{"id":53711,"date":"2010-06-23T00:00:00","date_gmt":"2010-06-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/5-malanbai-vs-legal-heirs-of-deceased-on-23-june-2010"},"modified":"2018-06-20T08:25:05","modified_gmt":"2018-06-20T02:55:05","slug":"5-malanbai-vs-legal-heirs-of-deceased-on-23-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/5-malanbai-vs-legal-heirs-of-deceased-on-23-june-2010","title":{"rendered":"5] Malanbai vs Legal Heirs Of Deceased on 23 June, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
5] Malanbai vs Legal Heirs Of Deceased on 23 June, 2010<\/div>\n
Bench: V.R. Kingaonkar<\/div>\n
                                                                       (1)                                                 WP. 246.1993\n\n\n\n\n                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                               BENCH AT AURANGABAD\n\n\n\n\n                                                                                                                  \n                      WRIT PETITION NO. 246 OF 1993\n\n\n\n\n                                                                                  \n                                   AND\n          CIVIL APPLICATION NO. 2784 OF 2008 IN W.P.246 OF 1993\n\n     Malhari S\/o Amruta Surnar\n\n\n\n\n                                                                                 \n     deceased through Legal heirs\n\n     1] Haribai Malhari Surnar\n        Age : Major, Occu.: Household,\n        R\/o Makani, Tal. Gangakhed,\n\n\n\n\n                                                             \n        Dist. Parbhani\n\n     2] Mahipati S\/o Malhari Surnar,\n        Age : Major, Occu.: Agri.,\n        R\/o as above\n                                   \n                                  \n     3] Tukaram S\/o Malhari Surnar,\n        Age : Major, Occu.: Agril.,\n        R\/o As above\n\n     4] Indrabai d\/o Malhari Surnar,\n      \n\n\n        Age : Major, Occu.: Household,\n        R\/o As above\n   \n\n\n\n     5] Malanbai d\/o Malhari Surnar,\n        Age : Major, Occu.: Household,\n        R\/o As above                          .. Petitioners\n\n\n\n\n\n              VERSUS\n     1] Ranganath Amruta Kachave\n        died through legal heirs:\n\n     1-A] Rajaram S\/o Rangnath Kachave,\n\n\n\n\n\n          Age : 30 years, Occu. : Agril.\n          Resident of Daithana, Taluka and \n          District : Parbhani\n\n     1-B] Govind S\/o Rangnath Kachave,\n          Age : 28 years, Occu.: Agri.,\n          Resident of Daithana, Taluka \n          and District Parbhani\n\n\n\n\n                                                                                  ::: Downloaded on - 09\/06\/2013 16:03:13 :::\n                                                                        (2)                                                 WP. 246.1993\n\n\n\n     1-C] Dnyandeo S\/o Rangnath Kachave,\n         Age : 26 years, Occu.: Agri.,\n\n\n\n\n                                                                                                                  \n         Resident of Daithana, Taluka and\n         District Parbhani\n\n\n\n\n                                                                                  \n     1-D]Smt. Sushilabai w\/o Rangnath Kachave,\n         Age : 60 years, Occu.: Agri.,\n         Resident of Daithana, Taluka and\n         District Parbhani\n\n\n\n\n                                                                                 \n     1-E]Kalavati w\/o Baliram Naik,\n         Age : 33 years, Occu.: Household, \n         Resident of Mali Galli, Pathari,\n         Taluka Pathari, District Parbhani\n\n\n\n\n                                                             \n     1-F]Nilawati Shivaji Lad,\n         Age : 35 years, Occu.: Household,\n                                   \n         Resident of Jamb, Taluka and\n         District Parbhani\n                                  \n     1-G]Geeta w\/o Dnyanoba More,\n         Age : 37 years, Occu.: Household, \n         Resident of Pimpalgaon, Taluka Purna,\n         District Parbhani\n      \n\n     (Legal heirs of deceased respondent no.1\n     brought on record vide Court's order dt. \n   \n\n\n\n     5.8.2003, passed in C.A. 2203 of 2003)\n\n     2]  The Deputy Collector,\n         Land Reforms, Parbhani                .. Respondents\n\n\n\n\n\n     Mr. M.V. Deshpande, Advocate h\/f. Mr. C.K. Shinde, \n     Advocate for the Petitioners\n\n     Mr. A.S. Deshmukh, Advocate for respondent nos.1(A) to \n     1(G)\n\n\n\n\n\n     Mr. D.R. Korde, AGP for the respondent no.2-State\n                                ...\n\n                                                  CORAM    :  V.R. KINGAONKAR, J.\n<\/pre>\n
                                                  DATE OF RESERVING
\n                                                  THE JUDGMENT : 16TH JUNE, 2010<\/p>\n
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\n                                                                        (3)                                                 WP. 246.1993<\/p>\n
                                                  DATE OF PRONOUNCING
\n                                                  THE JUDGMENT : 23RD JUNE, 2010<\/p>\n
     JUDGMENT:-\n<\/p>\n
     1]                    Challenge   in   this   Petition   is   to   judgment
\n     and order dated 17.7.1992 rendered by learned Member <\/p>\n
     of   the   Maharashtra   Revenue   Tribunal,   Aurnagabad,   in
\n     Revision Petition no. 106-B-91-P and to the judgment
\n     and   order   dated   27.6.1991   passed   by   the   Deputy <\/p>\n
     Collector,   Land   Reforms,   Parbhani   in   Tenancy   Appeal
\n     no. 1981\/TNC\/A\/48.\n<\/p>\n
     2]                    There is a checkered history to the tenancy <\/p>\n
     litigation between the parties to the Petition.  The
\n     period of litigation looms over a period of about 40
\n     years.   The petitioners are legal representatives of <\/p>\n
     deceased   Malhari   Amruta   Surnar.     He   was   admittedly <\/p>\n
     declared as a protected tenant  of agricultural  land
\n     bearing survey no.22, to the extent of 21 acres area,
\n     situated at village Makni under Gangakhed Tehsils as <\/p>\n
     per   provision   of   Section   38-E   of   the   Hyderabad
\n     Tenancy and Agricultural Lands Act, 1950  (For short
\n     “H.T. and A.L. Act”).  Originally, land survey no. 22 <\/p>\n
     was   owned   by   one   Rajaram   S\/o   Niloba   from   whom
\n     deceased   respondent   no.1   Rangnath   Amruta   Kachave
\n     claimed the ownership rights.    Said respondent  no.1
\n     Rangnath died during the pendency of the Petition and
\n     his legal representatives i.e. Rajaram and others are
\n     taken on record.   They will be referred hereinafter <\/p>\n
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\n                                                                        (4)                                                 WP. 246.1993<\/p>\n
     as   “the   landlords”   whereas   the   petitioners   will   be
\n     referred hereinafter  as “the  tenants”.     Consequent <\/p>\n
     upon   declaration   of   the   status   as   protected   tenant
\n     under section 38-E of the H.T. and A.L. Act in favour <\/p>\n
     of   deceased   Malhari   (original   tenant)   on   25.5.1957,
\n     the Tahsildar, Gangakhed passed order dated 16.8.1962
\n     (exhibit   A)   to   the   Petition.     By   that   order,   the <\/p>\n
     tenanted land bearing survey no.22\/59 was directed to
\n     be   restored   to   deceased   Malhari,   the   original
\n     protected   tenant,   since   it   was   noticed   that   the <\/p>\n
     original   landlord   i.e.   Ramrao   S\/o   Niloba   had   dis-\n<\/p>\n
     possessed the protected tenant in the meanwhile.  The
\n     said   order   of   Tahsildar   was   challenged   by   deceased <\/p>\n
     respondent   no.1   Rangnath   by   filing   appeal   no.
\n     81\/TNC\/A\/48   before   the   Deputy   Collector,   Land
\n     Reforms,   Parbhani.     The   learned   Deputy   Collector, <\/p>\n
     dismissed   the   appeal.     In   the   meanwhile,   the   land-
\n     holder i.e. owner Rangnath was held as surplus land <\/p>\n
     holder   under   the   Maharashtra   Agricultural   Lands
\n     (Ceiling of Holdings) Act, 1961 which had come into <\/p>\n
     force.   The   land   in   question   was   also   declared   as
\n     surplus alongwith the other lands.  Out of that land,
\n     certain   fragments   were   distributed   amongst   landless
\n     persons including allotment of a fragment consisting <\/p>\n
     of 4A 21G to deceased protected tenant Malhari.  The
\n     land   survey   no.22   was   considered   as   holding   of
\n     deceased   landlord   Rangnath   as   per   the   information
\n     furnished   by   him   in   the   Returns   submitted   to   the
\n     Surplus   Land   Determination   Tribunal   (S.L.D.T.).     It
\n     was   perhaps   done   on   the   basis   of   inference   that <\/p>\n
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\n                                                                        (5)                                                 WP. 246.1993<\/p>\n
     declaration of protected tenant in favour of deceased
\n     tenant Malhari had become ineffective because he had <\/p>\n
     not been put in possession of the said land.\n<\/p>\n
     3]                    It appears that the learned Deputy Collector
\n     dismissed   the   appeal   preferred   by   deceased   landlord
\n     Rangnath   and   simultaneously   upheld   validity   of <\/p>\n
     declaration made under section 38-E of the  “H.T. and
\n     A.L. Act” in favour of deceased tenant Malhari.  The
\n     Deputy Collector, therefore directed the Tahsildar to <\/p>\n
     refer the case of wrong determination of distribution <\/p>\n
     of   the   land   survey       no.22   and   to   request   the
\n     S.L.D.T.   to   take   action   under   section   46   of   the <\/p>\n
     Maharashtra Agricultural Lands (Ceiling on Holdings)
\n     Act.     The   said   order   rendered   by   the   Deputy
\n     Collector, Land Reforms, on 31.12.1980 was challenged <\/p>\n
     by   deceased   landlord   Rangnath   by   filing   Revision
\n     Petition.     The   revisional   Tribunal   i.e.   Maharashtra <\/p>\n
     Revenue   Tribunal   (M.R.T.),   however,   dismissed   the
\n     Revision Petition on the ground that it was barred by <\/p>\n
     limitation.     The dismissal order was passed by the
\n     M.R.T. on 29.11.1983.  Aggrieved by the orders of the
\n     M.R.T.   and   the   Deputy   Collector,   deceased   landlord
\n     Rangnath   filed   a   Writ   Petition   in   this   Court.     His <\/p>\n
     Writ   Petition   no.753   of   1983   was   partly   allowed   by
\n     the learned Single Bench of this Court on 4.6.1990.
\n     The learned Single Judge of this Court directed the
\n     Deputy Collector to decide the appeal de-novo having
\n     regard to explanation appended to section 38-E(1) of
\n     the   H.T.   and   A.L.   Act.     The   learned   Single   Judge <\/p>\n
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\n                                                                        (6)                                                 WP. 246.1993<\/p>\n
     observed   that   the   Deputy   Collector   also   shall
\n     consider the circumstance that an area of 4A and 21 G <\/p>\n
     was allotted to the original tenant i.e. Malhari as
\n     landless   person   under   the   provisions   of   Maharashtra <\/p>\n
     Agricultural Lands (Ceiling on Holdings Act).\n<\/p>\n
     4]                    The   remand   of   the   matter   to   the   Deputy <\/p>\n
     Collector,   Land   Reforms,   Parbhani   was   the   starting
\n     point of the next round of tenancy litigation.   The
\n     learned Deputy Collector thereafter de-novo heard the <\/p>\n
     appeal   which   was   restored   as   per   directions   of   the <\/p>\n
     learned   Single   Judge   of   this   Court.     The   learned
\n     Deputy   Collector,   held   that   inspite   of   order   of <\/p>\n
     possession,   passed   in   favour   of   original   tenant
\n     Malhari, the latter had refused to receive possession
\n     of   the   tenanted   land,   and,   therefore,   the   order   of <\/p>\n
     restoration   was   liable   to   be   set   aside.     Another
\n     ground considered by the Deputy Collector was that a <\/p>\n
     compromise   pursis   was   filed   by   the   two   legal
\n     representatives   of   deceased   tenant-Malhari   and   they <\/p>\n
     had   admitted   the   fact   that   the   original
\n     tenant-Malhari   could   not   be   declared   as   protected
\n     tenant because no tenancy rights were created in his
\n     favour.   On   the   basis   of   such   intervening <\/p>\n
     developments,   the   learned   Deputy   Collector   allowed
\n     the   appeal   of   deceased   respondent   no.1   landlord
\n     Rangnath and hence the declaration under section 38-E
\n     of the H.T. and A.L. Act granted in favour of Malhari
\n     was set aside.   The petitioners challenged the said
\n     order of  the learned  Deputy Collector, Land Reforms <\/p>\n
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\n                                                                        (7)                                                 WP. 246.1993<\/p>\n
     by   filing   Revision   Petition.     By   the   impugned
\n     judgment and order, the M.R.T. dismissed the Revision <\/p>\n
     Petition.  Hence, the present Petition.\n<\/p>\n
     5]                    Heard   learned   counsel   for   the   parties.     I
\n     have   carefully   gone   through   the   record   and
\n     proceedings   which   were   called.     It   need   not   be <\/p>\n
     reiterated  that in  the earlier  round  of litigation,
\n     the restoration of the tenanted land was directed in
\n     favour of protected tenant Malhari and throughout his <\/p>\n
     contention   was   appreciated   by   the   Tahsildar,   Deputy <\/p>\n
     Collector, Land Reforms (L.R.) and the M.R.T.  It was
\n     only   after   remand   of   the   matter   to   the   Deputy <\/p>\n
     Collector (L.R.) as per the judgment of this Court in
\n     Writ Petition no. 753 of 1983 that the learned Deputy
\n     Collector   (L.R.)   and   the   M.R.T.,   took   a   different <\/p>\n
     view.  The statutory ownership certificate was issued
\n     in favour of deceased tenant Malhari on 24.6.1982.\n<\/p>\n
     6]                    Questions involved in this Petition are :\n<\/p>\n
                       “A-   Can   it   be   said   that   the   statutory
\n                       ownership   granted   in   favour   of   deceased
\n                       protected   tenant   Malhari   under   section   38-E
\n                       of   the   H.T.   and   A.L.   Act   had   become
\n                       ineffective on account of his alleged refusal <\/p>\n
                       to take possession of the tenanted land?\n<\/p><\/blockquote>\n
                        B-   Whether there was valid surrender of the
\n                        tenancy   rights   by   the   protected   tenant,
\n                        namely, Malhari S\/o Amruta Surnar?\n<\/p><\/blockquote>\n
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                                                                        (8)                                                 WP. 246.1993<\/p>\n
                        C-   What is legal impact of the declaration
\n                        of the land in question as surplus land and
\n                        distribution   thereof   amongst   the   eligible <\/p>\n
                        persons   including     deceased   tenant   Malhari,
\n                        by   the   Surplus   Land   Determination   Tribunal
\n                        (S.L.D.T.)   under   the   provisions   of   the <\/p>\n
                        Maharashtra   Agricultural   Lands   (Ceiling   of
\n                        Holdings Act), 1961.\n<\/p><\/blockquote>\n
     7]                    Before   I   proceed   to   consider   the   rival
\n     submissions,   it   is   important   to   notice   that   the
\n     statutory   ownership   certificate   (Exh.   E   to   the <\/p>\n
     Petition)   was   issued   in   favour   of   deceased   tenant <\/p>\n
     Malhari S\/o Amruta Surnar by the competent authority.
\n     He   had   deposited   the   price   amount   which   was <\/p>\n
     determined under provisions of the H.T. and A.L. Act.
\n     He   had   become   statutory   owner   as   provided   under
\n     section 38-E(1) of the H.T. and A.L. Act.  The entire <\/p>\n
     edifice   of   the   impugned   judgment   rendered   by   the <\/p>\n
     learned Deputy Collector (L.R.) is on two grounds :\n<\/p>\n
     (i) The alleged surrender by deceased tenant Malhari
\n     on account of his refusal to take possession of the <\/p>\n
     said land as per the statement recorded by the Deputy
\n     Collector had made the purchase ineffective, and (ii)
\n     The   compromise   pursis   filed   by   two   of   the   legal
\n     representatives of the  deceased tenant  also made it <\/p>\n
     ineffective.     It   is   important   to   note   that   name   of
\n     deceased   Malhari   was   recorded   in   the   register   of
\n     protected   tenants   and   such   declaration   of   his
\n     protected   tenancy   under   section   38-E   was   made   on
\n     25.5.1957.   The declaration was never challenged by <\/p>\n
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\n                                                                        (9)                                                 WP. 246.1993<\/p>\n
     the landlord.  The protected tenant was out of actual
\n     possession   when   the   Tahsildar   made   enquiry   and <\/p>\n
     therefore,   by   order   dated   16.8.1962   restoration   of
\n     his possession was directed.  It is important to note <\/p>\n
     that subsequently, on 20.6.1980, application filed by
\n     deceased protected tenant-Malhari for restoration of
\n     possession   was   dismissed   because   previously,   the <\/p>\n
     tenant had refused to take back possession.   As per
\n     order dated 20.6.1980 rendered by the Naib Tahsildar
\n     (exhibit   B   to   the   Petition),   the   proceedings   were <\/p>\n
     dropped   in   pursuance   to   the   directions   of   the
\n     Collector.\n<\/p>\n
     8]                    Perusal   of   the   record   would   show   that   the
\n     only legal provision for determination of tenancy is
\n     to be found in section 19 of the H.T. and A.L. Act.\n<\/p>\n
     The land holder may terminate the tenancy only on the
\n     ground   stated   in   sub-clause(2)   of   section   19.     The <\/p>\n
     tenancy   rights   of   a   protected   tenant   cannot   be
\n     abrogated   without   satisfaction   of   the   competent <\/p>\n
     Tenancy   Tribunal   about   valid   surrender   of   such
\n     rights.     The surrender of tenancy rights cannot be
\n     lightly   inferred.     The   tenancy   Act   is   a   social
\n     legislation. The tenancy law contemplates recourse to <\/p>\n
     a   specific   provision   as   contemplated   under   section
\n     32(2)   of   the   H.T.   and   A.L.   Act,   which   provides
\n     procedure of  taking possession.   Section  32(2), (3)
\n     and (3A) read as follows:-\n<\/p>\n
                           “32.   Procedure of taking possession :\n<\/p><\/blockquote>\n
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                                                                        (10)                                                 WP. 246.1993\n\n\n\n                                                                            ....\n\n\n\n\n                                                                                                                 \n<\/pre>\n
                           (2)   Save   as   otherwise   provided   in   sub-
\n                           section   (3A)   no   land   holder   shall   obtain
\n                           possession   of   any   land   or   dwelling   house <\/p>\n
                           held   by   a   tenant   except   under   an   order   of
\n                           the Tahsildar, for which he shall apply in
\n                           the prescribed form within a period of two
\n                           years from the date of the commencement of <\/p>\n
                           the Hyderabad Tenancy and Agricultural Lands
\n                           (Amendment) Act, 1957, or the date on which
\n                           the right to such possession accrued to him
\n                           whichever is later.\n<\/p><\/blockquote>\n
                           (3)  On receipt of an application under sub-\n<\/p><\/blockquote>\n
                           section(1) or sub-section (2), the Tahsildar
\n                           shall,   after   holding   an   enquiry,   pass   such
\n                           order thereon as he deems fit.\n<\/p><\/blockquote>\n
                           (3A)   Where   a   land   holder   proceeds   for
\n                           termination of the tenancy under sub-section
\n                           (1)   of   section   46-B,   then   notwithstanding <\/p>\n
                           anything   contained   in   this   Act,   the
\n                           application for possession of the land shall <\/p>\n
                           be   made   to   the   Collector   who   shall,   after
\n                           holding   an   enquiry,   in   the   prescribed
\n                           manner, pass such order thereon as he deems
\n                           fit.”\n<\/p><\/blockquote>\n
     .                     The   legal   formalities   of   surrender   are
\n     required to be followed in stricto sensu.  One cannot
\n     be   oblivious   of   the   intention   of   the   Legislature <\/p>\n
     which is manifested from the opening words as used in
\n     sub-section (2) of section 32.  The expression “Save
\n     as   otherwise   provided   in   sub-section   (3A)   no   land
\n     holder shall obtain possession” clearly mandate that
\n     the   landlord   cannot   receive   possession   of   the
\n     tenanted land without following due procedure.   The <\/p>\n
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\n                                                                        (11)                                                 WP. 246.1993<\/p>\n
     surrender of the tenancy rights must be effected in
\n     legal   manner   prior   to   restoration   of   possession   in <\/p>\n
     favour   of   the   landlord.     In   the   present   case,   the
\n     tenant   was   ousted   from   the   tenanted   land   though   he <\/p>\n
     was declared as the protected tenant.  The so-called
\n     statement of  the tenant was recorded  afterwards and
\n     particularly   after   the   initial   action   taken   by   the <\/p>\n
     Tahsilder to restore the possession in his favour.\n<\/p>\n
     9]                    In   “Trambaklal   Harinarayan   Jani   Vs. <\/p>\n
     Shankarbhai Bhaijibhai Vagri 1959 (Vol.62)   Bom.L.R.\n<\/p>\n
     261″ the Division Bench of this Court observed:\n<\/p>\n
                            ”   Taking over possession, therefore, by a <\/p>\n
                            land-lord from a tenant even where there is
\n                            relinquishment   of  possession  by  the  tenant
\n                            without   recourse   to   s.   29(2)   is   a   penal
\n                            offence.   Furthermore,   under   s.29(1),   a <\/p>\n
                            tenant from whom surrender is obtained by a
\n                            landlord, if that surrender is not verified <\/p>\n
                            under s.15 and recognised by the Mamlatdar
\n                            after   an   inquiry   and   the   landlord   has   not
\n                            taken possession of such land as prescribed
\n                            by s. 29(2), can still apply for possession <\/p>\n
                            under s.29(1).   A proceeding under s.29(1)
\n                            for   restoration   of   possession   by   a   tenant
\n                            means that such surrender or relinquishment
\n                            has   not   resulted   in   the   loss   of   tenancy
\n                            rights   by   the   tenant.     Such   a   proceeding
\n                            also   implies   that   the   tenant   retains   his <\/p>\n
                            tenancy rights in the leased land until the
\n                            surrender  is   verified  and  recognised  under
\n                            s.15 by the Mamlatdar and possession of the
\n                            land   is   obtained   by   the   landlord   under   s.
\n                            29(2) of the Act.  Thus, the taking over of
\n                            possession   by  the  petitioner   cannot  amount
\n                            to   surrender   either   under   the   Transfer   of
\n                            Property   Act   or   the   Tenancy   Act.     It   is <\/p>\n
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\n                                                                        (12)                                                 WP. 246.1993<\/p>\n
                            true,   as   the   Tribunal   says,   that   s.34(3)
\n                            talks   about   a   landlord   acquiring   land   by
\n                            surrender from his tenant.   But as we have <\/p>\n
                            said, if the surrender is not legal and one
\n                            under the provisions of the Act, there can
\n                            be   no   acquiring   of   land   as   stated   in   s.\n<\/p><\/blockquote>\n
                            34(3) through surrender.   The Tribunal, in
\n                            our   view,   therefore,   was   not   correct   when
\n                            it decided that there was either a transfer
\n                            of the land in favour of the petitioner or <\/p>\n
                            an   acquisition   of   the   land   by   him   merely
\n                            because   the   tenant   had   relinquished
\n                            possession   of   the   land   and   the   petitioner
\n                            had taken over that possession.”\n<\/p><\/blockquote>\n
     10]      The M.R.T. and the learned Deputy Collector <\/p>\n
     (L.R.)   failed   to   notice   that   on   24.6.1982   the
\n     statutory ownership certificate was issued in favour <\/p>\n
     of   deceased   tenant   Malhari.     Said   Malhari   had
\n     deposited   the   price   which   was   determined   in
\n     accordance   with   the   relevant   provisions   of   the <\/p>\n
     tenancy Act.  The statutory ownership certificate was <\/p>\n
     never challenged and had become final.   The tenancy
\n     rights   had   therefore   transformed   into   the   ownership
\n     rights.   The sale had never become ineffective.   In <\/p>\n
     “Ganpat   Sakharam   Deshmukh   V.   Yeshwant   Digambar
\n     Deshmukh 2000(2) Bom.C.R.40” a Division Bench of this
\n     Court   held   that   the   protected   tenant’s   certificate
\n     would not become ineffective merely because he could <\/p>\n
     not pay the price within the time inspite of notices
\n     served on him.  The Hon’ble Division Bench held that
\n     section   38   and   38E   are   required   to   be   read
\n     independently.     Some   of   the   observations   of   the
\n     Hon’ble   Division   Bench   may   be   usefully   quoted   as <\/p>\n
                                                                                  ::: Downloaded on – 09\/06\/2013 16:03:13 :::<\/span>
\n                                                                        (13)                                                 WP. 246.1993<\/p>\n
     follows:-\n<\/p>\n
                           “7.   Section   38-E   is   applicable   only   to   a <\/p>\n
                           protected tenant and not an ordinary tenant
\n                           and it is not by way of any voluntary act.\n<\/p><\/blockquote>\n
                           As soon as the notified date is declared in
\n                           respect   of   any   area,   a   protected   tenant
\n                           becomes owner of the land he was cultivating
\n                           the   land   as   a   tenant   and   the   only   relief
\n                           available to the landlord is to apply within <\/p>\n
                           90 days from such a date before the tribunal
\n                           for   the   determination   of   the   reasonable
\n                           price of his interest in the land which has
\n                           been   transferred   to   the   ownership   of   a <\/p>\n
                           protected tenant.”\n<\/p><\/blockquote>\n
     .\n<\/p>\n
                  In “Kishan Ganpati Muley deceased LRs Indrabai
\n     w\/o   Kishanrao   Muley   and   others   Vs.   Abdul   Razak   s\/o <\/p>\n
     Abdul Kadar and others 2005(4) Mh.L.J. 180” a Single
\n     Bench   of   this   Court   held   that   declaration   under
\n     section   38E   of   the   H.T.   and   A.L.   Act   is   not <\/p>\n
     appellable.     It   is   further   held   that   relevant   date <\/p>\n
     for granting declaration under section   38-E is the
\n     date   when   the   provisional   list   of   tenants   is
\n     published under the Rules.  In the case in hand, such <\/p>\n
     list was published in 1957 and was not challenged by
\n     the   landlord.     However,   the   Single   Bench   also   held
\n     that   there   was   no   necessity   to   serve   individual
\n     notices   to   the   parties   concerned   after   publishing <\/p>\n
     list   of   the   protected   tenants.     The   status   of   a
\n     protected tenant  materially differs from that of an
\n     ordinary tenant.  The tenancy law itself provides for
\n     umbrella of protection to the tenant who is entitled
\n     to be declared as a protected tenant in view of his <\/p>\n
                                                                                  ::: Downloaded on – 09\/06\/2013 16:03:13 :::<\/span>
\n                                                                        (14)                                                 WP. 246.1993<\/p>\n
     possession   as   on   the   tillar’s   day.     These   material
\n     aspects,   including   the   absence   of   challenge   to   the <\/p>\n
     list of the protected tenants and the certificate of
\n     statutory ownership, would go to show that the rights <\/p>\n
     of   the   protected   tenant   remained   un-impeached
\n     notwithstanding his refusal to take back possession.\n<\/p>\n
     11]                   Mr.   Deshmukh   learned   counsel   appearing   for
\n     the   contesting   respondents   would   submit   that
\n     explanation appended  to section 38-E is required to <\/p>\n
     be considered.  The explanation added to section 38-E <\/p>\n
     was   inserted   by   Maharashtra   Act   no.   45   of   1961   and
\n     reads as follows:-\n<\/p>\n
                            “38-E
\n                                                                       ………\n<\/p><\/blockquote>\n
                            Explanation   –   If   a   protected   tenant,   on <\/p>\n
                            account of his being dispossessed otherwise
\n                            than   in   the   manner   and   by   order   of   the <\/p>\n
                            Tahsildar as provided in section 32 is not
\n                            in   possession   of   the   land   on   the   date   of
\n                            the   notification   issued   hereunder   then   for
\n                            the   purpose   of   the   sub-section,   such <\/p>\n
                            protected tenant, shall notwithstanding any
\n                            judgment, decree or order of any court, or
\n                            the   order   of   a   Revenue   Board   of   Revenue
\n                            Tribunal   or   other   authority,   be   deemed   to
\n                            have   been   holding   the   land   on   the   date   of <\/p>\n
                            the   notification;   and   accordingly,   the
\n                            Tahsildar   shall   notwithstanding   anything
\n                            contained   in   the   said   section   32,   either
\n                            suo   motu   or   on   the   applications   of   the
\n                            protected   tenant   hold   summary   enquiry   and
\n                            direct that such land in possession of the
\n                            land holder or any person claiming through
\n                            or   under   him   in   that   area,   shall   be   taken
\n                            from   the   possession   of   the   land   holder   or <\/p>\n
                                                                                  ::: Downloaded on – 09\/06\/2013 16:03:13 :::<\/span>
\n                                                                        (15)                                                 WP. 246.1993<\/p>\n
                            such person, as the case may be, and shall
\n                            be restored to the protected tenant and the
\n                            provisions   of   this   section   shall   apply <\/p>\n
                            thereto   in   every   respect   as   if   the
\n                            protected   tenant   had   held   the   land   on   the
\n                            date   of   such   notification   with   the <\/p>\n
                            modification   that   in   sub-section   (8),   for
\n                            the words, figures and brackets “Within 90
\n                            days   from   the   date   specified   in   the
\n                            notification   under   sub-section   (1)”   the <\/p>\n
                            words, figures and brackets “Within 90 days
\n                            from   the   date   of   restoration   of   the
\n                            possession   under   the   Explanation   to   sub-
\n                            section (1)” shall be substituted.”<\/p><\/blockquote>\n
                    Perusal   of   the   above   explanation   would   show
\n     that even though, there is any judgment or decree or <\/p>\n
     order of any Court or the Revenue Board or Tribunal
\n     yet the Tahsildar is  required to  direct restoration
\n     of   possession   of   the   tenant   within   90   days   period.\n<\/p>\n
     In   my   opinion,   the   explanation   does   not   obliterate
\n     and wipe out the tenancy rights of a protected tenant <\/p>\n
     in any manner.\n<\/p>\n
     12]                   Mr.   Deshmukh   further   contended   that   there
\n     was   delay   of   13   years   in   making   application   for
\n     restoration   of   possession   and   therefore   it   was
\n     rightly   turned   down   by   the   Tenancy   Tribunal.     It <\/p>\n
     appears   that   deceased   statutory   tenant   Malhari   had
\n     filed   application   for   restoration   of   the   tenanted
\n     land somewhere in 1977 and therefore the proceedings
\n     in   file   no.   77\/TMC\/220   had   been   commenced.     The
\n     contention   was   rejected   by   the   Naib   Tahsildar   on
\n     20.6.1980.     It   is   pertinent   to   notice   that   the <\/p>\n
                                                                                  ::: Downloaded on – 09\/06\/2013 16:03:13 :::<\/span>
\n                                                                        (16)                                                 WP. 246.1993<\/p>\n
     application   of   the   deceased   tenant   was   rejected   by
\n     the Naib-Tahsildar because the Collector had directed <\/p>\n
     to   drop   the   proceedings   in   view   of   the   explanation
\n     appended to section 38-E(1).  There was no objection <\/p>\n
     raised   as   regards   limitation.     It   need   not   be
\n     reiterated   that   the   Tahsildar   had   suo-motu   directed
\n     restoration of the possession to the protected tenant <\/p>\n
     by   order   dated   16.8.1962   in   accordance   with   the
\n     provisions of the H.T. and A.L. Act.  It is the duty
\n     of the Tahsildar to restore possession in favour of <\/p>\n
     the protected tenant when it is noticed that such a <\/p>\n
     tenant is out of possession of the land of which he
\n     is declared as a protected tenant.   Obviously, such <\/p>\n
     ground   of   limitation   cannot   be   considered   in   the
\n     second   round   of   litigation,   when   the   landlord   had
\n     nowhere   agitated   such   ground   in   the   earlier <\/p>\n
     proceedings.   Mr. Deshmukh seeks to rely on certain
\n     observations in “Ibrahimpatnam Taluk Vyavasaya Collie <\/p>\n
     Sangham   V.   K.   Suresh   Reddy   and   others   2003   AIR   SCW
\n     4084”.   The Apex Court held that powers required to <\/p>\n
     be   exercised   under   section   50(B)(4)   of   the   Andhra
\n     Pradesh   (Telangana   Area)   Tenancy   and   Agricultural
\n     Lands Act, though could be exercised at any time as
\n     provided in sub-section (4) yet such powers has to be <\/p>\n
     exercised   within   a   reasonable   period.   The   fact
\n     situation in the given case is on different footings.
\n     The   exercise   of   “suo   motu   revisional   powers”   is
\n     contemplated   to   be   done   within   a   reasonable   time
\n     frame   depending   on   facts   and   circumstances   of   each
\n     case.     Ordinarily,   three   years   period   would   be   a <\/p>\n
                                                                                  ::: Downloaded on – 09\/06\/2013 16:03:13 :::<\/span>
\n                                                                        (17)                                                 WP. 246.1993<\/p>\n
     reasonable period.  It is held by the Apex Court that
\n     the order cancelling the  tenancy certificate  by the <\/p>\n
     Joint   Collector   after   13-15   years   was   not   rendered
\n     within  a  reasonable period and  therefore, could not <\/p>\n
     be sustained.   In the present case, the authorities
\n     have   not   exercised   any   suo   motu   powers   and   the
\n     statutory ownership certificate granted in favour of <\/p>\n
     the protected tenant is not cancelled.  Mr. Deshmukh
\n     further   seeks   to   rely   on   “Dnyanoba   Deorao   Ugle   and
\n     others  Vs. Shaikh Hussain deceased  through his  LRs.\n<\/p>\n
     and others 1999 MCR 363″.  Single Bench of this Court <\/p>\n
     held that where earlier proceedings under section 98
\n     of the H.T. and A.L. Act had ended in the compromise <\/p>\n
     then the subsequent proceedings are not maintainable
\n     as a compromise would operate as res-judicata between
\n     the   original   tenant   and   the   landlords.     In   the <\/p>\n
     present   case,   the   so-called   compromise   pursis   was
\n     filed only by two of the legal representatives of the <\/p>\n
     deceased protected tenant-Malhari, namely, Datta and
\n     Tukaram.   The proceedings before the  learned Deputy <\/p>\n
     Collector would show that in all there were 6 legal
\n     representatives   of   deceased   Malhari.     There   is
\n     absolutely nothing on record to show that two legal
\n     representatives   i.e.   Datta   and   Tukaram   were <\/p>\n
     authorised   by   the   other   legal   representatives   to
\n     enter   into   the   compromise.     The   terms   of   the
\n     compromise   would   show   that   it   was   only   collusive.
\n     For,   said   Datta   and   Tukaram   went   to   the   extent   of
\n     admitting that deceased Malhari was never tenant of
\n     the land in question but was a supervisor appointed <\/p>\n
                                                                                  ::: Downloaded on – 09\/06\/2013 16:03:13 :::<\/span>
\n                                                                        (18)                                                 WP. 246.1993<\/p>\n
     by the landlord for a period of 1 year.  No issue was
\n     tried   in   the   context   of   so   called   compromise   and <\/p>\n
     therefore, the compromise pursis entered into between
\n     the   landlord   and   only   two   of   the   legal <\/p>\n
     representatives of the  tenant cannot be regarded as
\n     bar to the relief of restoration of the possession.
\n     With due respect, I find it difficult to countenance <\/p>\n
     the observations made by the Single Bench in Dnyonaba
\n     Devrao Ugale and others (supra)  and it is difficult
\n     to   cull   out   any   ratio   from   the   said   authority.\n<\/p>\n
     Needless   to   say   reliance   placed   by   Mr.   Deshmukh   on <\/p>\n
     case of Dnyanoba Devrao Ugale (supra) is rather mis-
\n     placed.   Mr. Deshmukh has also invited my attention <\/p>\n
     to   certain   observations   in   case   of   “Radhu   Gokul
\n     Gawali   (dead   through   LRs.)   and   others   Vs.   Mohan
\n     Kishan   Gawali   (dead   through   LRs.)   and   ors.   2007(4) <\/p>\n
     All.M.R.   339”.     A   Single   Bench   of   this   Court   held
\n     that   even   though   no   limitation   is   provided   under <\/p>\n
     section 98, it has to be expected to be a reasonable
\n     time   either   for   the   authority   initiating   suo   motu <\/p>\n
     action or the party concerned, seeking restoration of
\n     the land.     The present matter does not come within
\n     the   ambit   of   section   98   of   the   H.T.   and   A.L.   Act
\n     which provides for eviction of a person who is found <\/p>\n
     in unauthorised possession of the tenanted land.\n<\/p>\n
     13]                   Taking   overall   view   of   the   matter,   I   am
\n     inclined   to   hold   that   the   rights   of   the   protected
\n     tenant-Malhari   remained   un-affected   inspite   of   the
\n     so-called   statement   arbitrarily   recorded   by   the <\/p>\n
                                                                                  ::: Downloaded on – 09\/06\/2013 16:03:13 :::<\/span>
\n                                                                        (19)                                                 WP. 246.1993<\/p>\n
     Deputy   Collector   about   his   refusal   to   get   back
\n     possession   of   the   tenanted   land   and   the   alleged <\/p>\n
     compromise pursis between the landlord and two of the
\n     legal   representatives   of   deceased   Malhari.     The <\/p>\n
     questions   mentioned   earlier   (para   6)   are   thus
\n     answered as below:\n<\/p>\n
                           A – No.
\n                           B – No.
\n                           C – No legal impact.\n<\/p><\/blockquote>\n
     It follows therefore that both the impugned judgments <\/p>\n
     are   un-sustainable   in   the   eye   of   law.     Hence,   the
\n     Petition   is   allowed.     The   impugned   judgments   and <\/p>\n
     orders are set aside.  The previous judgment rendered
\n     by the Deputy Collector (L.R.) and that of the M.R.T.
\n     rendered on  31.12.1980 and 29.11.1983, respectively, <\/p>\n
     are   restored.     The   Tahsildar   to   take   appropriate <\/p>\n
     action in pursuance to the judgment and order dated
\n     31.12.1980   rendered   by   the   Deputy   Collector   (L.R.)
\n     without   any   further   delay.       The   Petition   is <\/p>\n
     accordingly disposed of.   Civil Application no. 2784
\n     of 2008 also stands disposed of.  No costs.\n<\/p>\n
                                                                                              Sd\/-\n<\/p>\n
                                 [V.R. KINGAONKAR, J.]
\n     arp<\/p>\n
                                                                                  ::: Downloaded on – 09\/06\/2013 16:03:13 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court 5] Malanbai vs Legal Heirs Of Deceased on 23 June, 2010 Bench: V.R. Kingaonkar (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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-53711","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\n5] Malanbai vs Legal Heirs Of Deceased on 23 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/5-malanbai-vs-legal-heirs-of-deceased-on-23-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"5] Malanbai vs Legal Heirs Of Deceased on 23 June, 2010 - 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