JUDGMENT A.B. Naik, J.
1. This writ petition filed under Art. 227 of the Constitution of India by the heirs of deceased tenant Kishan Ganpati Muley, challenging the judgment and order passed by the Maharashtra Revenue Tribunal, Deputy Collector (LR), Parbhani and Additional Tahsildar, Kalamnoorie. The respondents are the heirs and successors of one Abdul Quadar who was the owner of land Survey No. 24-B admeasuring 10-A, 25-G situated at Kalamkonda (Kd), Tq. Kalamnoorie Dist. Parbhani. The parties to this judgment i.e. petitioners and respondents will be referred to as the "tenant" and the "landlords".
2. The present proceedings arise out of an appeal filed by the landlords challenging the declaration made in favour of tenant under Section 38-E of the Hyderabad Tenancy and Agricultural Lands Act (for short "the Act") that the declaration was in respect of land Survey No. 24 admeasuring 10-A, 25-G (for short "the suit land"). It is contended by the landlord in the appeal that the declaration which is made under the Act was made without any notice to them, or, without offering any opportunity of being heard. It is contended that they came to know about declaration on 12th July, 1971, when one of the landlords had been to the office of the Talathi to obtain the revenue record of suit land. It was contended that the original landholder Abdul Quadar s/o Muniruddin died in the year 1956, leaving behind the landlords as heirs and successors. It is contended that no notice was given to them, so also no hearing was given prior to making the declaration in favour of the tenant. It was contended that on the death of deceased - Abdul Quadar, all the landlords succeeded to the estate of deceased - Abdul Quadar with their definite shares as per the Mohammedan Law and, therefore, they contended that the declaration made in favour of tenant considering the family holding of Abdul Quadar is bad in law. It is contended that as they succeeded to the estate of deceased - Abdul Quadar as heirs with definite shares and declaration was made in favour of the tenants considering the holding of deceased Abdul Quadar, is contrary to the provisions of Section 38(7) of the Act. It is submitted that for the purpose of declaration under Section 38-E the holding of each of the heirs of deceased-Abdul Quadar should have been taken into consideration. It was also submitted that while making declaration, the holdings of Abdul Quadar and Noor Mohammed, the brother of deceased Abdul Quadar, was also not considered. If the holdings of each heirs of deceased Abdul Quadar is taken into consideration, then the land held by them being less than two holding, as such, the tenant is not entitled for declaration under Section 38-E of the Act.
3. With the above averments, the landlords submitted an appeal on 30th September, 1971 before the Deputy Collector (LR) Parbhani who, by the order dated 30th June, 1973 condoned the delay and set aside the declaration made in favour of tenants. The order dated 30th June, 1973 is annexed to this petition which is at Exh. "B". On perusing the order, it does not reflect whether the tenant was noticed or not. However, the Dy. Collector accepted the contention that the holding of the each landlords was not considered, while making declaration. Therefore, he allowed the appeal and remanded the matter to the Tahsildar to decide the appeal in accordance with law.
4. After remand, the matter was taken up by the Tahsildar and ALT Kalamnoorie who, by the order dated 31st August, 1974 rejected the objection of landlords and confirmed the declaration made in favour of the tenant. The copy of the order is annexed at Exh. "C" of the petition.
5. Being aggrieved by the judgment and order dated 31-8-1974 passed by the Tahsildar, Kalamnoorie the landlords preferred an appeal before the Dy. Collector (LR) on 16th December, 1974 raising identical contentions which they have raised in their original appeal. The Dy. Collector on perusing the record and, in particular, the tenancy register of final declaration, was of the view that the question of date of death of deceased Abdul Quadar was required to be considered as, according to the landlords Abdul Quadar died on 5th May, 1957 i.e. prior to notified date and to ascertaining holding of his successors and to prove the date of death of Abdul Quadar, the Dy. Collector remanded the matter to the Tahsildar to record a finding on the points which are stated in the judgment.
6. After the order dated 31st May, 1979, the matter went back to the Tahsildar. The parties appeared before the Tahsildar and produced oral evidence and also certificate issued by the Police Patil about the date of death of Abdul Quadar. The Tahsildar, found that Abdul Quadar died on 5th May, 1957 and his heirs landlords became owners of the land before the date of declaration i.e. 25th May, 1957 and, therefore, he opined that after the death of Abdul Quadar, the holding of each heir was required to be considered while confirming the ownership on the tenant, thus he held that the holding being less than the two family holding on the notified date and thus the tenant cannot be declared as owner under Section 38-E of the Act. Accordingly, he allowed the objection and set aside the declaration made in favour of the tenant.
7. Feeling aggrieved by the order dated 30th April, 1986 passed by the Tahsildar, Kalamnoorie, the tenant preferred an appeal before the Dy. Collector (LR) Parbhani. It appears that after filing of the appeal, the original tenant died and his legal representatives were brought on record as heirs and legal representatives and, accordingly, they have prosecuted the appeal. The Dy. Collector by his order dated 27th May, 1987, dismissed the appeal and confirmed the order passed by the Tahsildar.
8. Feeling aggrieved by the judgment and order passed by the Tahsildar, the tenant preferred Revision application before the Maharashtra Revenue Tribunal (for short "the Tribunal"). The learned Designated Member of the Tribunal by the judgment and order dated 30th November, 1988 dismissed the Revision Application and confirmed the judgment and order passed by the Tahsildar and Dy. Collector. All these orders are subject-matter of this Writ Petition.
9. Shri N. N. Shinde, learned Advocate appearing for the tenant submitted that all the three authorities below have committed an error appearing on the face of the record in holding that the holding of the heirs of deceased - Abdul Quadar is required to be taken into consideration while confirming ownership of the land on tenant, under Section 38-E of the Act. He submitted that the question of date of death of deceased Abdul Quadar and for that purpose, the holdings of his each heir and successor is irrelevant, in view of the scheme of the Act. He submitted that it is admitted fact that the tenant was protected tenant, as such, he or for that purpose his heirs, as per Section 40 of the Act are entitled for all the benefits and rights accrued under the Act. Furthermore, Abdul Quadar was the owner, is also not disputed. Considering the holding of Abdul Quadar an enquiry was conducted, as required by the Rules and then a declaration under Section 38-E of the Act was made. He, therefore, submitted that the date of transfer of ownership of the land held by tenant is concerned, is 25th May, 1957. He submitted that on 25th May, 1957 all lands held by the protected tenant shall stand transferred statutorily in favour of the tenant who became absolute owner of the land by virtue of the statute. He, therefore, submits that there was no scope for all the three authorities to interpret the statute in a manner to which the Legislature, even not remotely suggested. He submitted that the scheme of the Act has to be considered in judging the controversy raised in the proceedings. He submitted that as per Section 34 of the Act a person qualifying those requirement becomes a protected tenant. The rights of protected tenant, ordinary tenant and land-holders are recognized by the statute under Chapter IV-A of the Act. The learned counsel submitted that the procedure to confirm ownership on the tenant is prescribed under the Rules, where detail procedure for enquiry is prescribed before confirming the ownership of the land in favour of the tenant and after following that procedure as envisaged, the ownership stands confirmed on the tenant from the notified date i.e. 25-5-1957. He, thus, submitted that the rules envisages various steps to be taken before the land is transferred to tenant under Section 38-E of the Act. The learned Advocate submitted that initially the Agricultural Lands Tribunal (for short "ALT") has to prepare a list of all the protected tenants within its jurisdiction. After preparation of such list, the ALT has to publish it and invite objections from the landholder or any person having interest in the land or to object for declaration within time prescribed. If the objections are received, then the ALT has to deal with it and then on considering the objection, if any, the ALT has to confer the ownership. He submitted that in lifetime of Abdul Quadar he has not raised any sort of objection to the declaration in favour of the tenant. Therefore, after the death of Abdul Quadar, his heirs cannot object the declaration on any count, including their respective holding. He submitted that all the authorities below have proceeded on wrong assumption that if the land-holder dies prior to the notified date i.e. 25th May, 1957 hence the holding of his heirs or successors is required to be considered and on that wrong assumption, the statutory declaration made in favour of the tenant came to be declared invalid which according to the learned Advocate is patent error. He submitted that it was not the intention of the Legislature nor a requirement of law to enquire into holdings of the heirs/successors of the landholder. He submitted that merely because all the three authorities have decided against the tenant and recorded a particular fact i.e. date of death of Abdul Quadar, cannot be considered to be a finding which is binding on this Court while considering petition filed under Art. 227 of the Constitution. Shri Shinde, learned Advocate submitted that entire approach of the authorities below is erroneous and against the very basis of agrarian reforms i.e. to confirm the ownership on the tenants. In the case at hand, he submitted that the authorities below not only erroneously exercised their jurisdiction but also have entertained the challenge to the declaration after 14 years of the date of declaration, as such, this is a fit case where this Court should interfere in the judgments of the authorities below.
10. Per contra, Mrs. Kalpalata Patil, learned Advocate for the respondents 1 to 3 contended that the relevant date to consider the holding of the landholder is 25th May, 1957, and the holding of the landlord as on 5th May, 1957 is required to be taken into account, while confirming ownership of the land on the tenant. She submitted that on 25th May, 1957 all the heirs of Abdul Quadar succeeded as his heirs and they got the share in it as per the Mohammedan Law. Thus, on that day, i.e. 25th May, 1957, the holding of each sharer was required to be considered before confirming the ownership on the tenant. She submitted that as the holding of the landholder being less than two family holding, the tenant is ineligible to purchase the land under the statute. She submitted land held by the tenant to be transferred to him under Section 38-E is subject to restriction incorporated in the Section itself. She submitted that a balance is struck by the statute considering the interest of the tenant and landlord too. She submitted that if the holding of the landlord is less than two family holding then even if the tenant is a protected tenant, the ownership of the land held by such tenant under Section 38-E cannot be transferred. She submitted that Abdul Quadar was a Mohammedan, on his death, all the landlords succeeded to the property of Abdul Quadar in definite shares and, therefore, she submitted that the relevant consideration i.e. family holding is the family holding of each heirs of deceased Abdul Quadar, while confirming the ownership on the tenant. If this aspect is to be considered in its proper perspective, then the family holding of the heirs of Abdul Quadar is less than two family holdings, as such, the tenant cannot become purchaser or, is entitled to the ownership under Section 38-E of the Act. She submitted that it was a case of the landlords that Abdul Quadar died before the notified date and to ascertain the exact date of death of Abdul Quadar, the matter was remanded to the Tahsildar and the landlords led evidence to substantiate the claim and the landlords have produced the evidence to show that Abdul Quadar died on 5th May, 1957 i.e. prior to the date of declaration and, therefore, she submitted that the holding of each landlord i.e. heirs of deceased Abdul Quadar has to be considered independently. She submitted that on this backdrop of legal aspect, all the three authorities below proceed with; and the fact-finding authority and the Tribunal, have concurred with the fact that the land-holders have established that Abdul Quadar died on 5th May, 1957 and the holding of his successors as on 25th May, 1957 is to be considered for confirming ownership on the tenant. She submitted that these findings being finding of fact, this Court will be very slow to interfere in the said finding in the jurisdiction conferred on this Court by virtue of Art. 227 of the Constitution of India. The learned Advocate, in order to substantiate her contention has placed reliance on the recent judgments of the Apex Court in the case of Ranjeet Singh v. Ram Prakash reported in AIR 2004 SC 389 and Surya Dev Rai v. Ram Chander Rai . The learned Advocate also brought to my notice the judgment of the learned single judge in the case of Abdul Talib Syed Hanif v. Ms Marnikar reported in 1978(2) Mh.LR. 50 and the judgment in the case of Abbas Abdul Mhaiter v. The Director, Resettlement, . To substantiate her contention that after death of Mohammedan, his heirs succeed to definite shares and their respective shares are to be taken into consideration while confirming the statutory transfer in favour of the tenant. Before considering these authorities I have to keep in mind the Division Bench judgment of this court in the case of Abdul Sakur Dadamiya v. Maruti Bali Kokate, (1961)63 BLR 607; and in my opinion, in view of this judgment of this Court, the point raised is no more res-integra.
11. At the outset, I may observe that the judgments in Abdul Talib and Abbas Mhaiter (supra) which are relied on by Smt. Patil, learned Advocate are not in respect of the provisions of the Act. The Judgment of Abdul Talib is under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act; whereas the judgment of Abbas Abdul Mhaiter is under the Land Acquisition Act. Therefore, while considering the contentions of the learned counsel based on these judgments, this Court will not forget the fact that the present proceedings arise of Tenancy Act, which indeed is a social and benevolent legislation, enacted with an intention to confer the ownership of the land held by the tenants in their favour. Before adverting to appreciate the contentions of the learned counsel for rival parties I will have to take resume of the statutory provisions. The notified date for transposition of ownership is also not disputed that is being 25th July, 1957. Status of tenant as "protected tenant" is not in dispute. Therefore, this Court while considering the submissions has to keep in mind the statute as then in existence i.e. in 1957.
12. The Act was passed by the then Hyderabad Government being Hyderabad Act (i.e. Principal Act) No. XXI/1950. (It is not disputed that the lands which are situated were part and parcel of the erstwhile Hyderabad State). The Act extended to whole of the Hyderabad State and on reorganization of States, this part became part of Bombay State. The then Bombay Legislature, enacted an Act called "Bombay (Hyderabad Area) Adoption of Laws Order, 1958. The principal Act came into force on 10th June, 1950. The Act does not define the word "family" but it has defined "family holding". Section 2(h) defines the term "family holding" which reads thus :
"Family Holding" means a holding the area of which is equal to the area determined for any class of land under Section 4 as the area of a family holding for the class of land of which the holding consists in the local area in which it is situate;
The word "Protected tenant" is defined in Section 2(r); The word "tenant" is defined in Section 2(v). Next, the relevant section for the purpose of decision in this petition is Sections 34 and 38. Section 34 defines protected tenant which reads thus :
"34 : (1) A person shall, subject to the provisions of sub-sections (2) and (3), be deemed to be a protected tenant in respect of land if he -
(a) has held such a land as a tenant continuously - (i) for a period of not less than six years, being a period wholly included in the Fasli years 1342 to 1352 (both years inclusive), or (ii) for a period of not less than six years immediately preceding the 1st day of January, 1948, or (iii) for a period of not less than six years commencing not earlier than the 1st day of the Fasli year 1353 (6th October 1943) and completed before the commencement of this Act, and
(b) has cultivated such land personally during such period : (Provided that where the landholder is a minor (or is a serving member of the armed forces) the tenant shall not be deemed to be protected tenant if before the expiration of one year from the date on which the minor attains majority (or the landholder ceases to be a serving member of the armed forces) the landholder gives three month's notice in writing intimating his decision to terminate the tenancy and (in the case of the landholder who has attained majority, he stated in good faith in the notice that he requires the land to cultivate personally): Provided further that where the landholder is a person permanently incapable of cultivating the land by reason of mental disability the tenant shall not deemed to be a protected tenant if before the expiry of one year from the date of landholder, the person, who succeeds to the land gives three months notice in writing intimating his decision to terminate the tenancy if in good faith he requires the land to cultivate personally.
Explanation : Where the land is held under more than one joint landholders the last two provisions shall not apply unless all such landholders are subject to a disability specified in the said provisions).
Explanation I: If the person who held such land as a tenant on the date of expiry of any of the three qualifying periods mentioned in Clause (a) came to hold the same by inheritance or succession from another person who so held the land or if he has held such land as a tenant and is an heir to such other person the period during which such other person held such land as a tenant shall be included in calculating such qualifying period.
Explanation II: If the person who held such land as a tenant on the date of expiry of any of the three qualifying periods mentioned in Clause (a), held as a tenant at any time within six years before the said date from the same landholder in the same village any other land which he cultivated personally, the period during which he held such other land shall be included in calculating such qualifying period.
Explanation III: Where any land is held by two or more persons jointly as tenants all such persons shall, if any of them cultivated and continued to cultivate such land personally and, if the other conditions specified in this section are fulfilled be deemed to be protected tenants in respect of such land.
(2) Where more than one person would be entitled, under sub-section (1) to be deemed to be a protected tenant in respect of any land then, notwithstanding anything contained in that sub-section, the only one of such persons entitled to be so deemed shall be -
(a) the person whose qualifying period is the period specified in sub-clause (1) of clause (a) of that sub-section, or (b) if there is no such person, the person whose qualifying period is the period specified in sub-clause (2) of that clause. (3) A person who at the commencement of this Act is no longer in possession of land in respect of which he is deemed under sub-section (1) to be a protected tenant shall, notwithstanding anything contained in that sub-section, not be deemed to be protected tenant in respect of such land if - (a) he was evicted from such land in pursuance of a decree or order of competent Court, or (b) such land is being cultivated personally by the landholder (for at least one year before the commencement of this Act, or after the land was surrendered to the landholder by the tenant), or (c) a permanent structure has been built by the landholder on such land, or (d) such land has been permanently diverted by the landholder to non-agricultural uses. Explanation : In sub-sections (2) and (3) of this section and in Sections 35, 36 and 37 references to a person include references to such two or more persons as are referred to in Explanation III to sub-section (1). (This section is quoted as it stood then) 13. Certain rights are created under the Act in favour of the "protected tenants" who are entitled to purchase the lands so held by them. The rights of the protected tenants, ordinary tenant and the landholders are defined and explained in Section 38 of the Act. Section 38 finds place in Chapter IV A which was added by Bombay Act No. XXXII/1958 published on 8th June, 1958. The tenant who were the protected tenants as per Section 34 of the Act, were entitled to purchase the land held by them and the ownership stood conferred on them under Section 38-E of the Act. 14. Section 97 of the Act empowers the State Government to frame the rules for carrying out the purposes of this Act. In exercise of the powers conferred by Section 97 of the Act, the then Government of Hyderabad made the rules called as "Hyderabad Transfer of Ownership of Rules, 1955" framed on 1 2-8-1955 and published in the Hyderabad Government Gazette Part I-C on 25th August, 1955. These rules came into force on 25th August, 1955. The relevant rules for purpose of this petition are Rules 3 to 7, reads thus. 3. The Tribunal shall cause wide publicity of the notification issued by the Government under Section 38-E in each village situated in the notified area by, (a) affixing copies of the notification in the chavdi or any other conspicuous place in the village. (b) beat of drum, and (c) by explaining the contents and consequences of the notification to the ryots individually or in groups. 4. The Tribunal shall, after the issue of the notification under Section 38-E cause summary enquiries to be made in respect of lands held by the protected tenants and their respective land-holders and shall prepare a list in Form I of protected tenants who are entitled to purchase lands under Section 38, to whom the ownership is to be transferred under Section 38-E together with the description of such lands or portions thereof. 5. The list prepared under Rule 4 shall be published as a provisional list by affixing a copy thereof to the notice board in the chavdi and the Tribunal shall fix a date for hearing of objections against the provisional list and announce it in the village by beat of drum. 6. (1) On the date fixed under Rule 5, the Tribunal shall, after hearing objections preferred by the landholders or any other interested persons, make summary enquiries in those cases and declare in the provision all list with or without modifications as final and affix a copy of the final list on notice board of the chavdi and announce in the village by beat of drum that the final list has been so affixed. 7. A certificate in Form II declaring the protected tenant to be owner of the lands transferred to him shall be issued by the Tribunal." 15. Thus, upon reading the rules, it is clear that, on completion of the enquiry as contemplated under the Rules, the ownership of the land held by the protected tenant stand transferred to them from notified date. Section 38-E makes this provision clear, which reads thus :
38-E : (1) Notwithstanding anything in this Chapter or any law for the time, being in force or any custom, usage, decree, contract or grant to the contrary, the Government may, by notification in the Official Gazette, declare in respect of any area and from such date as may be specified therein that ownership of all lands held by protected tenants which they are entitled to purchase from their landholder in such area under any provision of this chapter shall stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands; (Provided that the transfer under this sub-section shall be subject to the conditions (a) and (b) mentioned in sub-section (7) of Section 38 and the further condition that the extent of the land remaining with the landholder after the purchase of the land by the protected tenant, whether to cultivate it personally or otherwise, shall not be less than twice the area of a family holding for the local area concerned; Provided further that where in respect of any such land, any proceeding under Section 19, 19-A or 32 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date on which such proceeding is finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding).
(2) A certificate in the prescribed form declaring him to be owner shall be issued by the Tribunal to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having any interest therein;
Provided that when the land held by a protected tenant happens to be an "Inam" the tribunal shall not issue such a certificate unless the previous sanction of the Government has been obtained.
(3) Within 90 days from the date specified in a notification under subsection (1) every landholder of lands situated in the area specified in such notification shall file an application before the Tribunal for the determination of the reasonable price of his interest in the land which has been transferred to the ownership of a protected tenant under subsection (1) (and if an application is not so filed within such period by the landholder but a certificate under sub-section (2) has been issued, the Tribunal may suo motu proceed to determine such price and thereupon) all the provisions of sub-sections (4) to (9) of Section 38 shall mutatis mutandis apply to such application :
Provided that if the protected tenant commits, default in respect of any instalments shall be recovered by the government as arrears of land revenue and paid to the landholder.
Provided further that if the whole or any part of the price due to the landholder cannot be recovered as arrears of land revenue, the transfer shall not be effective and the amount, if any, already paid by the protected tenant towards the price shall be refunded to him together with interest at three percent, per annum and the land revenue paid by him, if any, after deducting therefrom the rent for the period)."
(Rest of the provisions are not taken)
16. At this juncture, it may be noted that the rules quoted above, came to be repealed by the Hyderabad Tenancy and Agricultural Lands Rules, 1958. Rule 52 clause (g) refers to the repeal of Hyderabad Transfer of Ownership Rules, 1955 published in the Government of Hyderabad, Revenue Department. Notification No. 5-A-3-174/55-56 dated 12th August, 1955 the Hyderabad Tenancy and Agricultural Lands Rules, 1958 came to be published in Bombay Gazette Part IV B Page 1473 in December, 1958. I made it clear in the earlier part of the order that the present proceeding i.e. declaration in question relates prior to the commencement of 1958 Rules, hence I had to consider the rules then stood i.e. in 1955.
17. There is no record nor even it is contended by the landlords that in the life time of Abdul Quadar he has raised any objection as provided under the Rules. As such, the present landlords cannot challenge the declaration of ownership made in favour of the tenant on altogether new ground and that too in the appeal filed after a long period i.e. 14 years. The controversy in the present proceedings is that if the original land-holder died before the notified date whose family holding is to be considered i.e. of the deceased landholder or of his heirs. In the present case, the landlord is admittedly a Mohammedan and on his death all his heirs succeeds to definite shares, thus, whether the holding of each heirs or successors is to be taken into consideration, while confirming ownership of the land on the protected tenant, or whether the right accrued to the tenant under the Statute i.e. Section 34 read with Section 38-E of the Act taken away by the fact that the landholder died before the notified date, by entertaining the plea that the holding of each of his (deceased landholder) is to be taken into consideration while confirming ownership on tenant which by the operation of Section 38-E is final one. Smt. Patil, learned Advocate is right in contending that all the three authorities have recorded a finding that Abdul Quader died on 5th May, 1957 which according to her is a finding of fact, based on appreciation of evidence. Thus, on this backdrop, she submitted that all the landlords who are admittedly the heirs of deceased - Abdul Quadar succeeded to their definite shares hence those heirs are entitled to notice of the proceeding and their individual and independent holding is to be taken into consideration, while granting declaration under Section 38-E, in favour of the tenant. Mrs. Patil, laid emphasis on the provisions of Section 38 sub-section (7) and contended that declaration under Section 38-E is always subject to the conditions incorporated in sub-section (7) of Section 38 of the Act. This contention is required to be considered on the backdrop of the undisputed position (i) the tenant was protected tenant as on commencement of the Act he was in possession of the land; (ii) it has to be presumed that all the procedure provided under the rule was followed by ALT while granting declaration; (iii) the rules provide and prescribe a detailed procedure to be followed unless contrary is proved by the landlords. Nothing is brought on record by the landlords to suggest that ALT has not conducted the enquiry as contemplated under the Rules, nor a contention raised by the landlords that deceased Abdul Quadar has raised objection as per Rules but it was not considered by ALT. The only contention raised that was said that too in appeal against the final declaration that the holding of landholders i.e. heirs of deceased Abdul Quadar as on the date of notification i.e. 25th May, 1957 was required to be considered. Let me test the validity of this contention of Smt. Patil.
18. As per the Rules referred (supra) the ALT is required to prepare the list of tenants under their respective jurisdiction who are entitled to purchase the land from their landholder under Section 38 of the Act. The ALT has also to find out as to what area the tenants are entitled to purchase in view of the limitation or restriction imposed on the right of such tenant to purchase the land under subsection (7) of section 38. The list is to be prepared by the Tribunal on the basis of the data available with them in the tenancy record prepared and maintained by them under the rules. On completion of the list of such tenant with the extent of area they are entitled to purchase, the Tribunal is required to publish the list in the concerned area. This publication of the list is called, "Provisional Declaration". The landholders or any interested person in the land or even the tenant who dispute the provisional declaration in respect of the lands are required to object such declaration within the specified period allowed by the ALT. After the specified period is over, the ALT would make an enquiry after giving notices to all the parties, of the objection raised by either the land-holder or the tenant or interested person and then to decide them keeping in mind the nature of objection. If the objection is overruled, the ALT would issue a certificate of ownership as referred to in sub-section (2) of Section 38-E to the tenant in accordance with the entries in the provisional list, where the objection is allowed name of the protected tenant will be either deleted from the provisional list or its entry will be modified to suit the final decision on objection. This analysis of Rules indicates that all these procedure has to be complied with before the notified date. It is not the case of landholders that in lifetime of Abdul Quadar he has raised any objection, but in intervening period i.e. from filing objection till his death, the objections were not decided. Therefore, it will not be correct to contend that in view of the death of landholder, the holding of each of the heirs of deceased Abdul Quadar was required to be considered. In my judgment, this contention is not available to the landholders as Abdul Quadar, in his lifetime, has not raised any objection to the provisional declaration, that was made by ALT in favour of the tenant. Thus, in my judgment, once the provisional declaration is made as per the rules and if no objection is received by ALT that declaration becomes final one in view of Rule 6(1) of the Rules (supra). Thus, in my view the relevant date for granting declaration under Section 38-E is the date when the provisional list of tenant was published under the Rules, which is relevant for the purpose of transferring the ownership to the tenant under Section 38-E of the Act, the provisional declaration can be modified, annulled or confirmed after hearing the objection, but in case at hand, such is not the case. Therefore, in my judgment, the contention that is advanced by Smt. Patil, that the relevant date for considering the holding of the landlord is the date of notification, cannot be accepted and if it is accepted it will be contrary to the statute itself. The process of transfer of ownership is not restricted to the date mentioned in the notification but the process starts from the date of publication of the provisional list of the protected tenants prepared by ALT in terms of the rules referred to above. Therefore, in my judgment, there is no substance in the contention of Smt. Patil that the holding of the landholder is required to be considered on the date of notification, which in the present case is 25th May, 1957. Even assuming and accepting the fact that Abdul Quadar died on 5th May, 1957, it has no effect on the final declaration or transfer of ownership under Section 38-E of the Act as the right is accrued to the tenant to purchase the land, from the time his name is included in the list of protected tenants, who is entitled to purchase the land from their landholders under Section 38.
19. In my judgment the point which is raised is no more res-integra in view of the Division Bench judgment of this Court in Abdul Sakur's case (supra) on which Shri Shinde learned. Advocate for petitioners, placed strong reliance. The Division Bench of this Court in Abdul Sakur's case was dealing with the identical issue and point, which I am considering in the present petition. The case before the Division Bench arose out of the order passed by the Bombay Revenue Tribunal in a proceeding taken under Section 38-E of the Act. In those proceedings the Bombay Revenue Tribunal has taken a view that for the purpose of proviso to sub-section (1) of Section 38-E of the Hyderabad Tenancy and Agriculture Lands Act, the holding of the deceased Mohammedan will after his death be treated as one unit, unless it is divided by metes and bounds and the shares of his heirs in it separated. The correctness of this finding was subject-matter of decision by the Division Bench of this Court.
20. To understand the point involved in that matter, let me recapitulate the facts of Abdul Sakur's case. The land in dispute belong to one Dadamiya, father of the petitioners, Abdul Gafoor Dadamiya died some time in 1947, leaving behind the petitioner, another son, six daughters and two widows. The opponents in that petition were the tenants of the lands, they were provisionally declared to have become the owners of the land after issuance of notification by the State Government under sub-section (1) of Section 38-E of the Act. The petitioners objected to this declaration. They contended that after the death of their father and they as the heirs held the lands as tenant in common and that each of them was the owner of only his share in the land, and which was less than two family holding and that consequently the tenants could not be declared to be the owner of the land. These contentions were not accepted by the Tribunal. While rejecting the contentions, the Revenue Tribunal followed the judgment of Special Bench in another group of petitions which was heard by the same Division Bench where the Tribunal held that where the lands left by deceased Mohammedan which have not been divided by metes and bounds by heirs all the land should be treated as one unit for the purpose of proviso to sub-section (1) of Section 38-E of the Act. The third group of petition which was heard where the land belonging to the father of the petitioners he died leaving behind the petitioners and other heirs the petitioner also objected to the declaration made in favour of the tenant on the ground that his share in his father's land, was less than two family holding, as such, no declaration can be made in favour of tenant. This objection was overruled. It was contended before the Division Bench of this Court that the view taken by the Tribunal was not correct, as under the Mohammedan Law heirs of the deceased Muslim do not form a joint family and that each one of them is the owner of only his particular share that they cannot therefore be said to be the owners of the whole land and consequently the shares of each should be considered separately for deciding whether the tenant is entitled to purchase the land. The Division Bench negativing this contention, observed.
"Sub-section (1) of Section 38-E states that notwithstanding any law for the time being in force or any custom, usage, decree, contract, or grant to the contrary, the Government may, by notification in the Official Gazette, declare in respect of any areas and for such date as may be specified therein that ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area shall stand transferred to and vest in the protected tenants holding the land from such date the protected tenant shall be deemed to be in the full owners of such lands. The first proviso to this sub-section states that the transfer under this sub-section shall be subject to the condition that the extent of the land remaining with the landholder after the purchase of the land by the protected tenant, shall not be less than twice the area of a family holding. Under these provisions, therefore, a tenant becomes the owner of the land which he is entitled to purchase under the provisions of the Act, subject to the condition that the land left with his landholder is not less than twice the area of a family holding. Sub-section (1) of Section 38 lays down what lands a tenant is entitled to purchase from his landholder. This sub-section provides that a protected tenant shall be entitled to purchase the landholder's interest in the land held by the former as a protected tenant or, as the case may be, ordinary tenant. The proviso to this sub-section states that where such tenant is an ordinary tenant and the landholder is a minor, a widow, a person serving in the armed forces, or a person subject to any physical or mental disability, such tenant shall be entitled to purchase the landholders interest after the expiry of two years from the date specified in this proviso. The Explanation to this sub-section states that where land is held by a tenant under two or more joint landholders, the proviso to sub-section (1) shall not apply if at least one joint holder is outside the categories specified in the said proviso. This Explanation, therefore, deals with the case of joint holders, that is, where the land is held by more than one person and where one of the holders belongs to one of the categories mentioned in the proviso. The Legislature, therefore, also contemplated cases in which the land is held by more than one person, in such cases also the section will apply and the tenant is entitled to purchase the interest of all the joint holders, because they together are his landholders. Even if one of the joint holders is a widow or belongs to one of the other categories mentioned in the proviso, the tenant will be entitled to purchase the share of all of them in the land, if least one joint holder is outside the categories specified in the said proviso.
It is therefore, clear that in cases in which the land is held by more than one person, they together constitute the "landholder". Under Section 38-E the tenant become the owner of the entire land held by him i.e. of the share of all the joint holders in it, subject to the condition mentioned in the proviso to sub-section (1) of Section 38-E, this proviso requires that the land left with the landholder shall not be less than two family holdings. Where the land is held by several persons, all of them are landholders and the extent of land left with all of them together will have to be taken into consideration for deciding whether it is less or more than two family holdings. In other words, the tenant will be entitled to purchase the land, unless it is shown that the total area of the lands remaining with all the joint holders is less than the area of two family holdings.
This will be the position, whether the joint holders are Hindus or Muslims or belong to any other community. If they are Muslims, they hold the land as tenants - in common and each one of them has a specified share or interest in it. But until the land has been divided by metes and bounds, none of them can be said to be the owner of any particular part of the land. The land belongs to all of them jointly and they together are its landholders. No one of them can say that any particular part of the land belong to him or that he is the landlord of any specified portion of it. Every one of them has an interest in every part of the land. In such a case, the "landholder" within the meaning of the proviso to sub-section (1) of Section 38-E would mean all the joint holders together. For the purpose of this proviso, therefore, the lands inherited or held by all of them will have to be taken into consideration for determining whether they do not exceed twice the area of a family holding. It may also be noted that the proviso does not say that where there are two or more joint holders, the land left with each one of them should be equal to two family holdings."
(Emphasis supplied)
21. The Division Bench, further, observed that the position will be different where the holding of the deceased landholder has been divided by metes and bounds. It is not the case at hand put up by the landlords that immediately after the death of Abdul Quadar, the land was divided by metes and bounds to the extent of their respective share and they are separately occupying that portion or share in the land. On the other hand, the challenge which was put forth by the landlords was based on contention, (i) that the declaration is made after death of Abdul Quadar and the holding of each heirs of Abdul Quadar is to be reckoned separately. So far as this contention is concerned, it is squarely covered by the judgment of the Division Bench of this Court (supra). Therefore, it is not possible for me to endorse the contention of Smt. Patil. As I have already held that the rights of the parties are crystallized when the provisional declaration is made and the position existed on that day is only relevant, for confirmation of ownership under Section 38-E and to transfer of ownership in favour of the tenant under the statute.
22. Having rejected the contention of Smt. Patil, learned counsel, now, what remains for me to consider whether the ratio of two judgments cited by the learned counsel Shrimati Patil, will apply to the case in hand. Abbas Abdul's case (supra) arose out of acquisition of land by the Government under the Land Acquisition Act. It was a case of the petitioner that their father Abdul Mateen, died on 9th October, 1970, leaving behind him three sons as his heirs and after his death, entire land was divided into three equal shares. It was contended that each co-owner is cultivating his land which came to his share and that total holding of the petitioner is below the ceiling area of 8A. It was contended that though their father has expired, they were never served with any notice and therefore, they could not file any objection under Section 5 to any of the notification issued by the respondent under Sections 4 and 6 of the Act; they came to know about acquisition only when notice dated 13th June 1989 was issued by the Land Acquisition Officer calling upon them to attend his office and collect the amount. On these averments, this Court proceeded to consider the contention. With the backdrop of the fact that the parties were Mohammedan, the Bench considered provisions of Mohammedan Law in para No. 6, it is observed :
"6. As far as the second point canvassed by advocate for the petitioners that the total holdings of the petitioners were not above the prescribed ceiling of 8 acres, it must be stated that the petitioners admittedly are Muslims, and admittedly, there is no system of joint family amongst Muslim community. The position is now well settled. The law is very clear on this point that as per the provision of Mohammedan Law, the heirs of the deceased Mohammedan hold the property as tenants-in-common, each having specified share therein. There is judgment of the Division bench on this very point, which has clarified this legal position. (Writ Petition No. : 1510/86), decided on 31st August, 1993, Coram Dr. B. P. Saraf and Mr. S. M. Jhunjhunwala, JJ.).
23. I fail to understand how the ratio of Division Bench judgment is applicable in the present case. In that case, admittedly, the father of the petitioner died on 9th October, 1970 and it was the case that after his death, his three sons divided the land and they were cultivating the land separately. Therefore, in my judgment, the judgment of Abbas Abdul Mhaiter's case is not applicable to the facts of this case, and, as such, is not of any help to the landholders to contend that their separate holding should be considered, while making declaration in favour of the tenant.
24. The second judgment which is relied on by learned Advocate Smt. Patil, is Abu Talib's case (supra). The case of Abu Talib was under the Maharashtra Agricultural Lands (Ceilings on Holdings) Act, 1961. The facts of Abu's case are Abu was declared as surplus holder to the extent of 72A 30G of the land under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 and, on appeal which was confirmed by the Tribunal and that judgments were subject-matter of petition before this Court. The point which was agitated before this Court was that all the lands held by the petitioner No. 1 were cultivated by petitioner No. 1 along with other petitioners as heirs and legal representatives of Syed Hanif who died 35 years before the commencement of the Ceiling Act. It was contended that the family of the petitioner has been cultivating the land as tenant of the land belonging to one Prakashnath Guru which were held by Papa Miya, permanently and thereafter Papamiya's son Syed Hanif and the petitioner as heirs of Syed Hanif. In the disturbance of Police Action, 1948 all the lands held by the petitioner's family were taken by Atiyat Department of the Hyderabad State and the land was restored to the petitioner and all petitioner's in November 1959, as such, each heir of deceased was entitled to share in the lands. On this aspect of the matter, the learned single Judge has observed thus:
"The learned Revenue Tribunal acted without jurisdiction in treating all of them as member of single unit. It is well settled that Muslim heirs under the Mohammedan Law, succeeds to the estate as (tenants-in-common in specific shares, See page 31 para 41 of Mulla's Principles of Mohammedan Law 17th etc.). In the present case, all the petitioners are agreed that they are all shareholders and therefore there is no question of ousting and it cannot be said that the petitioner No. 1 Abu Talib is holding all the lands as owner as required under Section 2(14) of the Ceiling Act, under the Mohammedan Law, the respective shares of the heirs are vested in the co-heirs and none of them can be said to be in possession as owner of the other shares. It is undisputed that if the shares of all the petitioners are taken into consideration, the petitioner No. 1 cannot be declared as a surplus holder."
25. In my judgment, observations quoted above are not at all helpful to support the contention of the learned Advocate Smt. Patil. It may be true that on death of a Mohammedan, his heirs succeed to his estate with definite share, but the same principle cannot be applicable when the statutory ownership is to be transferred in favour of the tenant. The relevant date to consider the holding is the date when the provisional list is published but transfer of ownership may be on or after the notified date which in the present case, is after death of Abdul Quadar which will not adversely affect the right of the tenant to purchase the land.
26. As I stated earlier the judgment of the Division Bench in Abdul Sakur Dadamiya 's case, being directly on the point involved in this petition, is binding on me; to which I have to follow; on the other hand the two judgments relied on by Smt. Patil, are not applicable to the facts of this case. It is to be noted that the Division Bench positively observed that in case of death of land-holder if there is division by metes and bounds and the heirs are in separate possession, then only in such case, the holding of each heir is to be considered, for the purpose of conferring ownership on the tenant. This is not the case in the present petition. It is to be noted that the heirs of deceased-Mohammedan succeeded to the property of the deceased as per the definite shares prescribed under the Mohammedan Law. Therefore when the provisional declaration was made in favour of the tenant the landlords have no right or share in the property of deceased-Abdul Quadar and the land remained undivided even after 5th May, 1957. Therefore, in my judgment, all the three authorities below have committed patent error appearing on the face of record in holding that the family holding of each of the heirs of deceased Abdul Quadar is to be taken into consideration, which making a declaration in favour of tenant under Section 38-E of the Act.
27. Now, coming to the question regarding scope of this Court in entertaining the Writ Petition filed under Art. 227 of the Constitution. Smt. Patil, learned Advocate relied on the law declared by the Apex Court in Ranjeet Singh and Surya Dev Rai (supra). Thus, I have to find out what are the parameters of the writ jurisdiction of this Court in entertaining the petition filed under Art. 227 of the Constitution of India.
28. Article 227 of the Constitution gives this Court the power of superintendence over all Courts and Tribunals. The supervisory jurisdiction extends to keeping the subordinate Tribunal within the limits of the authority and to see that they obey the law. The power under Article 227 are wide and can be used to meet the ends of justice. A writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law if (i) the error is manifest and apparent on the face of the proceedings, such as when it is based on clear ignorance or utter disregard to provisions of law; (ii) a grave injustice or gross failure of justice has occasioned thereby. Similarly, this Court in dealing with the petitions filed under Article 227 cannot act like Appellate Court, re-appreciate or re-evaluate the evidence on record and if such error which is self-evident; even in cases where two views are reasonably possible in the same material, the findings arrived at cannot be called as a patent error. Keeping the above parameters as deduced from Surya Dev Rai and Ranjeet Singh's case, I had to judge the contention. In my judgment, the findings on the point that while conferring ownership on the tenant the family holding of each heirs of deceased Abdul Quadar is to be taken into consideration, thus, runs contrary to mandate of the statute itself and runs against the legislative intention in enacting the Act. Hence, in my judgment, even without appreciating the evidence on record which parties laid to prove that Abdul Quadar died on 5-5-1957 is accepted as it is, but that finding on the date of death will not alter the position which stood when the provisional declaration was made i.e. the time prior to his death. As such, in my judgment, the authorities below, erroneously and ignoring the provisions of Sections 34, 38, 38-E of the Act and Rules 4, 5, 6 of the Rules cancelled/set aside the declaration made in favour of the tenant. As such, viewed the point in right perspective the decision of the authorities that the individual holding of each of the heirs of deceased Abdul Quadar required to be considered for considering the grant of ownership on the tenant under section 38-E of the Act, though concurrent need not detain me from deciding the petition in favour of the petitioner by upsetting that finding which in my opinion, if allowed to stand will cause great injustice to the tenant and deprive him his valuable right to become owner of the land.
29. In my judgment, apart from foregoing reasons, the petition is required to be allowed as the appellate authority has entertained the appeal which was not maintainable and which was hopelessly time-barred. It is the case of the landlords and it is borne by the record, that the landholders have challenged the declaration made in favour of the tenant under Section 38-E of the Act and prayed for cancellation of it. The question whether appeal against declaration was maintainable or not, was considered by this Court in the case of Bharatlal Hemraj v. Kondiba Jadhav reported in 2001 (3) Mh.L.J. 280. The learned single Judge of this Court has held that the declaration under section 38-E is not a decision or order within the meaning of Section 90 of the Act; hence no appeal in the circumstances is acceptable. No doubt, such a contention was not advanced before all the three authorities by the parties. But once this Court rules that the declaration under section 38-E is not appealable order entertaining the appeal by the Dy. Collector or, for that matter, confirming the order by the Tribunal in revision thus, cannot be called to be legal one. It is, therefore, when the original appeal itself was not maintainable, all the proceedings pursuant to it and the subsequent orders of remand, in my judgment, are without jurisdiction. One more aspect is to be noted; even assuming that the appeal was maintainable, the landholders have challenged the statutory declaration made in 1957 by filing an appeal in 1971 i.e. 14 years. On this count also the appeal should have been dismissed by the Dy. Collector as the appeal itself was hopelessly time barred and the Appellate authority has committed manifest error in entertaining the belated appeal.
30. So far as the contention of Smt. Patil, learned Advocate for landholder, that before declaration, no notice is given to the land-holders therefore, the declaration is bad, in my judgment this contention is not available to the petitioner as in the lifetime of Abdul Quadar, the provisional declaration was made, nothing is brought on record that Abdul Quadar has raised an objection to the provisional declaration. Even reading the Rules which are referred to above, in my judgment, the rules do not contemplate any personal notice to the landholders; but nonetheless a detailed procedure is prescribed to publish provisional list, give that list due publicity, invite objection and hear the objectionist and then to vary or confirm the provisional declaration, as such, there is no necessity to have individual notice to the parties concerned, rules does not contemplate such notice. Therefore, this contention is also not available to the land-holders. According to the rules, the publication of list by the ALT and its publication is a notice to all the interested persons. Therefore, in my judgment, no separate or individual notice to landholders or the interested persons is necessary when the ALT is processing to make the provisional declaration as final. Therefore, the contentions of Smt. Patil, learned Advocate can on all counts are not legal and valid one. Hence rejected.
31. At the hearing of this petition, Shri Shinde, learned Advocate has stated that the tenant had deposited the entire purchase price and the certificate of ownership under Section 38-E is also issued. If this is so, then the petitioners will continue to remain in possession as owners thereof.
32. Thus, for the reasons stated above, on merit as well as on maintainability of the appeal, the orders passed by all the three authorities will have to be quashed and set aside by issuing writ of certiorari. Accordingly, Rule made absolute in terms of prayer "C".
33. The parties to bear their own costs.