JUDGMENT A.B. Naik, J.
1. This petition was filed by Amru @ Amruta Hariba Lamani challenging the judgment and order dated 21-11-1989 passed by the learned Designated Member of the Maharashtra Revenue Tribunal in Case No. 70/A/88/L, allowing the appeal filed by Shri Ganpat Mahadu Hasbe and set aside the order passed by the Deputy Collector, Latur, dismissing the application filed by Amru for possession of land Survey No. 127 admeasuring 9A 2G situated at village Nitoor, Tq. Nilanga, Dist. Latur, (hereinafter referred to as "the suit land").
2. During pendency of this petition, the original petitioner Amru as well as original respondent-Ganpat have died and application for bringing heirs of deceased petitioner and respondent on record, was allowed by this Court on 8th July, 2005. As such, the proceedings are being prosecuted by the heirs of respective parties, (for the purpose of brevity the petitioners will be referred to as "the tenant" and the respondents will be referred to as "the respondent").
3. To understand the controversy, the facts which emerged from the record, are required to be stated. The suit land undisputedly owned by one Sidramappa Prabhuappa. That land was in possession of the tenant who was a "protected tenant". As the land is situated in the then Osmanabad district, the statutory transfer of land was on 1st February, 1957. As the tenant was holding the land as protected tenant the proceedings were initiated to confer the ownership on the tenant. Accordingly, a provisional declaration was made in favour of the tenant. As per the rules then exist, (i.e. Hyderabad Transfer of Ownership Rules, 1955) the owner Sidramappa, raised an objection for the provisional declaration on the ground that he does not hold land more than 72 acres in his name, as there was a partition in the family. It was also contended that the tenant holds more than family holding, and as such, the provisional declaration made in favour of the protected tenant be cancelled. That objection was considered by the Special Tahsildar (LR) Udgir Circle Nilanga who, by his order dated 18th September, 1959 rejected the objection petition filed by the owner.
4. It appears that, in the meantime, the owner Sidramappa has inducted the respondent on the land as a tenant and it is the case of the tenant that the respondent is occupying the land unauthorizedly. Therefore, he moved the Tahsildar, by filing an application seeking possession of the land from the unauthorized person.
5. Prior to filing of the application for seeking possession, the Tahsildar, Nilanga, vide an order dated 13th October, 1978 fixed the price of the land which was declared in favour of the tenant. From the record, it is clear that on 5th March, 1979 the Agricultural Lands Tribunal, Nilanga had issued ownership certificate in favour of the tenant under Section 38(6) of the Act, read with Rule 22 of the Rules. The application which was filed by the tenant, seeking possession from the respondent was enquiry into by the Dy. Collector. The application was heard by the Dy. Collector who by his order dated 15th March, 1982 allowed the application and directed the respondent be evicted summarily and the land be put in possession of the tenant. However, it appears that in operative part of the order, there was a mistake in noting down the survey number.
6. The respondent, feeling aggrieved by the judgment and order passed by the Dy. Collector (LR) Osmanabad on 15th March, 1982 preferred an appeal before the Maharashtra Revenue Tribunal (for short "MRT"), being Case No. 144/A/1982/Osmanabad. During pendency of the appeal before the MRT, the original owner Sidramappa died but his heirs were not brought on record. Hence the appeal proceeded without his heirs and legal representatives being on record. The learned Member of the MRT having heard the contentions canvassed by the parties, observed :
"Present respondent No. 1 Amru s/o Hariba in his application filed under Section 98 of the HTAL Act 1950 while passing his order, is seen that present respondent No. 1 Amru Hariba made request in the application dated 17th September, 1978 filed by him before the Dy. Collector under Section 98 of the HTAL Act, 1950 that he be put in actual possession of the Survey No. 127 admeasuring 9A 12G situated at village Nitoor, Tq. Nilanga evicting the present application and present respondent No. 2 summarily, but it is surprising to note that the Deputy Collector (LR) Osmanabad passed an order in the operative part of his decision that the present appellant Ganpat be evicted summarily from the land Survey No. 128 admeasuring 9A 3G situated at village Nitoor Tq. Nilanga and possession of the same be restored to the present respondent No. 1 Amru s/o Hariba Lamani. In this way it is seen that the order passed by the Deputy Collector in his possession pertaining to Survey number of the land and the area thereof is not consonance in Survey No. and the area shown in the present respondent No. 1 Amru in his application filed under Section 98 of the HTAL Act, 1950, for that purpose, it cannot be said and held that the Deputy Collector has rightly decided the present matter as per the request of the present respondent No. 1 in his application. For that reason the decision under appeal passed by the Dy. Collector deserves to be set aside. It is also seen that the Deputy Collector has not recorded his specific finding in his decision towards the nature of the present appellant over the suit land though he has directed to dispossess the present appellant from land Survey No. 128 9A 3G situated at village Nitoor Tq. Nilanga."
7. On the observations (supra) the appeal was allowed and the order passed by the Dy. Collector was set aside and the matter was remanded to Dy. Collector and by giving opportunity to the parties to put their view in keeping in view the prayer made by the present respondent No. 1 in his application dated 13th September, 1977 filed by him under Section 98 of the HTAL Act for restoration of possession of the land Survey No. 127 situated at village Nitoor and not in consonance with Survey No. 128 of the same village.
8. After decision of the MRT referred to above, the matter was again went back to the Dy. Collector (LR) Latur. The Dy. Collector has considered the matter in the light of the directions issued by the MRT. The Dy. Collector considering the evidence and the contentions of the parties, accepted the fact that the tenant was declared as a new protected tenant under Section 37A of the Act and was simultaneously declared owner under Section 38E of the Act in the year 1957-58. He also recorded a finding after hearing the objection of the land holder and rejected the objection. Thereafter, he also noticed that the price was fixed by the ALT Nilanga and the tenant has deposited the entire price of Rs. 185.25 paise and the certificate of ownership was also issued under Section 38 of the Act in favour of the tenant. The Tahsildar, further, found that the respondent is in possession of the land unauthorisedly and after recording this finding the Dy. Collector (LR) allowed the application filed under Section 98 and passed the order of eviction of respondent summarily from the land Survey No. 127 admeasuring 9A 2G. He also recorded the finding that the tenant is only authorized to be in possession of the land and not the respondent. Accordingly, by the order dated 18-1-1988 the Deputy Collector disposed of the application.
9. Feeling aggrieved by the judgment and order passed by the Dy. Collector (LR) Latur, the respondent preferred an appeal being Appeal No. 70/A/88/L before the MRT.
10. On hearing the respective parties and going through the facts, the MRT came to the conclusion that the provisions of Section 98 are not applicable. The MRT observed that the declaration made in favour of the tenant under Section 38-E was not made final and still it is intact. On recording the finding on this aspect, the MRT was of the view that the tenant was not in possession of the disputed land on the notified date. Therefore, the only recourse available to the tenant is to seek restoration of possession from the authorities by applying under Section 38E(1) explanation. However, it is observed that remedy under Section 98 is not available and, accordingly, the MRT allowed the appeal by setting aside the order passed by the Dy. Collector.
11. Feeling aggrieved by the judgment and order passed by the learned Designated Member of the MRT on 21st November, 1989, the tenant preferred the instant Writ Petition, under Article 227 of the Constitution of India.
12. This Court on 9-1-1990 granted rule nisi and ordered interim relief.
13. Shri M.B. Sabnis, learned Advocate for the petitioners submitted that the MRT has committed an error appearing on the face of the record in holding that the proceedings under Section 98 are not maintainable. He submitted that this very finding runs contrary to the earlier order passed by the MRT, when, in 1982 it entertained the appeal and remanded the matter for correction of the order as it was found that the Dy. Collector has mentioned in the order directing the respondents to handover the possession of Survey No. 128. He further submitted that Section 98 of the Act authorizes the Collector to evict a person who is unauthorisedly occupying the land, in summary manner. He submitted that the record indicates unmistakably that the tenant was a protected tenant of the land. The landlord has challenged the provisional declaration by raising an objection as per the Rules. The Agriculture Lands Tribunal had overruled the objection raised by the landlord and, according to Shri Sabnis, that the case of the respondent was that the landlord has inducted him as a tenant after the notified date. The learned Advocate submitted that once it is held that the tenant was a protected tenant and there was provisional declaration and the objection raised by the landlord was rejected, the consequence of that order will have to be presumed and accepted that the declaration under Section 38-E of the Act. Therefore, he submitted that it was not open for the MRT to ponder on point as to whether Section 38-E declaration is made final or not. He submitted that the application which was filed under Section 98 was perfectly maintainable as it was contended by the tenant that the respondent is unauthorisedly occupying the land and, as such, is in possession of the land. Therefore, the remedy that is available to the tenant was to move a proceeding under Section 98 of the Act. He submitted that Section 38(1) explanation operates in an altogether different situation. He submitted that according to the said explanation, if the tenant is found not in possession on the notified date, the said protected tenant is entitled for declaration under Section 38-E and, then, only in such situation, Section 38E (1) explanation comes into play, as he pointed out that the objection raised by the landlord against the provisional declaration of the tenant was overruled and rejected by the Special Tahsildar (LR), Udgir on 18th September, 1959. In that objection, it was not a case of the landlord that tenant is not the tenant but respondent is his tenant. Thereafter, the Tahsildar by an order dated 13th October, 1978 fixed the price of the land and, accordingly, the price was also deposited by the tenant. He pointed out that subsequently a certificate under Section 38(6) read with Rule 22 has been issued on 5th March, 1979. He, therefore, submitted that the MRT while deciding the appeal has lost sight of all these aspects. As such, Mr. Sabnis, ld. Adv. Submitted that there is an error apparent on the face of the record committed by the learned Member of MRT in allowing the appeal.
14. Per contra, Shri S.V. Chandole, instructed by Shri V.G. Sakolkar, learned Advocate submitted that proceeding under Section 98 cannot lie against a person who himself is claiming to be a tenant of the land. He submitted that the only remedy that was available with the tenant is to move the authorities, seeking possession under Explanation (1) of Section 38-E of the Act. He submitted that the tenant in his application under Section 98 has not mentioned the date of his dispossession from the land in any of the proceedings and, as such, the application which was filed by the tenant was not maintainable and, therefore, the learned Member of the MRT was justified in setting aside the order passed by the Dy. Collector under Section 98 of the Act. He further submitted that after perusing material on record, the MRT observed that there is nothing brought on record to show that the proceedings under Section 38 were complete in all respect i.e. fixation of price, issuance of certificate, etc.
15. In my judgment, having considered the rival submissions of both the learned Counsel, the contentions advanced by Shri Chandole, learned Advocate has to be rejected, in toto; whereas the contentions advanced by Shri Sabnis, learned Advocate are required to be accepted, for the following reasons mentioned hereinbelow :
(1) The tenant was undisputedly a protected tenant. (2) The provisional declaration which was made under the Rules shows that the tenant was a protected tenant and a provisional declaration is made and he was in possession of land on the notified date i.e. 1-2-1957. (3) The provisional declaration was objected by the landlord by raising an objection, as required under the Rules. That objection was rejected by the Special Tahsildar on 18th September, 1959. (4) Once the objection to the provisional declaration is rejected; and on rejecting and overruling the objection raised by the landlord, the Tribunal would issue a certificate of ownership mentioned in Sub-section (2) of Section 38E to the tenant, in accordance with the entries in provisional list. Issue of certificate under the relevant rules is final declaration which is conclusive evidence of the tenant becoming owner. As certificate is issued in favour of the tenant on 5th March, 1979, the land vested in the tenant from the date i.e. 1-2-1957. (5) Once the land is statutorily transferred the landlord ceases to have any title and the protected tenant shall be deemed to be full owner of the land. (5) Once full ownership is deemed to have been conferred or! the tenant, the ex-landlord gets no authority and the title of the land does not remain with him and, therefore, he cannot create any tenancy in favour of any other person. So, if the tenancy is created by the landlord in favour of the respondent, that creation of tenancy will have to be held as without any authority of law and, therefore, non-est, and the possession of the respondent will have to be considered and held as unauthorized and unlawful. (6) Once it is accepted that the respondent's possession is unauthorized and unlawful, the only remedy that is available to the tenant is to seek possession, by asking eviction of such unauthorized person under Section 98 of the Act.
16. For all these reasons, in my judgment, the learned Designated member of the MRT committed an error appearing on the face of the record in holding that the proceeding or remedy under Section 98 is not available to the tenant under Section 98 of the Act. In my judgment, the proceeding under Section 98 can lie against the ex-landlord or even against a person who is occupying and possessing the land unauthorizedly or unlawfully, and the Collector gets jurisdiction under 98 of the Act. Therefore, in my judgment, the MRT fell in error in interfering the order passed by the Deputy Collector. As such, the order passed by the MRT is required to be interfered with. Accordingly, the said order is set aside by issuing a writ of certiorari.
17. In the result, petition is allowed. Rule is made absolute in terms of Prayer Clause "B". The respondents to pay cost to the petitioners throughout.