960-61. 14. The provisions of Section 38E came into force and accordingly, the notification extending the same to Parbhani District was issued on 01.02.1957 is not in dispute. It is necessary to refer to said provision along with other provisions because of 12 wp473.00 contentions of other side that provisions of Section 98 of the 1950 Act are not available to petitioner. Section 38E begins with non- obstante clause and it overrides all provisions in Chapter IVA of 1950 Act. It also supersedes any law in force or any custom, usages, decree, contract or grant to the contrary. It stipulates that from the date of notification published by the State Government, the protected tenants become the full owners of the lands. This needs to be viewed in the light of provisions of Section 38(1) which also is placed in Chapter IVA. Section 38(1) again begins with non- obstante clause and it supersedes anything to the contrary in law usages or contract. However, it is made subject to provisions of sub-section 7. Thus, 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 38E 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 38E. Proviso to this opening part then subjects such 13 wp473.00 transfer to condition (a) and (d) mentioned in sub-section 7 of Section 38 i.e. about area or extent of which ownership can be acquired. Sub-section 3 of Section 38E 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 38E tenant becomes owner even against his wish and obligation is cast upon the land owner to apply for determination of market price. For the purposes of present discussion, it is not necessary to this Court to go into more details in this respect. Then but attention can be invited to the judgment of Division bench of this Court in "Ganpat Sakharam Deshmukh V/s Yeshwant Digambar Deshmukh" reported in 2000 (1) Mh.L.J. 126 where after noticing the said difference, the Division Bench held that deposit of purchase money is not condition precedent for issuance of ownership certificate under Section 38E(2) and that purchase can become ineffective only in eventuality specified in sub- section (3). 15. It is therefore apparent that at the time of death in 1959, the father of the present petitioner Laxya was not the tenant but was the owner of the suit lands. It is again therefore clear that 14 wp473.00 after his death present petitioner become owner of those lands. In other words, the original owners ceased to have any ownership rights on those lands and consequently purchasers from them, therefore, do not derive any ownership, These subsequent purchasers are respondents before this Court. 16. Perusal of the provisions of Section 32 of the 1950 Act relied upon by the Maharashtra Revenue Tribunal to conclude that the remedy under Section 98 is not available to the petitioner now becomes necessary. Here, it needs to be mentioned that Maharashtra Revenue Tribunal has not found that application under Section 98 of the 1950 Act needs to be moved within reasonable time. It has found that remedy under Section 98 is not available to the petitioner and he ought to have filed application under Section 32(1) only. Section 32(1) gives remedy for taking possession. The remedy is given to a tenant or an agricultural labourer or artisan. The discussion above clearly shows that on the date of alleged dispossession the present petitioner was not a tenant and hence, remedy under Section 32 was not available to him. It therefore follows that reason given by the Maharashtra Revenue Tribunal for holding that remedy under Section 98 is not available to the petitioner falls to ground and that being the only reason, remedy under Section 98 must be held to be available to 15 wp473.00 him. However, in view of the other contentions raised by the respondents before this Court the controversy is required to be looked into in more details. 17. The provisions of Section 38 which gives option to protected tenant to purchase land does not contemplate situation where such protected tenant is not in possession. Section 38 E with which this Court is concerned, vide its Explanation provides a remedy to protected tenant if he is not in possession of the land on the date of notification and his dispossession is otherwise then in manner and by order of Tahsildar as provided in Section 32. Explanation itself contemplates that such a tenant shall be deemed to have been holding the land on the date of notification and the Tahsildar has been given powers to pass appropriate orders for restoring actual possession. Thus, again this deeming fiction for possession is for the purposes of operation of main clause 38 E which statutorily transfers ownership to that tenant. Thus, when landlord has taken or procured both lands contrary to the provisions of Section 32, and therefore, the protected tenant is found not in possession on the date of notification, legi has taken precaution to confer the statutory ownership upon him and for restoration of his physical possession. Here, on 01.02.1957, father of petitioner was very much alive and was in cultivating 16 wp473.00 possession, therefore, this Explanation does not provide any remedy to him. Section 46 is also a provision in 1950 Act which enables tenant to approach the Tahsildar for recovery of possession but then that operates only when the landlord who after termination of tenancy under Section 44 or Section 44A, does not within one year of resumption of possession, start personal cultivation. That remedy therefore is again not available to the present petitioner. 18. Advocate Mr. Salunke has relied upon the provisions of Section 98A, 98B, 98C for contending that petitioner could have taken recourse to said provisions. Section 98A is for validation of alienation made before 1st day of December, 1957. It speaks of contravention of any of the provisions of Section 38D or of Chapter V as it stood before the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1957. Provisions of Section 38D are already deleted from statute book and provisions of Chapter V imposes restrictions on transfer of agricultural lands. It is not the case of any of the parties that there was any alienation before 1st day of December, 1957 which violated either Section 38D or then Chapter V. Section 98 B speaks of alienations between 1st December, 1957 and the date of commencement of above mentioned Amending Act, 1957. Those transfers are 17 wp473.00 declared invalid. Again as it is not the case of parties that before coming into force the said Amending Act, 1957 there were any such transfers. Hence, the said provision is not relevant. Section 98C lays down procedure to be followed by the Tahsildar for declaration & disposal of lands whose alienation, transfer or acquisition is found invalid. Thus, if alienation is found invalid, the land forming its subject matter can be disposed of in terms of Section 98C. The application for that purpose can be moved by any person having interest in the land and after enquiry as provided in Section 98B, the Tahsildar can decide whether alienation, transfer, acquisition is or is not invalid. Therefore, it has to be shown that there was some transfer or alienation not permitted by the provisions of 1950 Act and the action was solicited in relation to that transfer. Section 98C(1) provides for validation of certain transfers made before 9th July, 1965. Again its bare perusal shows that it has got reference to provisions of Section 38D or then provisions of Chapter V as they stood before commencement of Hyderbad Tenancy and Agricultural Lands (Amendment) Act, 1965 and such permanent alienation should be before 9th day of July, 1965. The said provisions therefore again has no application. Perusal of Section 98 reveals that it does not contemplate moving of any application and it only states that any person unauthorisedly occupying or wrongfully in possession of any land can be 18 wp473.00 summarily evicted by Collector. Three contingencies in which such eviction is permitted are laid down in its clauses (a), (b) and (c). Clause (a) stipulates that if transfer of such land either by act of parties or by the operation of law is invalid under the provisions of 1950 Act, summary eviction is possible. If the management of said land was assumed under 1950 Act, then again summary eviction is possible. Clause (c) stipulates that if such person is not entitled to use or occupy the said land and if Act of 1950 does not expressly provide a remedy for his eviction, he can also be summarily evicted. Here, as already noted, in view of the statutory vesting of ownership in protected tenant under Section 38E, there is no question of its transfer by erstwhile land owner to any third person. Therefore, transfer by such owners who have lost title to that land is not legal. As 1950 Act does not envisage such transfer, there is no express provision in it declaring it to be illegal. Clause (b) has no application here. The respondents who have purchased the lands from such erstwhile owners therefore do