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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 2006 OF 1991
1. Vaijnath s/o Yeshwant Jadhav
Since deceased, by L.R.
Chandrakant s/o Vaijinath Jadhav,
R/o Ghatnandur, Tq. Ambajogai.
2. Vishwanath s/o Yeshwant Jadhav
Since deceased, by L.Rs.
(i) Shivaji w/o Vishwanath Jadhav,
R/o Ghatnandur, Tq. Ambajogai,
District Beed.
(ii) Sambhaji w/o Vishwanath Jadhav,
R/o as above.
(iii)Mathurabai w/o Vishwanath Jadhav,
R/o as above.
3. Smt. Subhadrabai w/o Harischandra Solunke,
R/o Salunkewadi, Tq. Ambajogai,
District Beed.
4. Smt. Bhimabai w/o Annasaheb Shinde,
R/o Gitta Post, Tq. Ambajogai,
District Beed. PETITIONERS
VERSUS
Smt. Afsar Begum w/o Nadimuddin Kazi
Since deceased by L.Rs.
(i) Mumtajoddin s/o Qazi Nidimuddin
Siddiqui, Asstt. M.S.F.C.,
Regional Office, Station Road,
Aurangabad.
(ii) Ajijoddin s/o Qazi Nadimoddin
Serving in the office of M.S.E.
Board, Ambajogai, Dist. Beed. RESPONDENTS
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.....
Mr. B.A. Darak, advocate for the petitioners.
Mrs. M.A. Kulkarni, advocate for the respondents.
…..
[CORAM : V.R. KINGAONKAR, J.]
[DATE : 1st February, 2010]
ORAL JUDGEMENT :
1.
By this petition, the petitioners impugn order
rendered by learned Member of Maharashtra Revenue
Tribunal, Aurangabad, in revision petition No. 13/B/89-
Beed dated 21-09-1990 whereby and whereunder the
revision petition was allowed and the order of the
Appellate Tribunal was set aside. At the same time,
order rendered by the Additional Tahsildar in File No.
83/TNC/Camp/6 on 23-12-1987 was confirmed. The legal
impact of the impugned order is that certificate issued
under section 38E of the Hyderabad Tenancy and
Agricultural Lands Act, 1950 (for short, “the HT&AL
Act”) came to be cancelled.
2. The petitioners are legal representatives of
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deceased Yeshwanta Jadhav. Lands Survey No. 202AA,
admeasuring 9 acres 20 gunthas, Survey No. 189,
admeasuring 1 acre 37 gunthas, situated at village
Ghatnandur (District Beed) were owned by one Naimuddin
Siddiqui. Yeshwanta Jadhav was declared as a protected
tenant of the said lands. Certificate of statutory
ownership was issued in his favour on 01-02-1969. The
landlord was alive at the relevant time. The price fixed
by the Tenancy Tribunal was deposited by Yeshwanta and,
therefore, certificate under section 38 (6) of the HT&AL
Act was issued in his favour on 23-04-1980.
3. The original land owner i.e. Nadimuddin died in
1962 i.e. before issuance of the certificate under
section 38 (6) of the Hyderabad Tenancy and Agricultural
Land Acquisition Act, 1950 (for short, “the HT&AL Act”)
in favour of said Yeshwanta. His two (2) sons
challenged the declaration of statutory ownership in
favour of said Yeshwanta by filing an appeal before the
Deputy Collector (Land Reforms). The learned Deputy
Collector (Land Reforms) held that the appeal was barred
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by limitation and as such, it was dismissed by order
dated 19-04-1971. Feeling aggrieved, they carried the
matter to the revisional Court by filing revision
application No. 108/B/71-Beed. The learned designated
Member of the Maharashtra Revenue Tribunal dismissed the
revision application, by order dated 05-11-1971.
4. The widow of deceased Nadimuddin filed an
application before the Additional Tahsildar, Ambajogai,
challenging the issuance of certificate under section 38
(6) and declaration under section 38E of the HT&AL Act
in favour of said Yeshwanta Jadhav. Her main contention
was that said Yeshwanta Jadhav was never the tenant in
respect of the land bearing Survey No. 202AA,
admeasuring 9 acres 20 gunthas, owned by deceased
Nadimuddin. She alleged that the said land was wrongly
shown to be holding of said Yeshwanta Jadhav. Her
contention was that Yeshwanta Jadhav could not be
regarded as protected tenant of the said land and the
entry in the final register of the protected tenants was
only in respect of another land i.e. Survey No. 189, but
there was no declaration as such in respect of land
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Survey No. 202AA in favour of said Yeshwanta Jadhav.
The chief bone of contention was that there was error
while issuing the certificate under section 38 (6) and
it was issued inclusive of land Survey No. 202/AA
notwithstanding the fact that the said land was not
declared to Yeshwanta Jadhav under provisions of section
34 of the HT&AL Act. The application was dismissed by
the learned Additional Tahsildar, Ambajogai. The Deputy
Collector (L.R.), however, allowed the appeal preferred
by deceased respondent Afsar Begum i.e. widow of the
deceased landlord – Nadimuddin. The learned Deputy
Collector (L.R.) by order dated 20-01-1983 directed that
the Additional Tahsildar shall inquire about grievances
of deceased Afsar Begum and to decide whether said
Yeshwanta Jadhav was a protected tenant and was entitled
to be declared as such under section 37-A of the HT&AL
Act. The enquiry revealed that name of Yeshwanta Jadhav
was not shown in the register of tenants. He was never
shown to be the protected tenant while preparing the
register of protected tenants. It was found by the
learned Additional Tahsildar that there was mistake
caused while issuing the certificate under section 38
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(6) and though Yeshwanta Jadhav was not shown as a
protected tenant in the final P.T. register, yet, his
name was introduced as statutory owner while issuing the
said certificate. Therefore, by order dated 23-12-1987,
the Additional Tahsildar held that the certificate was
invalid. He came to the conclusion that error caused in
the issuance of certificate could be rectified. Hence,
he directed deletion of the entry pertaining to Survey
No. 202AA from the relevant certificate issued under
section 38 (6) of the HT&AL Act.
5. The petitioners preferred appeal which was
allowed by the learned Deputy Collector (L.R.), Beed by
judgement dated 30th December, 1988. The learned Deputy
Collector held that the civil Court had dismissed the
suit filed by the legal heirs of the deceased land owner
i.e. Nadimuddin for declaration that the statutory
ownership granted in favour of Yeshwanta Jadhav was
illegal. The learned Deputy Collector further held that
though deceased Nadimuddin had knowledge about the
judgement rendered by the Maharashtra Revenue Tribunal,
yet, he had not preferred any application for
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cancellation of the declaration during his lifetime.
The learned Deputy Collector held that the application
for rectification of the declaration was untenable and
as such, the judgement and order rendered by the
Additional Tahsildar was unsustainable. Consequently,
the appeal was allowed. Feeling aggrieved, deceased
respondent Afsar Begum preferred revision application
(Revision No. 13/B/89-Beed). Her revision application
was allowed by the Maharashtra Revenue Tribunal on
21-09-1990. The petitioners are challenging the said
judgement rendered by the Maharashtra Revenue Tribunal.
6. Mr. Darak would submit that finality is
attached to the declaration made under section 38E and
the same could not be challenged by deceased respondent
– Afsar Begum after lapse of a considerable period. He
would submit that the earlier round of litigation was
initiated by the sons of deceased Nadimuddin after
attaining majority and when they lost the legal battle,
the mother was instigated to re-commence the same
objection to the declaration. He would submit that the
learned Additional Tahsildar and the Maharashtra Revenue
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Tribunal committed patent error while invalidating the
certificate issued under section 38 (6) after gap of
many years and particularly when deceased Nadimuddin had
not challenged the said certificate during his life-
time. Mr. Darak contended that the Maharashtra Revenue
Tribunal exceeded revisional jurisdiction while allowing
the revision application when the view taken by the
learned Deputy Collector (L.R.) could be regarded as
legal and proper. He urged, therefore, to allow the
petition and set aside the impugned judgement. Per
contra, Mrs. Kulkarni submitted that there was basic
mistake in issuance of the certificate when land Survey
No. 202AA was incorporated therein without there being
declaration in favour of Yeshwanta Jadhav regarding his
tenancy. She submits that the mistake could be
rectified at any time because the certificate could not
have been issued without there being declaration of
status of Yeshwanta Jadhav as a protected tenant. She
contended that the challenge is not to the certificate
as such, but the challenge is regarding the foundation
to the certificate. In other words, her main contention
is that without initial declaration of tenancy rights in
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favour of Yeshwanta Jadhav and without his name
appearing in the register of protected tenants, the
certificate could not have been issued under section 38
(6). She would submit that the earlier orders rendered
against the two sons of deceased Nadimuddin could not be
treated as res judicata because their appeals were
dismissed only on technical ground i.e. for the reason
that it was held as barred by limitation. She submits
that the grounds for challenge of the certificate by
deceased respondent – Afsar Begum are totally different
and as such, she was not bound by the outcome of the
earlier litigation in this context. Hence, Mrs.
Kulkarni urged to dismiss the petition.
7. Before I proceed to consider the rival
submissions, it may be useful to examine the procedure
required to be followed for the purpose of deciding
questions arising in respect of purchase of land by
tenant and compulsory transfer of ownership to tenants.
For this purpose, Rule 14 of the Hyderabad Tenancy and
Agricultural Lands Rules, 1958 (for short, “the HT&AL
Rules”) may be considered. It contemplates the Tenancy
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Tribunal to prepare a provisional list in Form VIII
containing :
(1) the names of such tenants as may be deemed
to be protected tenants under section 37A,(2) the extent of land held by such tenants.
(3) the names of the landholders of such
tenants; and(4) the total area of land owned by such
landholders including the land under
cultivation of their tenants.
Sub-Rule (2) of Rule 14 makes it incumbent that the
provisional list prepared under sub-rule (1) shall be
published by affixing a copy thereof to the notice board
in the village chavdi. The provisional list needs due
publication and thereafter, objections can be filed by
the concerned persons. Thus, if name of a person is
deleted from such provisional list and he claims to be a
tenant of a particular land, then he may raise objection
regarding such omission of his name from the provisional
list. So also, if name of a person is erroneously
included in such a provisional list, the land-
owner/land-lord may raise objection about such entry in
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the provisional list on the ground that the person whose
name is shown in the list is not a protected tenant.
These objections are required to be considered summarily
inquired into before finalisation of the list of
protected tenants.
8. The compulsory transfer of ownership to tenants
may be effected by following Rule 23. Sub-Rule (1) of
Rule 23 reads as follows :
“(1) After the issue of a notification under
section 38F the Tribunal shall cause summaryenquiries to be made in respect of land held by
tenants deemed to be protected tenants under
section 37A and their landholders and shall
prepare a list in Form XV of such protectedtenants and the description tenant is deemed to
be the full owner under section 38F.”
A careful reading of sub-Rule (4) of Rule 23 will make
it manifestly clear that the certificate in Form XVI to
each of the protected tenants shall be issued after
declaration of a final list under sub-Rule (3). The
procedure contemplated under the Rules, therefore,
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requires preparation of a provisional list in Form VIII,
publication of the list, calling of the objections, if
any, summary hearing of the objections and thereafter,
preparation of final list of protected tenants as
envisaged in Rule 23 (3).
9. The question whether deceased Yeshwanta Jadhav
was a protected tenant or he was not a tenant in respect
of land Survey No. 202AA falls within exclusive domain
of the Tenancy Tribunal. The issuance of the statutory
ownership certificate is a ministerial act. Mr. Darak
invited my attention to certain observations in
“Bharatlal s/o Hemraj v. Kondiba Govinda Jadhav and
others” 2001 (3) Mh.L.J. 380. A Single Bench of this
Court held that declaration under section 38E is not a
decision or order within the meaning of section 90 of
the HT&AL Act and, therefore, no appeal against such
certificate is maintainable. It is observed that
issuance of the certificate in Form XVI in favour of a
protected tenant is only ministerial act which has to be
executed as a result of the final outcome of the enquiry
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contemplated under Rule 23 of the HT&AL Rules. The
learned Single Judge held that such certificate is not a
decision or adjudication of the rival contentions of the
parties and, therefore, it cannot be treated as
appealable order. Similar view is expressed in “Kishan
s/o Ganpati Muley deceased L.Rs. Indrabai w/o Kishanrao
Muley and others v. Abdul Razak s/o Abdul Kadar and
others” 2005 (4) Mh.L.J. 180.
10. Question involved in the present petition is
not whether the certificate issued under section 38 (6)
was amenable to appellate jurisdiction, or that it is
un-assessable if it is issued after due enquiry. The
real question is whether the certificate could be issued
when name of deceased Yeshwanta Jadhav was not shown in
the provisional list of protected tenants, drawn in Form
No. VIII as required under Rule 14, nor it was shown in
the final list of the protected tenants as required
under Rule 23, provided in Form XV and, therefore, the
rectification could be effected by the Tenancy
Tribunal ?
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11. The expression “protected tenant” is defined
under section 2 (r) of the HT&AL Act to mean a person,
who is deemed to be a protected tenant under the
provisions of sections 34 to 37A Chapter-IV of the Act
refers to “protected tenant” to mean that a person,
subject to the provisions of sub-section (2) (3) of
section 34, as deemed protected tenant if he has held
the land as a tenant continuously for a period of not
less than six (6) years, being a period wholly included
in the Fasli years 1342 to 1352 (both years inclusive)
or for a period of not less than six years immediately
preceding the first day of January, 1948, or for a
period of not less than six years commencing not earlier
than the 1st day of the Fasli year 1353 (6th October,
1943) and completed before the commencement of this Act.
The Act further provides for a scheme to decide disputed
questions regarding dispute raised about status of a
protected tenant. The dispute ought to be raised within
one year from the commencement of the Act as
contemplated under section 35 and is required to be
decided by the Tahsildar. Mr. Darak would submit that
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when there was no such dispute raised within period of
one year after commencement of the Act, the status of
the deceased tenant – Yeshwanta Jadhav could not be
lateron challenged and, therefore, the impugned order is
unsustainable. It is pertinent to notice that status of
deceased Yeshwanta Jadhav was not that of a protected
tenant declared under section 34 of Chapter-IV. There
was no occasion to raise dispute under section 35 for
want of compliance of the definition of expression
“protected tenant” under section 34 of Chapter-IV. It
is pertinent to note that section 8 of the HT&AL Act
empowers the Tahsildar to decide question whether a
person is tenant or not. Therefore, when the landlord
opposes status of a person claiming to be tenant, the
Tahsildar can decide that matter in the same
proceedings. In the present case, there is no such
adjudication order placed on record. There is also no
extract of the register maintained under sections 37A
and 38E of the HT&AL Act which indicates inclusion of
the name of deceased Yeshwanta Jadhav in the relevant
register of protected tenants.
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12. Section 37-A (2) reads as follows :
“37-A. Persons holding land as tenant at the
commencement of the Hyderabad Tenancy and
Agricultural Lands (Amendment) Act, 1955, to bedeemed to be protected tenants :
(1) *****
(2) The rights as a protected tenant of aperson deemed under sub-section (1) to be a
protected tenant shall be recorded int heRecord of Rights, or where there is no Record
of Rights in such village record as may beprescribed.”
A plain reading of section 37-A would make it amply
clear that deeming effect is given to tenancy of a class
of persons in possession of tenanted land. The rights of
a protected tenant are required to be entered in the
Record of Rights. The fact situation in the present case
is that rights of deceased Yeshwanta Jadhav were not
recorded in the Record of Rights as contemplated under
section 37-A (2) nor in the provisional list in Form-VII
required to be prepared under Rule 14 nor his name was
shown in the final list of protected tenants which is
required to be drawn in Form XV under Rule 23 (1) of the
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HT&AL Act. On behalf of the respondents, an extract of
the relevant register of protected tenants is placed on
record. It appears that name of deceased Yeshwanta
Jadhav was shown only in relation to land bearing Survey
No. 189, admeasuring 1 Acre 37 Gunthas. The deceased
respondent (Afsar Begum) had filed copies of Pahani
Patrak from 1950 to 1956 alongwith a certificate issued
by the Tahsildar which clearly showed that name of said
Yeshwanta Jadhav was not recorded in the register of
protected tenants. On perusal of the entries in the
Pahani Patraks, it can be gathered that he was not shown
as tenant of the land owned by deceased Nadimuddin. His
name appeared in the Pahani Patrak for the year
1953-1954 for the first time, as a tenant of Pattedar
Mohammad Jamrudbi of the entire land Survey No. 202.
Amongst various sharers of the said land, Pattedar
Mohammad Jamrudbi was one of the co-sharers and her
share was being cultivated by deceased Yeshwanta Jadhav.
The land Survey No. 202AA was not shown to be in his
actual possession as a tenant. It is quite clear,
therefore, that erroneously the certificate was issued
to him under section 38 (6) on totally wrong assumption
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that he was a protected tenant in respect of Survey No.
202AA.
13. Mr. Darak would submit that when the two (2)
sons of deceased Nadimuddin had lost the legal battle
when they had challenged the certificate under section
38 issued in favour of Yeshwanta Jadhav and the order
rendered by the Maharashtra Revenue Tribunal in case No.
108/B/71-Bhir on 5th November, 1971 had become final, the
same issue could not be re-agitated by deceased
respondent – Afsar Begum. He would submit that now the
unsuccessful litigants i.e. the two sons of deceased
Nadimuddin will be the real beneficiaries of such orders
rendered by the revenue Tribunals including Maharashtra
Revenue Tribunal in the next round of litigation
initiated by the deceased respondent – Afsar Begum
because they are her legal representatives. He argued
that those who had lost their claims on previous
occasion will now emerge as successful litigants if the
impugned order is maintained. He submitted, therefore,
to set aside the impugned judgement.
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14. The contentions of Mr. Darak may prima facie
appear to be attractive. However, on merits, it is
difficult to accept his submissions. The application
filed by the two sons of deceased Nadimuddin was
dismissed due to bar of limitation. The deceased
respondent – Afsar Begum was not a party to the said
proceedings, nor there was any decision rendered on
merits. Hence, such decision cannot be treated as res
judicata. For, there was no finding rendered on merits.
15. Mr. Darak seeks to rely on certain observations
in “Mohammad Kavi Mohamad Amin v. Fatmabai
Ibrahim” (1997) 6 SCC 71. He would submit that though
no time-limit was prescribed for exercise of power under
section 8 of the HT&AL Act, yet, the application filed
by deceased respondent Afsar Begum could not be
entertained after lapse of many years. In the given
case, suo motu enquiry was started by the Mamlatdar
somewhere in September, 1973 in respect of the transfer
which had taken place in 1972. The Apex Court held that
the suo motu power under section 84-C of the Bombay
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Tenancy and Agricultural Lands Act, 1976 was not
exercised by the Mamlatdar within a reasonable time.
The facts of the given case are on different footings.
In the present case, the statutory ownership certificate
was issued in favour of deceased Yeshwanta Jadhav even
though he was not declared as a protected tenant of land
Survey No. 202AA and his name did not appear in the
relevant register. His name was surreptitiously entered
and mistakenly, the certificate of statutory ownership
was issued in his favour without any basis. Obviously,
such inherent defect could be rectified at any time.
There is no bar of limitation in case the decision is
rendered without any legal basis, by mistake or fraud.
In “Bachan and another v. Kankar and others” (AIR 1972
S.C. 2157), the Apex Court held that a person cannot be
conferred adhivasi rights on basis of an entry
incorrectly introduced in the Record of Rights in his
favour. It is observed :
“The High Court wrongly held that though the
entry was incorrect it could not be said to be
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that an entry which is incorrectly introduced
into the records by reason of ill-will or
hostility is not only shorn of authenticity but
also becomes utterly useless without any lawful
basis.”
16. The entry of the name of deceased Yeshwanta
Jadhav in the subsequent record for declaring him as
person entitled to become statutory owner under section
38-C of the HT&AL Act must be regarded as fictitious,
unfounded and useless. The Maharashtra Revenue Tribunal
usefully referred to observations of this Court in
“Vyankatesh Deshpande v. Kusum Kulkarni” (1976 Mh.L.J.
373). A Division Bench of this Court held that the acts
of the revenue officer, or order which can be termed as
invalid and withut jurisdiction would be nullity. So,
it is not necessary for anyone to object such order or
act for setting aside the same. The null and void act
can be challenged in any proceedings. Obviously, when
the declaration of statutory ownership under section 38
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(6) could not be granted in favour of deceased Yeshwanta
Jadhav, for the reason that he was totally ineligible to
claim status of protected tenant, in respect of the land
survey No. 202AA, the certificate can be regarded as
non-est in the eye of law. Needless to say, whether the
legal representatives of deceased respondent – Afsar
Begum became ultimate beneficiaries of the impugned
decision, though had lost the challenge to such order in
the past, is of no much significance. Once it is found
that the certificate issued in favour of said Yeshwanta
Jadhav is null and void, there hardly appears any
substantial error committed by the learned designated
Member of the Maharashtra Revenue Tribunal. The impugned
order is, therefore, legal and proper.
17. In the result, the petition is dismissed. No
costs.
[ V.R. KINGAONKAR ]
JUDGE
NPJ/wp2006-91
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