(1) WP. 246.1993
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 246 OF 1993
AND
CIVIL APPLICATION NO. 2784 OF 2008 IN W.P.246 OF 1993
Malhari S/o Amruta Surnar
deceased through Legal heirs
1] Haribai Malhari Surnar
Age : Major, Occu.: Household,
R/o Makani, Tal. Gangakhed,
Dist. Parbhani
2] Mahipati S/o Malhari Surnar,
Age : Major, Occu.: Agri.,
R/o as above
3] Tukaram S/o Malhari Surnar,
Age : Major, Occu.: Agril.,
R/o As above
4] Indrabai d/o Malhari Surnar,
Age : Major, Occu.: Household,
R/o As above
5] Malanbai d/o Malhari Surnar,
Age : Major, Occu.: Household,
R/o As above .. Petitioners
VERSUS
1] Ranganath Amruta Kachave
died through legal heirs:
1-A] Rajaram S/o Rangnath Kachave,
Age : 30 years, Occu. : Agril.
Resident of Daithana, Taluka and
District : Parbhani
1-B] Govind S/o Rangnath Kachave,
Age : 28 years, Occu.: Agri.,
Resident of Daithana, Taluka
and District Parbhani
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(2) WP. 246.1993
1-C] Dnyandeo S/o Rangnath Kachave,
Age : 26 years, Occu.: Agri.,
Resident of Daithana, Taluka and
District Parbhani
1-D]Smt. Sushilabai w/o Rangnath Kachave,
Age : 60 years, Occu.: Agri.,
Resident of Daithana, Taluka and
District Parbhani
1-E]Kalavati w/o Baliram Naik,
Age : 33 years, Occu.: Household,
Resident of Mali Galli, Pathari,
Taluka Pathari, District Parbhani
1-F]Nilawati Shivaji Lad,
Age : 35 years, Occu.: Household,
Resident of Jamb, Taluka and
District Parbhani
1-G]Geeta w/o Dnyanoba More,
Age : 37 years, Occu.: Household,
Resident of Pimpalgaon, Taluka Purna,
District Parbhani
(Legal heirs of deceased respondent no.1
brought on record vide Court's order dt.
5.8.2003, passed in C.A. 2203 of 2003)
2] The Deputy Collector,
Land Reforms, Parbhani .. Respondents
Mr. M.V. Deshpande, Advocate h/f. Mr. C.K. Shinde,
Advocate for the Petitioners
Mr. A.S. Deshmukh, Advocate for respondent nos.1(A) to
1(G)
Mr. D.R. Korde, AGP for the respondent no.2-State
...
CORAM : V.R. KINGAONKAR, J.
DATE OF RESERVING
THE JUDGMENT : 16TH JUNE, 2010
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(3) WP. 246.1993
DATE OF PRONOUNCING
THE JUDGMENT : 23RD JUNE, 2010
JUDGMENT:-
1] Challenge in this Petition is to judgment
and order dated 17.7.1992 rendered by learned Member
of the Maharashtra Revenue Tribunal, Aurnagabad, in
Revision Petition no. 106-B-91-P and to the judgment
and order dated 27.6.1991 passed by the Deputy
Collector, Land Reforms, Parbhani in Tenancy Appeal
no. 1981/TNC/A/48.
2] There is a checkered history to the tenancy
litigation between the parties to the Petition. The
period of litigation looms over a period of about 40
years. The petitioners are legal representatives of
deceased Malhari Amruta Surnar. He was admittedly
declared as a protected tenant of agricultural land
bearing survey no.22, to the extent of 21 acres area,
situated at village Makni under Gangakhed Tehsils as
per provision of Section 38-E of the Hyderabad
Tenancy and Agricultural Lands Act, 1950 (For short
“H.T. and A.L. Act”). Originally, land survey no. 22
was owned by one Rajaram S/o Niloba from whom
deceased respondent no.1 Rangnath Amruta Kachave
claimed the ownership rights. Said respondent no.1
Rangnath died during the pendency of the Petition and
his legal representatives i.e. Rajaram and others are
taken on record. They will be referred hereinafter
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as “the landlords” whereas the petitioners will be
referred hereinafter as “the tenants”. Consequent
upon declaration of the status as protected tenant
under section 38-E of the H.T. and A.L. Act in favour
of deceased Malhari (original tenant) on 25.5.1957,
the Tahsildar, Gangakhed passed order dated 16.8.1962
(exhibit A) to the Petition. By that order, the
tenanted land bearing survey no.22/59 was directed to
be restored to deceased Malhari, the original
protected tenant, since it was noticed that the
original landlord i.e. Ramrao S/o Niloba had dis-
possessed the protected tenant in the meanwhile. The
said order of Tahsildar was challenged by deceased
respondent no.1 Rangnath by filing appeal no.
81/TNC/A/48 before the Deputy Collector, Land
Reforms, Parbhani. The learned Deputy Collector,
dismissed the appeal. In the meanwhile, the land-
holder i.e. owner Rangnath was held as surplus land
holder under the Maharashtra Agricultural Lands
(Ceiling of Holdings) Act, 1961 which had come into
force. The land in question was also declared as
surplus alongwith the other lands. Out of that land,
certain fragments were distributed amongst landless
persons including allotment of a fragment consisting
of 4A 21G to deceased protected tenant Malhari. The
land survey no.22 was considered as holding of
deceased landlord Rangnath as per the information
furnished by him in the Returns submitted to the
Surplus Land Determination Tribunal (S.L.D.T.). It
was perhaps done on the basis of inference that
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declaration of protected tenant in favour of deceased
tenant Malhari had become ineffective because he had
not been put in possession of the said land.
3] It appears that the learned Deputy Collector
dismissed the appeal preferred by deceased landlord
Rangnath and simultaneously upheld validity of
declaration made under section 38-E of the “H.T. and
A.L. Act” in favour of deceased tenant Malhari. The
Deputy Collector, therefore directed the Tahsildar to
refer the case of wrong determination of distribution
of the land survey no.22 and to request the
S.L.D.T. to take action under section 46 of the
Maharashtra Agricultural Lands (Ceiling on Holdings)
Act. The said order rendered by the Deputy
Collector, Land Reforms, on 31.12.1980 was challenged
by deceased landlord Rangnath by filing Revision
Petition. The revisional Tribunal i.e. Maharashtra
Revenue Tribunal (M.R.T.), however, dismissed the
Revision Petition on the ground that it was barred by
limitation. The dismissal order was passed by the
M.R.T. on 29.11.1983. Aggrieved by the orders of the
M.R.T. and the Deputy Collector, deceased landlord
Rangnath filed a Writ Petition in this Court. His
Writ Petition no.753 of 1983 was partly allowed by
the learned Single Bench of this Court on 4.6.1990.
The learned Single Judge of this Court directed the
Deputy Collector to decide the appeal de-novo having
regard to explanation appended to section 38-E(1) of
the H.T. and A.L. Act. The learned Single Judge
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observed that the Deputy Collector also shall
consider the circumstance that an area of 4A and 21 G
was allotted to the original tenant i.e. Malhari as
landless person under the provisions of Maharashtra
Agricultural Lands (Ceiling on Holdings Act).
4] The remand of the matter to the Deputy
Collector, Land Reforms, Parbhani was the starting
point of the next round of tenancy litigation. The
learned Deputy Collector thereafter de-novo heard the
appeal which was restored as per directions of the
learned Single Judge of this Court. The learned
Deputy Collector, held that inspite of order of
possession, passed in favour of original tenant
Malhari, the latter had refused to receive possession
of the tenanted land, and, therefore, the order of
restoration was liable to be set aside. Another
ground considered by the Deputy Collector was that a
compromise pursis was filed by the two legal
representatives of deceased tenant-Malhari and they
had admitted the fact that the original
tenant-Malhari could not be declared as protected
tenant because no tenancy rights were created in his
favour. On the basis of such intervening
developments, the learned Deputy Collector allowed
the appeal of deceased respondent no.1 landlord
Rangnath and hence the declaration under section 38-E
of the H.T. and A.L. Act granted in favour of Malhari
was set aside. The petitioners challenged the said
order of the learned Deputy Collector, Land Reforms
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(7) WP. 246.1993
by filing Revision Petition. By the impugned
judgment and order, the M.R.T. dismissed the Revision
Petition. Hence, the present Petition.
5] Heard learned counsel for the parties. I
have carefully gone through the record and
proceedings which were called. It need not be
reiterated that in the earlier round of litigation,
the restoration of the tenanted land was directed in
favour of protected tenant Malhari and throughout his
contention was appreciated by the Tahsildar, Deputy
Collector, Land Reforms (L.R.) and the M.R.T. It was
only after remand of the matter to the Deputy
Collector (L.R.) as per the judgment of this Court in
Writ Petition no. 753 of 1983 that the learned Deputy
Collector (L.R.) and the M.R.T., took a different
view. The statutory ownership certificate was issued
in favour of deceased tenant Malhari on 24.6.1982.
6] Questions involved in this Petition are :
“A- Can it be said that the statutory
ownership granted in favour of deceased
protected tenant Malhari under section 38-E
of the H.T. and A.L. Act had become
ineffective on account of his alleged refusalto take possession of the tenanted land?
B- Whether there was valid surrender of the
tenancy rights by the protected tenant,
namely, Malhari S/o Amruta Surnar?
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C- What is legal impact of the declaration
of the land in question as surplus land and
distribution thereof amongst the eligiblepersons including deceased tenant Malhari,
by the Surplus Land Determination Tribunal
(S.L.D.T.) under the provisions of theMaharashtra Agricultural Lands (Ceiling of
Holdings Act), 1961.
7] Before I proceed to consider the rival
submissions, it is important to notice that the
statutory ownership certificate (Exh. E to the
Petition) was issued in favour of deceased tenant
Malhari S/o Amruta Surnar by the competent authority.
He had deposited the price amount which was
determined under provisions of the H.T. and A.L. Act.
He had become statutory owner as provided under
section 38-E(1) of the H.T. and A.L. Act. The entire
edifice of the impugned judgment rendered by the
learned Deputy Collector (L.R.) is on two grounds :
(i) The alleged surrender by deceased tenant Malhari
on account of his refusal to take possession of the
said land as per the statement recorded by the Deputy
Collector had made the purchase ineffective, and (ii)
The compromise pursis filed by two of the legal
representatives of the deceased tenant also made it
ineffective. It is important to note that name of
deceased Malhari was recorded in the register of
protected tenants and such declaration of his
protected tenancy under section 38-E was made on
25.5.1957. The declaration was never challenged by
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the landlord. The protected tenant was out of actual
possession when the Tahsildar made enquiry and
therefore, by order dated 16.8.1962 restoration of
his possession was directed. It is important to note
that subsequently, on 20.6.1980, application filed by
deceased protected tenant-Malhari for restoration of
possession was dismissed because previously, the
tenant had refused to take back possession. As per
order dated 20.6.1980 rendered by the Naib Tahsildar
(exhibit B to the Petition), the proceedings were
dropped in pursuance to the directions of the
Collector.
8] Perusal of the record would show that the
only legal provision for determination of tenancy is
to be found in section 19 of the H.T. and A.L. Act.
The land holder may terminate the tenancy only on the
ground stated in sub-clause(2) of section 19. The
tenancy rights of a protected tenant cannot be
abrogated without satisfaction of the competent
Tenancy Tribunal about valid surrender of such
rights. The surrender of tenancy rights cannot be
lightly inferred. The tenancy Act is a social
legislation. The tenancy law contemplates recourse to
a specific provision as contemplated under section
32(2) of the H.T. and A.L. Act, which provides
procedure of taking possession. Section 32(2), (3)
and (3A) read as follows:-
“32. Procedure of taking possession :
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....
(2) Save as otherwise provided in sub-
section (3A) no land holder shall obtain
possession of any land or dwelling househeld by a tenant except under an order of
the Tahsildar, for which he shall apply in
the prescribed form within a period of two
years from the date of the commencement ofthe Hyderabad Tenancy and Agricultural Lands
(Amendment) Act, 1957, or the date on which
the right to such possession accrued to him
whichever is later.
(3) On receipt of an application under sub-
section(1) or sub-section (2), the Tahsildar
shall, after holding an enquiry, pass such
order thereon as he deems fit.
(3A) Where a land holder proceeds for
termination of the tenancy under sub-section
(1) of section 46-B, then notwithstandinganything contained in this Act, the
application for possession of the land shallbe made to the Collector who shall, after
holding an enquiry, in the prescribed
manner, pass such order thereon as he deems
fit.”
. The legal formalities of surrender are
required to be followed in stricto sensu. One cannot
be oblivious of the intention of the Legislature
which is manifested from the opening words as used in
sub-section (2) of section 32. The expression “Save
as otherwise provided in sub-section (3A) no land
holder shall obtain possession” clearly mandate that
the landlord cannot receive possession of the
tenanted land without following due procedure. The
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surrender of the tenancy rights must be effected in
legal manner prior to restoration of possession in
favour of the landlord. In the present case, the
tenant was ousted from the tenanted land though he
was declared as the protected tenant. The so-called
statement of the tenant was recorded afterwards and
particularly after the initial action taken by the
Tahsilder to restore the possession in his favour.
9] In “Trambaklal Harinarayan Jani Vs.
Shankarbhai Bhaijibhai Vagri 1959 (Vol.62) Bom.L.R.
261″ the Division Bench of this Court observed:
” Taking over possession, therefore, by a
land-lord from a tenant even where there is
relinquishment of possession by the tenant
without recourse to s. 29(2) is a penal
offence. Furthermore, under s.29(1), atenant from whom surrender is obtained by a
landlord, if that surrender is not verifiedunder s.15 and recognised by the Mamlatdar
after an inquiry and the landlord has not
taken possession of such land as prescribed
by s. 29(2), can still apply for possessionunder s.29(1). A proceeding under s.29(1)
for restoration of possession by a tenant
means that such surrender or relinquishment
has not resulted in the loss of tenancy
rights by the tenant. Such a proceeding
also implies that the tenant retains histenancy rights in the leased land until the
surrender is verified and recognised under
s.15 by the Mamlatdar and possession of the
land is obtained by the landlord under s.
29(2) of the Act. Thus, the taking over of
possession by the petitioner cannot amount
to surrender either under the Transfer of
Property Act or the Tenancy Act. It is::: Downloaded on – 09/06/2013 16:03:13 :::
(12) WP. 246.1993true, as the Tribunal says, that s.34(3)
talks about a landlord acquiring land by
surrender from his tenant. But as we havesaid, if the surrender is not legal and one
under the provisions of the Act, there can
be no acquiring of land as stated in s.
34(3) through surrender. The Tribunal, in
our view, therefore, was not correct when
it decided that there was either a transfer
of the land in favour of the petitioner oran acquisition of the land by him merely
because the tenant had relinquished
possession of the land and the petitioner
had taken over that possession.”
10] The M.R.T. and the learned Deputy Collector
(L.R.) failed to notice that on 24.6.1982 the
statutory ownership certificate was issued in favour
of deceased tenant Malhari. Said Malhari had
deposited the price which was determined in
accordance with the relevant provisions of the
tenancy Act. The statutory ownership certificate was
never challenged and had become final. The tenancy
rights had therefore transformed into the ownership
rights. The sale had never become ineffective. In
“Ganpat Sakharam Deshmukh V. Yeshwant Digambar
Deshmukh 2000(2) Bom.C.R.40” a Division Bench of this
Court held that the protected tenant’s certificate
would not become ineffective merely because he could
not pay the price within the time inspite of notices
served on him. The Hon’ble Division Bench held that
section 38 and 38E are required to be read
independently. Some of the observations of the
Hon’ble Division Bench may be usefully quoted as
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follows:-
“7. Section 38-E is applicable only to a
protected tenant and not an ordinary tenant
and it is not by way of any voluntary act.
As soon as the notified date is declared in
respect of any area, a protected tenant
becomes owner of the land he was cultivating
the land as a tenant and the only relief
available to the landlord is to apply within90 days from such a date before the tribunal
for the determination of the reasonable
price of his interest in the land which has
been transferred to the ownership of aprotected tenant.”
.
In “Kishan Ganpati Muley deceased LRs Indrabai
w/o Kishanrao Muley and others Vs. Abdul Razak s/o
Abdul Kadar and others 2005(4) Mh.L.J. 180” a Single
Bench of this Court held that declaration under
section 38E of the H.T. and A.L. Act is not
appellable. It is further held that relevant date
for granting declaration under section 38-E is the
date when the provisional list of tenants is
published under the Rules. In the case in hand, such
list was published in 1957 and was not challenged by
the landlord. However, the Single Bench also held
that there was no necessity to serve individual
notices to the parties concerned after publishing
list of the protected tenants. The status of a
protected tenant materially differs from that of an
ordinary tenant. The tenancy law itself provides for
umbrella of protection to the tenant who is entitled
to be declared as a protected tenant in view of his
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possession as on the tillar’s day. These material
aspects, including the absence of challenge to the
list of the protected tenants and the certificate of
statutory ownership, would go to show that the rights
of the protected tenant remained un-impeached
notwithstanding his refusal to take back possession.
11] Mr. Deshmukh learned counsel appearing for
the contesting respondents would submit that
explanation appended to section 38-E is required to
be considered. The explanation added to section 38-E
was inserted by Maharashtra Act no. 45 of 1961 and
reads as follows:-
“38-E
………
Explanation – If a protected tenant, on
account of his being dispossessed otherwise
than in the manner and by order of theTahsildar as provided in section 32 is not
in possession of the land on the date of
the notification issued hereunder then for
the purpose of the sub-section, suchprotected tenant, shall notwithstanding any
judgment, decree or order of any court, or
the order of a Revenue Board of Revenue
Tribunal or other authority, be deemed to
have been holding the land on the date ofthe notification; and accordingly, the
Tahsildar shall notwithstanding anything
contained in the said section 32, either
suo motu or on the applications of the
protected tenant hold summary enquiry and
direct that such land in possession of the
land holder or any person claiming through
or under him in that area, shall be taken
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(15) WP. 246.1993such person, as the case may be, and shall
be restored to the protected tenant and the
provisions of this section shall applythereto in every respect as if the
protected tenant had held the land on the
date of such notification with themodification that in sub-section (8), for
the words, figures and brackets “Within 90
days from the date specified in the
notification under sub-section (1)” thewords, figures and brackets “Within 90 days
from the date of restoration of the
possession under the Explanation to sub-
section (1)” shall be substituted.”
Perusal of the above explanation would show
that even though, there is any judgment or decree or
order of any Court or the Revenue Board or Tribunal
yet the Tahsildar is required to direct restoration
of possession of the tenant within 90 days period.
In my opinion, the explanation does not obliterate
and wipe out the tenancy rights of a protected tenant
in any manner.
12] Mr. Deshmukh further contended that there
was delay of 13 years in making application for
restoration of possession and therefore it was
rightly turned down by the Tenancy Tribunal. It
appears that deceased statutory tenant Malhari had
filed application for restoration of the tenanted
land somewhere in 1977 and therefore the proceedings
in file no. 77/TMC/220 had been commenced. The
contention was rejected by the Naib Tahsildar on
20.6.1980. It is pertinent to notice that the
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application of the deceased tenant was rejected by
the Naib-Tahsildar because the Collector had directed
to drop the proceedings in view of the explanation
appended to section 38-E(1). There was no objection
raised as regards limitation. It need not be
reiterated that the Tahsildar had suo-motu directed
restoration of the possession to the protected tenant
by order dated 16.8.1962 in accordance with the
provisions of the H.T. and A.L. Act. It is the duty
of the Tahsildar to restore possession in favour of
the protected tenant when it is noticed that such a
tenant is out of possession of the land of which he
is declared as a protected tenant. Obviously, such
ground of limitation cannot be considered in the
second round of litigation, when the landlord had
nowhere agitated such ground in the earlier
proceedings. Mr. Deshmukh seeks to rely on certain
observations in “Ibrahimpatnam Taluk Vyavasaya Collie
Sangham V. K. Suresh Reddy and others 2003 AIR SCW
4084”. The Apex Court held that powers required to
be exercised under section 50(B)(4) of the Andhra
Pradesh (Telangana Area) Tenancy and Agricultural
Lands Act, though could be exercised at any time as
provided in sub-section (4) yet such powers has to be
exercised within a reasonable period. The fact
situation in the given case is on different footings.
The exercise of “suo motu revisional powers” is
contemplated to be done within a reasonable time
frame depending on facts and circumstances of each
case. Ordinarily, three years period would be a
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reasonable period. It is held by the Apex Court that
the order cancelling the tenancy certificate by the
Joint Collector after 13-15 years was not rendered
within a reasonable period and therefore, could not
be sustained. In the present case, the authorities
have not exercised any suo motu powers and the
statutory ownership certificate granted in favour of
the protected tenant is not cancelled. Mr. Deshmukh
further seeks to rely on “Dnyanoba Deorao Ugle and
others Vs. Shaikh Hussain deceased through his LRs.
and others 1999 MCR 363″. Single Bench of this Court
held that where earlier proceedings under section 98
of the H.T. and A.L. Act had ended in the compromise
then the subsequent proceedings are not maintainable
as a compromise would operate as res-judicata between
the original tenant and the landlords. In the
present case, the so-called compromise pursis was
filed only by two of the legal representatives of the
deceased protected tenant-Malhari, namely, Datta and
Tukaram. The proceedings before the learned Deputy
Collector would show that in all there were 6 legal
representatives of deceased Malhari. There is
absolutely nothing on record to show that two legal
representatives i.e. Datta and Tukaram were
authorised by the other legal representatives to
enter into the compromise. The terms of the
compromise would show that it was only collusive.
For, said Datta and Tukaram went to the extent of
admitting that deceased Malhari was never tenant of
the land in question but was a supervisor appointed
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by the landlord for a period of 1 year. No issue was
tried in the context of so called compromise and
therefore, the compromise pursis entered into between
the landlord and only two of the legal
representatives of the tenant cannot be regarded as
bar to the relief of restoration of the possession.
With due respect, I find it difficult to countenance
the observations made by the Single Bench in Dnyonaba
Devrao Ugale and others (supra) and it is difficult
to cull out any ratio from the said authority.
Needless to say reliance placed by Mr. Deshmukh on
case of Dnyanoba Devrao Ugale (supra) is rather mis-
placed. Mr. Deshmukh has also invited my attention
to certain observations in case of “Radhu Gokul
Gawali (dead through LRs.) and others Vs. Mohan
Kishan Gawali (dead through LRs.) and ors. 2007(4)
All.M.R. 339”. A Single Bench of this Court held
that even though no limitation is provided under
section 98, it has to be expected to be a reasonable
time either for the authority initiating suo motu
action or the party concerned, seeking restoration of
the land. The present matter does not come within
the ambit of section 98 of the H.T. and A.L. Act
which provides for eviction of a person who is found
in unauthorised possession of the tenanted land.
13] Taking overall view of the matter, I am
inclined to hold that the rights of the protected
tenant-Malhari remained un-affected inspite of the
so-called statement arbitrarily recorded by the
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Deputy Collector about his refusal to get back
possession of the tenanted land and the alleged
compromise pursis between the landlord and two of the
legal representatives of deceased Malhari. The
questions mentioned earlier (para 6) are thus
answered as below:
A – No.
B – No.
C – No legal impact.
It follows therefore that both the impugned judgments
are un-sustainable in the eye of law. Hence, the
Petition is allowed. The impugned judgments and
orders are set aside. The previous judgment rendered
by the Deputy Collector (L.R.) and that of the M.R.T.
rendered on 31.12.1980 and 29.11.1983, respectively,
are restored. The Tahsildar to take appropriate
action in pursuance to the judgment and order dated
31.12.1980 rendered by the Deputy Collector (L.R.)
without any further delay. The Petition is
accordingly disposed of. Civil Application no. 2784
of 2008 also stands disposed of. No costs.
Sd/-
[V.R. KINGAONKAR, J.]
arp
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