PETITIONER: MAROTI & ORS. Vs. RESPONDENT: DEVRAO & ORS. DATE OF JUDGMENT: 17/11/1998 BENCH: SUJATA V. MANOHAR, G.B. PATTANAIK. ACT: HEADNOTE: JUDGMENT:
O R D E R
By an earlier judgment & order of this Court dated
llth March 1969 in Civil Appeal No .306 of 1966 between the
the original appellant and the original respondents in the
same proceedings. this Court gave the following directions:
“The order passed by the High
Court is set aside, and the proceeding
stands, remanded to the Tahsildar with the
direction that he do determine determine
whether Dadarao continued to remain a
protected tenant till tile date on which
he claimed to exercise his right to
purchase the land and whether Nivrutti
acquired the rights or a protected tenant
and if so, whether he was entitled to
exercise the right to purchase the land,
and if both Dadarao and Nivrutti were
entitled to purchase the land or any part
thereof the extent to which each of them
was entitled and to what extent. The
Tribunal will decide the question with the
least practical delay and dispose of the
right and obligations of the parties
according to law. No order as to costs.”
These directions were given because there was a
dispute between the original appellant Nivrutti and the
original respondent Dadarao in respect of the right to claim
protected tenancy under the Hyderabad Tenancy & Agricultural
Lands Act, 1950 and the benefit under Section 38 flowing
therefrom.
The dispute related to 10 acres and 34 gunthas of
land in Survey No. 73. Sutardara in village Pathan Mandwa
Taluka Mominabad, District Bihar. The original respondent
claimed to be a protected tenant in respect of the said
land. He relied upon Revenue entries in his favour as a
protected tenant since 1950-51. He had made an application
for correction of revenue entries of subsequent year.
Ultimately, the entries were corrected and a certificate as
a protected tenant under Section 34 of the said Act was
granted by the Deputy Collector or, 19.12.56.
The original appellant claimed to be in possession
of the said land on 12.3.66 when Section 37A was introduced
in the said Act. He has obtained a certificate as a
protected tenant under Section 37A in respect of 6 acres and
16 gunthas of land on 7th of September, 1957. According to
the appellant, the rights of the respondent are extinguished
by virtue of the proviso to Section 37A of the said Act.
After remand it has been found that the appellant
Nivrutti was in possession of the said land on 12.3.56 as a
tenant. The respondent Dadarao is a protected tenant under
Section 34. We have to examine whether under the proviso to
Section 37A (1) as it then stood, the rights of the
respondent as a protected tenant have been extinguished.
Section 37A, at the relevant time, was as fellows:
37-A (1) Notwithstanding anything
contained in this Act, every person who at
the commencement of the Hyderabad Tenancy
and Agricultural Lands (Amendment) Act,
1955 holds as tenant any land in respect
of which he is not deemed to be a
protected tenant under this Act, shall be
deemed to be a protected tenant if the
total area of the land owned by the
land-holder including the land under the
cultivation of his tenants is more than
three times the area of a family holding
for the local area concerned;
Provided that nothing in this
section shall affect the rights of any
other person who already holds a protected
tenancy certificate in respect of such
land or whose rights as protected tenant
are under investigation before a competent
authority, if such other person applies to
the Tribunal for safeguarding his rights
within a period of six months from the
commencement of the Hyderabad Tenancy and
Agricultural Lands (Amendment) Act. 1955″
This section was introduced by reason of the
Hyderabad Tenancy and Agricultural Land (Amendment) Act.
1955 which came into force on 12.3.56. Under the newly
added Section 37A a person holding any land as a tenant on
12.3.56 though not deemed to be a protected tenant prior to
the said Amendment Act, shall on and from 12th of March,
1956 be deemed to be a protected tenant of the land. The
proviso to Section 37A(1), however, makes it clear that
Section 37A(1) shall not affect the rights of any person who
already holds a certificate as a protected tenant in respect
of the said land or whose rights as a protected tenant under
the unamended Act are under investigation before a competent
authority. Thus the existing right as a protected tenant
and the existing right to be declared a protected tenant is
preserved if such a person applies to the Tribunal for
safeguarding his rights within six months of 12.3.56.
The High Court has come to the conclusion that the
right of the respondent whose claim as a protected tenant
was under investigation when Section 37A came into force, is
not extinguished by virtue of the proviso to Section 37A(1).
The respondents’ claim as a protected tenant was. during
the relevant period from 12.3.56 and for six months
thereafter, being investigated before the same Tribunal to
which an application for safeguarding his rights by such a
person is contemplated under the proviso to Section 37A(1).
His application was. in effect an application to safeguard
his rights.
‘Tribunal’ is defined under Section 2(W) of the said
Act as “Agricultural Lands Tribunal” constituted under
sub-section (1) of Section 87 for the area concerned. Where
no such Tribunal has been constituted under Section 2(W)(ii)
by the Deputy Collector or other officer authorised under
sub-section (4) of Section 87 will be the “Tribunal”. The
proviso to Section 37A contemplates an application to the
“Tribunal” so defined. In the present case since the claim
of the respondent to be a protected tenant was being
investigated by the Deputy Collector, who was also the
Tribunal for the purposes of the proviso Section 37A. the
High Court has held that a separate application was not
necessary and the pursuit by the reappointing of the
proceedings claiming protected tenancy, in these
circumstances, can be considered as also an application to
the Tribunal for safeguarding his rights under the Proviso
to Section 37A. This is entirely because the authority
before whom the application was pending is the same
authority as the Tribunal under the proviso. The same
Tribunal has ultimately granted to the respondent the
certificate of protected tenant on 19.12.56. The rights
which are granted under this certificate cannot be held as
extinguished in these circumstances.
It was submitted by the appellant that the Tribunal
under the proviso to Section 37A(1) was the Tahsildar and
not the Deputy Collector. Therefore, the respondent does
not fulfil the requirements of the proviso to Section 37A.
The High Court, however, in its impugned judgment has
pointed out that the authority to whom an application is to
be made under the proviso to Section 37A was designated to
be the Tahsildar only by Notification of 11.10.56. At the
material time, in the absence of any Notification. Section
2(W)(ii) would be applicable, as rightly held by the High
Court. The Tribunal at the material time, was the Deputy
Collector.
In the the premises the High Court has rightly
upheld the claim of the original respondent. The appeal is,
therefore dismissed. There will however, be no order as to
costs.
